SLAPPs: What are they? And how should defamation law be reformed to address them?

ABSTRACT

This article examines the need for legislative reform to address the problem of strategic litigation against public participation (SLAPPs), with a focus on defamation law as the most common action for such claims. It draws upon legislative and judicial approaches from a range of different jurisdictions to define the problem of SLAPPs and examines whether the existing law in England and Wales provides an adequate solution to the problem of SLAPPs. This analysis indicates some important recent developments in the law that are relevant to SLAPPs but concludes that legislative reform is necessary to address the problem of SLAPPs. In contrast to the current proposals for reform, the article proposes an anti-SLAPP provision that crystallizes and builds upon recent developments in the law, to effectively address the problem of SLAPPs without posing an unnecessary risk of the denial of innocent claims.

KEYWORDS:

• SLAPPs
• defamation
• serious harm
• abuse of process
• public interest defence

Introduction

It took just two years for the idea of an anti-SLAPP statute to go from a grassroots movement in the UK to its realisation in legislation. At first, an anti-SLAPP provision was inserted into the Economic Crime and Corporate Transparency Act 2023 (ECCTA).¹ This was limited in its application to strategic lawsuits against expression relating to ‘economic crime’,² but there was a general will in Parliament to ‘improve upon the shining hour’,³ and the ECCTA was seen as a ‘blueprint which would be capable of being applied on a wider basis across the board’.⁴ On 6 December 2023, a Strategic Litigation Against Public Participation Bill (‘SLAPPs Bill’) was introduced to do just this – replicating the ECCTA provisions, but without reference to ‘economic crime’, and thus proposing a more general anti-SLAPP statute.⁵

The primary focus of this article is to examine whether such reform is necessary. The common position of those arguing for a more general anti-SLAPP statute is that the existing law creates a ‘claimant friendly’ environment and that further ‘legislative reform is needed to ensure that abusive claims can be disposed of at a much earlier stage’.⁶ Those who oppose further reform argue that ‘there is scant evidence of a major problem with SLAPPs’, and that the ‘problems which do occur are quite capable of being dealt with under our existing legal and regulatory framework’.⁷ So far, this question has received little scholarly attention,⁸ and the relevant law in this area is so opaque that it remains unclear which position holds most validity.

In taking up this question, the paper focuses primarily on defamation law.⁹ Clearly SLAPPs can, and sometimes do, come under other heads of action.¹⁰ However, defamation law must be seen as the key to addressing the problem of SLAPPs.¹¹ An action in defamation has the advantage (for claimants) of immediately placing the defendant on the ‘back foot’ of having to prove complex factual issues, which is always a high bar at the preliminary stage, and always a costly and risky venture at full trial.¹² In reflection of this, in their 2023 report on the issue of SLAPPs in Europe, the Coalition Against SLAPPs in Europe (CASE) found that ‘the large majority’ of the claims which they identified as SLAPPs (more than 90%) sounded in defamation.¹³

The analysis leads to the conclusion that further legislative reform is necessary, but that a different approach is needed than the current proposals for reform. It is argued that the current provisions of the Bill are over-inclusive, that they place an unnecessary burden on claimant in defamation proceedings, and that they may even be of limited efficiency in dealing with the issue of SLAPPs. In short, Parliament is heading down the wrong path and needs to change course if it wants to adopt effective anti-SLAPP measures. The article argues instead for measures that are more firmly embedded in the existing law, and which would effectively address the problem without taking on the unnecessary risk of the denial of innocent claims.

To first gain an understanding of the problem of SLAPPs, the next section sets out a definition of ‘SLAPPs’ based on the approach of legislatures and courts in a range of jurisdictions that have addressed the problem. The third section then turns to analyse the extent to which existing defamation law can deal with the problem of SLAPPs so defined. It examines first the existing provisions for early dismissal mechanisms of claims lacking in substantial merit. It then examines existing mechanisms for early dismissal of claims based on an abuse of process. The third subsection examines how the existing law deals with SLAPP claims where it is reasonably clear that the defendant has a valid defence. The final section proposes an early dismissal mechanism for claims arising from expression on a matter of public interest, where the claim is either lacking in substantial merit or where it is based on some improper collateral purpose, and where it is reasonably clear that there is a valid defence. This draws together different strands of recent developments in the law, relaxing the standard for early dismissal in relation to each, but relying on the combined conditions to ensure that SLAPPs are effectively addressed while maintaining an adequate balance of rights.

What are ‘SLAPPs’?

The term SLAPPs is open to interpretation, and some would even say the problem has been greatly exaggerated.¹⁴ Ostensibly, what is needed is some empirical measurement of the problem in formal proceedings – documenting, for example, how many ‘SLAPP’ claims have been issued in the past year or so. However, this would still depend on an accepted definition of ‘SLAPPs’, and more to the point, the problem does not necessarily register in formal proceedings, or any kind of empirical record for that matter. Considering the costs of litigation, the problem can emerge in the mere threat of proceedings, through a phone call by a claimant's lawyer, or a whisper in the ear of the defendant. The furtive nature of SLAPPs means that any accurate empirical measurement of the problem will prove difficult, if not impossible, to achieve. Ultimately, the problem relates not simply to the misuse of legal procedure, but also to substantive law, and the confidence that defendants have in it.

What is offered here is a definition based on the legislation and case law from a range of jurisdictions that have addressed the issue. This at least has been arrived at through legislative debate and adjudication on the specific facts of cases and with some consideration of the rights of the parties. As a first marker, what is common to all legislative and judicial approaches is the recognition that SLAPPs represent some weaponization of the costs of legal procedure and that there is, therefore, a need to deal with the problem at an early stage in proceedings. All anti-SLAPP statutes – be it in England and Wales, New York, Ontario, or Australia – aim to provide an early dismissal mechanism for such claims, while judicial engagement with the problem across the jurisdictions is generally concerned with strikeouts and summary dismissal mechanisms for such claims. This much is obvious from the general approach to SLAPPs, but further definition of the problem requires analysis of the different statutes and judicial approaches.

The Ontario anti-SLAPP¹⁵ statute is one of the most internationally regarded anti-SLAPP statutes.¹⁶ Although it does not directly seek to define ‘SLAPP’ claims, it provides for early dismissal in cases where: (1) the proceedings arise from an expression ‘that relates to a matter of public interest’, and (2) the proceedings either (i) have no ‘substantial merit’, or (ii) the moving party has a ‘valid defence’; or (iii) the harm likely to be suffered by the plaintiff is not ‘sufficiently serious’ to outweigh the public interest in protecting the defendant’s right to expression.¹⁷ What counts as a matter of ‘public interest’ in the first part is drawn broadly,¹⁸ and in practice is seen as a ‘very easy burden to meet’.¹⁹ The other criteria are more complex,²⁰ and in practice can be determined only with sensitivity to the specific facts of the case.²¹

The Ontario statute thereby provides a positive basis for defining the problem of SLAPPs, and clearly sets out the relevant characteristics of such claims. However, it must be acknowledged that the definition of a ‘SLAPP’ advanced in the statute is over-inclusive. Ultimately, it defines as a ‘SLAPP’ any claim against expression that relates to a matter of public interest (broadly defined) that is without substantial merit, or any claim that relates to a matter of public interest where there is a valid defence. That would include claims that we may not typically think of as ‘SLAPPs’, such as those brought by claimants who genuinely feel they have been defamed, but who bring a claim in haste and without effective legal assistance, only to find out at trial that it is lacking in substantial merit.²² Or it may include, for example, a claim brought by a public official who has been erroneously accused in a newspaper article of corruption, who naturally feels aggrieved by this, but where it is only determined after extensive trial that the defendant has a valid public interest defence.²³ If such claims must ultimately fail, their inclusion under the statute as ‘SLAPP’ claims may not be seen to be overly problematic. However, it is enough for now to note that as a definition, the Ontario statute is overinclusive.²⁴

Furthermore, as broad as the Ontario statute is, it is notable that it makes no explicit reference to abuse of process in its definition of SLAPPs. In fact, that is something the provisions intended to include,²⁵ and the Canadian Supreme Court considers this an important consideration in a motion for early dismissal of a claim under the statute.²⁶ Yet, it is worth emphasising abuse of process as a characteristic of SLAPP claims, not simply because it is so prominent in the academic literature,²⁷ but because it has been a central feature of other anti-SLAPP statutes. Under the New York anti-SLAPP statute, for example, compensatory and punitive damages may be awarded to a defendant only in cases where the purpose of the action is judged to be ‘harassing, punishing or otherwise maliciously inhibiting the free exercise speech, petition, or association rights’.²⁸ The Australian anti-SLAPP statute – which notably does not apply to defamation proceedings²⁹ – provides for early dismissal if the proceedings are brought for an ‘improper purpose’,³⁰ such as, for example, where the aim is to discourage the defendant from engaging in public participation, or to punish them for engaging in public participation.³¹ The ECCTA, and the current SLAPP Bill in the UK, define a ‘SLAPP’ as any claim where (beyond what is ‘ordinarily encountered in the course of properly conducted litigation’) the claimant’s behaviour ‘has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech’, and where ‘any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant harassment, alarm or distress, expense, or any other harm or inconvenience’.³²

The focus on an improper purpose beyond the normal scope of proceedings is also prevalent in judicial approaches to the problem of SLAPPs. For example, the Canadian Supreme Court defined SLAPP claims as those ‘generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others’.³³ In South Africa, the High Court described SLAPPs as claims where ‘the main purpose of the suit is to punish or retaliate against citizens who have spoken out against the plaintiffs’.³⁴ In a recent case in Northern Ireland, a Master granted an application to strike out a claim on the basis that the proceedings ‘do bear the hallmarks of a SLAPP and have been initiated [by the claimant] not for the genuine purposes of vindicating a reputation injured by defamatory statements, but rather for the purpose of stifling the voices of his troublesome critics.’³⁵

