On 20 July 2022 the Government published its response to the call for evidence on Strategic Lawsuits against Public Participation [pdf] with a Foreword by Justice Secretary, Dominic Raab. This document summarises the evidence on each of the 45 questions posed in the “Call for Evidence” and sets out the Government response to each one. It is a disappointing document which includes no clear concrete proposals and is, in important respects, wholly inadequate.
In the introduction to the section headed “SLAPPs: Conclusions and Plans for Reform” the Government indicates intends to introduce a new “statutory dismissal process” to strike out SLAPPs. This will involve a three part process:
i. A definition of public interest.
ii. A set of criteria for the courts to determine whether a case should be classified as a SLAPP based on one or more of the common characteristics of such
iii. A merit test (see paragraph 257).
The proposal is that a public interest claim, classified as a SLAPP and failing the merit test would be dismissed while a SLAPP claim with merit would be permitted to proceed but subject to special measures (paragraph 264).
The Response indicates the Government will pursue other reforms based on “the statutory definition” – focused on a formal costs protection scheme (paragraph 258).
So far, so good. A proposal along these lines has been made by a number of commentators and might provide some kind of framework for addressing any “SLAPP” issues which arise in the future.
But the devil is in the detail. Unfortunately, none is provided in the remainder of the document. The section entitled “Legislative Reforms” does not propose a statutory definition at all. Instead the crucial paragraph reads as follows:
263. As mentioned above, any definition would necessarily be linked to procedural mechanisms such as an early dismissal process, as this would be the most effective way of limiting the threats posed by costly and time-consuming litigation. To that end, the Government proposes a three-part test to identify a SLAPPs claim that would be subject to early dismissal: that it has some features of an abuse of process, which would be set out in an illustrative non-exhaustive list of factors that are common hallmarks of SLAPAPs litigation, for example (but not limited to):
i. sending a very large number of highly aggressive letters on a trivial matter;
ii. satisfying that a case relates to a public interest issue, for example (but not limited to) investigating financial misconduct by a company or individual;
iii. that it has some features of an abuse of process, which would be set out in an illustrative non-exhaustive list of factors that are common hallmarks of SLAPAPs litigation, for example (but not limited to) sending a very large number of highly aggressive letters on a trivial matter; and
iv. has insufficient evidence of merit to warrant further judicial consideration, for example where a case has no realistic prospect of success.
This paragraph is a mess. It appears to have been overlooked by the proof reader. It introduces a hitherto unknown acronym “SLAPAP” – which does not appear elsewhere in the document and appears to be a typo for “SLAPP”. The underlined passage is repeated – meaning that a three part test is suggested, followed by a list of four points. Presumably the first occurrence of this passage should simply be deleted.
But the problems with this attempt at providing substance are more fundamental
(1) No “definition” of public interest (as was suggested in paragraph 257) is provided – or even a non-exhaustive list of matters with only a single example being given “investigating financial misconduct by a company or individual”. What else is to fall within the “definition” of public interest? Is it, for example, to be a wide as the concept of public interest in section 4 of the Defamation Act 2013 which covers matters as diverse as the promotion of animal welfare, the conduct of religious groups, discipline in schools and the correction of prior misrepresentations. Is this wide, inclusive, approach to be used in the SLAPP context? The Response is silent.
(2) No attempt is made to provide any definition of a SLAPP or even a non-exhaustive list of relevant factors. Once again, only one example is given “sending a very large number of highly aggressive letters on a trivial matter”. The terms “very large”, “highly aggressive” and “trivial” are wholly unclear. The apparent implication that a case in which large number of ordinarily aggressive letters were sent about on a trivial matter would not qualify cannot have been intended. What other criteria can be used to distinguish a SLAPP from a proper claim brought to vindicate a right? None are suggested. This is a glaring omission in the context of a document which (as can be seen in relation the proposals in relation to costs) requires a “statutory definition” of SLAPPs.
(3) Most remarkably of all, it appears that the proposal is that a claim would be dismissed only if it had “no realistic prospect of success”. This is remarkable because this is already the test for early dismissal of claims under Part 24 of the Civil Procedure Rules. A Court may give summary judgment against a claimant if “the claimant has no real prospect of succeeding on the claim”. The court must in determining such an application consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success. In other words, the Government appears to be suggesting that SLAPP claims will only be dismissed if they could have been the subject of a successful summary judgment application. In other words, the position in relation to summary dismissal would remain exactly the same as it is now. It is difficult to believe that this was, in fact, the Government’s intention but the Response advances no alternative to the summary judgment test.
The Response makes various points about keeping defamation law and procedural law under review but makes no concrete proposals. It suggests that changes to the costs regime need to be explored without setting out any detail.
The document concludes with this paragraph;
Further to the above, the Government wishes to do more work looking at the possibility of legislating for a Claimant to pay further financial penalties where a claim is found to be a SLAPP. We consider that punitive damages may be a particularly appropriate reform measure in a SLAPPs context, given that they are appropriate for cases where Claimants know there is no or very limited risk of paying significant damages so for any misconduct, making the benefit to them of misconduct, for all intents and purposes, unqualified. That is an aspect of SLAPPs and such an approach can justifiably be sanctioned, not least to deter them and others from acting similarly in the future. This would be part of a later package of reforms (paragraph 281)
The words “given that they are appropriate for cases where Claimants know there is no or very limited risk of paying significant damages” make no sense. “Punitive damages” have never been awarded against claimants – only against defendants who know that there is no or a very limited risk of paying significant damages. In order for an award of “punitive damages” to be made against a claimant the defendant would have to have a “cause of action”. None is proposed.
Overall, the Government’s Response to the SLAPP Call for Evidence lacks detail and substance. If the legislative proposals were fleshed out and implemented it is difficult, on the basis of what is said in this document, to see how they would make any practical difference.