After visiting 25 law firms, including those who work on both the claimant and defendant side, the Solicitors Regulation Authority (SRA) has concluded that law firms need to do more to guard against the risks of abusive litigation practices known as SLAPPs. SLAPPs involve wealthy individuals using solicitors and the threat of expensive litigation proceedings to silence legitimate criticism. Examples of this include threatening journalists with defamation proceedings even if the claim has no merit.
The review follows on from the SRA's warning to solicitors issued in November 2022. In that warning, the SRA made it clear that solicitors are expected to be able to identify claims that could be defined as SLAPPs and must decline to act on such matters for clients.
Whilst the SRA review did find good practice amongst a number of firms, with solicitors demonstrating a good understanding of the risks involved in litigation, there were areas in which the SRA found that firms still needed to do better. This included a lack of specific training for junior fee earners on how to conduct fair and appropriate litigation as well as, concerningly, some solicitors not being aware of the SRA's latest guidance on conduct in disputes. The SRA also found three instances where a firm had identified abusive litigation practices by another firm but had failed to report this to the SRA. These findings supported a general theme whereby too many solicitors showed a poor understanding of their professional obligations to report misconduct to the SRA. The SRA has since stressed that " it is important solicitors make us aware of concerns so that we can act to protect clients".
Following this review Paul Phillip, SRA Chief Executive, said that whilst "solicitors should act fearlessly in their client's interest when bringing legitimate claims" they are still "officers of the court….and must act with integrity". Commenting on the 40 live SLAPP related investigations that the SRA are currently looking into, Phillip said that "where we find evidence of misconduct, we will take strong action".
The SRA review follows soon after the Communications and Digital Committee wrote to the Ministry of Justice, HM Treasury and DCMS. In its letter, the Committee calls for action to tackle the use of SLAPPs including:
- A SLAPPs defence fund, paid for in part by those pursuing SLAPP cases.
- Increasing the regulator’s “inadequate” fining powers from £25,000 to £250 million, in line with its fining powers for other issues.
Whilst the government set out possible reforms to address this issue in its response to a call for evidence on the challenges of SLAPPs back in July 2022, it still remains unclear exactly when and how anti-SLAPP legislation will be introduced in the UK.
We expect fee earners, irrespective of who they are acting for or how wide a problem they perceive SLAPPs to be, to comply with our Codes of Conduct and guard against SLAPPs, which we see as a form of abusive litigation.