University of Aberdeen student, Steven Collingham, examines this aggressive litigation strategy and what governments can do to address it

When Catherine Belton published her bestselling book Putin’s People in 2020, she expected some backlash. What she received instead was a “coordinated attack”, in the form of malicious lawsuits, instigated by Russian oligarchs across multiple jurisdictions.

Had all claims proceeded, Belton and her publisher’s legal defence fees were estimated to be in excess of £5 million. In the aftermath of the case, she criticised UK defamation laws, stating: “No matter how good the sourcing is on some of these claims, and no matter how great the public interest, the cases are too expensive to defend. The system is stacked in favour of deep pocketed litigants from the outset.”

Belton’s case highlighted a wider problem within the UK legal system known as SLAPPs: strategic lawsuits against public participation. These are lawsuits instigated not to succeed in court, but to overwhelm defendants financially and psychologically. The result is that the defendant is silenced from speaking on a matter of public interest. Tactics such as prolonging proceedings, seeking disproportionate remedies, and filing claims across multiple jurisdictions, are all utilised to force the defendant to withdraw their statements.

SLAPPs indirectly affect all UK citizens. They suppress information which the public have a right to know of, hindering democracy. If you do not have access to all the facts, it means the opinions you draw on large organisations and public figures are less informed. Subsequently, you cannot accurately scrutinise them, as is your right in a free democratic society.

Whilst there is no definitive definition of what constitutes a SLAPP, there are three useful indicators. 1) The claim relates to an expression by the defendant on a matter of public interest. 2) The claimant’s behaviour is reasonably intended to restrict the defendant’s freedom of expression. 3) The claimant’s behaviour is intended to cause the defendant harm beyond that ordinarily encountered in normal litigation.

Existing anti-SLAPP measures

Of course, defences to defamation claims are available — outlined in ss2-7 of the Defamation Act 2013. For example: if something is true, in the public interest, honest opinion, or privileged. The issue with these defences lies in the delay of reaching them in proceedings. Often, by the time that the defendant reaches this stage, they may have already endured years of expensive litigation — on top of psychological and reputational damage. In the case of ENRC V Burgis [2022], Tom Burgis was sued for statements within his book: Kleptopia: How Dirty Money is Conquering the World.

Before the claim was dismissed, it was estimated Burgis accumulated almost £340,000 in legal defence costs. Notably, he stated: “You think about it all the time and it consumes your waking mind and sometimes your sleeping mind. Fear of losing your home, where your family live, and fear of public disgrace. The journalist in these SLAPP attacks is very often portrayed as a crook disguised as a journalist”.

The Economic Crime and Corporate Transparency Act 2023 was a positive sign of legislative progress. SS194-195 recognise SLAPP claims for economic crime and provide for early dismissal of such claims. Other areas however- such as environmental, political, copyright, human rights, all still lack the necessary anti-SLAPP legislation.

The Solicitor’s Regulation Authority has issued warnings on individuals and organisations who bring SLAPP claims, noting the intimidatory tactics used by solicitors which undermine the rule of law. Despite this, they recently faced criticism after failing to act against now defunct law firm — Discreet law, in what was described as a “textbook SLAPP case”. Upon receiving such criticism, SRA chief executive Paul Philip called for the government to adopt a “robust legislative solution” to tackle the very real and increasing problem of SLAPPs. Legislative efforts have been raised in parliament previously, but to little avail. In 2023, an anti-SLAPP bill was introduced to parliament by MP Wayne David. It fell aside due to the general election and has yet to be reintroduced.

What does anti-SLAPP law do?

Anti-SLAPP law typically involves 3 main forms of legislative intervention:

• Early dismissal of claims — giving the judiciary clear statutory authority to toss out claims deemed to be a SLAPP at an early stage. Whilst some judicial discretion exists, it is seemingly applied too conservatively, and too late in proceedings whereby defendants have already built up significant legal costs. This measure also switches the burden of proof onto the claimant to show that their claim is more likely than not to succeed at trial.
• Protection for a defendant’s legal costs — whereby the claimant must provide security for the defendant’s legal costs if the claim is identified to be a SLAPP at a later stage. This makes it more financially risky for claimants to instigate abusive lawsuits, thus acting as a significant deterrent for frivolous claims.
• Damages that reflect the harm suffered — whereby, if the claim is found to be a SLAPP, the claimant can be held liable for both material and immaterial damages to the defendant. This legislative measure would recognise that SLAPPs cause more than just financial harm but often lead to significant psychological distress for defendants.

