Today in the Royal Court of Justice, tax transparency expert and lawyer, Dan Neidle challenged the legal threat brought against him and Tax Policy Associates in the first test of the UK’s only anti-SLAPP provisions included in the Economic Crime and Corporate Transparency Act (ECCTA), passed in 2023.
Neidle is being sued for defamation and malicious falsehood by the barrister, Setu Kamal based on Neidle’s reporting on a tax scheme widely promoted by Arka Wealth, which Neidle described as an “aggressive tax avoidance scheme which has no realistic prospect of success”. Neidle highlighted that Kamal was named as Arka Wealth’s “legal partner”, who Arka Wealth said would provide a legal opinion to each of their clients. Kamal said the references to him in the article were false and misleading and told the Coalition that no one had accessed the scheme through him directly or indirectly.
The UK Anti-SLAPP Coalition believes this legal action bears the hallmarks of a Strategic Lawsuit Against Public Participation (SLAPP). Neidle’s reporting as it relates to the conduct of wealth advisers and tax barristers was clearly in the public interest and an act of public participation. Kamal’s flawed attempt to secure an injunction against Neidle, which included breaking court rules as he did not inform Neidle of the application, could have had a severe impact on Neidle’s free expression rights. Further to this, the unparticularised damages Kamal requested, alongside the self-promotional and unenforceable nature of the proposed apology, raise significant points of concern.
The anti-SLAPP provisions of ECCTA are the first acknowledgement of SLAPPs in English and Welsh law, but are limited in scope and flawed in approach. This hearing will be a vital opportunity to analyse how judges and courts interpret the provisions and navigate the new and currently untested powers. The Coalition has long raised significant concerns regarding these provisions and do not believe them to offer the level of protection needed for public interest speech in the UK. As a result, these provisions are not an adequate roadmap for universal protections. The definition of SLAPP is excessively restrictive as it would require the court to identify the intent of the SLAPP filer, as well as the intention behind the ‘economic crime disclosure’ by the defendant. Even the limitation on reporting on economic crime can be easily side-stepped by the claimant if they pursue a claim on a different matter. Any anti-SLAPP mechanism that introduces an unnecessary element of uncertainty into the process will likely create significant satellite litigation and undermine the principle of an early dismissal mechanism.
While the Coalition hopes Neidle can successfully challenge Kamal’s abusive legal threat before even greater costs accrue, we believe universal, accessible and robust anti-SLAPP measures need to be introduced. As it stands, those speaking out in matters of public interest, whatever the subject matter, remain vulnerable to abusive legal threats that unfairly skew our justice system in favour of the wealthy and powerful.