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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Thematic Review
- 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.
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.
