Lawfare and UK Court System

David Davis Excerpts

Thursday 20th January 2022 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

I beg to move,

That this House has considered the matter of lawfare and the UK court system.

I am grateful to Mr Speaker for his having issued a waiver for this debate. I of course recognise why it is important that Members of this House do not seek to influence the outcome of cases that are before the courts, and if these matters were before a jury, I would be wary of raising them, but they are matters of national importance and I am grateful for the opportunity to raise them.

We are rightly proud of our legal system in this country. Britain is home to some of the fairest and best courts in the world. Centuries of jurisprudence mean that London is among the most respected cities from a legal perspective. However, what is attractive to legitimate businessmen is also attractive to those with nefarious intentions: there are those with exceptionally deep pockets and exceptionally questionable ethics. These people use our justice system to threaten, intimidate and put the fear of God into British journalists, citizens, officials and media organisations. What results is injustice, intimidation, suppression of free speech, the crushing of a free press, bullying and bankruptcy. It results in protection from investigation and gives encouragement to fraudsters, crooks and money launderers. It has turned London into the global capital of dirty money. In extreme cases, it can undermine the security of the state by allowing people to act as extensions of foreign powers.

This is lawfare—lawfare against British freedom of speech, lawfare against the freedom of the press, and lawfare against justice for our citizens. Lawfare is the misuse of legal systems and principles by extraordinarily rich individuals and organisations to destroy their critics and opponents. In many cases, our reporters face reputational and financial ruin in defending themselves from these malevolent cases; even if they win, the expense and impact are huge. The chilling effect on a free press is extraordinary. Some newspapers hesitate to cover certain topics, such as the influence of Russian oligarchs, for fear of costly litigation. In at least one case I know, the publication avoids the subject outright.

These sorts of cases, designed to silence criticism, are so prolific that they now have an acronym: SLAPPs, which stands for strategic litigation against public participation. Such lawsuits are based on laws on defamation, privacy, data protection and—ironically—harassment. In the UK the cost of defending a case, no matter how well sourced and how great the public interest, can run into millions of pounds. These cases are so time-consuming and costly because a disclosure process before trial can be dragged out by deep-pocketed claimants for years to financially hobble the defendant, even before they get to the ruling.

The issue is not just the financial and reputational damage inflicted by these cases; lives are also being destroyed. Defendants are unable to work. Every waking moment is spent looking over their shoulders, wondering who or what is just around the corner. This is not about legitimate recourse against journalists making mistakes—because, as we know in this House, they can and they do; it is about shutting down scrutiny through fear.

Early in 2021, Russian Opposition leader Alexei Navalny published a video investigation into President Putin’s palace on the Black sea. In the video, he waved a copy of “Putin’s People” by Catherine Belton, a much respected Financial Times journalist at the time. Just two months later, Belton and her publisher were suddenly served with a series of lawsuits, filed over the course of six weeks by four Russian billionaires and the state-run company Rosneft—that, I think, gives away that the Russian state is involved.

Media lawyers with decades of experience in such cases said that they had never seen a legal onslaught of such scale and intensity. Those cases dragged on for over a year, and the cost of that year alone ran into the millions—£1.5 million for Catherine Belton alone. If the case had gone on, it would have cost millions more.

One of those suing Belton—the final one—was Roman Abramovich, the multi-billionaire owner of Chelsea football club. Abramovich claimed that Belton’s book alleged that he had a corrupt relationship with the Russian President and was making payments into Kremlin slush funds. An identical suit was also filed in an Australian court by Abramovich, to effectively double the cost of defending the case and to further intimidate HarperCollins.

It is worth reminding people of Mr Abramovich’s background and the character of the man. We are speaking here of the man who manages President Putin’s private economic affairs, according to the Spanish national intelligence committee. This is a man who was refused a Swiss residency permit, due to suspected involvement in money laundering and contacts with criminal organisations. Abramovich was also deemed a danger to public security and a reputational risk to Switzerland.