While the courts in England and Wales have been relatively taciturn on the issue, in the High Court decision in Banks v Cadwalladr, Steyn J rejected the defendant’s characterisation of the claim as a ‘SLAPP’ on the basis that the claimant’s attempt to seek vindication was ‘legitimate’, and because the defendant had not relied on the defence of truth, and the public interest defence succeeded only in part.³⁶ The Court of Appeal made little comment on this in its judgment in the case but seemed nonetheless to endorse the trial judge’s definition concerning the question of whether or not there is a ‘legitimate attempt to seek vindication’ through the proceedings.³⁷ In Amersi v Leslie,³⁸ Nicklin J mentioned the term ‘SLAPP’ only in recounting how the defendant had labelled the proceedings,³⁹ but ultimately struck out the claim based on aspects of the conduct of the claimant which gave cause for concern as to whether his pursuit of these proceedings had been ‘genuinely to seek vindication rather than some other impermissible collateral purpose(s)’.⁴⁰

The inclusion of improper collateral purpose in the definition of ‘SLAPPs’ admittedly introduces some subjectivity into the definition of SLAPPs. Beyond the evidentiary difficulties, one should not lose sight altogether of the traditional principle that ‘whether a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point.’⁴¹ However, the claimant’s motive in issuing and conducting proceedings goes right to the heart of the problem of SLAPPs. Such claims are, by their nature, a passive-aggressive use of court process – legal procedure is used not only to stifle expression on a matter of public interest, but to provide a cover of legitimacy to deny accountability for such a goal. It is therefore necessary to include improper collateral purpose as a marker of SLAPP claims, bearing in mind the difficulty of divining the true intentions of parties from facts or testimony, and that some degree of antagonism toward an opponent may be a general condition of litigation in an adversarial system.

Having considered the different legislative and judicial approaches, the following definition of ‘SLAPPs’ is adopted:

Any claim which:

1. arises from an expression that relates to a matter of public interest; and

2. where (i) the claim is without substantial merit, or (ii) the harm suffered or likely to be suffered by the plaintiff is not sufficiently serious as to outweigh the public interest in protecting the defendant’s right to expression, or (iii) the claim is based on an improper collateral purpose; and

3. where it is reasonably clear that the defendant has a valid defence.

At this stage, this is proposed as a general definition to gain an understanding of the problem, but obviously, such indicia would be determined on scrutiny of the facts of a claim. As in the relevant statutes and case law, ‘public interest’ under the first condition should be defined broadly.⁴² The words ‘reasonably clear’ are added to the condition of a valid defence to reflect the need for this issue to be determined at an early stage of proceedings. As it relates to defamation law, the valid defences would include the defence of truth, honest opinion, the public interest defence, the defence for operators of websites, and the privileges for peer-reviewed academic publications and reports etc.

The proposed definition operates as a unity and the different indicia of SLAPPs are interlinked. This recognises the need to balance the right to reputation with freedom of expression in England and Wales. It would not include, for example, a case like Flood where the claim cannot be said to be based on an improper purpose, and where it only becomes clear that there is a valid defence after extensive trial. Moreover, it would be much less likely to include claims that are brought hastily, but innocently, by claimants acting as lay litigants in person, or who otherwise suffer from ineffective legal assistance.

This definition is admittedly a little more restricted than that advanced in the Ontario statute. It would only categorise as a SLAPP, for example, any claim which arises from an expression that relates to a matter of public interest which is without substantial merit, and where the defendant has a valid defence. It would likewise only categorise as a SLAPP any claim which arises from an expression that relates to a matter of public interest where the claim is based on an improper collateral purpose, and the defendant has a valid defence. Some may argue this would be under-inclusive of SLAPP claims. The need for an extra condition may be obvious for the requirement for substantial merit in England and Wales, as some claimants who genuinely seek vindication may nonetheless erroneously bring claims without merit. But why, it may be argued, if a claim is found to be based on an improper purpose, should it not be considered a SLAPP? Why should such a classification also depend on the extra condition that it is subject to a valid defence?

The reasons for this will become clear on analysis of defamation law in England and Wales in the next section. But suffice it to say at this stage that it has much to do with recent developments in the law that are relevant to the problem of SLAPPs, and for the design of an anti-SLAPP mechanism that builds upon that existing law for efficient and precise targeting of such claims. Ultimately, this presents an inclusive, yet not unwieldy, definition of SLAPPs.

What is not provided for in this definition is any operation of a burden of proof. This is not necessary for a definition of the problem of SLAPPs in the abstract. However, the role of the burden of proof in relation to SLAPPs will become more apparent with analysis of the potential solutions in existing defamation.

SLAPPs and existing defamation law

In considering how SLAPPS may be addressed in the existing law, this section looks first at the role of strikeouts and summary judgments, before examining existing methods for the determination of a valid defence. Not every mechanism in the existing law that may offer some solution can be examined here. Meaning hearings, for example, may offer some basis for defendants to guard themselves against SLAPP claims,⁴³ and certainly prove important to the efficiency of other solutions, such as strikeouts or valid defences.⁴⁴ Cost management conferences, and costs protection in general, also provide a means to guard against SLAPPs.⁴⁵ However, rather than addressing these aspects of civil procedure directly, they figure as germane issues in discussion of the law and procedure relating to strikeouts, summary judgments, and trial of defences.

Substantial merit and the serious harm test

The first two markers of SLAPP claims are dealt with together under one heading in reflection of special framework of defamation law in England and Wales. The common law test of the substantial merit of a defamation claim is whether the statement complained of would have the tendency to cause a substantially adverse effect on the attitude of others towards the claimant.⁴⁶ It is an objective test based on the inherent meaning of the words, and thus is typically determined at an early stage of proceedings, mostly at a meaning hearing, without the need for trial of facts.⁴⁷ Although something more than minimal is required, it is a relatively low threshold for claimants, and as such may offer little solution to the problem of SLAPPs.⁴⁸ There is also a jurisdictional bar provided now by section 9 of the Defamation Act 2013, which will not allow a claim to proceed against a defendant domiciled outside the UK, unless England and Wales is clearly the most appropriate place in which to bring a claim. While this may operate to exclude some would-be SLAPP claims, it may be of limited use as it will usually involve complex factual enquiries that would be reserved for full trial.⁴⁹ However, where there is now some real test of defamation claims – and therefore what most needs to be examined in the context of SLAPPs – is the serious harm test under section 1 of the Defamation Act 2013. That provision was adopted to promote the defendant’s right to expression in defamation claims,⁵⁰ and requires the claimant to demonstrate, ‘by direct evidence or by laying evidential groundwork for probable inferences of fact’, that the publications complained of caused, or are likely to cause, serious reputational harm.⁵¹

To provide an adequate solution to SLAPPs, however, the serious harm threshold needs to apply an early stage in proceedings, and in practice this has proven complicated. Under Rule 3.4(2)(a), a claim may be struck out if the statement of the case discloses no reasonable grounds for bringing the claim. This includes pleadings that are ‘unreasonably vague, incoherent, vexatious, scurrilous or obviously ill founded’.⁵² Rule 3.4(2)(c) moreover provides for the court to strike out the statement of the case where there has been a failure to comply with a rule, practice direction or court order, and this also has some potential application concerning the obligation to plead the facts and matters relied upon for section 1 of the Defamation Act 2013.⁵³ Under Rule 24.2, the court may grant summary judgment against a claimant if it considers that the claimant has no real prospect of succeeding on the claim, which for defamation claims must now include succeeding on the serious harm threshold.⁵⁴ These powers under both Rule 3.4(2) and 24.2 may be exercised on application by the defendant, or by the court’s own initiative.⁵⁵

There are, therefore, provisions to strike out or summarily dismiss any defamation claim on the serious harm threshold. Yet, defendants may nonetheless face difficulties in satisfying the evidentiary burden for such mechanisms. Applications to strike out under Rule 3.4 are normally advanced on the pleadings, with ‘either no supporting evidence or very little supporting evidence’.⁵⁶ Moreover, a statement of the case is not considered suitable for striking out if it ‘raises a serious live issue of fact which can only be properly determined by hearing oral evidence’,⁵⁷ and an application to strike out may not be granted ‘unless the court is certain that the claim is bound to fail’.⁵⁸

Unlike applications for striking out under Rule 3.4(2), the court may consider evidence on a summary judgment application under Rule 24.2,⁵⁹ and this may include, for example, analysing statements made by the party resisting summary judgment.⁶⁰ However, the extent to which the court may examine evidence is still limited. It is widely accepted that the court must ‘avoid the perils of a mini-trial’,⁶¹ and any facts which are left disputed (i.e. which are not clearly contradicted by available evidence) must generally be assumed in the claimant’s favour.⁶² The burden of proof will be squarely on the defendant in that short space for factual enquiry to show that there are grounds to believe that the claimant has only a ‘false, ‘fanciful’ or ‘imaginary’ prospect of success in the claim.⁶³

