On 27 June 2023 a remarkable and little debated Government amendment to the Economic Crime and Corporate Transparency Bill was approved by the House of Lords without a division.  It introduces wide ranging and unclear changes relating to what have become known as “strategic litigation against public participation” (“SLAPPs”) addressed to the law of defamation.  The amendment had been published only the week before and was not the subject of any consultation, white paper or select committee report.

This amendment is far reaching and does not appear to have been properly thought through.  It means that, if a claim is found to be a “SLAPP”, it will be struck out unless the claimant can show that they are likely to succeed overall in the action and, in any event, the claimant cannot ordinarily recover costs (win or lose).   While abusive litigation of any type is to be deplored, this amendment risks increasing legal costs and uncertainty and inhibiting valid legal claims.

The Amendment

The amendment comes in the aftermath of the media and political furore regarding supposed SLAPPs which arose in early 2022 shortly after the Russian invasion of Ukraine and the focus on libel claims brought by Russians in the English courts.  There then followed a Government ”Call for Evidence” [pdf] on SLAPPs which contained no definition of the term.  The Government’s  response to the evidence [pdf] proposed that there be a three part process: (i) a definition of public interest; (ii) a set of criteria for the court to determine whether a case is a SLAPP; (iii) a merit test.  The amendment takes a slightly different course.

The amendment inserts two new clauses into the Bill.  The first, clause 193, is entitled “Strategic litigation against public participation: requirement to make rules of court”.  The second is clause 194 which is entitled “Meaning of SLAPP claim”.

In summary, clause 193 mandates the making of new civil procedure rules which must:

  • Contain provision for ensuring that a SLAPP claim may be struck out if the claimant has failed to show it is more likely than not the claim would succeed at trial.
  • Include a provision that, in a SLAPP claim, the defendant cannot be ordered to pay the claimant’s costs unless the defendant’s misconduct justifies such an order.

The definition of a “SLAPP claim” is in new clause 194.  It has four elements set out in clause 194(1):

(a)  The claimant’s behaviour in relation to the matters complained of in the claim must have the effect of restraining the defendant’s exercise of the right to freedom of expression

(b)  Any of the information that would be disclosed by the exercise of the right has to do with economic crime

(c)   Any part of the disclosure would be for “a purpose related to the public interest in combating economic crime;

(d)  Any of the behaviour of the claimant in relation to the matters complained of in the claim is “intended” to cause the defendant harassment, alarm or distress, expense or any other harm or inconvenience, “beyond that ordinarily encountered in the course of properly conducted litigation”.

By clause 194(4), in relation to (d) above the court may “in particular” take into account

  • Whether the behaviour is a disproportionate reaction to the matters complained of, including whether the costs incurred by the claimant are “out of proportion” to the remedy sought;
  • Whether the defendant has access to fewer resources to defend the claim than another person against whom the claim could have been brought;
  • A relevant failure or anticipated failure to comply with pre-action protocol, rule of court, practice direction or rule or recommendation of a professional regulatory body.

Further guidance as to what the “failure or anticipated failure” can relate to is provided in clause 194(5) and includes “use of dilatory strategies”, “nature or amount of material sought on disclosure”, “the way to respond to requests for comment or clarification”, “the use of correspondence” and “making or responding to offers to settle”.

Economic crime

From the perspective of the law of defamation, it is a curiosity that the amendment applies the designation of “SLAPP” only to cases where the information that would be disclosed “has to do with economic crime”.   That means that if the accusation was purely one of murder or sexual assault say, it could not be a SLAPP in any circumstance but an accusation of shoplifting could be.

The reason for is that the amendment had to fit into an Economic Crime Bill – which just happened to be a convenient legislative vehicle available at the moment – and so had to come within the long title of the Bill.  The suggestion appears to be that the terms of the amendment will be extended by subsequent legislation to all types of information in due course.

However, that does mean that in the meantime there would be a perverse incentive on any legally knowledgeable journalist to seek to bring any potential article within the definition of a SLAPP in the amendment.  So the journalist may for example artificially refer to some alleged economic crime on the part of the subject of the article simply to avail themselves of this potential procedural advantage in any ensuing libel claim.  It is hard to see how such perverse incentives for slanted reporting serves any proper public interest,

What is a “SLAPP”?

The first three “elements” of the SLAPP definition are likely to be satisfied in a large proportion of defamation cases where allegations of dishonesty are made:

  • Any defamation action will, inevitably, have the effect of restraining the exercise of the right to freedom of speech.
  • Any information about alleged dishonesty is likely to “have to do with” economic crime. The relevant offences are listed in Schedule 11 and cover all forms of theft, fraud and false statements.  By clause 194(3), information “has to do with” economic crime if the defendant reasonably believes there is evidence of economic crime or that the disclosure of the information would facilitate an investigation into economic crime.
  • If the information “has to do with economic crime” in the above sense it is difficult to see how the publication of such information would not be “for a purpose related” to the public interest in combating economic crime. The publisher would be exposing suspected crime or facilitating an investigation.