Abramovich initially came to the UK on an investor visa. In 2015, the Home Office tightened the rules around those visas, so that applicants could be required to prove the origins of their wealth. In 2018, when his visa was up for renewal, Abramovich withdrew the application. When he bought Chelsea FC, Abramovich was the governor of the Chukotka region of Russia. It was alleged by associates of his that the purchase was done at the behest of the Kremlin. As a result of the purchase, he now has enormous soft power and influence in the UK. I ask the House to come to its own conclusion about whether this man is acting at the behest of the Kremlin or Putin’s Government.

Belton’s case is now settled. Interestingly, there was a huge spin to suggest that Abramovich had won hands down, and he had not, but that is another matter. But for her colleague on the Financial Times, Tom Burgis, the author of “Kleptopia: How Dirty Money is Conquering the World”, his legal battles are just beginning. Burgis is being sued by the Eurasian Natural Resources Corporation, a privately owned Kazakh multinational mining company. Since April 2013, ENRC has been under investigation by our Serious Fraud Office for fraud, bribery and corruption. The investigation is one of the longest-running and most complicated cases that the SFO has on its books. This case, and its reporting, has prompted a wave of legal proceedings by ENRC in the United States and the UK against journalists, lawyers and Serious Fraud Office investigators.

In May 2015, two former employees of ENRC turned up dead on the same day in a Missouri hotel. They were due to be witnesses in the SFO case. The cause of their death was recorded as malaria, but the chances of two people dying from malaria on the same day and at the same time, broadly—within hours of each other—is vanishingly small. The next year, a geologist associated with the company was found dead in the back of a burned-out Audi in Johannesburg. Burgis outlined these facts in his book, but he is now facing the wrath of ENRC, which alleges that passages in the book are “untrue” and “highly damaging”—the reason? Because ENRC interpreted the reporting of the deaths as Burgis suggesting

“murder to protect its business interests, or alternatively, there are strong grounds to ‘suspect’”

that ENRC had them murdered.

Even given the waiver, I should not comment on the substance of the ongoing legal proceedings, but what I will say is that the FBI takes these allegations seriously enough that it is now investigating the Missouri deaths. Take from that what you will, Mr Deputy Speaker.

Amazingly, when the FT reported the FBI’s action, ENRC then took action against that paper. Are we now to understand that journalists are not allowed to publicly report the deaths of witnesses for fear that someone may deduce that they were murdered by a company like ENRC?

[Bob Seely (Isle of Wight) (Con)]

My right hon. Friend is making a fantastically important speech, and I look forward to joining him to talk about these many important subjects. What does he think about those London-based law firms that are so willing to sell intimidatory legal threats as part of their services?

[Mr Davis]

My hon. Friend alights upon a very important point. It is very clear that some London-based law firms have found an incredibly profitable niche that they are willing to pursue without too much concern about the outcome. I think the professional bodies for those law firms should be looking very hard at them, as should the Government. It is an important point, which I am sure others will develop.

[Stephen Kinnock (Aberavon) (Lab)]

The right hon. Gentleman is making an excellent speech. On the point of the lawyers who are facilitating all this—the army of lawyers doing the dirty work of the Russian Government and of oligarchs and the Governments of other hostile regimes—does he agree that were we to introduce a foreign agents registration Act in this country, lawyers acting on behalf of those people should be included in such a registration process?

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[Mr Davis]

The hon. Gentleman makes an important and persuasive point, but I suspect there are other people in this room at the moment—I am looking to my left here—who have stronger authority on this me. What I am trying to argue today is that this issue requires Government action that will involve a whole series of things from reorganising how civil cases are dealt with, through how we license private investigation to the sort of reporting arrangements for foreign agents that the hon. Gentleman is talking about. This is a whole area that the Government will have to take on in toto.

The assault faced by Burgis, HarperCollins, the Financial Times, the Serious Fraud Office and others has been described by a coalition of organisations as

“a form of legal harassment used by those with deep pockets to silence journalists”.

That same coalition is

“deeply troubled by the chilling effect this wave of legal action has on legitimate investigative and anti-corruption work by journalists, law enforcement officials, and others”.

This is not just about the financial costs; these actions take an emotional toll on those who are targeted.