Arguably, this may still leave some room for the operation of both strikeouts and summary judgments in relation to the serious harm threshold.⁶⁴ However, in practice, any enquiry into whether or not the claimant has suffered or is likely to suffer serious harm to their reputation – be it under an application to strike out on pleading or for summary judgment on available evidence – will always require some contest of evidence and trial of fact.⁶⁵ Under the King’s Bench Division Guide, the courts should be ‘slow to direct a preliminary issue as to serious harm involving substantial evidence’,⁶⁶ and the courts are therefore cautious about allowing either an application to strike out or for summary judgments in relation to the serious harm threshold. In Soriano, for example, the defendant applied for either a strike out or summary judgment on the ‘unsatisfactory statement of, and prospects for, the Claimant’s pleading and evidence on the issue of ‘serious harm’.’⁶⁷ In denying the defendant’s application, Collins Rice J highlighted the drastic nature of a terminating ruling,⁶⁸ and pointed out the significant role for cross-examination of witness evidence in serious harm trials.⁶⁹ The determination of the serious harm threshold in that case was considered ‘exceptionally difficult to calibrate on an interlocutory basis’, and as ‘crying out for trial procedure’.⁷⁰ In Ward v Associated Newspapers Ltd, Nicklin J refused an application for summary judgment on serious harm because the defendant had not produced any evidence which deprived the claimant of any real prospect of demonstrating serious harm.⁷¹ The evidence available in the case was deemed ‘not suitable for summary judgment’, and fell instead to be assessed at full trial.⁷²

There have, nonetheless, been several cases now where the courts have been willing to strike out or summarily dismiss a claim on the issue of serious harm. In Webb v Jones, Griffiths J granted the defendant’s application to strike out a libel claim for a defective pleading of serious harm. It was held for that purpose that ‘[t]here must be facts, and the facts must be pleaded, like any facts essential to the cause of action’,⁷³ that the claimant had failed to plead serious harm on the only evidence available or obtainable,⁷⁴ and that the defect was incapable of being cured on amendment.⁷⁵ In BHX v GRX,⁷⁶ Nicklin J allowed that the claimant may be able to demonstrate an inferential case of serious harm, but held this was not enough.⁷⁷ On the pleaded facts, the statement of the case on serious harm was deemed merely ‘speculative’, and the claim was struck out under rule 3.4(2)(a).⁷⁸ In Tewari v Khetarpal, Collins Rice J held that a ‘defamation action which does not sufficiently identify, and particularise the causation of, serious harm by a publication is deficient.’⁷⁹ The claim was struck out on this basis, amongst other things, and opportunity to remedy the pleading was refused as there was nothing ‘in the underlying factual matrix, in the evidence available or in the evidence which there is reason to think may be capable of being produced in future, to establish the causation of serious harm’.⁸⁰ In Amersi,⁸¹ Nicklin J held that, bar a ‘clear and principled basis’ for the role of inference of serious harm,⁸² a claimant in defamation must ‘establish a causal link between each item he sues on and serious harm to his reputation, actual or likely’.⁸³ As the case on serious harm in that instance remained ‘speculative and optimistic guesswork’,⁸⁴ the claim was struck out, and permission to amend was refused.

The trend, moreover, cannot be limited to applications to strike out the statement of the case on the serious harm issue. There are also examples of the courts looking beyond the statement of the case and granting summary judgment on the issue of serious harm. In Haviland v Lownie,⁸⁵ for example, Murray J found the claim to have fallen ‘a long way short’ of establishing serious harm on an inferential case,⁸⁶ and granted a summary judgment on the basis that the claimant had no real prospect of establishing that he suffered or was likely to suffer serious harm to his reputation. In Hayden v Family Education Trust,⁸⁷ Nicklin J examined available evidence about the statements complained of, and found that, although the claim was ‘not totally without merit’,⁸⁸ the claimant had not adduced evidence of serious harm.⁸⁹ The application for summary judgment was therefore granted on the ground that the claimant had no real prospect of satisfying the requirements of section 1 of the 2013 Act.⁹⁰

Ultimately, the application of the serious harm test at a preliminary stage in proceedings remains an ‘open question’,⁹¹ and there are clearly cases in which the court can ‘sensibly try, at the preliminary stage, the issue of whether the publication complained of satisfied the serious harm requirement under s 1 of the Defamation Act 2013.’⁹² Whether or not the court will do so, however, depends upon the particular facts of the case, and whether or not they are considered suitable to be tried at the preliminary stage. It may even depend on whether the court in question would take a traditional approach favouring the claimant’s right to access to justice, or whether it would be willing to ‘grasp the nettle’ in the interest of freedom of expression.

Thus, despite the development of the serious harm threshold, section 1 may have limited application to the problem of SLAPPs. Considering that many SLAPP claimants may be high-profile figures and that the relevant publications will often relate to matters of sufficient gravity and be published in the mass media, they may often pass the preliminary stage on an inference of harm alone. Those who cannot rely on inference, and who must prove causation of harm or likely harm to reputation, may still take their chances. There does not yet appear to be a principled basis in the existing law for the application of early dismissal mechanisms on the serious harm test, and still some uncertainty in the approach of the courts concerning applications to strike out claims against expression in the public interest.

Potentially, there could be scope for a more principled approach that would better address SLAPPs. In Jameel, the Court of Appeal noted the effect of both the Civil Procedure Rules and the Human Rights Act 1998 in requiring an approach by the courts that is ‘both more flexible and more proactive’ in maintaining a proper balance between the right to freedom of expression and the right to reputation.⁹³ Even if the role of Jameel has been usurped somewhat by section 1 of the 2013 Act,⁹⁴ it is argued that this should be the enduring principle of Jameel. Although not citing Jameel directly, Collins Rice J recently reflected such a principled approach in relation to the application of the serious harm test in Miller & Power v Turner. Although the judge allowed that the claimants’ reputations may have been unfairly harmed, the claim was nonetheless dismissed as they had not sufficiently attributed such harm to the defendant’s publication, ‘so that his freedom of expression would fall to be curtailed in law accordingly.’⁹⁵

This proportionate approach – measuring serious harm in relation to the public interest in the defendant’s expression – has not yet crystallized into an established principle. Nor has the more vigilant approach which is willing to strike out or grant summary judgment on the serious harm issue. One can understand if the courts are cautious about establishing such on a principled basis, as it may require some recalibration of rights involved. However, those approaches at least point some way forward for the development of an early dismissal mechanism that would reflect the general approach of anti-SLAPP statutes in other jurisdictions, without necessarily over-including claims and thereby posing a threat to access to justice.

Improper collateral purpose abuse

If the serious harm test cannot be applied at the preliminary stage, or if it is applied but the claimant can pass the test on inference, the claim may nonetheless be subject to early dismissal as an abuse of process. The focus here is not on the issue of expense, or whether the procedure required is proportionate to the remedy sought – both of which may be described as falling under the question, as it is often phrased, of whether the ‘candle is worth the game’. The expense of the trial in more material terms may still be an important factor in determining whether a claim may be dismissed early for abuse of process, but for SLAPPs, the question of abuse must be focused on any intentional misuse of legal procedure.

The misuse of the procedure to achieve something outside the scope of properly conducted proceedings is itself a tort.⁹⁶ However, what is most relevant to the issue of SLAPPs is the power under Rule 3.4(2)(b) to strike out a claim if it appears to the court that the statement of the case is an abuse of process or is otherwise likely to obstruct the just disposal of the proceedings. This reflects what Lord Diplock described in Hunter v Chief Constable of the West Midlands Police as the ‘inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.’⁹⁷ The circumstances in which such an abuse of process can arise are ‘very varied and are not limited to fixed categories’.⁹⁸ There are ‘no hard and fast rules’ to determine whether such abuse exists,⁹⁹ and therefore the court must always engage in a close analysis of the facts of the case to determine the question.¹⁰⁰

One well established category of abuse, however, is ‘improper collateral purpose abuse’. In Goldsmith v Sperrings, Lord Denning held that legal process is abused in this manner when it is ‘diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end.’¹⁰¹ The same principle was said there to apply to a ‘gagging writ’, where ‘a writ for libel is issued so as to stop further revelations of misconduct, or even the repetition of revelations already made.’¹⁰² In Broxton v McClelland and another, Simon Brown LJ suggested two distinct categories of this improper collateral purpose abuse: the achievement of a collateral advantage beyond the proper scope of the action, and the issue or conduct of proceedings ‘not so as to vindicate a right’, but rather ‘to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.’¹⁰³ The first category may be relevant to SLAPPs, for example, where the claimant’s dishonesty puts the fairness of trial in jeopardy,¹⁰⁴ where the proceedings are used as a collateral attack on an earlier decision,¹⁰⁵ or where there has been a failure to comply with pre-action protocol.¹⁰⁶ But it is the second category that may be most relevant to the issue of SLAPPs, and indeed appears to have influenced the wording of the anti-SLAPP measure in the ECCTA.

