In March 2022, the UK Government launched a consultation on proposals to tackle the use of Strategic Lawsuits Against Public Participation – widely known as SLAPPs – in England and Wales. The proposals included changes to the law to define what a SLAPP is, and to introduce separate costs regimes and a potential cap on legal costs in such cases; and for reform of court procedures.
There is currently no consensus on what defines a SLAPP. But a case said to be a SLAPP generally involves a wealthy party, such as a Russian oligarch or big company, as the claimant suing a person who, or organisation which, does not have access to substantial funding. In such a case, the defendant therefore faces an uphill battle to fund the costs of the defence. Campaigners and media organisations have defined SLAPPS as legal actions, in which the claimant usually claims to have suffered defamation or intrusion into privacy, where the claimant’s primary motive is not necessarily to gain damages but to target, harass and silence the defendant, such as a journalist who has published material probing the business activities of the claimant.
When announcing the consultation, the Government said: ‘SLAPPs can be characterised as an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means. These actions are typically initiated by reputation management firms and framed as defamation or privacy cases brought by individuals or corporations to evade scrutiny in the public interest.’ The Government’s call for evidence about SLAPPS, in the consultation exercise which closed in May, was followed by a House of Commons Justice Committee evidence session on the issue.
In July 2022, the Government published a report including its response to the consultation. In the report’s foreword Dominic Raab, as Deputy Prime Minister, Lord Chancellor, and Secretary of State for Justice, said: ‘Typically used by the super-rich, SLAPPs stifle legitimate reporting and debate. They are at their most pernicious before cases ever reach a courtroom, with seemingly endless legal letters that threaten our journalists, academics, and campaigners with sky-high costs and damages.
‘SLAPPs pile on the pressure until investigations into corruption are shut down, and some individuals or corporations are regarded as ‘no go’ zones, because of the risk of legal retaliation’, he said.
In the report, the Government set out how it intends to pursue legislative reform at the earliest opportunity, including by creating a new statutory ‘early dismissal process’ to strike out SLAPPs and so avoid such a case becoming expensive, lengthy litigation. The report said this process would be made up of three parts:
- firstly, the judge will be required to consider if the claimant’s case is against activity conducted in the public interest – for example, against activity by a journalist, campaigner or academic which is investigating financial misconduct by a company or individual.
- secondly, the judge will be required to consider if there is evidence of abuse of process, such as whether the claimant has sent a barrage of highly aggressive letters to the defendant on a trivial matter, with the judge considering a non-exhaustive list of factors as being ‘common hallmarks’ of SLAPPs.
- finally, the judge will be required to review whether the claim has sufficient merit – specifically, if it has a realistic prospect of success.
The report said that under the proposed reforms, if all three criteria applied to a case it would be dismissed early, whereas a case satisfying the first two criteria but having some evidence of merit could still proceed but would be subject to ‘special measures’. The report did not recommend major reform of the Defamation Act 2013, suggesting a ‘cautious approach’ to such matters, but said this will be kept under review. The report also recommended a formal costs protection scheme for a case identified as a SLAPP. It said the responses to the consultation provided ‘ample evidence that costs exposure is the single greatest factor overwhelming and intimidating opponents in SLAPPs cases’.
While political pressure about SLAPPs was already building, they came under more intense scrutiny following Russia’s invasion of Ukraine, as some of those accused of bringing SLAPPs are Russian oligarchs. One recent high-profile example of a SLAPP is the case brought against Financial Times journalist Tom Burgis, who was sued – along with his publisher HarperCollins – over his book Kleptopia. The Eurasian Natural Resources Corporation Limited (ENRC), a former mining company with operations in Kazakhstan and Central Africa which was headquartered in London, contended that the meaning of passages in Kleptopia was that the ENRC had three people murdered to protect its business interests and that there were reasonable grounds to suspect it was involved in the poisoning of another individual. However ENRC’s claim for libel was summarily dismissed at a preliminary stage by Mr Justice Nicklin, who found that the words complained of did not reflect adversely on ENRC. The judge said: ‘There is an unreality at the heart of the Claimant's pleaded meanings. They attribute, to a corporate entity, actions, and a motive, that it simply cannot have. Only individuals can carry out acts of murdering or poisoning. Only individuals can be motivated to do so to protect some business interests. A company cannot.’
