First successful SLAPP case concludes

Judgment has been given in the first successful SLAPP case in the High Court, in a case where the defendants (Tax Policy Associates and tax commentator Dan Neidle) were sued for £8 million by a tax barrister, Setu Kamal. 

What is a SLAPP?

A SLAPP is defined as "strategic litigation against public participation" in the Economic Crime & Corporate Transparency Act 2023. It is a term used to describe cases where a claimant (usually wealthy and with political or other power) threatens or brings a claim against a defendant (typically an individual with less power and wealth), because they do not like something the defendant has said about them, and wants to prevent them from saying anything else. 

SLAPPs are usually characterised as an illegitimate mechanism designed to put undue pressure on journalists, activists, or other commentators, to dissuade them from reporting on the actions of those with political or economic power, so as to stifle public debate. 

Where threats of litigation are made improperly in correspondence, the effect would be to stifle free speech and expression. When legal proceedings are issued, a wealthy claimant can quickly exhaust the financial resources of defendants, forcing them to apologise, retract what they have said, and pay compensation and costs, even if the defendant has done nothing wrong. 

Importantly, SLAPPs are strictly limited to allegations made about claimants which focus on economic crime, usually fraud or money laundering.

Kamal v Tax Policy Associates and Dan Neidle

Dan Neidle published an article online, commenting on the work and operations of a third party called Arka Wealth. He alleged that Arka Wealth promoted tax schemes that were “nonsense” and that nobody should go near their schemes. He also specifically named Kamal as someone who worked with Arka. 

Kamal brought a High Court claim against the defendants for defamation, specifically libel, and malicious falsehood. 

Neidle applied for summary judgment (where a judge dismisses the case without the need for a full trial), on the basis that the claim was a SLAPP. The judge agreed that the claim should not be permitted to continue any further for various reasons, including because it fell foul of SLAPP legislation. The judge was also highly critical of the way in which Kamal had conducted the litigation generally.

This is a landmark case, as it is the first time a defendant has successfully used SLAPP provisions to defeat a claim which had been issued against them.

When is a libel claim a SLAPP?

In addition to the definitions set out in the Economic Crime & Corporate Transparency Act, the judge in this case expanded upon when a libel claim could be considered to be a SLAPP. She said, that where the claimant conducts the litigation in such as way as to deliberately cause issues and inconvenience for the defendant, "beyond that encountered in the course of properly conducted litigation" then the case should be considered a SLAPP. 

The fact that the claim was for £8 million was a significant factor in the judge's decision, going way beyond what was reasonable and designed to put maximum pressure upon the defendants. The judge also viewed the claim as an attempt by the claimant to interfere with the rights of the defendant as a journalist and as an improper mechanism to try and get the defendant to give up information about the sources he relied upon when writing his article. 

When are libel claims not a SLAPP?

There are many circumstances in which libel claims do not fall foul of SLAPP legislation. Claims where the defendant has made an untrue statement which causes serious harm to the reputation of the claimant, (and where none of the statutory or common law defences apply), would not be a SLAPP. 

However, there are various types of cases, where campaigners believe that SLAPP legislation should be extended, beyond statements which relate to purely economic crimes:

• Allegations about rape, sexual violence and sexual misconduct - a very large number of libel and slander cases relate to allegations about sexual crimes being committed, particularly on social media. These are clearly very serious allegations, which can have a devastating impact upon the lives of those who are accused. Similarly, they are serious crimes which have huge impact upon victims. At present, if a claimant sued a defendant for alleging that they had raped them, the defendant would not be able to use SLAPP legislation to get the claim dismissed at an early stage - the case would either have to settle or go to a full trial.
• Human rights abuses in England and abroad are often the subject of reporting in the mainstream media, as well as on social media and by pressure groups. There is a risk that those committing the abuses (typically those with political power) could seek to prevent proper reporting by threatening to bring costly libel proceedings against those who draw attention to their actions. 
• Environmental issues are another area where campaigners complain that rich and powerful interests, such a fossil fuel companies, seek to stifle reporting by campaigners wishing to highlight concerns including pollution and health problems, as well as climate change.

There is concern that individuals who wish to draw attention to the fact that they have been the victim of sexual violence, about environmental matters, or about human rights abuses, could be prevented from doing so, because they are intimated by more powerful voices and wealthy claimants with unlimited resources, who threaten to sue them for libel. 

A balance clearly needs to be struck between the rights of individuals to freely express themselves, on any issue they wish to, against the rights of those who are accused to protect themselves, if allegations about them are untrue. 

Photo by Pavel Danilyuk