“The abuse of libel laws by oligarchs, corporations and plutocrats to suppress adverse publicity and criticism is on the increase,” writes David Hooper in his new book Buying Silence, which is to be launched this evening. “Law firms should no longer be able to accept their instructions unquestioningly on the basis that everyone is entitled to their day in court.”
This would be a bold move — but a welcome one. Tighter restrictions are currently under consideration by the Solicitors Regulation Authority but not, it seems, the Bar Standards Board.
In his book, the retired media lawyer sets out a series of obligations that he believes claimant lawyers should meet:
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Solicitors should carry out proper money-laundering checks on libel claimants, as they do in transactional work.
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Solicitors should be required to verify the facts in letters of claim rather than rely on what their client has told them.
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A claimant should spell out why an offending article is likely to cause serious harm and why — if so — the claimant has not sued in respect of previous, similar allegations.
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Claimants who have singled out journalists, academics or whistleblowers should explain why — if that is the case — they have not sued the organisations these individuals work for.
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If the complaint involves foreign parties or events that took place abroad, claimants should say why they think it appropriate to sue in England and Wales.
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The letter of claim should include proposals and a timetable for resolution, including possible mediation.
Hooper adds:
Change will not just assist defendants facing claims from SLAPPsters but will also give greater access to justice to claimants who are, at present, excluded from action by the cost of bringing a libel claim.
As Geoffrey Robertson KC has noted, currently the UK is not the land of free speech. It is the land of expensive speech.
SLAPPsters are, of course, people who bring a SLAPP claim, now defined in the Economic Crime and Corporate Transparency Act 2023 as a restraint on free speech that is
intended to cause the defendant—
(i) harassment, alarm or distress,
(ii) expense, or
(iii) any other harm or inconvenience,
beyond that ordinarily encountered in the course of properly conducted litigation.
That provision, in legislation passed by parliament last Thursday, relates only to economic crime and is not yet fully in force.
Hooper’s book is a fascinating compendium of SLAPP cases, dating back nearly 50 years to the “Goldenballs” claim brought against Private Eye by Sir James Goldsmith. This was two decades before the irritating but handy acronym was popularised by two US academics in a book that appeared in 1996.
One case in Buying Silence caught my eye. It was brought by the businessman Arron Banks against the freelance journalist Carole Cadwalladr. His claim was dismissed by Mrs Justice Steyn in June 2022 but Banks was partially successful at the Court of Appeal earlier this year. Cadwalladr now faces a large bill for costs.
Hooper argues that while the appeal court’s “forensic analysis was no doubt correct as a matter of law, it does not accord with the modern world” of electronic communications.
Noting that Dame Victoria Sharp, Lord Justice Singh and Lord Justice Warby are “collectively aged 190 years old”, he asks whether it was right for them to reverse findings of fact by 51-year-old Steyn. Being from “a newer generation of High Court judges, her ear on matters of social media might have been that much closer to the ground”.
Really? Singh is only about six years older than Steyn. Warby is a dynamic 65 and Sharp is just a couple of years older. From where I stand, they all seem rather young.
Of all the many people named in Hooper’s entertaining book, though, they are the least likely to sue him for libel.