The Government’s report acknowledged that there are already some mechanisms for judges to throw out cases at an early stage, in certain circumstances.
There is some dispute over whether other high-profile cases constitute SLAPPs, including a legal action by a number of oligarchs, including Roman Abramovich, against the journalist Catherine Belton and her publisher, which was settled after minor amendments were made to her book Putin’s People. Freelance journalist Carole Cadwalladr referred to a libel action brought against her by Leave.EU donor Arron Banks as a SLAPP, but Mrs Justice Steyn said in her ruling on the case that it was not (see the Additional Material for chapter 23 for more details on this case).
The full report on the Government’s consultation and response can be found here: https://consult.justice.gov.uk/digital-communications/strategic-lawsuits-against-public-participation/results/slapps-call-evidence-response.pdf
Magistrate given the power to jail for up to one year for a single offence
In May 2022 magistrates were given the power to jail for up to one year a defendant who has been convicted of a single offence (if the offence can in law be punished by a jail term), whereas the previous maximum sentence which magistrates could impose was six months for a single offence
The Government hopes that this change in the law will mean fewer cases are sent to Crown courts for trial or sentence, because the magistrates’ courts will now be able to sentence in a greater range of cases involving serious charges. It is measure to reduce the backlog of cases in Crown courts, caused by the pandemic, which is delaying many trials and sentencings there. The possibility of magistrates being given this power has existed since 2003, when enabling law was created by a Labour Government.
The Judicial College has provided all magistrates and legal advisers with training in respect of the new power. Critics say that some magistrates may misuse it, and that there will be an increase in appeals to the Crown court against the severity of magistrates’ sentencing decisions.
But Bev Higgs, National Chair of the Magistrates’ Association, said: ‘The Magistrates’ Association has long called for this measure; it will lead to more timely justice that can only benefit all court users - defendants, complainants and witnesses.’
‘We are pleased that the government has placed its confidence in the magistracy and introduced this power, alongside other measures, to ease court delays.’
New rules on remote observation of court cases
As explained in ch. 15 of McNae’s, an amended version of section 85A of the Courts Act 2003 has been created by Parliament to give a wider range of courts, including tribunals, the power to authorise transmissions of their proceedings, either to ‘designated premises’ for the public to see and/or hear the transmission, or to individuals, such as journalists, permitted to observe the transmission from a remote location, such as their office or home, using their computers or smartphones to link to the transmission online. The new section 85A also enables a court to authorise such transmissions of its courtroom (‘physical’ or ‘hybrid’) hearings, whereas the previous version of the section only enabled the specified courts to do this for ‘virtual’ hearings – for context see 15.14.4 in McNae’s, and 12.1.8 about the ban on unauthorised recording of any sound of image from the transmission or of anyone observing it.
On 28 June, the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (SI 2022/705) became law. These are the new rules which have brought the new section 85A into force in England and Wales.
The rules say that before making a direction (an order) under section 85A(2), to authorise such a transmission in a particular case, the court must be satisfied that (a) it would be in the interests of justice to make the direction; and (b) there is capacity and technological capability to enable transmission, and that giving effect to the direction would not create an unreasonable administrative burden.
For detail of what these rules say about matters which the court must consider before making such a ‘direction’, and for other detail about the rules, see a forthcoming update for ch. 15 which will be posted on www.mcnaes.com.
Correction to page 105 of McNae’s
On page 105 of McNae’s the reference to ‘a change in the Civil Procedure Rules’ should be to ‘a change in the Criminal Procedure Rules’.