Challenges for reform

Any new measure faces the distinct challenge of balancing competing fundamental rights. Specifically, a defendant’s right to freedom of expression (ECHR ART 10), and a claimant’s right to privacy (ECHR ART 8) as well as to a fair trial (ECHR ART 6). Of course, many defamation claims are well-founded, and critics of reform would argue a risk of undermining these claimant rights. Ultimately, any new measures must be targeted at filtering out abusive claims only. The criteria for what constitutes a SLAPP cannot be too loose. If too much protection is given to defendants, legitimate claims may be deterred. Nevertheless, it does seem the scale is tipped against defendants currently.

With SLAPPs, the lack of hard statistical evidence also makes it difficult to argue there is a pressing need for reform. The government has acknowledged this but noted that formal cases only represent a small proportion of all SLAPP activity. This means that a lot of the harm SLAPPs cause occurs behind the scenes, and ultimately most cases don’t make it to court. Regardless of the data, my view is that even a few cases of abuse within the legal system merit our attention, especially if they are capable of causing a wider democratic deficiency.

The EU and cross-border claims

In 2024, The EU adopted its own anti-SLAPP directive, Directive (EU) 2024/1069, which is now being implemented by national parliaments in EU member states. This directive, amongst additional measures, provides for: early dismissals, costs protections, and awards of damages- similar to those discussed. Additionally, Scotland are due to hold a consultation in Autumn on anti-SLAPP measures. This arguably places strong pressure on England and Wales to follow suit.

SLAPPS also often predispose a cross-border element. Libel tourism, a phrase historically associated with the UK, refers to claimants bringing an action in the jurisdiction most likely to give a favourable result. Indeed, the UK has been noted to have relatively claimant-friendly defamation laws, making it an attractive destination to sue someone.

S9 of the Defamation Act 2013 was a positive introduction, intended to prevent libel tourism. It states that the court will not have jurisdiction unless ‘England and Wales is clearly the most appropriate place to bring an action’. Despite this, some concerns remain, with the threshold to establish jurisdiction here still being labelled ‘not a very onerous one’ by media rights campaigners such as Padraig Hughes.

Establishing jurisdiction in these claims has become inherently more nuanced in the digital age. In 2020, Swedish journalists from Realtid were sued in London by businessman Svante Kumlin. This was despite the relevant publication being in Swedish, on a Swedish website, and evidence suggesting relatively low readership in the UK. Whilst much of the claim eventually failed or was settled, the process has dragged on for several years, costing the defendants a significant financial and psychological burden. Had the discussed anti-SLAPP measures been in operation, such costs could have been saved, and perhaps such a claim deterred in the first place.

Conclusion

It is clear SLAPPs are gaining significant recognition on a European scale. In the UK, the law arguably fails to provide adequate protection to a defendant’s freedom of expression in these cases. Reform is certainly not without challenges and must be careful not to overreach — but in my view, it is necessary.

Steven Collingham is a dual-qualifying Scots and English law student at the University of Aberdeen. He is an aspiring solicitor with a strong interest in commercial law.

The Legal Cheek Journal is sponsored by LPC Law.

Concerns firm’s representation of ex-Tory Chancellor Nadhim Zahawi

Osborne Clarke is one of two firms to be referred to to the Solicitors Disciplinary Tribunal (SDT) for allegedly using a so-called ‘strategic lawsuit against public participation’ (SLAPP) while representing former Conservative Chancellor Nadhim Zahawi.

Solicitors Regulation Authority (SRA) chief Paul Philip confirmed recently that the regulator had recently decided to refer two firms to the tribunal over their alleged use of SLAPPs, but declined to confirm their identities.

Last week, however, the Financial Times reported that one of the firms referred to the SDT is Osborne Clarke. The report claims that the referral relates to the firm’s actions on behalf of Zahawi regarding an investigation into his tax affairs by Dan Neidle, a former partner at Clifford Chance.

A spokesperson for Osborne Clarke said:

“We are disappointed with the SRA’s decision to refer this matter to the tribunal, and we disagree with the basis and reasoning for the referral. We have carefully considered and investigated the matter with external advisers and are confident that the partner acted within the established law and practice in this area, a view supported by an independent leading media law KC. We consider that the partner concerned behaved fairly and appropriately in his communications with the third party and did not seek to mislead or take unfair advantage in any way. At no time did he provide any tax planning advice. We fully support and stand behind the partner in his defence of this matter.”

The SRA has been vocal in its warnings over the use of SLAPPs, describing them as a “threat to free speech and the rule of the law”. They are typically used by wealthy individuals as a way to silence legitimate criticism from journalists, campaigners and whistleblowers.

Last year, Philip urged firms to up their efforts to guard against potentially abusive litigation, emphasising the need for lawyers to “act with integrity” and refrain from “abusing the litigation process.