In Wallis v Valentine, the Court of Appeal upheld a High Court decision to strike out a libel claim on this basis against a claimant who, on the facts, was judged to be ‘pursuing a vendetta, rather than pursuing a vindication of his reputation.’¹⁰⁷ In Amersi v Leslie, even though it was unnecessary to rule on the defendant’s argument that the claim should be struck out as an abuse of process (as the claim had already been struck out for a failure to plead serious harm), Nicklin J found several aspects of the conduct of the claimant gave cause for concern as to whether the proceedings had been genuinely to seek vindication, rather than some other impermissible collateral purpose.¹⁰⁸ This included the claimant’s ‘exorbitant approach to the litigation’, and prior statement to the press that he intended to take the first defendant ‘to the cleaners’.¹⁰⁹ Evidence of such conduct cemented the Court’s conclusion that it would not serve the overriding objective of the proceedings to allow the claimant to replead his case.¹¹⁰

There is, therefore, some basis in the existing law to dismiss improper purpose SLAPP claims at an early stage in proceedings. However, again the difficulty lies in the trial of evidence at the preliminary stage, and the reluctance of courts in taking such a definite step of striking out claims at the early stage. Although applications under Rule 3.4(2)(b) are normally advanced on the pleadings, with little supporting evidence,¹¹¹ the courts are nonetheless obliged to engage in a fact-sensitive enquiry as to what a reasonable person in the position of the claimant ‘would have in mind when initiating or pursuing the action’.¹¹² While this test provides some objective threshold for the claimant to pass, it also suggests some weighting towards the claimant’s point of view.¹¹³ Moreover, even if the facts point to an improper purpose abuse, striking out an action is generally seen as a draconian power that should only be exercised in an exceptional case.¹¹⁴ The need for caution is even more pronounced in relation to applications to strike out the claim at a preliminary stage, which is only to be granted in the most ‘clear and obvious case’ of abuse.¹¹⁵ The Court of Appeal has furthermore held that if the abuse can be addressed by a less draconian course, it should be.¹¹⁶ Ultimately, the judicial approach to an application to strike out a claim as abuse falls into two stages: ‘first, the court should determine whether the claimant’s conduct was an abuse of process; and, if so, secondly, the court should exercise its discretion as to whether to strike out the claim.’¹¹⁷ Thus, even if the court determines there is abuse, this does not necessarily mean the claim will be struck out.

Yet, the most critical problem for striking out a SLAPP claim as an improper collateral purpose abuse is that such claims often contain at least some element of legitimate purpose. In Goldsmiths v Sperrings, Lord Bridge highlighted this as a ‘difficult area’, in between the extremes, where a ‘litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired byproduct of the litigation?’.¹¹⁸ Lord Bridge very much doubted that such claims could be struck out, and that opinion has not been overruled since. In order to be struck out as abuse under the existing law, the improper purpose must be the predominant purpose, and this predominance must be obvious on the pleaded facts.¹¹⁹

A ‘genuine cause of action’ for this purpose means only that the claimant can pass the serious harm threshold, and that a reasonable person in the claimant’s position may be motivated to seek vindication in response to the defendant’s publication. Often the facts in such cases will present a mix of both an improper purpose and a genuine attempt at vindication. An obvious example would be a wealthy businessman with a personal vendetta against an investigative journalist, who lies in wait for the journalist to ‘slip up’ and publish something that can be inferred to cause serious harm to his reputation, and which he knows will prove expensive for the journalist or their employer to defend. Even if the claim reflects some obvious attempt to harass or vex the journalist, the court may still find that a reasonable person in the claimant’s position could be motivated to seek vindication of their reputation. Such ambiguity of purpose may be all it takes to muddy the waters and thereby deny an application for a strike out of a defamation claim as an abuse of process at an early stage in proceedings. A solution to the problem of SLAPP claims based on improper purpose may only be satisfactorily achieved if the courts are willing to strike out claims even where there is, on the facts, a concurrent ‘genuine’ cause of action (i.e. one the reasonable person might take) and some element of improper purpose. Here is where a clear gap exists in the existing law concerning SLAPPs.

However, the Jameel principle of flexibility, and a more proactive approach in addressing the balance of Convention rights between the parties, could have some useful application here too. On that basis, it may be argued that if the court finds some element of abuse of process in a defamation claim, it should, at the second stage, consider the public interest in the defendant’s expression in exercising its discretion as to strike out the claim for abuse. Again, however, this cannot be said to be the established approach in existing law and practice concerning strike out applications on abuse of process. Considering that it would also involve some slight recalibration of rights, the courts may not feel confident in developing the law in this way. But this too shows the way for further development of the law, and how, if it were linked in with other conditions, the courts may be emboldened to ‘grasp the nettle’ and strike out claims that reflect an improper collateral purpose.

Where it is reasonably clear that there is a valid defence

The third condition is that it is reasonably clear that there is a valid defence. As explained above, a solution for SLAPPs needs to be available at the early stage in proceedings, and that is problematic for defences to defamation that are typically tried at the later stage of proceedings. The defence of truth, for example, places the burden of proof on the defendant, and by its nature often requires extensive trial of fact and contest of evidence.¹²⁰ Similarly, while the base requirements of the defence of honest opinion under section 3 of the 2013 Act may be established at the meaning stage,¹²¹ the requirement under section 3(4)(a) for the defendant to prove the truth of at least some part of the factual basis of the opinion will usually be highly contested in evidence and reserved for full trial.¹²² The defences under sections 6 and 7 for peer-reviewed statements in scientific or academic journals and reports protected by privilege may often be reasonably clear on pleadings or at a preliminary stage, but can also involve questions of ‘malice’ that may require more extensive trial and contest of evidence.

Of most relevance to SLAPPs is the public interest defence under section 4 of the 2013 Act. Certainly, this defence as it has been codified in statute and developed by the Supreme Court¹²³ should be most relevant to addressing the problem of strategic lawsuits which target ‘public participation’. It has been argued, for example, that in the push for reform, the potential application of the section 4 defence to the problem of SLAPPs has been overlooked.¹²⁴ But can the defence be tried at a preliminary stage to thwart the advancement of SLAPP claims? Although, it does not require the defendant to prove the truth of the statement, it is notoriously complex and often requires extensive trial of factual matters.

The first requirement for the defence, that the statement complained of is ‘on a matter of public interest’,¹²⁵ is an objective question,¹²⁶ and something the courts interpret broadly.¹²⁷ That question may therefore be suitable for early determination, without trial of evidence. The second requirement, that the defendant believed the statement was in the public interest,¹²⁸ must be supported by pleaded facts, and in most cases is proved on oral evidence testifying to such a belief.¹²⁹ It is not an issue that cries out for extensive trial in the majority of cases, and therefore it could potentially be applied at an early stage of proceedings.¹³⁰ However, the ‘major point of contention’ for the defence in most cases is the requirement that the defendant’s belief is reasonable.¹³¹ This question is ‘highly fact-specific’,¹³² and generally requires an intense focus on a great number of facts about what the defendant ‘said or knew or did, or failed to do, up to the time of publication’.¹³³ The Reynolds factors (e.g. the source of the information; steps taken to verify the information; whether comment was sought from the claimant; whether the publication contained the gist of the claimant’s side of the story; the circumstances and timing of the publication) are not prescriptive, but give an example of some of the factual analysis that the court will typically pursue in adjudicating on this requirement. Many such issues may be complex in themselves and subject to dispute between the parties.¹³⁴

However, this is not to say that, as a rule, there cannot be early determination of the public interest defence – or any of the privilege defences for that matter. Recently, in the case of Harcombe v Associated Newspapers Ltd,¹³⁵ the High Court was faced with the ‘complicating factor’ of the Court of Appeal’s decision in Curistan v Times Newspapers Ltd,¹³⁶ which held that in order to determine the natural and ordinary meaning of the statement complained of, the court must first remove from its consideration any part of the statement which is protected by privilege. In an attempt, therefore, to clear the way to the determination of meaning, the defendants applied for a split trial, whereby the public interest defence could be tried as a preliminary issue. Nicklin J granted the application, stating that while the trial of the public interest defence would require disclosure, witness evidence and cross-examination of witnesses, ‘experience tends to show that many s.4 defences are tried in a couple of days.’¹³⁷

This development must of course be limited to the exceptional facts of the case, and again there is no established principle for the early trial of the public interest defence. However, if experience does show that the public interest defence can be tried in a ‘couple of days’, then this is most relevant to addressing the problem of SLAPPs. Here too, arguably, the Jameel principle could have some influence. Despite the development of section 4, defendants must still be willing to invest significant time, money and energy into mounting a public interest defence.¹³⁸ It is very likely that, in say the past five years, a significant number of defendants have opted to settle a claim, instead of risking time and money on the uncertainty of a full trial on the defence. It is furthermore likely that at least some of those would have succeeded on the defence, had they stayed the course for full trial. That would mean that at least some reasonable expression on a matter of public interest has been censored in the past five years by the chill of a claimant’s strategic use of legal procedure. Given what is at stake, the courts should, it may be argued, be more proactive in looking for ways to streamline the defence.

The courts cannot cut corners in the trial of defences. To do so would pose the danger of denying innocent claims. However, what recent developments do show is the possibility for a more streamlined trial of defences. If other conditions could be put in place to ensure that early trial of defences would not lead to denial of legitimate claims, the courts may be emboldened to try defences early and, where necessary, to dismiss claims on that basis.

An alternative anti-SLAPP provision

At this point, recent developments identified in the different areas of the existing law can be drawn together to suggest the basis for an alternative anti-SLAPP provision. It is thereby suggested that the Civil Procedure Rules include the power for courts to strike out a claim before trial if:

1. it arises from an expression on a matter of public interest, and

2. the claim either (a) is lacking in substantial merit, or (b) has some improper collateral purpose, and

3. it is reasonably clear that there is a valid defence.

