Regulation
Alongside a legislative response, ensuring the relevant regulators establish and enforce robust protections against SLAPPs is a vital step that can tackle the enablers of vexatious legal threats.
A number of different actors are involved in the threatening of SLAPP actions – from solicitors, barristers, PR firms and even, at times, private investigators.
Solicitors Regulation Authority (SRA)
“SLAPPs are a threat to free speech and the rule of the law. Solicitors should act fearlessly in their client’s interest when bringing legitimate claims. They are, however, officers of the court. They must act with integrity and should never abuse the litigation process. This damages our society and public trust in the profession.”
Paul Philip, SRA Chief Executive
The Solicitors Regulation Authority (SRA) is the regulator of solicitors and law firms in England and Wales. It regulates more than 200,000 solicitors in England and Wales.
The stated purpose of the SRA is to protect the public by ensuring that solicitors meet high standards, and by acting when risks are identified. The solicitors’ profession includes single-solicitor practices and huge firms with a global presence and thousands of lawyers. Solicitors also work in the justice system, in government and within companies.
Due to the involvement of solicitors in the sharing of legal correspondence and shaping the pre-action process, the role of the SRA cannot be understated. However, the SRA has been making progress. On 4th March 2022, the SRA mentioned SLAPPs for the first time in its updated guidance on Conduct in Disputes, where it defined SLAPPs and identified features that solicitors should be vigilant in their guarding against, such as:
- making excessive or meritless claims, aggressive and intimidating threats
- otherwise acting in a way which fails to meet the wider public interest principles
- duties to which solicitors must have regard, and which are highlighted in this guidance.
The guidance also goes on to highlight the importance of identifying SLAPPs when guarding against the pursuing of litigation for improper purposes, as a core approach used by this form of legal abuse is making allegations without merit where the sole purpose is to stifle valid public discourse.
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2023 Thematic Review
In September 2022, the SRA set out its ongoing steps to address this issue, which included a thematic review which reported in February 2023, that law firms need to do more on SLAPPs. The review looked at four key issues:
- knowledge and understanding of SLAPPs;
- how firms and solicitors manage risks in handling disputes;
- whether concerns are reported to the SRA; and,
- the continuing competence of those providing dispute resolution services.
Visiting 25 law firms and reviewing 50 files, the SRA found that while firms “had a good general understanding of SLAPPs”, the level of training and knowledge was not consistent across the industry.
Some firms interviewed raised examples of cases they thought might amount to a SLAPP, which are now being analysed by the SRA. According to the SRA, during this review they did not find evidence of SLAPPs in their file reviews.
2024 Thematic Review
On Friday 19 April 2024, the SRA published the findings of their second Thematic Review. This followed a similar methodology to the one published in 2023.
The second review was carried out to identify:
- whether there have been improvements in working practices.
- the steps firms are taking to comply with our warning notice.
To facilitate this, the SRA visited firms that provide legal services in reputation management matters. At each firm, the SRA spoke with 20 heads of department (those with overall responsibility for reputation management matters), and 18 junior fee earner doing reputation management work. They also met with lawyers working in-house at media organisations.
At each firm they also reviewed two files in relation to reputation management matters, so 40 files in total. Crucially, the SRA confirms that it not engage with any firm that they are currently investigating for potential misconduct in that area during a review. This mirrors their review approach undertaken in the first review in 2023. According to the Financial Times, by the end of 2023, the SRA received 60 complaints regarding SLAPPs and that that there were 51 active investigations into potential use of SLAPPs.
Review Findings
Here is a snapshot of the review findings:
- The SRA saw indicators of a SLAPP on one of the 40 files they reviewed, where the conduct of the firm acting on the other side appeared to include, excessive and disproportionate correspondence, and potentially pursuing a meritless claim.
- All heads of department and fee earners understood what a SLAPP is.
- Most heads of department (15) and fee earners (17) and all in-house media lawyers thought SLAPPs are a concern.
- Over half of defendant firms and all in-house media lawyers said they had seen aggressive behaviour from some claimant firms, although they did not believe the behaviour was sufficiently serious to report the matter to the SRA.
For the full review click here
Warning Notice
- Acting as part of a proposed course (or courses) of action (including pre-action) that could be defined as SLAPPs, or are otherwise abusive.
- Seeking to threaten or advance meritless claims, including in pre-action correspondence, and including claims where it should be clear that a defence to that type of claim will be successful based on what you know.
- The target is a proposed publication on a subject of public importance, such as academic research, whistle-blowing or investigative journalism.
- Labelling or marking correspondence ‘not for publication’, ‘strictly private and confidential’ and/or ‘without prejudice’ when the conditions for using those terms are not fulfilled.
