High Court’s first SLAPP declaration in defamation claim

The High Court has, for the first time, declared a claim to be strategic litigation against public participation (SLAPP), using new powers in the Economic Crime and Corporate Transparency Act 2023.

Dan Neidle is a former magic circle law firm partner and now a high-profile commentator. He and his company, Tax Policy Associates Limited, have a significant media and online presence due to his commentary on the tax affairs of UK corporates, celebrities, politicians and tax scheme promoters.

Mr Neidle published an article relating to tax schemes promoted by a barrister, Setu Kamal. The article made observations on the efficacy of some of his schemes. In response, Mr Kamal issued proceedings against Mr Neidle and his company, claiming that the statements were defamatory in nature.

Mr Neidle and his company applied to strike out certain parts of the Particulars of Claim and for summary judgment on the balance of the claim, relying on the defence of honest opinion under section 3 of the Defamation Act 2013.

The strike-out application was partially successful, and the summary judgment application was completely successful. Importantly, the Court also declared that Mr Kamal’s litigation was a SLAPP and therefore an abuse of process.

A SLAPP relates to litigation used to try to stifle someone from raising legitimate concerns or conducting a fair and lawful investigation. Features include litigating in a way that’s disproportionate to the issues, oppressing the defendant or driving up their costs unreasonably.

In this case, the Court determined that Mr Neidle had raised concerns he believed to be legitimate about the impact of certain tax schemes and the possibility that they might deny HMRC revenue that would benefit the public purse. The Court held that the article was published in the public interest to investigate and expose matters that would concern the ordinary person.

The High Court examined the litigation and strategy adopted by Mr Kamal, holding that it had subjected Mr Neidle and his company to harassment, expense and inconvenience beyond what is ordinarily encountered in properly conducted litigation. Accordingly, the Court declared that the litigation was a SLAPP, in addition to making the strike-out and summary judgment orders.

Key takeaways

• The Court is prepared to make an order that litigation is a SLAPP where the circumstances justify it. When faced with an oppressive claimant attempting to stifle investigation or the expression of a legitimate opinion, a SLAPP declaration can be deployed
• Claimants alleging defamation in response to commentary on investigations into their affairs must take great care regarding the threats they make and the tactics they adopt. They must litigate in a proportionate and reasonable way to avoid their claim being deemed a SLAPP – for example, avoiding successive requests for information that go beyond normal conduct and appear intended to increase the defendant’s costs. The Court noted that a claimant may be guilty of a SLAPP not only through deliberate strategy, but also by recklessness or wilful disregard of what constitutes proper litigation conduct.