As in the existing law, the first condition would be defined broadly and without the need for any trial of fact.¹³⁹ The requirement that the claim is lacking in substantial merit would include the serious harm test under section 1 of the 2013 Act. Questions as to whether the claim has substantial merit or whether it has an improper collateral purpose would be determined on the extent of trial typically allocated for those questions under regular applications for strike out or summary judgment for ‘reasonable grounds’, ‘prospect of success’ or ‘abuse of process’. However, in exercising its discretion concerning whether the claim is struck out on either basis, the court would have regard to the third requirement of whether it is reasonably clear that there is a valid defence. This would require defendants to plead defence early, but the standard of proof can be relaxed somewhat based on the preceding conditions, and as to what can be reasonably expected of a streamlined preliminary trial. To qualify as a ‘valid defence’ under this approach, something less than the standard of proof expected at full trial should be required, but something more than a merely arguable defence.¹⁴⁰ The exact nature of that standard may need to be worked out further, but, in general terms, if a claim is found to arise from an expression on a matter of public interest and either it appears to lack merit or to reflect some improper purpose, and after a brief trial it appears reasonably clear to the court that there is a valid defence, then the claim should be dismissed as a SLAPP.¹⁴¹

As such, although the conditions may be adjudicated in stages, effectively they should operate in unity, taking place within a few days at an early stage in proceedings. The question as to whether a claim has substantial merit or has an improper purpose could be reserved until it is decided as to whether there is a valid defence. If it is reasonably clear that there is a valid defence, then this should conclusively determine the dismissal of the claim. But it could also work in the reverse order. If a short trial supports a finding of a valid defence, and the evidence (or absence of evidence) at this stage also suggests the claim lacks merit or that the claim is based in some significant way on an improper purpose, then the court could more confidently exercise its discretion to dismiss the claim.

Whether or not a defence can be determined at an early stage and on brief trial should be at the discretion of the court. The courts are best placed to make that judgment on the specific facts of the case. However, where possible, the courts should be more willing to try any pleaded defence at the preliminary stage as the danger of denying innocent claims will be mitigated by the preceding conditions. If the claim has already been found to arise from expression on a matter of public interest, and it has already been found to be lacking in merit or have some improper collateral purpose, a streamlined trial of a pleaded defence at a relatively relaxed standard of proof is not likely to deny the claimant of due process. Again, such an anti-SLAPP mechanism will not, for example, include cases like Flood, where there is a genuine attempt at vindication.

So far, nothing has been said about which party should assume the burden of proof under the suggested provisions. Arguably, this issue can be something of a red herring in the search for a practical solution to the problem of SLAPPs. However, it is suggested that rather than imposing a wholesale shift of the burden onto the claimant as the SLAPPs Bill does, the burden of proof should be more nuanced, and as much as possible reflect the burden of proof under the existing law. Thus, concerning the question of substantial merit, it is notable that under the section 1 serious harm test the burden is already on the claimant. As shown above, the burden on the claimant established by section 1 is diluted on strikeouts and summary judgments on the serious harm issue. However, it has also been shown that recent developments have applied the burden at the preliminary stage and required the claimant to adduce evidence to establish the causation of serious harm,¹⁴² and have struck out ‘speculative and optimistic guesswork’ on the serious harm issue.¹⁴³ Under the proposed mechanism, the courts should continue to insist the claimant adduce evidence of serious harm to reputation. Although inference of harm may still have a role on a ‘clear and principled basis’,¹⁴⁴ any inference of harm based on mass publication, the gravity of imputation, or the situation of the claimant should be closely scrutinised and defeated by any contrary evidence.¹⁴⁵

In relation to improper collateral purpose abuse, it should be emphasised that the existing provisions for striking out on that basis are founded on the court's inherent power to prevent the administration of justice from being brought into disrepute.¹⁴⁶ Under the existing law, the court can engage of its own initiative in a fact-sensitive enquiry as to what a reasonable person in the position of the claimant would have in mind when initiating or pursuing the action.¹⁴⁷ In Amersi, for example, although dismissing the claim on the serious harm issue, the court also identified ‘several aspects of concern’ that flagged a possible improper collateral purpose.¹⁴⁸ In Wallis v Valentine, the evidence of an improper purpose was not adduced by the defendant, but by the court’s scrutiny of the factual matrix of the claim, and of the claimant in his conduct before the court as litigant in person.¹⁴⁹

The courts must retain some discretion too in relation to the resolution of disputed facts. But for the purpose of early dismissal under either substantial merit or abuse of process, the claimant should not enjoy the same benefit of the doubt. The resolution of any disputed facts would be dependent on the other conditions. For example, if the claim arises from an expression on a matter of public interest and it is reasonably clear on short trial that there is a valid defence, then the claimant should not enjoy the same benefit of doubt in relation to any disputed facts on the question of substantial merit or abuse of process.

However, for the question itself of whether or not there is a valid defence, the burden of proof should remain on the defendant. Certainly, in respect of the public interest defence, the defendant is best placed to adduce evidence as to the reasonability of the belief concerning the public interest. But more importantly, whatever the pleaded defence, the burden will be attenuated here by the provision of an early trial of the defence, and by relaxation of the standard of proof based on the preceding conditions. Again, the provisions would work in unity to alleviate the restrictions of the siloed mechanisms under the existing law.

It is argued that the approach proposed above would not only dovetail with recent developments of the law but would effectively address the issue of SLAPPs while maintaining the balance of rights. Moreover, it would maintain the discretion of the courts to adjudicate defamation claims in sensitivity to the specific facts of the case and in observance of the rights of the parties and the public.

Those who support the current reform proposals may argue the combined conditions would prove too onerous for defendants. However, it should be recognised that the interlinking and mutual support of the conditions allow for greater protection of defendants than the existing law. A claim should not be classed and disposed of as a ‘SLAPP’ merely because it arises from expression on a matter of public interest and there is a valid defence, or simply because it arises from public interest expression and is without merit or reflects some improper collateral purpose. There is no point in swapping one rights problem for another. Based on the definition of SLAPPs set out above – which is careful to pinpoint the problem without including innocent claims – the suggested provision presents an effective method for addressing the problem.

Important questions may remain about the allocation of costs. However, that involves broader issues, including questions of policy, beyond the scope of this article. What is clear is that some reform is necessary and that the type of provision suggested would be effective in addressing the problem of SLAPPs without unduly threatening access to justice.

Conclusion

With respect, the ECCTA has not provided a good blueprint for further reform in this area, and the problems have been inherited in the current SLAPPs Bill. The reference in clause 2(1)(a) to ‘restraining the defendant’s exercise of the right to freedom of speech’ is over-inclusive and will offer little functional guidance in addressing SLAPPs. Freedom of expression must be defined broadly, and ultimately every claimant in defamation proceedings will intend to restrain the defendant’s exercise of the right. Moreover, the reference in clause 2(1)(c) to an intent to cause the defendant ‘harassment’, ‘expense’, or ‘inconvenience’ is, in practice, a common characteristic of all litigation. The key question will be whether such harassment is beyond the bounds of normal proceedings, and the weighting that must be given to that in relation to the public interest in the defendant’s freedom of expression. This is something that can only tested on the specific facts of the case. Moreover, the requirement under clause 1(1)(b) for the claimant to show that ‘it is more likely than not that the claim would succeed at full trial’ imposes an unnecessary burden, and this is exacerbated by the broad definition of ‘SLAPPs’ that is adopted in the Bill. Most importantly, the anti-SLAPP measures in the Bill are not sufficiently integrated with the existing law and procedure to ensure their efficiency, and they overlook some of the key potential of the existing law in this regard.

Despite the issues with the ECCTA and the current SLAPPs Bill, the problem of SLAPPs cannot be ignored and there is a necessary role for legislative intervention. The above analysis has shown that there are gaps in existing defamation law and procedure that can be strategically exploited by claimants to silence expression on matters of public interest. The possibility alone can have a chilling effect on freedom of expression. However, the article has also shown that there is much in existing defamation law that can be harnessed in the development of anti-SLAPP legislation. It has endeavoured to highlight the relevant developments in the existing law and to build upon those developments to propose an anti-SLAPP mechanism that would effectively address the problem of SLAPPs without unduly denying legitimate claims access to justice.

Acknowledgement

My thanks to Professor Ursula Cheer for comments and encouragement on an earlier draft, and to the editors of the Journal of Media Law and the anonymous reviewer for their invaluable comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Mark Hanna

Mark Hanna, is a Senior Lecturer in Private Law in the Faculty of Law, University of Canterbury, New Zealand. His research focuses on torts and the rights of reputation, privacy, and freedom of expression. His previous work examined the issue of defamation law reform in Northern Ireland. He advised the Northern Ireland Assembly on the adoption of the Defamation Act (Northern Ireland) 2022 and the Irish Oireachtas on its scrutiny of the Draft Defamation (Amendment) Bill 2023.

Notes

1 Sections 194 The Act provides for Civil Procedure Rules to be made for claims to be struck out which are identified as a ‘SLAPP’, as defined under section 195.

2 Section 195(3).

3 HL Debate 27 June 2023, vol 831, col 629.

4 HL Debate 8 February 2023, vol 827, col 1279.

5 The Bill, sponsored by Wayne David MP, passed 2nd reading, 24 February 2024.

6 Report by the Foreign Policy Centre and Article 19, ‘London Calling: The issue of legal intimidation and SLAPPs against media emanating from the United Kingdom’ (25 April 2022) < https://fpc.org.uk/publications/london-calling-the-issue-of-legal-intimidation-and-slapps-against-media-emanating-from-the-united-kingdom/> accessed 10 April 2024.

7 Anonymous, ‘How to deal with the “SLAPP problem”: proposed solutions, good and bad’ (Inforrm blog, 7 November 2022) < https://inforrm.org/2023/11/07/how-to-deal-with-the-slapp-problem-proposed-solutions-good-and-bad/> accessed 10 April 2024.

8 Much of the existing academic commentary is focused on the issue in other jurisdictions, such as George Pring and Penelope Canan, ‘Strategic Lawsuits Against Public Participation’ (1988) 35 Social Problems 506 (which coined the phrase). The problem in England and Wales has been relatively little scholarly attention, but see Melinda Rucz ‘SLAPPed by the GDPR: protecting public interest journalism in the face of GDPR-based strategic litigation against public participation’ (2022) 14 Journal of Media Law 378 (in relation to GDPR); Sarah Palin ‘The case for a media and communications public participation court’ (2022) 14 Journal of Media Law 378 (comment arguing for procedural reform to address the issue of costs).