Sometimes it does not stop there. Lawfare is often buttressed by other methods of harassment and intimidation. John Gibson, a former Serious Fraud Office case controller, was sued by ENRC for allegedly leaking information to Tom Burgis, the journalist. Why did ENRC suspect that? In cross-examination, ENRC’s lawyer described in detail a meeting between Burgis and Gibson—a meeting that both had gone to extreme lengths to keep secret. It was organised over an encrypted messaging service and held in an underground car park with no telephone signal. So the only explanation for how ENRC’s lawyer had details of this clandestine meeting would be if Burgis, Gibson or both were being actively watched.

This is a private company putting a journalist under aggressive surveillance. It is a private company putting a Serious Fraud Office employee under aggressive surveillance. It is a private company, in essence attempting to undermine the freedom of the press and frustrate the legitimate workings of the state. It is immoral, it is intimidating and it is unethical. Frankly, the entire industry needs to be looked at, and powers need to be put in place to tame the wild west of private intelligence work.

It is not just journalists who are targets for this kind of bullying, and it does not just involve international billionaires. Our former colleague Charlotte Leslie, the director of the Conservative Middle East Council, is facing legal challenges from the multi-millionaire Mohamed Amersi. The court documents outline how Mr Amersi tried to pressurise his way to becoming the chair of the Conservative Middle East Council. It has been suggested that that was because he saw it as a route to a knighthood or other honour, and that Ms Leslie rejects his attempts. In response, he tried to form his own group, the Conservative Friends of the Middle East and North Africa. Ms Leslie then compiled a due diligence note on his background, and it was sent to Conservative headquarters by Sir Nicholas Soames. That memo outlined details about Amersi’s past, his associates and his dealings with Russia. As far as I can see, it was compiled from open source research.

Mr Amersi got hold of this memo. In response, he had his lawyers send demanding letters to both Soames and Leslie. He claimed that the memorandum was defamatory and inaccurate. However, despite the issue rumbling on for over a year, he filed his defamation case only last month. In the meantime, he used data law to take Ms Leslie to court. This is a growing tactic for those using SLAPPs to silence their critics. In November, Ms Leslie appeared in the Royal Courts of Justice. The contention was that she had not responded properly to a data subject access request from Amersi. Usually, the Information Commissioner deals with such disagreements, but when a rich man wants to silence and destroy someone, they go to the courts. The claim was dismissed and Charlotte and CMEC were awarded 65% of the costs, but Amersi is bringing the claim back and a four-day trial has been scheduled for the spring, further ramping up enormous costs.

So, who is Mohamed Amersi? On his website, he describes himself as

“driven by a desire to create a world that’s better for everybody”.

Let’s test that against public domain facts, shall we? In 2005, he made £4 million helping a Luxembourg company to buy a Russian telecoms business. The following year, a Swiss judge concluded that that company was secretly owned by a top crony of Vladimir Putin, Leonid Reiman. In 2006, Amersi was accused in a separate lawsuit of trying to extort a $2 billion payment, not on behalf of himself but on behalf of a Russian oligarch.

Four years later, in 2010, Amersi advised on a transaction in Uzbekistan that was found to be a $220 million bribe to the daughter of the country’s brutal dictator. When he was embroiled in a dispute in the early 1990s, a UK High Court judge described his conduct as “lamentable” and his evidence as “unreliable”, “unconvincing” and “unsatisfactory”.

All that information is available in public court records. I cannot make an authoritative judgment on the matter, so I will leave it to the House to decide for itself whether that served to create a world “better for everybody”. In the latest instance, Amersi has used his wealth and influence to try to bully Charlotte Leslie into silence.

[Tim Loughton (East Worthing and Shoreham) (Con)]

As a former colleague of Charlotte Leslie, I think she has been treated appallingly just for doing her job efficiently and in good faith. I am glad that my right hon. Friend has exposed the appalling tactics that have been used against her.

Is there no way to stop repeated legal actions, or the threats of legal actions, being brought? It is the attrition effect of clearly vexatious complaints that intimidates people into submission or silence or, effectively, bankruptcy. Surely there should be some measure that says, “You have one shot at it, at best, and then there is no further recourse to the courts or such legal action.” Would that be a way to stop the appalling actions that my right hon. Friend has been describing?

