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Lawfare: How Journalists and Activists Can Combat Vexatious Litigation

Lawyer Stephen Kinsella examines the exploitative use of legal threats, and offers advice on how not to play the game

Barristers and lawyers in the legal epicentre of the Royal Courts of Justice in London Photo: Jeff Gilbert/Alamy

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As readers of Byline Times will know well, journalists and NGOs (particularly those on the ‘progressive’ end of the spectrum) frequently face legal threats aimed at blunting or deterring their activities.  That can also extend to charities and campaigning organisations who find themselves threatened with a libel or privacy action for discussing matters of genuine public concern.

Often it appears to be a cynical exploitation of both the law itself, and the fact that it can be costly to defend against a case in the UK courts.  But there is a growing realisation that those who receive a threatening letter from, or invoking a law firm, do not necessarily have to play the game. Certainly, they should not immediately instruct their own law firm and initiate that lengthy and expensive dance that lawyers naturally take up. 

Carole Cadwalladr and Peter Jukes outside the High Court on the last day of the journalist’s libel trial. Photo: Zuma Press/Alamy

Reasonable Steps?

As a rule, a person who feels injured, defamed or otherwise misrepresented might be expected to make contact to request an explanation.  They might reasonably ask for a prominent clarification and if appropriate a correction and apology.  If there was an honest mistake or genuine misunderstanding and the recipient responds swiftly and sensitively, it can in most cases mitigate most if not all of the harm caused. 

On the other hand, if the supposed victim sits on the matter for a few weeks and the first communication is a letter from a law firm requesting a fixed fee in damages plus legal costs, one can reasonably question the underlying motivation. 

In many instances what is clearly happening is that the ‘offended party’ is exploiting the law to impose on the alleged offender a significant and unquantifiable burden of costs and waste of resources.

So what does the recipient do? They call up their lawyer and make it inevitable that significant costs will ensue. While it is difficult to gather empirical evidence, it seems that very few of these complaints end up in court, or indeed are intended to do so.  Instead they are aimed at deterring further coverage, exposure or criticism.  And collectively they can have a serious chilling effect on public debate as well as investigative journalism.

The Lawyers

It’s not (entirely) the fault of the lawyers.  Yes, there are some notorious firms who seem ready to engage in lawfare without much examination of either the underlying facts, their own consciences or even their professional obligations.  But faced with a client who claims to be aggrieved, they can sometimes be excused for taking that at face value. 

Having said that, they should be asking why their client didn’t make an attempt to resolve the matter as soon as they became aware of it.  And if the law firm is habitually acting on a “no win, no fee” basis, the lawyers should probably be questioning their own business model.

By the same token, the lawyers approached by the defendant have a professional duty to help their client defend itself, but they ought to consider whether there isn’t a speedy and non-lawyered way of disposing of the matter.  Typically many hours and thousands of pounds can be spent only to result in advice that basically says “Well you could win, but you could lose, and loss will be very expensive so you should consider making a settlement offer”.  That offer in turn will reward the claimant’s law firm and encourage repeat behaviour.

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It is important to take into consideration that lawyers feel happiest writing lengthy letters to other lawyers because they can be as aggressive and threatening as they like. But they hate having to deal with private citizens, where they will be expected by the court (should it ever get to court) to be far more measured and to explain themselves far more clearly. 

A further consideration is the growing sense that the courts are becoming fatigued with such cases.  That is particularly true where the complaint is brought by a public figure who has already established a persona in the public mind and appears to be arguing a relatively minor, if any, damage to their reputation. The recent setback suffered by Laurence Fox should be a warning to many.

How to Respond

With that in mind, a suggestion to anyone receiving out of the blue a letter from a law firm claiming that a tweet, article or broadcast has misrepresented the facts in a way that has harmed the standing of their client, is that they should consider responding as follows:

  1. We are surprised to receive this letter having heard nothing formally from the person you claim to be your client
  2. We make every effort to check our facts but honest mistakes can be made in good faith, and where that happens our stated policy [see link] is to conduct a swift review, with a degree of objective oversight [perhaps by a non-executive director, trustee as appropriate], and agree to an appropriate correction with due prominence where necessary
  3. We do not intend to instruct a law firm to advise us on what appears to us to be a simple dispute over facts or to ask them to engage in lengthy correspondence with you
  4. We suggest your client write to us setting out where they think we have erred, with any supporting evidence necessary
  5. If you persist in writing to us we must point out that your client seems to have decided prematurely to incur entirely unnecessary legal fees
  6. We will not accept any correspondence from you that is marked “without prejudice”, “confidential” or similar
  7. Should this matter ever come before a court we will draw to the court’s attention this and all other correspondence between us

Ultimately the response will depend on the seriousness of the allegations, but in most instances, it would be wholly appropriate for most campaigns, charities and journalists (particularly where sued individually) to adopt this approach. 

If done consistently it should make quite a dent in the practices of those law firms involved. It could also be helpful if those who so far have been on the receiving end of such measures from particular law firms could find a way of exchanging their experiences and preparing a dossier for submission to the various professional bodies, who to their credit are now waking up to abuses of the system.

Anyone with experiences to share should feel free to contact in confidence.

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