9 Although, some of the mechanisms examined below, e.g., strikeouts and summary judgments, have similar application in other torts relevant to SLAPPs (see below).

10 One may think of copyright, harassment, misuse of private information, and data protection. In its Response to the Call for Evidence, 20 July 2022, the government emphasised that SLAPPs are not limited to defamation law, and wished to address the issue, amongst other things, in privacy law. There is much less consensus to support this focus, however, and it should be noted that privacy actions are subject to a threshold of seriousness, and may also be struck out as an abuse of process (see below).

11 It has been described as the remaining ‘elephant in the room’, Peter Coe, ‘Strategic Lawsuits Against Public Participation (SLAPPs) and the Economic Crime and Corporate Transparency Act 2023’ (Inforrm blog, 3 November 2022) <Strategic Lawsuits Against Public Participation (SLAPPs) and the Economic Crime and Corporate Transparency Act 2023 – Peter Coe – Inforrm's Blog> accessed 10 April 2024.

12 Although the reversal of the presumption of juries and the introduction of serious harm test under the 2013 Act have addressed this to a degree, this remains a distinctive character of defamation law. On this point, see comments of Collins Rice J in Tewari v Khetarpal [2022] EWHC 2066 (QB) at [89].

13 SLAPPs: A Threat to Democracy Continues to Grow, A 2023 Report Update (August 2023, at 16) < https://www.the-case.eu/wp-content/uploads/2023/08/20230703-CASE-UPDATE-REPORT-2023-1.pdf>. In the debate on anti-SLAPP reform in the Economic Crime and Corporate Transparency Bill, Members of Parliament clearly considered ‘libel’ law to be the problem and the area at which reform should be addressed, See, for example, HL Debate 8 February 2023, vol 827, cols 1266 or 1288.

14 The Society of Media Lawyers (‘TSML’) define ‘SLAPPs’ as a ‘rare’ form of abusive litigation, more ‘aggressive’ than the usual cut and thrust of an ‘adversarial legal system’ (TSML Letter to the President of the Law Society, 27 October 2023, <https://inforrm.org/wp-content/uploads/2023/11/The-Law-Society-271023.pdf> accessed 10 April 2024, ‘TSML Letter’ hereafter). Civil society organisations focused on freedom of expression, on the other hand, define ‘SLAPPs’ as any legal action ‘brought by private parties’, that ‘targets acts of public participation’, with the purpose of ‘silencing, shutting down or discouraging the acts of public participation’ (CASE Report, n 13).

15 The Protection of Public Participation Act 2015 SO, amending the Courts of Justice Act (‘CJA’).

16 British Columbia adopted its own statute, of the same name, and almost identical to the Ontario statute (The Protection of Public Participation Act 2019 SBC). The UK Parliament cited the Ontario statute as a model in debates on the ECCTA provision—even if it significantly departed from it in what was finally adopted. In 2023, the Justice Committee of the Oireachtas in the Republic of Ireland proposed a General Scheme for defamation law reform, which included anti-SLAPP provisions based in part on the Ontario statute, < https://www.gov.ie/pdf/?file=https://assets.gov.ie/251457/c05b57f5-8ad7-4a5f-872b-ede710368183.pdf#page=null> accessed 10 April 2024.

17 See section 137.1(3) and (4) CJA. The dismissal mechanism is worded differently in the statute, reflecting the burden of moving and responding party and the shift in that burden after the moving party has established that the expression relates to a matter of public interest. Essentially, under the Ontario statute, a responding party has three tests to satisfy to defeat the motion: that the claim has substantial merit, that there is no valid defence, and that the harm suffered is sufficiently serious as to outweigh the public interest in the expression.

18 Grant v Torstar 2009 SCC 61; Ontario Ltd v Pointes Protection Association 2020 SCC 22 (‘Pointes’).

19 Hilary Young, ‘Canadian Anti-SLAPP Laws in Action’ (2022) The Canadian Bar Review, 186, 198. However, it is worth noting that ‘public interest’ is ‘used differently’ in relation to that which must be weighed against the ‘harm’ suffered, or likely to be suffered, by the claimant under s.137(4)(b). Here, ‘not just any matter of public interest will be relevant’. Instead, the court will look into ‘the quality of the expression, and the motivation behind it’, Pointes at [74].

20 See, for example, concerning the ‘no valid defence’ requirement the Canadian Supreme Court’s recent decision in Hansman v Neufeld 2023 SCC 14 (‘Hansman’).

21 The merits-based hurdle, for example, entails an enquiry by a trial judge that ‘goes beyond the parties’ pleadings’, and that examines the strength of the claim to exclude ‘frivolous suits’ or suits ‘with only technical validity’ (Pointes [38], [46], [47]). The requirement for the claimant to show there is ‘no valid defence’ involves a ‘limited assessment’ of evidence in determining the validity of the defence. (Pointes [58]) The ‘sufficiently serious’ harm hurdle requires the claimant to provide evidence to the trial judge to allow inference of harm, and in weighing that against the public interest in the defendant’s freedom of expression, the trial must examine the ‘quality of the expression’ and the ‘motivation behind it’. (Pointes [74]; Hansman [168]). These requirements have increased the complexity of the anti-SLAPP motion hearings, and in effect led to mini-trials or ‘trials in a box’, see Young (n. 19), at 199.

22 This is particularly relevant to England and Wales, where the substantial merit of a claim will depend in large part on passing the threshold of seriousness under section 1 of the Defamation Act 2013. The test has developed some complexity and may not be easily understood by claimants without effective legal assistance.

23 An example of one such case in England and Wales, is the case of Flood v Times Newspapers Ltd [2012] UKSC 11.

24 Although the statute must be read to ensure that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it (Bent v Platnick [2020] SCC 23), this flags the core issues with anti-SLAPP statutes; the potential over-inclusion of claims as ‘SLAPPs’, and denial of access to justice.

25 Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 41A, 1st Sess., 41st Parl., December 10, 2014, at p. 1975.

26 Pointes at [47].

27 Canan, for example, identified ‘one of four general motivations for filing SLAPPs’: (1) retaliation for successful opposition on a political issue; (2) to prevent future opposition on public policy issues; (3) intent to intimidate; and (4) a view of litigation of as ‘simply another tool’ in a strategy to win in some political or economic battle, Penelope Canan, ‘The SLAPP from a Sociological Perspective’ (1989) 7 Pace Environmental Law Review 23, 30.

28 N.Y. Civ. Rights Law §70(a)(b) and (c).

29 Protection of Public Participation Act 2008, s.8(2)(a). Based on what is said above about the suitability of defamation law to SLAPPs, the Australian statute may offer only limited protection against SLAPP claims.

30 Section 9(1)

31 Section 6.

32 Clause 2 of SLAPP Bill. ECCTA, section 195 (except for reference to ‘economic crime’). Subsections (4) and (5) give further guidance on things which the court may, in particular, take into account in making this determination; such as, for example, ‘whether the behaviour is a disproportionate reaction to the matters complained of’, ‘whether the defendant has access to fewer resources with which to defend the claim than another person against whom the claimant could have brought (but did not bring) proceedings’, or ‘any relevant failure, or anticipated failure’ by the claimant to comply with protocol or practice direction.

33 Pointes, at [2].

34 Mineral Sands Resources (Pty) Ltd and others v Reddell and others [2022] ZACC 37, at [39]–[40]. The Court referred in this regard to ‘signature elements’ of such claims, including ‘long drawn out, and extremely expensive legal battles, which consume vast amounts of time, energy, money and resources’, where the ‘person instituting the SLAPP generally have more resources to sustain litigation against their targets’, who are ‘typically individuals, local community groups, activists or non-profit organisations who are advancing a social interest of some significance.’

35 Kelly v O’Doherty [2024] NIMaster 1, at [73].

36 [2022] EWHC 1417 (QB), at [9].

37 [2023] EWCA Civ 219 at [21].

38 [2023] EWHC 1368 (KB) (‘Amersi’).

39 Amersi, at [52].

40 Amersi, at [240]. This included, a ‘delay in commencing the defamation proceedings … inconsistent with a desire to seek prompt vindication’, ‘an exorbitant approach to the litigation’, the claimant’s statement that he ‘intended to “take [the First Defendant] to the cleaners”’, and statements he made to the media which suggested an improper purpose of using proceedings to ‘embarrass (and possibly punish)’ others for, as he perceived it, having wronged him. [240].

41 As per Simon Brown LJ in Broxton v McLelland [1995] EMLR 485, citing Australian authorities, Champtaloup v Thomas (1976) 2 NSWLR 264, 271, and Rajski v Baynton (1990) 22 NSWLR 125, 134. This should not be overstated, though, as the law has also long recognised an exception for improper purpose abuse, see, e.g., De Medina v Grove (1847) 10 QB 172 at 176.

42 Serafin v Malkiewicz [2019] EWCA Civ 852 at [33]; Reynolds v Times Newspapers Ltd [2001] 2 AC 127, as per Lord Bingham at 176–77; Gatley on Libel and Slander (13th edn, Sweet & Maxwell 2022, hereafter ‘Gatley on Libel and Slander’), at 34.1. See also, Turley v Unite the Union [2019] EWHC 3547, at [138]; Banks v Cadwalladr [2022] EWHC 1417 (QB), at [127]; Riley v Murray [2022] EWCA Civ 1146, at [71]–[72].

