In a landmark case, the High Court has for the first time determined that a claim met the statutory definition of a Strategic Lawsuit Against Public Participation (SLAPP) under the Economic Crime and Corporate Transparency Act 2023.

The claim related to an article written by the prominent lawyer-turned-tax journalist and blogger, Dan Neidle. In it, he discussed the activities of a firm that promoted tax schemes, saying, among other things, that its claims were “nonsense” and that “nobody should be going near this scheme”. He also named the Claimant as someone with whom the firm worked.

The Claimant, a tax barrister, brought an action for both libel and malicious falsehood, claiming damages of eight million pounds on the basis that the natural and ordinary meaning of the publication complained of was that:

(a) he was professionally involved in unlawful or discredited tax avoidance schemes;

(b) he provided advice that was reckless, unethical or incompetent;

(c) he poses a risk to clients and to the public; and

(d) disciplinary or regulatory action ought to be taken against him.

Mr Neidle applied for both the malicious falsehood and the libel claim to be struck out. In the case of the former, he argued that the case was defectively pleaded. As for the latter, it was put to the judge that the Claimant had no real prospect of defeating the defence of honest opinion under s.3 of the Defamation Act 2013.

Mr Neidle was successful on both grounds. The part of the judgment that addresses these matters is noteworthy because, as the Court points out, the application for strike out came before the usual procedural step of a meaning hearing. It is at that stage that the Court not only determines the single meaning of the publication, but also whether it is an allegation of fact or expression of opinion, and – if it is an expression of opinion – whether the publication indicated the basis of that opinion. In the absence of this step, the process to be followed by the Court for striking out a case was different, and the judge set out in detail how the strike out procedure would apply.

Notwithstanding slightly unusual procedural matters, where the case will be of most interest is its discussion of Mr Neidle’s application that the claim also be struck out as being a SLAPP under s.195 of the Economic Crime and Corporate Transparency Act 2023 (ECCTA).

As the judge points out, this was the first occasion that the High Court had been asked to consider the new statutory regime for SLAPPs, including the procedural rules at CPR 3.4(d) which grant powers to the Court to strike out cases for being a SLAPP.

Given the nascency of the regime, the judgment discusses it in some detail, Mrs Justice Collins Rice commenting that in doing so it revealed “some of its complexity”.

In particular, the judge was quick to point out that the determination that a claim is a statutory SLAPP is not a matter about which the Court has discretion at large. Instead, “it is a matter of fulfilling all parts of the statutory test on the facts”.

The judgment proceeds to consider comprehensively the various parts of the statutory test. Particular attention is focussed on what the judge identifies as the distinguishing feature of a SLAPP, namely that “it is all about how litigation is conducted”. This requires careful examination of a claimant’s subjective intention to cause a defendant inconvenience “beyond that ordinarily encountered in the courts of properly conducted litigation”. As the judge points out, the statutory regime also includes matters that “go to some wider contextual and, crucially, evaluative issues the relevance of which appears to be the demonstration of the animus of a claimant”. These include not always straightforward matters such as disproportionality in the conduct of the claim, the selection of a defendant on the basis of inequality of resource, and the failure by a claimant to comply with the rules and principles governing properly conducted litigation.

In this case, the Court was persuaded that the tests were met, noting, for example, that “the unsustainability (and impropriety) of the remedies asserted and of the valuation of the claim were oppressive and not in accordance with proper litigation standards”.

Notwithstanding that finding, the judgment also confirms that even if a claim is determined to be a SLAPP for the purpose of the statutory regime, that does not automatically mean that it will be struck out. As the judge puts it:

“I am not persuaded it would be right to take an approach to the SLAPP strike-out power which necessarily presupposed an all-or-nothing answer. That a claim is a SLAPP is a precondition for the power’s arising, not a guide to or a constraint on its exercise. That precondition is not, as I have noted, itself a matter of discretion. Its fulfilment certainly imports no presumption or expectation that strike-out is appropriate; an otherwise sound SLAPP claim may in principle proceed to trial, subject of course to the accompanying constraints on the possibility of a claimant’s recovery of costs.”

However, given the numerous respects in which the Claimant’s conduct has been unsatisfactory and that there was no reason to expect his behaviour to change, the Court held that it would have struck out his claim as a SLAPP (although it was unnecessary to do so as it had been struck out on other grounds).

To read the judgment in full, click here.