The Law Society of England and Wales has echoed calls for a clampdown on so-called ‘lawfare’, but has also warned of “unintended consequences” if reforms are not properly thought through.

The organisation was responding to the British government’s March consultation on strategic lawsuits against public participation (SLAPPs), according to the Law Society Gazette of England and Wales.

The European Commission recently proposed a new directive aimed at tackling SLAPPs, which would enable judges to swiftly dismiss “manifestly unfounded lawsuits” against journalists and human-rights defenders.

Clarity

The solicitors’ body stressed the importance of clarity over exactly what a SLAPP was.

“Before exploring the issue,” said president I Stephanie Boyce (pictured), “it is important to clarify the parameters of this kind of lawsuit. This would help ensure any remedies are sufficiently targeted, and do not have unintended consequences, such as suppressing free speech or restricting access to justice.”

The society argues that the focus of anti-SLAPP efforts should be on improving existing rules and procedure – including exploring methods of ensuring that parties operate on a more level playing field.

'Spurious cases'

Its suggestions include strong gatekeeping by the judiciary to weed out spurious cases, and more rigorous costs and case management.

Numerous options for limiting legal costs incurred during SLAPP litigation could be explored, says the organisation.

These include:

• An indemnity fund to help poorer parties bring or defend a case,
• Deploying legal aid,
• Fixing recoverable costs,
• Assessing the readiness of the courts to allow indemnity costs, and
• Applying qualified ‘one-way’ costs-shifting to SLAPP cases.

Inequality of arms

Boyce added: “The inequality of arms that often exists between claimant and defendant really needs to be addressed. Lower costs would benefit both parties.

“Wider reforms should strike the right balance between freedom of speech – particularly where matters of public interest are at stake – and the right to respect for private life, which includes the right to protection of reputation,” she said, pointing out that these were conflicting elements under the European Convention on Human Rights.

“Robust professional rules in place already deal with inappropriate litigation or threats of such litigation of the kind characterised by a SLAPP,” Boyce stated.

“We therefore do not believe there should be any special rules in place to handle this.”