43 See, e.g., Eurasian Natural Resources Corporation Limited v Burgis & Harper Collins [2022] EWHC 487 (QB), where the claim was dismissed at an early stage on the basis that it could not bear the meaning the claimant contested.

44 See Bokova v Associated Newspapers Ltd [2018] EWHC 2032 (QB) at [10]; see also, Ward v Associated Newspapers Ltd [2020] EWHC 2797 (QB), as per Nicklin J at [9], [10].

45 Costs are the obvious issue when it comes to SLAPPs. Defamation proceedings, like much of civil litigation, can be expensive. However, it remains as difficult as ever to get a detailed and reliable picture of the costs involved in defamation proceedings (David Howarth, ‘The Cost of Libel Actions: A Sceptical Note’ (2011) 70 Cambridge Law Journal 397). Introducing limited fees or legal aid for defamation claims, seems to be the basic solution to the issue, but both have been ruled out by successive governments, see, e.g., Government Response to the Call for Evidence, 20 July 2022 at [249].

46 Thornton v Telegraph Media Group [2010] EWHC 1414 (QB).

47 Such hearings can be conducted in a matter of hours, usually within weeks of direction of trial, without need for disclosure or witness statements, Hewson v Times Newspapers Ltd [2019] EWHC 650 (QB).

48 See, however, Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75 (QB) 946.

49 Sadik v Sadik [2019] EWHC 2717 (QB) at [79].

50 HL Debate 9 October 2012, vol 739, col 933.

51 Miller & Power v Turner [2023] EWHC 2799 (KB) at [75]. See also as per Collins Rice J (‘threefold test’) in Blake v Fox [2024] EWHC 146 (KB).

52 The White Book, para. 3.4.1.

53 Para. 4.2 of Practice Direction 53B in Media and Communications Claims. See, for example, Webb v Jones [2021] EWHC 1618 at [74].

54 See also, section 8 of the Defamation Act 1996 for the same. However, section 8 has been surpassed in use by the provision for summary judgment under the Civil Procedure Rules, see Gatley on Libel and Slander, at 30.32. The courts also have the ‘inherent’ Jameel jurisdiction to dismiss a claim if it fails to plead a ‘real or substantial’ tort, Jameel v Dow Jones [2005] EWCA Civ 75. However, Jameel was before the adoption of the serious harm threshold in section 1, and the case involved a question of whether there was a real and substantial tort for service outside the jurisdiction. Jameel may continue to have some application to this area of law, however, in relation to a proportionate approach as to whether the harm is serious enough to justify intervention with the public interest in the defendant’s freedom of expression, see below. While Jameel was not argued before the Supreme Court in Mueen-Uddin, the Court may nonetheless address the Court of Appeal’s decision that ‘this was a case where Hunter abuse of process overlaps with Jameel abuse of process’, Mueen-Uddin v Secretary of State for the Home Department [2022] EWCA Civ 1073 (‘Mueen-Uddin EWCA’, at [54].

55 White Book, para. 3.4.1. It may also be referred to the judge by an officer of the court. Both avenues would spare defendants the expense of filing for strike out proceedings. See also, section 10(2) of the Defamation Act 1996.

56 As per Woolf in Swain v Hillman, at 92H. See also, Kasongo v CRBE Ltd & Transport for London [2023] EWHC 1464 (KB); McLaughlin v LBC [2010] EWHC 2726 (QB) (‘McLaughlin’) at [11]. See also, Gatley on Libel and Slander, at 30.38: ‘It is not entirely clear how far evidence is admissible on an application to strike out’.

57 The White Book, para. 3.4.2, citing Bridgeman v McAlpine-Brown (19 January 2000 unreported CA).

58 The White Book, para. 3.4.2, citing Hughes v Colin Richards & Co [2004] EWCA Civ, 266.

59 The reversal of the presumption of jury trial under section 11 of the Defamation Act 2013 has allowed for greater application of the summary judgment provision under CPR 24.2. Prior to the Act, the court could only give summary judgment if there was no evidence fit to be left to the jury, see, e.g., Wallis v Valentine [2002] EWCA Civ 1034 (‘Wallis v Valentine’), at [13]. See also, Gatley on Libel and Slander, at 30.34.

60 ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, at [8]; Mir v Hussain [2024] EWHC 56 (KB), at [6].

61 ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, at [8].

62 Optaglio Limited v Thethal & Hudson [2015] EWCA Civ 1002, at [32].

63 ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, at [8]; Easyair Ltd v Opal Telecom Ltd [2009] EWHC339 (Ch), at [15]; James-Bowen v Commissioner of Police for the Metropolis [2015] EWHC 1249, at [3]; Swain v Hillman [2001] 1 All ER 91, at 92.

64 It is quite common for defendants to apply for both though. Despite the evidentiary burden on the defendant for applications under 24.2, in Mir v Hussain [2024] EWHC 56 (KB) at [6], Chamberlain J considered ‘a slightly less exacting test applied’ to a 24.2 application. On such ‘double-barrelled’ applications, see Gatley on Libel and Slander, at 30.38.

65 Lachaux v Independent Print Ltd and another [2019] UKSC 27 (‘Lachaux UKSC’), at [12], [20]. See for recent statement of principle, Sivananthan v Variskaram [2023] EMLR 7, at [42]. As explained below, however, the evidentiary test for causation of serious harm to reputation can mean that applications for summary judgment on serious harm may often be denied. In Bukhari v Bukhari [2023] EWHC 427 (KB) at [94], for example, Steyn J rejected the claimant’s application for summary judgment on the issue of serious harm. ‘90 tweets and 8 videos complained of’, and the complicated relationship between the serious harm threshold with the defence of truth, meant it was ‘particularly inappropriate’ to determine the issue of serious harm without a trial.

66 King’s Bench Guide, March 2023, reflecting judgment of Warby J (as he then was) in Hope Not Hate v Farage [2017] EWHC 3275 QB, at [37], and the Court of Appeal in Lachaux [2017] EWCA Civ 1334, at [82] (which was ‘not disturbed’ by the later UKSC judgment in the case, see Nicklin J in Haviland v Lownie and others [2021] EWHC 143 (QB) (‘Haviland’). See also s. 8 of Defamation Act 1996: ‘In considering whether a claim should be tried the court shall have regard to’, amongst other things, ‘the extent to which there is a conflict of evidence’.

67 Soriano v Societe d’Exploitation de l’ebdomadaire Le Point SA and Leplongeon [2022] EWHC 1763 (QB) (‘Soriano v Leplongeon’), at [4].

68 ‘Soriano v Leplongeon’, at [81].

69 ‘Soriano v Leplongeon’, at [83]. The King’s Bench Guide provides that ‘Trials of preliminary issues in the MAC List are usually limited to issues that can be resolved without the need for disputed witness evidence.’

70 Soriano v Leplongeon’, at [84].

71 [2020] EWHC 2797 (QB) (‘Ward’), at [41]. But note, the defendant there was relying on the assertion that the claimant’s previous convictions had so ‘permanently tarnished’ his reputation, that he had no reasonable prospect of establishing serious harm.

72 Ward, at [41]. See also, Sadik v Sadik [2019] EWHC 2717 (QB), where Julian Knowles J denied the defendant’s application on r 3.4(2) and 24.2 on the basis of the ‘very serious nature of the allegations’ and the ‘inherent probabilities in this case, certainly at this stage, are that there will have been some people who have become aware of the Messages’, at [101]; see also, Harcombe v Associated Newspapers Ltd [2022] EWHC 543 (QB), at [13]. In Bindel v Pink News [2021] EWHC 1868 (QB), Nicklin J was ‘not prepared to direct the trial of preliminary issues where there remains significant uncertainty about the parameters of the litigation thereafter’ (at [40]). The court rejected the defendant’s submission of ‘entitlement’ to have ‘threshold issues’ in a defamation claim be determined at a preliminary stage (at [41]). In Frati v Bowen [2023] EWHC 627 (KB), another business review case, the defendant sought summary judgment on a ‘very narrow basis’ that there had been no publication or no substantial publication (but did not pursue this for failure to plead serious harm), as per the Jameel standard of real and substantial tort. The judge rejected the application. Even though it was ‘open to the court’ to consider an application for summary judgment on the pleading of serious harm, the judge was ‘not making final findings of fact’ (at [35],[37]).

73 [2021] EWHC 1618, at [63].

74 ibid, [69].

75 ibid, [98].

76 [2021] EWHC 770 (QB).

77 ibid, [63].

78 The claimant was furthermore considered to have been given ‘every opportunity to put forward his best claim’ and was denied any further opportunity to amend the claim (ibid, [76]).

79 [2022] EWHC 2066 (QB), at [47]. Emphasis in original.

80 ibid, [148]–[149].

81 Amersi v Leslie and CMEC UK & MENA Ltd [2023] EWHC 1368 (KB)

82 Amersi, at [157][161]. Referring to the established principle of inference of harm in relation to mass publication of grave imputations. But note, that this is not always the basis for inference of serious harm. In Packham v Wightman [2023] EWHC 1256 (KB), although the claim ultimately succeeded for the most part at trial, Sani J emphasised that the ‘need to show serious harm is an important control mechanism on the scope of defamation liability’ (at [71]), and held that the claim against one defendant who ‘retweeted’ a defamatory statement of significant gravity to his thousands of followers on social media failed to plead a proper evidential basis for inferring serious harm, and dismissed that part of the claim (at [75]). See also, Palmer v Farmer [2023] EWHC 976, which although it did not involve mass publication, involved imputations of the gravest kind. Sani J closely scrutinised potential evidence of the impact or likely impact on the reputation of the claimant in the mind of each named defendant, but found the claim wanting for evidence of serious harm in relation to two of the named defendants, and that nothing could be inferred about likely harm arising, or the existence of any ‘grapevine effect’ (at [44]).

