17th March 2022
I am currently writing something for publication elsewhere about SLAPP – that is strategic litigation against public participation.
There is, however, one point about SLAPP that I thought was worth making by itself in a brief post.
The point is that SLAPP is a loaded, pejorative term.
It is not an agreed term.
It is instead a term a critic uses to describe certain litigation that the critic does not like.
Very few people – if any – would say they are pro-SLAPP.
And this is a problem in respect of reforming law and procedure so as to make such illiberal and misconceived law suits more difficult to threaten and to bring.
For if there is no objective definition of what one is trying to avoid, there can be no easy set of changes for avoiding it.
And many of the features of American anti-SLAPP legislation are already part of English law and procedure.
So, of course SLAPP is wrong: for what sensible person would not be against strategic litigation against public participation?
But being against a thing framed in loaded terms is not the same as knowing what to do to counter that thing.
More thought is needed than just to say SLAPP is wrong.
We should not be, well, slapdash about SLAPP.
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My Comments Policy now has its own page.
What is it about threatening or bringing lawsuits that enables the law to be used as a means of undue influence or even intimidation?
Is it time, or costs, or remedies, or something else? Would stronger judicial case management, or limiting costs, or limiting damages help?
Do defendants take a commercial decision to settle early because they fear the costs? But might cost capping (or at least capping cost recovery) make it more difficult for people to find suitable legal representation?
Is the openness of the UK court to entertaining litigation involving “tourists” with only limited connection to the UK? Do we want to tell more litigants to go away and seek remedies elsewhere?
Specifically, is too heavy a burden put on the defendant in libel cases? For example, should we require the claimant to show malice in more cases? But does that risk opening the floodgates to people being able to publish all sorts of false and defamatory things without a remedy?
I’m not sure there are any easy answers.
You either allow people to publish defamatory things or not. You can’t choose between true and false things. Libel laws which require the author to prove truth prevent the sort of accusations that would have exposed Jimmy Savile and Robert Maxwell during their lifetimes.
In the modern world, there’s always a remedy for people publishing defamatory things about you – you publish a refutation. One of the reasons why many people think this would be ineffective is that they are accustomed to the current system which greatly encourages credulousness.
There’s also a burden on both sides in a legal case that cannot reasonably be relieved – a party must devote time an attention to the case which cannot be covered by any costs order.
Hypothetical situation here. Say, if I was at work and a fee-earner asked me to categorise this particular blogpost; I would add the phrase “Woolf Reforms”.
I hope you and your family are in good health.
A good first step in solving any problem is to define what the problem is and what would count as an improvement and how to measure that. The Johnsonians never do that. So it is unsurprising that improvement has become extinct.
Whilst I think this is an excellent point, I can’t help but wonder if the problem is both broader and more deep-rooted. Whether by accident or design, it seems to be the case that when we have need to avail ourselves of the law, we tend to get the amount of justice we can afford.
Being something of a technologist and fascinated by the law, I closely followed a legal dispute, some years ago, between a small company based in Utah and IBM, International Business Machines.
The case itself was almost farcical and nothing short of an attempted shakedown. A company called “The SCO Group” accused IBM of taking software owned by TSG and placing it in the Open Source Operating System kernel, Linux. TSG were represented by Boise, Schiller & Flexner, LLP, with the rather famous David Boies taking an interest. IBM were represented by Cravath, Swaine & Moore, LLP, a legal team that eschewed theatrics in favour of robust, effective motion practice.
Motion practice became like a slow-motion duel with PDFs instead of sabres at dawn. There were filings, petitions to file, petitions to reply, sur-replies, sur-sur replies. The case quickly became so complex that the presiding Judge, the Hon. Dale Kimball, brought in a magistrate judge, the equally excellent Judge Brooke Wells, just to keep up with the flying paperwork.
Early on, TSG picked up $50 million in “licensing” from Microsoft, which they used to bankroll the case against IBM; even that didn’t last long… literally hours before it looked as though Kimball was going to make a dispositive ruling in favour of IBM, TSG filed for Chapter 11 bankruptcy protection.
Point being that litigation is expensive. Often horrendously so.
Before we even get to SLAPP cases, therefore, we might need to first consider those who experience injustice either they cannot afford to turn to the law for protection; or if the law turns on them and they find themselves defendants, they may well end up crushed by the onslaught of a much larger, better resourced and better financed plaintiff.