So, the crucial question in most cases is likely to be simply whether or not the behaviour of the claimant is intended to cause the defendant matters such as “expense” or “inconvenience” which are “beyond that ordinarily encountered in the course of properly conducted litigation”.

It seems likely that the Courts will construe  “intention” here objectively: meaning “having the effect of”.  This is not least because otherwise the additional test of the behaviour in question being “beyond that ordinarily encountered in the course of properly conducted litigation” would appear to be otiose.  To undertake behaviour which had the specific intention of imposing distress, expense etc on the other side and with no other purpose would seem in and of itself to beyond that ordinarily encountered in the course of properly conducted litigation.

It is obvious that these provisions introduce serious and unavoidable uncertainty into the assessment of what constitutes a SLAPP. Almost any conceivable step taken by a claimant in litigation is likely to cause defendants distress, expense, inconvenience and so on at least to some extent. There are no clear established standards as to what level of these consequences is “ordinarily encountered in the course of properly conducted litigation”.  Different judges will have different views.  Those views will also differ as to whether costs are proportionate to the remedy and whether or not there has been a relevant failure to comply with the protocols and rules referred to.

The result of the amendment is likely to be that in many defamation cases where the claim concerns an allegation of dishonesty the defendant will seek to have it classified as a “SLAPP” – complaining about costs, correspondence, expense and so on.  The defendant’s rewards for a successful application are very high: at the least protection against having to pay the claimant’s costs and, at best, striking out of the claim if the claimant cannot show that the claim is “likely to succeed”.

Practical Implications

It is important to consider the practical implications of these new provisions for defamation litigation.  It should be borne in mind at the outset that while some of the claims which satisfy the first three elements of the definition may be “abusive” and improper, some will be good claims where the defendant has wrongly and irresponsibly published defamatory allegations of “economic crime”.

A claimant who has been falsely accused of wrongdoing must now tread on eggshells in proceeding with their claim: if they or (or their solicitor) do anything which a judge regards as “beyond that which is ordinarily expected” they risk having their claim classified as a SLAPP.  A solicitor who writes an overly aggressive letter or who (through lack of experience or inadvertence), serves what is seen as an overzealous Request for Further Information or fails to comply with a protocol or rule of court puts their client’s claim at serious risk.  And it is to be noted that the test is whether the behaviour is simply beyond the ordinary, not say substantially or excessively beyond the ordinary.  Potentially, if the claimant’s behaviour is just one tick above what a judge subsequently considers to be ordinary, the action may be classed as a SLAPP.

Take as an example, the recent case of Packham v Wightman ([2023] EWHC 1256 (KB)) in which the prominent naturalist recovered £90,000 libel damages  in respect of publications which accused him, inter alia, of fraud and dishonesty. The action which took over two years to come to court and was only resolved after a 7 day trial. The defendants advanced (unsuccessful) public interest defences. The defendants were individuals who doubtless experienced serious harassment, distress, expense and inconvenience as a result.  Under the rules provided for by the new amendment they may well have applied to have the claim classified as a SLAPP.  This application would have depended not on the (undoubted) legal merits of the claim – which are not relevant to such an application – but on questions concerning matters such as the nature of the pre-action correspondence, the breadth of the disclosure requests and whether or not the claimant could have sued someone with more money.

If the SLAPP application had been successful then there would perhaps have been a risk that the claim would have been struck out.  This is because the “public interest” defences on which the defendants were relying depend on a factual examination of the steps taken by the defendants to investigate prior to publication.  This is not something that will, usually, be within the claimant’s knowledge so that the claimant may have very considerable difficulties in proving to the court – as he would be required to do – that he is “likely” to succeed a trial.   But more importantly, the claimant (although he won) would not have recovered his costs unless he could demonstrate “relevant misconduct” by the defendants.

It is important to bear this kind of example in mind as much of the discussion of SLAPPs assumes that all legal actions against journalists are oppressive claims designed to shut down public debate, without serious legal merit. Some claims doubtless fall into this category.  But some do not.  This amendment will, inevitably, catch both types of claim.  It will increase the cost of libel actions because (as has occurred under similar provisions in Canada), “SLAPP applications” will be brought in a substantial proportion of cases and they will work serious injustice some good claims, where claimants will be deprived of their costs or struck out despite having meritorious legal cases.

It is noteworthy that there are no equivalent sanctions for defendants in defamation cases who are guilty of misconduct in the proceedings.  A defendant can incur disproportionate costs, breach rules and protocols, make excessive disclosure applications and so on without facing new procedural hurdles.   It is true that sometimes in defamation actions there can be a disparity in resources favouring the claimant.  But sometimes the reverse can be true with for example an impecunious claimant suing a well resourced media organisation.  The amendment does not cater for any improper behaviour on the part of the better resourced party in that situation.  The Article 10 rights of publishers are preferred to the Article 8 rights of those they write about.

It is difficult to see how these amendments strike a proper balance between the Article 10 right to freedom of expression and the Article 8 right to reputation.  This is a Dangerous Dogs Act of defamation law: hasty legislation where the consequences have not been thought through.