[Mr Davis]

My hon. Friend makes an extremely good point. The way that it happens is that there are legal firms that now specialise in making that sort of intimidating tactic work, and it is based on multiple different laws—as I said earlier, on everything from defamation to data protection and privacy. Therefore, we have to find a way to govern how the courts work to ensure that exactly what he says does not happen and that there are not multiple attempts. After all, someone can be charged only once for a crime, so why can someone be sued multiple times for another sort of misbehaviour?

It is not only Amersi who is engaged in bullying and egregious behaviour, and it is not just law. For instance, Mr Carl Hunter was in contact by phone with Ms Leslie to attempt to informally broker peace between her and Mr Amersi and to urge her to apologise. He told her:

“You need to consider your position—being able to walk the dog at night, being able to sleep well at night.”

He said that she was looking at a “world of pain” on it. Those are clear and unacceptable threats, of which recordings are available, made in an attempt to intimidate. Those recordings contain other rather sinister comments as well.

[Bob Seely]

To reinforce a point that other hon. Members will probably make, although the lawyers—the Carter-Rucks and the Mishcon de Reyas—will say, “Everything that we do is legal,” this is part of a really corrupt and intimidatory practice that veers well into the criminal. Even if the lawyers are obeying the law, other parts of these sorts of campaigns are, frankly, purely criminal.

[Mr Davis]

I take my hon. Friend’s point. He will understand that I am picking my way carefully through my speech, given Mr Speaker’s ruling, so as not to trip into pre-empting the case. I am trying to present facts to the House so it can make its own judgment.

Charlotte Leslie has tried to settle the issue. After that intimidatory approach, she agreed to apologise to Mr Amersi and he rejected it. He is used to getting his way. He justified the use of money to get access to members of the royal family as “access capitalism”—that is his phrase. He has taken the same approach in this case. He throws money at a problem in an attempt to make it go away.

While Ms Leslie has been subject to legal harassment for a year, Sir Nicholas Soames has avoided the brunt of Amersi’s attack. Why? This is not a comment against Sir Nicholas, who is a very good man, but in Amersi’s own words—his rather odd English—it is because of his “grandioseness”. Charlotte, on the other hand, is not seen as grand and is therefore fair game. There is a simple non-legal word for that, which is bullying. That is what we are seeing.

So what do we need to do about SLAPPs? Members of this House will have many more ideas than me, and many of them are much more skilled and knowledgeable than me in these areas, but the clear fact is that there needs to be balance. Dealing with SLAPPs is an issue of balance. It is not wrong to sue journalists—sometimes they make serious mistakes or behave maliciously—but billionaires and multimillionaires should not be able to use the law to shut down legitimate criticism. Even if someone defends their case successfully, in this day and age they face material costs so huge that they will further deter others from following a story, and they can even destroy lives. Just to go off on a tangent, Charlotte Leslie, if she has to meet the costs of all of this, will probably have to sell her home and lose all her savings, and that is what an ordinary person faces in this context.

In the United States, 31 states have passed anti-SLAPP laws offering varying degrees of protection—remember that the US already has the first amendment—and in some cases allowing journalists and media organisations to file motions to dismiss such suits at an early stage on the grounds that the case involves protected speech on a matter of public interest. Such a protection does not exist in the UK, enabling the process to be dragged out at great expense to both parties. That is fine for those with deep pockets, but for an ordinary person it is immensely damaging financially and emotionally. It destroys the entire concept of equality under the law.

Other countries are already addressing this issue, and as they do, the problem for London will only grow as more and more ultra-wealthy individuals come here to exercise lawfare. If London is to remain the envy of the legal world, then we need to get a grip on the problem and stop this rampant abuse of our system. If we do not, we will continue to face these kinds of attacks on the freedom of our press—the foundation of our state—and we will leave our people subject to grotesque injustice in the face of this outrageous lawfare.

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[Sir Robert Neill]

Absolutely. The regulations dealing with the solicitors profession have very considerable requirements to track the source of funds. They apply from the basic level of a conveyancing transaction, all the way up to funding for the most complex litigation. We should not mischaracterise the position by saying that there is a high level of cynicism in the legal profession; there is not, and I do not believe that there is a failure of regulation either.

