On behalf of the UK Anti-SLAPP Coalition, the co-chairs wrote to the Solicitors Regulation Authority (SRA) seeking answers to a number of outstanding questions regarding its decision-making process as it relates to SLAPPs. This follows media and public attention arising from its decision to discontinue a complaint brought by Eliot Higgins against the law firm, Discreet Law. The complaint was based on the firm’s representation of Russian warlord Yevgeny Prigozhin, who sued the Bellingcat founder for tweets he posted connecting Prigozhin with the Wagner Group. For more information about the case click here.
Following correspondence between the SRA and Rt. Hon Baroness Stowell of Beeston MBE, as well as a recent statement published on its website, the regulator has cast more light on its decision-making processes, which led to Higgins’ complaint being discontinued. Given Discreet Law’s conduct, the SRA’s assessment that they did not act improperly raises more questions than answers.
The letter, which can be read here, outlined four key concerns and questions that we believe the SRA must engage with to ensure that they maintain the trust of the public, SLAPP targets and legal professionals when it comes to tackling SLAPPs.
- The SRA’s letter to Baroness Stowell states: “Our rules do not require us to define a case as a SLAPP or not; it is legislation that gives powers to the courts to strike out SLAPPs claims, and to protect parties from cost and other consequences”. This point is also repeated in the SRA’s statement, which states that its role “does not depend on defining a case as a SLAPP.” While we accept that the SRA does not have the power to strike out claims and is not required to define a case as a SLAPP, it cannot be the case that the SRA is precluded from identifying a case as a SLAPP. This would provide much-needed clarity to the legal profession on what constitutes a SLAPP, particularly when the SRA’s own Warning Notice on SLAPPs, as updated on 31 May 2024, reminds regulated professions of their obligations, and defines features common to SLAPPs. Specifically it states “you should identify proposed causes of action or behaviours which comprise a SLAPP or abuse of the litigation process, and decline to act in this way”.
- As previously demonstrated through leaked documents, it was evident that Discreet Law was, at the very least, aware that the Proceedings could constitute an abuse of process. These documents showed, for example, that Discreet Law was instructed to monitor Mr. Higgins’ Twitter account in order to find a jurisdictional basis to sue him in the UK. It is difficult to reconcile such conduct with their obligation to “explore [their] client’s motives and intentions for pursuing a claim, and make sure that there is a proper basis for doing so”. Also relevant here is that Mr. Higgins merely tweeted links to three articles written by others and, rather than engaging with those publications (or indeed Bellingcat, the organisation founded by Mr. Higgins), Mr. Prigozhin opted instead to pursue Mr. Higgins personally. On this basis, it is difficult to reconcile the firm’s conduct with the SRA’s decision that it did not act improperly.
- It is incorrect to assert that only events after September 2022 clarified Mr. Prigozhin’s role within the Wagner Group. When the Proceedings were issued, he was subject to sanctions from the UK, the EU, and the United States of America. The EU’s sanctions, imposed as early as October 2020, directly linked these measures to Mr. Prigozhin’s role in financing Wagner Group’s activities in Africa, where it has been responsible for numerous atrocities. Any reasonable law firm doing even the most cursory on-boarding due diligence would have been aware of the connections between Mr. Prigozhin and Wagner Group well before 2022, and it is difficult to understand what “independent research” Discreet Law could have undertaken that would have led them to a conclusion different from that of the UK, US, or EU sanctioning authorities, or indeed, from the world media’s reporting and expert commentators on Wagner Group.
- The SRA’s letter to Baroness Stowell states: “the merits of the defamation proceedings were tested with specialist counsel who settled the particulars of claim, and the case progressed through the courts until the claim was eventually struck out in May 2022 … the Particulars of Claim set out the reasons why Discreet Law issued against Mr Higgins and selected England as the appropriate jurisdiction; this was subject to careful consideration and advice from Counsel”. Can you confirm whether the SRA reviewed the written advice from counsel referred to in your letter, or did the SRA conclude that the Proceedings did not constitute a SLAPP simply because Discreet Law took advice from counsel? Can the SRA confirm whether the same counsel was then hired to represent Mr. Prizoghin in court?
Beyond these explicit areas of concern, our letter to the SRA also reiterates our concerns about how the SRA communicates the decision-making process that underpins its work. It should not require an intervention from a parliamentarian for the public to receive the necessary information about its work. For a regulator to retain public trust it must be seen to be working. If the decisions seem to emerge from a black box, it is going to be very difficult for the SRA to successfully communicate what behaviours it believes fall within its definition of SLAPPs.
Despite these concerns, we are in full agreement with the SRA on one important point. In its letter to Baroness Stowell and its website statement, published on 24 March, the SRA repeated its belief that regulation cannot solve the issue of SLAPPs alone. The SRA stated that “a robust legislative solution…is the principal way to reduce opportunities and incentives for claimants to abuse the system” and that the “main way to address the problem of SLAPPs is through a robust legislative solution that gives the courts more powers.” This is why we have always called for the creation of a universal Anti-SLAPP Law. While this would protect everyone who speaks out in the public interest, it would also establish a much-needed benchmark for the SRA and the firms it regulates. The letter and website update from the SRA demonstrates the urgent need for clarity and what happens when we are left without a statutory standard. Regulation of law firms is a vital part of the broader work needed to stamp out SLAPPs, but the SRA’s decision on the SLAPP action against Eliot Higgins reiterates the central point clearly: We all need an Anti-SLAPP Law without delay and the Government’s resistance will only entrench uncertainty.
Eliot Higgins, the founder of Bellingcat said:
“The fact remains that to any reasonable person, an individual sanctioned by the UK, EU, and US government for their relationship with Wagner claiming social media posts making the same statement would damage their reputation and taking legal action against the individual sharing that information is a clear abuse of the British legal system. I have no confidence in a system that would allow such a thing to happen, especially when neither the government nor SRA seem to want to take responsibility for preventing something similar happening in the future.”
The Co-chairs of the UK Anti-SLAPP Coalition said:
“The SRA’s work on SLAPPs has been an important step towards robust anti-SLAPP protections in the UK. However, its decision to discontinue Eliot’s complaint and the absence, until now, of any explanation has sowed further confusion and doubt in a manner that threatens to undermine public trust in the SRA and its work. While we disagree with its decision to discontinue Eliot’s complaint against Discreet Law, we agree with the SRA that regulation on its own is not enough to stamp out SLAPPs and that a universal anti-SLAPP Law is what everyone needs.”
Megan Davis, Associate at Spotlight on Corruption said:
“This case not only highlights the urgent need for legislation to ensure the courts will stop SLAPPs from getting off the ground, but also exposes the gap in holding law firms to account for enabling abusive litigation. For those concerned about SLAPPs, the outcome of the SRA’s investigation is extremely difficult to square with the basic facts of this case. This means the SRA needs to be much more transparent and proactive in explaining how it is handling SLAPP complaints and why it considers regulatory action to be out of reach in high-profile cases like this. This would not only send a strong signal to the legal profession but also help build public confidence that the SRA is serious about holding firms to account where they act as guns for hire in abusive litigation against those who scrutinise the powerful and expose corruption.”