Strategic Lawsuits Against Public Participation

Julian Lewis Excerpts

Thursday 21st November 2024 Commons Chamber

[Sir Julian Lewis (New Forest East) (Con)]

In an ideal world, there would be a limitless supply of lawyers who would provide their services to victims and defendants alike, free of charge. Then, the issue of SLAPPs could never arise. We are not talking here about trying to restrict the right of individuals to seek the protection of a court and clear their name of defamatory claims about them.

If that was what we were seeking, I would be something of a hypocrite, because 30 years ago, I had to pursue such a libel action against an impecunious magazine that thought it could get away with saying anything about public figures, no matter how baseless, because it had no assets, so if someone pursued a libel action against it and won, they could never recover the tens of thousands of pounds in costs. That is when the boot is on the other foot: a person who has no assets therefore uses the costs of lawyers against the person they wish to defame.

However, what has happened in more recent times, particularly since the demise of that magazine, because there were other ways of dealing with it, is precisely what the hon. Member for South Dorset (Lloyd Hatton) said in his excellent introduction was an abuse of the legal process—and in particular of the huge costs that apply to hiring lawyers to defend oneself—by what I believe he described as a very small number of very rich people. The solution to this type of problem is therefore for the courts to be able to deal with it at such an early stage that, even though some costs will be unavoidable, the huge threat of unbearable costs will be removed, because a worthless libel claim against an investigative reporter whose story is well founded will be thrown out beforethe vast bulk of the expense can be incurred.

Some hon. Members who were here in the previous Parliament may remember that we had a brief debate on 20 January 2022 dealing with the question of lawfare. I made a couple of interventions on behalf of a former Member of the House, Charlotte Leslie, who faced what was certainly a SLAPP as a result of her not even having published anything, but having privately contacted a number of people, including me, given my then position as the Chair of a Committee that she regarded as relevant to her concerns. She wrote to us to try to do due diligence on an individual who proposed getting involved and investing money in an organisation by which she was employed. Fortunately, in the end, the case failed utterly in court, but only after she had been put through a nightmarish ordeal. I pay tribute to her resilience in coming through that ordeal.

We are of course particularly concerned about vulnerable individuals, but sometimes even large organisations can be subject to the SLAPP technique. If hon. Members look on the internet, they will see that on 12 January this year—on the BBC website, no less—a story headed, “Post Office lied and threatened BBC over Horizon whistleblower” begins:

“The BBC can reveal that in the period leading up to the broadcast of Trouble at the Post Office, the 2015 Panorama programme featuring the whistleblower testimony:

Experts interviewed by the BBC were sent intimidating letters by Post Office lawyers about their participation in the programme

Senior Post Office managers briefed the BBC that neither their staff nor Fujitsu—the company which built and maintained the Horizon system—could remotely access sub-postmasters’ accounts, even though Post Office directors had been warned four years earlier that such remote access was possible

Lawyers for the Post Office sent letters threatening to sue Panorama and the company's public relations boss Mark Davies escalated complaints to ever more senior BBC managers”.

The article also states:

“The Post Office’s false claims did not stop the programme, but they did cause the BBC to delay the broadcast by several weeks.”

As we all know, the BBC had the resources to resist a major legal action had one ensued.

Only three days earlier than that article on the scandal, there was an article on 9 January 2024 on the website of the Press Gazette, which is the industry-representative body. It commented on the way in which the ITV drama about the Post Office scandal had brought to a wider audience the shocking story of the hundreds of postmasters who were wrongly prosecuted and, indeed, the four who committed suicide as a result.

The article is headed, “Attention to Post Office Horizon IT scandal follows 14 years of dogged journalism”. It rightly pays tribute to the freelance reporter Nick Wallis, who wrote the famous book “The Great Post Office Scandal”, and to two other reporters, Rebecca Thomson and Karl Flinders, who both wrote numerous articles for a much smaller enterprise, a journal called Computer Weekly. In fact, it can be said that the first investigation into Horizon, which was published in 2009, was carried out by Computer Weekly after a year-long investigation by Rebecca Thomson. The investigations editor of Computer Weekly, Bill Goodwin, is quoted as saying that the magazine persisted despite “bullying letters” from the Post Office demanding to know its sources. He said:

“We ignored them. Reaction was muted when the story first appeared but it initiated a slow-burn chain of events that lead to the uncovering of a scandal of enormous proportions.”

I am very grateful to the Bureau of Investigative Journalism, which has already been mentioned in this debate, for providing a little more detail on what Computer Weekly faced. It has supplied me with some further embellishment, as it were, of what I have already recounted. It tells me that the general counsel for the Post Office sent threatening legal letters to Computer Weekly and that the trade magazine’s brave campaign, which continued regardless of the threats, often left it as a lone voice, with other outlets seemingly very reluctant to pick up on the important reporting with which it persisted. One legal letter from 2015 shared with the Bureau of Investigative Journalism threatened Computer Weekly over an article that said the Post Office closed a working group responsible for looking into claims against the Horizon software. The general counsel claimed that the article included a “significant number of inaccuracies” and “damaging errors” and argued that the reporters had acted improperly, stating:

“We are most concerned that Computer Weekly chose to publish this highly damaging article without taking the proper steps to verify the information.”

The letter acknowledged that Computer Weekly had amended its article to include Post Office comments, yet it persisted with the threats:

“You should not underestimate the seriousness with which the Post Office views the publication of such damaging and inaccurate allegations. The steps taken by you in response to this letter may well influence Post Office’s decision as to any further steps it may take to protect its reputation.”

It has now emerged that the Post Office took multiple aggressive actions to shut down the story about its failures over prosecutions that were sparked by the faulty Horizon software. The scandal only really spread into the mainstream press after the breakthrough moment in 2019 when Alan Bates and 554 litigants took a civil case against the Post Office to the High Court, which they won a couple of years later. Even then, as was said earlier, the full story was not widely known until the 2024 ITV drama was broadcast.

In response to what the Bureau of Investigative Journalism stated, the Post Office now sings a welcome different tune. It says that the organisation is committed to supporting the ongoing public inquiry and that it is fair and right for the Post Office to be held to account by journalists. It says:

“The approach of the Post Office today regarding communications is based on the knowledge that we must apologise sincerely, learn from the past, be transparent with stakeholders, and support justice and redress for those who have been impacted.”

It also says that it is actively exploring additional ways to strengthen transparency.

That is all well and good, after the Post Office fought so hard to cover up what had happened and close down the story of the scandal, but I will close as I began by saying that any SLAPP legislation is not meant to give anybody carte blanche to say anything they like on the basis of no evidence—to smear, belittle or denigrate people simply because they wish to target them for whatever reason. The purpose of such legislation is to stop people who know perfectly well that the accusations against them are well founded, as the Post Office knew, but who nevertheless persist in abusing the legal system because of the horrendous threat of costs that will drive people to bankruptcy or to surrendering in the face of possible bankruptcy before the issue ever gets resolved in court. Central to any SLAPP legislation must be a simplification process that ensures that a worthless case—a case with no evidence; a case that is truly a SLAPP—is thrown out at the earliest possible opportunity before unbearable costs are incurred.