The Solicitors Regulation Authority (“SRA”) has issued a renewed warning to solicitors involved in “abusive litigation aimed at silencing legitimate critics”. The Warning Notice on SLAPPs, originally published in November 2022, has been updated and considerably fleshed out to take into account recent work by the SRA, including its thematic review published earlier in the year.

The updated notice draws attention to the definition of a SLAPP which has been enshrined in law (in section 195 of the Economic and Corporate Transparency Act 2023) since the publication of the initial warning notice. However, the SRA makes clear that its remit in regulating solicitors and firms extends beyond the limits of that Act, stating that “our regulatory powers and framework are not limited to economic crime or contingent on a claim being declared a SLAPP claim under the specific legal test set out in the Act”.

As to how the SRA will perform its functions, the Warning Notice states that it will “assess conduct against our regulatory framework and long-established standards and regulations in respect of third-party correspondence and the conduct of disputes and litigation”. The SRA refers to its ‘Guidance on Conduct in Disputes’ and its recent warning notice on the use of non-disclosure agreements as providing indications of the sort of behaviour that is expected from solicitors, in addition to detailing a number of “behaviours commonly associated with SLAPPs” such as making claims or assertions without merit, or bringing claims in an oppressive manner. The Warning Notice also sets out “specific features which are indicative of abusive litigation in a SLAPP context” as follows:

• The target is a proposed publication on a subject of public importance, such as academic research, whistle-blowing, campaigning or investigative journalism.

• The case is characterised by an imbalance of power, often financial, often involving a wealthy individual or corporate claimant able to fund litigation to evade lawful scrutiny in the public interest distort the accurate record in their favour and silence lawful criticism.

The SRA specifically addresses the work of solicitors involved in defamation or privacy work, stating that they should recognise that this is a “complex area of law and satisfy themselves that they have the necessary competency” to conduct themselves appropriately, taking due account of “the relevant causes of action, defences, pre-action protocols and other procedural rules, as well as our regulatory requirements”. The Notice states that “we expect you to be able to identify proposed courses of action (including pre-action) that could be defined as SLAPPs, or are otherwise abusive, and decline to act in this way. We expect you to advise clients against pursuing a course which amounts to abusive conduct, taking into account the areas of concern set out in this warning notice. Litigation strategy is your responsibility and understanding the ethical boundaries of it cannot be abrogated to your client”. It also provides particular guidance on appropriate conduct before and after publication of a story, including ensuring that a response to a right of reply is not “inappropriately lengthy or legalistic, or used unnecessarily to delay or obfuscate matters”. Finally, it states that the SRA expects solicitors to label correspondence in good faith, and not to engage in the blanket use of labels such as ‘not for publication’, ‘without prejudice’ or ‘private and confidential’ where such labels are inappropriate or they are used to “exaggerate or mis-state their effect”.

The Notice can be read in full here.