After a string of failures, what next for the ‘crackdown’ on SLAPPs?

In the run-up to Christmas, I received a distressed email from Jen McAdam, a Scottish woman who lost her inheritance to the notorious OneCoin scam run by “Cryptoqueen” Ruja Ignatova.

McAdam’s story is a shocking example of how London lawyers attempt to silence free speech in the UK using unfair libel law that favours the rich and powerful. It also showcases how the legal regulator’s attempts to crack down on the problem have failed miserably.

She had tried to warn others about the fraud back in 2017, while it was still operating but serious questions were emerging about its legitimacy.

After speaking out about her experience on a webinar, she received a legal threat from feared London law firm Carter-Ruck. It said she’d be sued for defamation if she didn’t stop criticising OneCoin and retract the video (which had been uploaded by someone else). It gave her seven days.

The letter has been judged by campaigners to be a SLAPP, an abusive legal action aimed at silencing criticism. After we published a story detailing its contents, the Solicitors Regulation Authority (SRA) launched a prosecution against the lawyer who sent it, Claire Gill.

The ensuing tribunal revealed that Carter-Ruck had carried out its work for OneCoin despite harbouring serious internal concerns about the crypto firm’s legitimacy. If the SRA had won, it would have sent a clear message to libel lawyers acting for criminals.

But in December, the Solicitors Disciplinary Tribunal (SDT) dismissed the case, finding Gill had no case to answer because the prosecution’s evidence was “plainly insufficient” and based on “hindsight not evidence of professional misconduct”. It is one of three stunning recent defeats for the legal regulator. Shortly after the decision, McAdam emailed me to express her “utter dismay and shock”.

Then this Monday, the tribunal ruled that the SRA must also cover Gill’s legal costs, citing serious mistakes on the regulator’s part including framing its allegations in a “diffuse and shifting way”. The exact sum is still to be decided, but Gill is believed to have put her costs at £1m.

In clearing Gill, the SDT said that it had focused on what was known at the time of her letter rather than what we know now. But its logic (laid out in a decision memo) then led in some alarming directions. It found there is no duty on libel lawyers to check the truthfulness of their clients’ claims. It said that as long as they don’t know for sure that their client is lying – even if they have serious doubts – they are free to act on their instructions and send out legal threats.

The tribunal also found there’s no requirement that a lawyer intends to actually follow through with a threatened action. In other words, it’s OK for them to send out empty threats.

It also didn’t matter that Gill’s law firm was working for OneCoin, which turned out to be a global fraud. The tribunal said that wasn’t relevant because it was not known at the time.

Libel lawyers acting in defamation claims are also outside the scope of anti-money laundering regulations and therefore have no obligation to carry out due diligence on clients’ funds.

The same week Gill was cleared, the regulator lost another key case. Christopher Hutchings, a partner at Hamlins LLP, was brought before the SDT over allegations he falsely told a journalist he had a “strong” case to pursue contempt of court against them. Contempt can be a criminal offence, so this meant threatening the journalist with potential jail time.

Like Gill, Hutchings denied all wrongdoing and was eventually cleared. But this time, the SDT also slapped an anonymity order on this case, and barred the public and press from hearings. The case was effectively heard in secret: we don’t know what evidence the SDT relied on, nor can we tell you the name of either the journalist or Hutchings’ client.

And to complete a hat-trick of defeats, the SRA also lost an appeal in its case against ex-chancellor Nadhim Zahawi and his representatives. Zahawi’s lawyers had sent a legal email to tax campaigner and journalist Dan Neidle that included false statements about their client’s tax affairs. The email was marked “Confidential and without prejudice”, a label aimed at stopping the recipient from sharing its details. The SRA has warned lawyers not to use this label where confidentiality doesn’t truly apply.

The SRA prosecuted Ashley Hurst, the lawyer, for professional misconduct – and won. But in January, it was announced that the ruling had been overturned in an appeal to the high court. The judge said the SDT’s reasons for regarding the label as improper were “opaque” and its decision was wrong.

As of May 2024, the SRA had received more than 70 reports of allegedly abusive legal threats. Only three have so far been taken to tribunal. Now it has lost them all.

These defeats are catastrophic for the SRA. But they’re also bad news for the public. Anyone can be hit with a legal threat. And whether you’re the victim of a dodgy landlord, botched cosmetic surgery or online fraud the goal of a SLAPP is the same: to use the prospect of ruinous legal costs to silence you.

And the recent verdicts suggest that, when it comes to libel lawyers threatening people into silence, the rules are pretty loose. The Economic Crime and Corporate Transparency Act brought in some limited protections for people uncovering economic crimes, but they aren’t comprehensive and haven’t yet been tested.

Important stories are going completely untold because of this dynamic. TBIJ showed this in our project Silenced Stories, in which we used parliamentary privilege to reveal stories that had been suppressed. We highlighted the case of Mohamed Al-Fayed, who for years used legal threats to hush up reporting into his sexual abuse.

And we gave a platform to ordinary people like Ben Jenkins, a campaigner who faced legal threats after complaining about a housing company that co-owns his home.

The recent series of SRA defeats will have given a green light for lawyers to keep swinging the heavy hammer of defamation and privacy law against those who can least afford it.

How to fix the problem? We need an anti-SLAPP law to properly balance the scales, allowing free speech without the risk of a crushingly expensive court case. We need libel lawyers to be required to carry out anti-money laundering checks on their clients. And we need SDT proceedings to take place in public view, so journalists and ordinary people alike can see what is actually happening.

Until that happens, we’re left with a system that treats the truth as secondary to wealth and power.