[Mr David Davis]

As has already been said, my hon. Friend is infinitely more expert in these things than most of us. May I bring him back to the matter of Mr Hugh Tomlinson and other firms? The answer to this may be to look very closely at the tactics put together by these firms, which put them in the very profitable commercial niche that I was talking about. If we were to judge that those tactics were unfair and unjust, that would solve the problem of firms or individuals appearing in more and more of these oppressive cases.

[Sir Robert Neill]

Let us put it this way: Parliament may decide as a matter of policy that certain behaviours are undesirable and should be constrained by law. The courts would faithfully apply any law on the subject that Parliament passed. That is the right way, in my judgment, to deal with this. That relates, too, to the law regulating the professions. For the reasons I gave, we should be very wary of fettering lawyers’ ability to defend unpopular clients, which is not the same as unmeritorious clients. Remember why that is: there are many instances where injustice has been prevented by lawyers taking on an unpopular client and an unpopular cause. That is the point on the other side that we have to weigh in the balance before we go entirely down the path of saying that because we disapprove of someone, we should deny them redress in law.

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[Aaron Bell]

I thank my hon. Friend for his intervention.

[Mr David Davis]

One thing that came up when we were discussing the strategy of this debate was the question of whether people are using subject access requests on this House. The advice the House authorities give is that we should respond to subject access requests. I told my office, “No, you don’t. I will go to prison before you give away any information on the debating of things in this House.” We need to update those rules, too, so that we are properly protected in future.

[Aaron Bell]

I thank my right hon. Friend for that intervention. I will ensure that all three of those interventions are brought to the attention of the Procedure Committee, because there is a lot to consider here and it is worrying that those tools could be used against Members of Parliament. We should have full protections in all aspects of our job, not just in what we say in this Chamber.

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[Mr David Davis]

I have to say that before we started I did not necessarily expect this debate to be a particular success, because it deals with an industry that hides evil in plain sight and it is pretty difficult to deal with something that can do that, yet we have had a formidably effective debate. Whether it was the detailed, astonishing insights into how the Russians operate from my hon. Friend the Member for Isle of Wight (Bob Seely), the localised issue raised by my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell), or the courageous exposition by the hon. Member for Poplar and Limehouse (Apsana Begum) of what happened to her, the contributions have demonstrated the impact on ordinary people: the simple people we aim to represent.

At a grander level, the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) made the best speech I have ever heard him give—I hope he will forgive me for saying that. It was formidable, passionate and went right to the point. It was then picked up, of course, by my right hon. Friend the Member for North Thanet (Sir Roger Gale), who talked about the kleptosphere and how we have to deal with that.

To come to the substance of the debate, the SNP spokesman, the hon. Member for Gordon (Richard Thomson), rightly said that it needs much more than a Back-Bench debate. There is no two ways about that. It is difficult and will be difficult. The hon. Member for Hammersmith (Andy Slaughter) crystallised the whole thing when he rightly said that we need to make the rules of the game fair, in a game where one side has enormous resources—even measured against the resources of Government—and the other side does not. We have to think about whether we are putting enough effort into it.

As my hon. Friend the Member for Isle of Wight made clear, these people have made an industry out of devising incredibly complex tactics to exploit the Human Rights Act, using all the articles, one against the other. I say this to him: I welcome what he said about recognising that, but I think the difficulty he had in answering the Chair of the Intelligence and Security Committee, my right hon. Friend the Member for New Forest East (Dr Lewis), demonstrated the complexity and detailed nature of the problems. We must please not rely, therefore, on the consultation on the Bill of Rights or whatever. The matter requires a special look and careful attention.

The huge authority of the day was of course the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). I will simplify everything he said, which was basically a tutorial for all of us, down to the last point he made: we can pick the best of the anti-SLAPP legislation in the States and other places. That is the way to go. We have to start with a proper, detailed and tight investigation, and deliver off the back of the best practice elsewhere. That is my request of the Minister. He has done a sterling job of dealing with a difficult issue and I hope that he will carry on in that direction.

[Liam Byrne]

rose—