83 Amersi, [45].

84 Amersi, [192].

85 [2022] EWHC 1688 (QB).

86 ibid, at [71].

87 [2023] EWHC 950 (KB).

88 ibid, [51].

89 ibid, at [45].

90 ibid, [48].

91 As per Warby J, in Hamilton v News Group Newspapers [2020] EWHC 59 (QB). See also, as per Collins-Rice J, in Sivananthan v Variskaram [2023] EMLR 7, at [42].

92 Hamilton, Ibid.

93 In Ijaz v Manan [2021] EWHC 3683 (QB), one of the issues ordered for preliminary hearing was whether the claim constituted a ‘real and substantial tort’ for the purpose of Jameel jurisdiction. This involved a different question than that of s 1 of the 2013 Act, and thus required less trial of evidence, but nonetheless was described by Sani J as a ‘multi-factorial question’ on the ‘threshold of seriousness for Jameel’, and one that must be approached in ‘light of the rights in Article 8 and 10 of the European Convention of Human Rights’ [20]. After a brief analysis of available evidence on the issue, it was held that there had not been a ‘real and substantial tort’, and the claim was duly struck out on the Jameel basis (at [24]).

94 See above (n 54).

95 Miller & Power v Turner [2023] EWHC 2799 (KB), at [75].

96 Broxton v McClelland & another [1996] EWCA Civ 955. The claimant may, furthermore, be subject to punitive damages, contempt of court or may be referred by the court to prosecuting authorities, see Attorney General v Times Newspapers Ltd [1974] AC 273 (HL).

97 [1981] UKHL 13 (‘Hunter’), at 536. See also, Attorney General v Paul Evan John Barker [2000] 1 FLR 759; a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’.

98 Hunter, ibid; Tinkler v Ferguson [2021] EWCA Civ 18, [31].

99 White Book 3.4.3.; Mueen-Uddin EWCA, [48].

100 Tinkler v Ferguson, ibid [29]; See also, Laing v Taylor Walton [2007] EWCA Civ 1146, at [12]; Broxton v McLelland, ibid [54]; Mueen-Uddin EWCA, [84]; Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3, [48].

101 [1977] 1 WLR 478 (CA), 489. There the proceedings were issued against a distributor of the magazine which has published the defamatory statements about the plaintiff. This was struck out as a ‘collateral purpose outside the legitimate scope of proceedings’ (at 498). For a recent application in relation to the tort of abuse, see Total Extraction Ltd v Aircentric Ltd [2021] EW Misc 21 (CC).

102 Goldsmith v Sperrings, ibid 490D, citing Lord Diplock in Attorney General v Times Newspapers, ibid at 312. See also, Gatley on Libel and Slander, at 30.47, citing Wallerstein v Moir [1974] EWCA Civ J0521-1.

103 Broxton v McLelland (n 96). This is not confined to the conduct of the proceedings, but includes the initiation of the claim itself, Wallis v Valentine (n 59) at [32].

104 Arrow & Nominees Inc v Blackledge [2001] BCC 591.

105 Known as ‘Henderson abuse’, Henderson v Henderson (1843) 3 Hare 100, 67 ER 313.

106 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015.

107 Wallis v Valentine (n 59) [34]. The Court accepted this as applying under ‘paragraph (2)(ii) of Simon Brown LJ’s statement of the principles’ in Broxton. However note, as per the Court of Appeal, in Jameel [2005] EWCA Civ 75, Wallis is ‘an extreme case’ with ‘nominal damages’ ‘such as could not justify the costs of action’ (at [58]).

108 Amersi, at [240].

109 ibid.

110 ibid, [241].

111 McLaughlin (n 56) at [11].

112 Goldsmith v Sperrings, at 499F; Wallis v Valentine, at [32]; JSC VTB Bank v Skurikhin [2020] EWCA Civ 1337, at [49]. In Wallis, for example, the evidence was based on the judge’s ‘opportunity of seeing the claimant in the course of the day making submissions as a litigant in person and was in a good position to form an opinion about him.’ (at [35]).

113 As per Stuart-Smith LJ in Wallis, at [33]: the judge ‘is entitled, and indeed bound, to look at the case at its highest from the point of view of the claimant, and ask himself the relevant questions which arise when considering the overriding objective’.

114 Subotic v Knezevic [2013] EWHC 3011 (QB), at [60] (‘dismissing an action for an abuse of process is a draconian power vested in the Court which should only be exercised in an exceptional case’); see also, as per Lloyd LJ in Stuart v Goldberg Linde [2008] EWCA Civ 2, at [65] (‘court must consider critically any suggestion that a particular cause of action should not be allowed to be asserted’); as per Nicklin J in Amersi at [239] (‘The hurdle is a high one.’). See also on this point, Palin (n 8), at 201.

115 The White Book (n. 99).

116 Biguzzi v Rank Leisure Plc [1999] EWCA Civ 1972; see also, Aktas v Adepta [2010] EWCA Civ 1170, at [92]. There are alternative mechanisms, such as an order to the party at fault to pay indemnity costs, which may prove relevant to addressing SLAPPs.

117 As per Arnold LJ, Asturion Foundation v Alibrahim [2020] EWCA Civ 32, at [64].

118 Lord Bridge, Goldsmith v Sperrings (n 101) at 503G.

119 In FKJ v RVT [2023] EWHC 3 (KB), Master Davison (at [32]) rejected a claim for abuse of process, as bringing legal proceedings ‘for the purpose of achieving the natural consequences of the litigation, such as the defendant’s financial is not an improper purpose’, and as ‘even if the claimant had an ulterior purpose, that purpose appears to have been within the natural scope of the proceedings which she brought.’

120 See for example, Wright v McCormack [2022] EWHC 2068 (QB) where the defendant abandoned the defence of truth as ‘he could not afford to pay for legal representation for such a trial.’ The European Court of Human Rights has accepted the burden in English defamation law as compatible with Article 10, Steel and Morris v UK [2005] EMLR 314 at §93.

121 Namely, that the statement complained of was one of ‘opinion’ and that the statement ‘indicated whether in general or specific terms the basis of the opinion’, subsections (2) and (3) of section 3 of the Defamation Act 2013.

122 In Harcombe v Associated Newspapers Ltd [2022] EWHC 543 (QB), the defendant originally applied for the defence of honest opinion to be tried as a preliminary issue but withdrew once ‘they recognised that the factual issues that arise under s.3(4) would have to be tried together with the defence of truth’, (as per Nicklin J at [21]); honest opinion defence is often said to ‘fundamental to the protection of freedom of expression’ (as per Nicklin J in Sussex v Associated Newspapers Ltd [2023] EWHC 3120 (KB) at [39]), but this it seems is only on full trial.

123 Serafin v Malkiewicz [2020] UKSC 23.

124 TSML letter, p. 5.

125 Section 4(1)(a).

126 Doyle v Smith [2018] EWHC 2935 (QB), at [64].

127 Reynolds v Times Newspapers Ltd [2001] 2 AC 127, as per Lord Bingham at 176–77; Gatley on Libel and Slander (n 42), at 34.1. See also, Turley v Unite the Union [2019] EWHC 3547, at [138]; Banks v Cadwalladr [2022] EWHC 1417 (QB), at [127]; Riley v Murray [2022] EWCA Civ 1146, at [71]–[72].

128 Section 4(1)(b).

129 Hijazi v Yaxley Lennon [2020] EWHC 3058, at [17]; Turley v Unite the Union, ibid [138]; Packham v Wightman (n 82) [161]

130 See Turley, where the first defendant was found not to have the requisite belief on her witness statement.

131 Lachaux v Independent Print Limited and Evening Standard Limited [2021] EWHC 1797 (QB), as Nicklin J at [132].

132 Packham v Wightman, at [30]; see also Economou v De Freitas [2018] EWCA Civ 2591, at [110].

133 As per Steyn J in Banks v Cadwalladr [2022] EWHC 1417 (QB), at [107].

134 See, e.g., the analysis of Steyn J in Banks v Cadwalladr, or of Warby J in Riley v Murray [2021] EWHC 3437.

135 (n 122).

136 [2008] EWCA Civ 432.

137 Harcombe (n 122) [33].

138 Even before the codification of section 4, the defence was considered to raise such complex factual issues that it was unsuitable for jury trial. Gatley on Libel and Slander (n 42), at 15.22.

139 Above (n 42).

140 While the phrasing ‘valid defence’ is adopted from the Ontario statute (n 15), the test here for valid defence would operate differently, and would not be inclusive of claims like Flood, above (n 23). See below in relation to burden of proof.

141 Of course, it may be that, after a brief trial, it will still not be ‘reasonably clear’ that there is a valid defence and the issue will need to go to trial. But in such cases, the defendant is no worse off than in the existing law, and they will at least have had the benefit of a brief trial of the pleaded defence to inform any subsequent decision as to whether they should settle.

142 Tewari v Khetarpal (n 79); Amersi (n 38) [45].

143 Amersi, ibid [192]. And in this respect the section 1 of the Defamation Act 2013 has overruled the traditional principle that claims should be dismissed only on ‘facts and not hypotheticals’, as per Lord Brown-Wilkinson in Barrett v Enfield London Borough Council [2001] 2 AC 550 (HL), at 557.

144 Amersi (n 82).

145 As per the approach of Sani in Packham v Wightman and Palmer v Farmer (n 82).

146 Hunter (n 97).

147 See above (n 112).

148 Above (n 108).

149 Above (n 113).