The Bill is poorly drafted and has come under attack from both sides of the “SLAPP” debate.
On 10 April 2024 the “Anti-SLAPP” coalition wrote to the Secretary of State of Justice [pdf] complaining that, “If enacted in its current form, the Bill risks becoming an ineffective, inaccessible, and ultimately redundant legal instrument”. Two particular complaints were raised:
- That the definition of a SLAPP in clause 2(1) requires a court to make a subjective judgment as to the intent of the claimant.
- That the definition of “public interest” in the Bill should be “refined”.
In relation to the first point it is suggested that the subjective test should be replaced by an objective test. Although the letter calls for the government to “support amendments”, none are proposed. These may have been sent privately to Government for consideration.
On 17 April 2024, The Society of Media Lawyers, wrote to the Lord Chancellor (that is, the Secretary of State of Justice) in response to the Anti-SLAPP coalition letter [pdf] Their concerns included the following:
- That under the Bill a claim could be designated a SLAPP on the basis of a single misstep by a claimant.
- That under the Bill a “SLAPP claim” can be struck out unless the claimant shows it is more likely than not the claim will succeed – which would lead to meritorious claims where the facts are unclear at an early stage being struck out.
- That the Bill will miss its intended targets – wealthy individuals trying to bully individual journalists, who do not care about costs sanctions and will employ sophisticated lawyers who will ensure their claims do not give rise to issues beyond those “ordinarily encountered in the course of properly conducted litigation“. In reality the Bill is likely to catch poorly resourced litigants with inexperienced lawyers.
- That much of the wording of the Bill is unclear and is likely to result in myriad satellite litigation of no relevance to the merits of cases.
- That the definition of public interest is, in fact, so broad as to capture almost all definition claims (going well beyond the concerns about “investigative journalism” expressed by Anti-SLAPP campaigners).
The Society of Media Lawyers agree with the Anti-SLAPP coalition as to the difficulties of proving “intention” but point out that removing this requirement (or making it an “objective matter” – inferred from conduct) makes the criteria for designation as a SLAPP extremely broad.
If an “objective” test is used it would mean that an individual who brought a meritorious but uncertain claim in a genuine and honest attempt to vindicate their legal rights could have the claim struck out as a SLAPP because of the Court’s adverse view of the way in which their lawyers had conducted the litigation.
It is important to note that the current Bill is not a new formulation of “Anti-SLAPP” legislation. It is simply a generalised form of sections 194 and 195 of the Economic Crime and Corporate Transparency Act 2023. Those sections – which apply only to claims relating to the disclosure of information concerning economic crime – were introduced at the last minute, without any consultation (see the discussion on Inforrm at the time).
It remains to be seen whether the Ministry of Justice (or Mr David MP) will put forward amendments to the Bill at the Committee Stage.