Steps are needed to strengthen and clarify the rules around strategic public involvement prosecutions (SLAPPs), the Law Society of England and Wales said in response to a call for evidence from the Department of Justice.
“Action against SLAPPs is necessary to prevent potential abuses of the administration of justice,” said Law Society President I. Stephanie Boyce.
“There is a lack of clarity on what exactly a SLAPP is. Before exploring the issue, it is important to clarify the parameters of this type of lawsuit. This would ensure that the discussion and ensuing remedies are sufficiently targeted and do not have unintended consequences, such as suppressing freedom of expression or restricting access to justice.*
“Anti-SLAPP efforts should focus on current rules and improving existing court processes and procedures, including exploring methods that would ensure parties operate on an equal footing with respect to costs.”
The Law Society suggests:
- rigorous control by the judiciary to eliminate spurious cases
- make robust changes to existing civil procedure rules
- more rigorous case management by the courts both in terms of case management and cost management, knowing that lengthy processes will inevitably increase costs
- limit the legal costs incurred during a SLAPP dispute by exploring:
- a compensation fund to help less well-endowed parties bring or defend a case;
- whether recourse to legal aid would be feasible;
- fix recoverable costs;
- whether so-called “one-way” transfer of costs would be appropriate in these cases; and
- the courts’ willingness to allow compensation costs
I. Stephanie Boyce added:
“The inequality of arms that often exists between plaintiff and defendant – where one side has more financial resources than the other – really needs to be addressed. Lower costs would benefit both parties.
“Any changes to the current cost system must be made on the basis of thorough research and based on evidence.
“Wider reforms must also be proportionate and evidence-based, and must strike the right balance between freedom of expression – particularly when matters of public interest are at stake – and the right to privacy. , which includes the right to protection of reputation. – which are contradictory elements under the European Convention on Human Rights.
“Lawyers are held to the highest professional standards which set the bar high in preventing inappropriate behavior, while the Solicitors Regulatory Authority has the power to tackle bad behaviour.
“The robust professional rules in place already deal with inappropriate litigation or the threat of such litigation of the type characterized by a SLAPP. So we don’t think there should be any special rules in place to handle this.
“We look forward to working with the UK government as it seeks to resolve the concerning use of SLAPP litigation in England and Wales.”
Notes to Editors
* The four characteristics of SLAPPs include: publishing information that would be in the public interest; exhibits certain behaviors such as abuse of legal process whose primary purpose is to harass, intimidate, and financially and psychologically exhaust an adversary through inappropriate means; is an unfounded claim; and meets the appropriate jurisdiction test.
The Lord Chancellor launched the consultation in March 2022 with the aim of responding to the challenges posed by the growing use of SLAPPs
Read more about the government’s consultation on SLAPPs
Read our response to the consultation in full
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