Lawfare and the UK Court System

Joanna Dawson; Maria Lalic

What is ‘lawfare’?

The term lawfare generally refers to the use of law to achieve an operational military objective. Recently, it has also been used in reference to legal claims brought against the military.

What are ‘SLAPPs’?

The acronym ‘SLAPP’, coined in the USA, stands for ‘Strategic Litigation Against Public Participation’. It refers to legal claims which are perceived to be brought in order to silence a critic by engaging them in costly litigation, rather than because of their legal merit.

Defamation claims are most often identified as SLAPPs, although other legal claims relating to the publication of information may also relevant, such as privacy or data protection.

Such cases have been said to cause a ‘chilling effect’ on freedom of expression, by deterring journalists and others from publishing criticism or allegations of wrongdoing with the threat of legal action.

This tactic may be particularly effective where the threatened litigation carries the risk of the loser paying very high costs to the winner, especially if there is a disparity in the parties’ resources.

A number of US states have introduced ‘anti-SLAPP’ laws to deter this practice. These vary, but generally work by providing a procedural mechanism by which a defendant can apply to have a claim against them dismissed at an early stage before significant costs have accrued, particularly where a publication concerns a matter of public interest. Such laws are underpinned by the First Amendment to the US Constitution, which protects freedom of speech.

Recent ‘SLAPP’ cases

Several recent cases have been identified by NGOs and think tanks as SLAPPs. These include:

A defamation case reportedly brought against the journalist Tom Burgis, the Financial Times, and the publishers HarperCollins by a Kazakh mining company, the Eurasia Natural Resources Corporation (ENRC). The case concerns a book by Burgis, ‘Kleptopia: How Dirty Money is Conquering the World’, and two FT articles, a podcast, and a series of tweets based on the same material.
A defamation case brought by Roman Abramovich against journalist Catherine Belton and HarperCollins in relation to her book ‘Putin’s People’. HarperCollins subsequently apologised to Abramovich and agreed to amend the book, and to make a donation to a charity in lieu of damages.

Further claims brought in relation to Catherine Belton’s book by several Russian nationals and the state owned energy company Rosneft, based on defamation and data protection.

Defamation law in England and Wales

The basis for a defamation claim in relation to a published statement is that the statement complained of referred to the claimant; that it was defamatory of them; and that the defendant was responsible for the publication. The statement must also be false.

The definition of what constitutes a “defamatory” statement is something that has been developed by the courts. A widely used definition is:

A statement should be taken to be defamatory if it would tend to lower [the claimant] in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally. Skuse v Granada Television [1993] EWCA Civ 34

This definition is supplemented by the requirement in section 1 of the Defamation Act 2013 (the “2013 Act”), which provides that a statement is not defamatory “unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

‘Publication’ in this context simply means a communication of the statement complained of to someone other than the claimant.

If the grounds for a claim are met, the claimant would be entitled to recover damages unless the defendant can establish that they have a defence. Defences include truth; honest opinion; publication on a matter of public interest; and various forms of privileged publication, such as court proceedings.

The upper limit for compensatory damages in defamation proceedings is currently approximately £300k for the ‘gravest of allegations’.

The rules governing the award of costs in defamation litigation are complex, and there have been recent attempts to limit recoverable costs and to encourage the courts to manage costs budgets in advance. However, it remains the position that the winning party will generally be entitled to recover their legal costs from the losing party, and these can significantly exceed damages awards.

Libel tourism

Defamation cases with a foreign element – where the defendant is in another jurisdiction, or the publication occurred in another jurisdiction – are sometimes referred to as ‘libel tourism’. The term reflects concern that claimants may choose to litigate in England even when the link with the jurisdiction is tenuous, because the law is seen to be ‘claimant friendly’ compared with other jurisdictions.

Parliament sought to address this is by enacting section 9 of the Defamation Act 2013, which provides that an action cannot be brought against a defendant who is not domiciled in the UK, unless satisfied that, of all the places in which the statement has been published, England and Wales is clearly the most appropriate. The scope of this provision was limited at the time.