ECCTA SLAPP Provisions

Helen Mather, Partner

The government appears keen to ensure the Economic Crime and Corporate Transparency Act 2023 (ECCTA) does more than just overhaul Companies House, and no clearer is this than with the planned introduction of Anti-SLAPP provisions which are not yet implemented, but if and when they are will be the first of their kind in English law.

What is a SLAPP?

‘SLAPP’ stands for ‘Strategic Litigation Against Public Participation’, and in summary involves litigation being brought where a claimant seeks to use legal threats to pressure the defendant into ceasing discussions and investigations relating to matters of public interest.

These claimants often understand that their claims would not ‘win’ in a trial, but instead attempt to cause as much financial and emotional damage as possible to silence their opponent.

SLAPP cases are largely brought on alleged breaches of defamation and confidentiality law, where for example a claimant may file a claim to prevent an independent journalist from publishing a damaging article.

The changes under ECCTA

This therefore may seem out-of-place in ECCTA, which has a focus on reducing economic crime, however studies suggest 70% or more of SLAPP claims in the UK are connected to or involve financial crime, with many recent examples involving the dealings of Russian oligarchs and investigations into their businesses in the UK following Russia’s invasion of Ukraine.

The anti-SLAPP provisions of ECCTA are therefore often relevant to litigation where the claimant is seeking to suppress their involvement in economic crime being exposed.

For a claim to be classed as a SLAPP under ECCTA:

1. it must aim to restrict the defendant’s right to free speech;
2. this suppressed speech must be connected to economic crime;
3. the speech must be related to or would be made for a purpose related to the public interest in combating economic crime; and
4. it must be proven that the claimant has gone about bringing the claim in a way that is intended to cause the defendant harassment, undue expense or some other harm or inconvenience which goes beyond that encountered typically in the course of appropriately conducted litigation.

What happens to a SLAPP?

The Act states that where a case meets the above definition, and the claimant cannot show that they are more likely than not to succeed at trial, the case can be struck out before trial. There are also provisions to ensure the cost of defending against a SLAPP is mitigated, unless the defendant’s own misconduct justifies this approach. However at present ECCTA only gives the government the authority and intention to amend the Civil Procedure Rules – which govern the way litigation is conducted – to implement these changes. It won’t be until these amendments are brought in that such powers will be available to the courts.

What next?

The usefulness to and willingness of the court to use this power over other strike-out powers available presently cannot yet be gauged. It is however a clear sign that the government has not only taken notice of the rise in SLAPP cases in recent years, but also their commonality with financial crime. What remains to be seen is whether the government expands on these provisions and introduces broader and more concrete legislation to seek to tackle the problem of SLAPPs in practice, or whether this will be left dormant.

Contact a member of our team for more information on 0161 832 3434.