Question is: how do you address this? The legal system is a bit like modern-era Formula One motor racing: the team with the deepest pockets win. Do you set budget caps based on the alleged crime or point of law in dispute? Do you cap costs to participants based on means testing and have the state cover the balance?
Hint: no. If you’d like to better understand the precarious case of justice in the UK thanks to years of neglect by successive governments, read “The Secret Barrister”.
No magic answer springs to mind. Our forebears might have set out with the good intentions to build a legal system that was just for all. Sadly, I think we landed somewhere else.
Fortunately, most legal cases are not “bet the company” multi billion claims for which a Rolls Royce service is required, and which result in legal trench warfare between large teams at upscale law firms over several years.
The bulk of cases are simple landlord and tenant, employment, social security, personal injury or contract claims, for which a cheap, cheerful and efficient 2CV service might be sufficient. One size definitely does not fit all.
For example, in October to December 2021, there were 379,000 County Court claims, over 80% money claims. Only 65,000 were defended. There were almost 12,000 trials: 8,400 small claims and 3,400 fast or multi-track. The mean time taken to get to trial was 51.4 weeks for small claims and 74.0 weeks for multi or fast track claims (fast track indeed! fast like a tortoise compared to a snail). But 210,000 judgments were delivered, 193,000 by default.
By comparison, there were 2,300 applications for judicial review in the whole year: 140 in criminal matters, just 800 in immigration and asylum cases, and 1,400 for all other civil cases. Of the 1300 that had reached permission stage, 370 cases were granted permission to proceed, 190 were found to be totally without merit, and 870 were refused permission (but 64 of those granted permission later). Just 93 reached a final hearing, after a mean time of 178 days.
https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-october-to-december-2021/civil-justice-statistics-quarterly-october-to-december-2021
Clearly there are trade-offs in many parts of the law. Typically you can’t make a well-drawn legal distinction that perfectly separates good and bad. So anywhere you do draw that line will do result in some undesirable outcomes. But the best thing is to draw that line as best you can in full understanding of what you are doing. And so far I don’t think we have done that.
You talk of “American Anti-SLAPP”, but the situation varies considerably by state. See https://anti-slapp.org/your-states-free-speech-protection “America” is neither a single thing, nor does it define a standard to compare against, in this regard. But it is a nice natural experiment, first to allow some definition and categorisation of the detailed issues, and also to try and assess what might be the best balance.
The UK (for the devolved areas with their separate laws and courts are not irrelevant to this) seems to remain a venue of choice for litigants seeking to prevent information emerging, or just to punish people for daring to enquire. This is not just powerful individuals, it is also powerful companies who have sued academics publishing embarrassing research, and campaigners. I think it unlikely we have the balance right.
In 2009 you wrote “The English legal system is simply at fault in not embedding free expression in the routine administration of justice”, perhaps recognising the defendant’s success in that case didn’t free him to publish, nor restore to him what it cost him to win. (See https://www.indexoncensorship.org/2009/07/libel-after-bower/). The libel laws have been “improved” since then. Enough for you to no longer be of that view?
I agree that there is an issue with SLAPP terminology, but I don’t think you’ve correctly diagnosed that issue when you say that we need objective definitions of a problem if we are to construct a proposal to avoid it.
Consider another (topical) problem like fire and rehire. This is not a well-defined term, and the point stands that we need much clearer-cut definition of the practice if we are to tackle it effectively.
But SLAPP is a problematic notion in the way that fire and rehire is not—not because it is less well-defined, but because there is a value judgement baked into the concept itself. A SLAPP is necessarily bad—if it’s a legitimate libel suit, then it doesn’t count as a SLAPP.
This, I think, is the heart of the issue you’ve identified. The question for policymakers will be to cash out the criteria that make a suit anti-public participation in an objectionable way. But this project doesn’t make sense if the concept we’re dealing with is defined in such a way that all instances are objectionable.
Just imagine living with a Court system which awarded no costs orders whatsoever.
Litigants in person would be able to go head to head against the finest Silks in the land and Judges would simply have to concern themselves with the facts and the law.
You might get multiple striking out applications but these could be dealt with by certain Judges having daily lists limited to written representations and/or 30 minute oral representations, These hearings could even be held in private to avoid unfounded reputational damage.
Imagine the spluttering of claret at dinners in the Inns of Court. Such a system will never see the light of day. It will never even be trialled for say 12 months .
Words are words and acronyms are acronyms. Give a SLAPP and get a KISS.