SLAPPs: regulator's campaign is in disarray - it must reset

In the Law Society Gazette, Ian Miller partner at Kingsley Napley LLP and chair of the professional rules and regulation committee of the City of London Law Society and Colin Passmore Chairman of the City of London Law Society, write that the issue of strategic litigation against public participation (SLAPPs) has returned to the top of the agenda following the Solicitors Regulation Authority’s failed prosecutions of Ashley Hurst and Claire Gill.

These have not only left the SRA’s work in this area in disarray but look set to cost the legal profession over £2 million in adverse costs orders.  

They note that SLAPPs sit within a wider framework of cases that relate to disciplinary action taken by the SRA in response to conduct within litigation. This has always been a tricky area as over-prosecution can inhibit access to justice by denying clients the ability to assert rights through a solicitor. The SRA’s recent approach to SLAPPs appears overly driven by an expedient response to political and media pressure rather than a worked-through analysis of where the boundary lies between legitimately advancing a client’s interests on the one hand and abusive litigation on the other.  

They argue that there is clearly a balance to be struck in ensuring the effective assertion of rights as against using the court system in an abusive way to unfairly take advantage of another party. 

In Hurst and Gill, Miller and Passmore continue, it seems that the SRA did not properly assess the correct boundary. This is important because over-regulation here not only imposes a chilling effect on a client’s freedom of action within litigation, but may also inhibit the solicitor advising on what steps they can properly take on their client’s behalf. 

They add that the Legal Services Act 2007 sets out a series of objectives by which the SRA is required to frame its decision-making which includes protecting and promoting the public interest; supporting the constitutional principle of the rule of law; and improving access to justice. Passmore and Miller believe the SRA should consult on how it will approach this balancing exercise in future to ensure that it has a proper framework for deciding which cases to investigate. This will help mitigate the chilling effect of inhibiting solicitors from taking legitimate steps within on-going litigation.