Proposed legislative changes
In March 2022 the Ministry of Justice published a call for evidence addressing SLAPPs, with a commitment to pursue procedural reform to disincentivise the use of SLAPPs by litigants. The Ministry received 120 responses and published its own response in July 2022. Since then, however, there has been little (public) evidence of progress, which has led to the latest push by Labour MPs, journalists and media organisations to put the SLAPP reforms back on the Government's agenda. On 24 November 2022, a failed attempt was made by a Labour MP to add a SLAPP reform rider to the Economic Crimes Bill, and in the following week a coalition of media editors, publishers and lawyers followed this up with a call to hasten an anti-SLAPP law. Whilst the Ministry of Justice responded by saying that the issue was of "utmost importance" and reforms would be introduced "as soon as possible", there is no timetable in place as yet. The Government's agenda has undoubtedly been stalled over the summer with the various changes to ministerial portfolios, although we note that Dominic Raab, the Secretary of Justice at the time the call for evidence was published in March 2022, has recently been reinstated to his former position.
On 28 November 2022, the SRA issued a warning on the use of SLAPPs, with a particular focus on pre-action letters. This move from the SRA had been foreshadowed for some time: see our September briefing on the subject of the SRA's interest in SLAPPs, and the use of pre-action correspondence.
The SRA's warning summarises, in broad terms, the Government's proposed test (as set out in its response to the call for evidence) to identify a SLAPP suit, before outlining how the existing Code of Conduct should apply in the context of a scenario where a client requests a SLAPP-type claim to be issued. The SRA's warning states that it expects practitioners to identify when a proposed cause of action could be a SLAPP and, if such a situation is identified, should "decline to act in this way". The SRA suggests several "red flags" which may aid practitioners in identifying whether a cause of action may be a SLAPP, including (i) identifying the target of the suit (e.g. a journalist or academic), (ii) the nature of the instructions (e.g. if the instructions only relate to "public relations") and (iii) the nature of the strategy (e.g. if a client requests that a cause of action target individuals in circumstances where a corporate entity is the more appropriate defendant ).
The SRA also states that it expects practitioners to consider whether the proposed cause of action is meritless or disproportionate, and for solicitors to take "reasonable steps" to satisfy themselves "that a claim is properly arguable before putting it forward". Finally, the SRA addresses the use of pre-action correspondence in circumstances where a recipient may be vulnerable or unrepresented, including warning against the use of terms such as "private & confidential" and "without prejudice" in circumstances where those terms are in fact unfulfilled.
As we noted back in September, it is interesting to see these parallel efforts to address the use of SLAPPs in this jurisdiction: the Government's approach is to change existing court procedure, whilst the SRA's approach is to address the tactics utilised by some lawyers outside of the courtroom (e.g. in the use of correspondence). These two approaches (i.e. the "hard" approach by the Government and the "soft" approach by the SRA) may prove to be complementary. However, the Government's approach appears to have stalled, whereas the SRA has already put in place measures that require solicitors carefully to consider their role and duties if they reasonably suspect that they are being instructed to facilitate a SLAPP.