What are the professional risks for litigators in the year ahead?

The speed of change continues apace in the world of litigation with a constant stream of challenges provided by the Solicitors Regulation Authority (SRA) and the courts. In this article, Professional Regulation partner Frank Maher looks at two key areas: ethics and interim billing.

The ethics of SLAPPs

Strategic Lawsuits Against Public Participation (SLAPPs) have been in the news following the high-profile case against the solicitor who acted for former Chancellor of the Exchequer, Nadhim Zahawi. It was said that the solicitor misused the heading ‘without prejudice’ in an email. The Solicitors Disciplinary Tribunal fined the solicitor £50,000 with £260,000 costs.

The case raises a number of points. First, while we do not have the full judgment at the time of writing, the Tribunal is reported to have found breaches of SRA Principles 2 (upholding public trust) and 5 (integrity) but expressly stated that it had decided the offending email was not a SLAPP.

Second, while the SRA has issued a warning notice on SLAPPs and litigators need to be aware of its content, particularly if they engage in higher-risk areas such as defamation, misuse of private information, data protection breaches and claims for breach of confidence, conduct which is not specifically prescribed in the notice may still constitute a regulatory breach. Whether the SRA warning notice on SLAPPs goes too far by appearing to contradict comments made by Mr Justice Fancourt in Haddad v Rostamani [2024] on the extent to which lawyers were required to investigate the facts they put forward, is a point few will wish to test.

Third, the SRA recently published a Professional Obligations Thematic Review, for which they interviewed selected fee earners, noting that ‘[although] fee earners said they were undertaking regulatory training, it was routinely not recorded. In practice, more emphasis and importance were attributed to legal training.’

Allied to the last point, the SRA also interviewed staff on their continuing competence in the course of a recent Thematic Review Of Probate And Estate Administration, and while this is not (generally) litigation, they again noted that ‘training was mostly focussed on legal and technical aspects, rather than other areas of the Statement of Solicitor Competence that may be relevant to performing their role competently.’ A family law thematic review is in progress, and more can be expected.

A further SRA warning notice covers Use of non-disclosure agreements (NDAs), another area which has given rise to regulatory action. For example, reports have observed that there seems to be a strong case to be made that NDAs, here and in the USA, were part of what enabled Harvey Weinstein’s history of predatory behaviour.

The lessons from the Tribunal case, the warning notices and the thematic reviews, therefore, are that fee earners need training beyond their core practice area and in ethics generally. This needs to extend beyond the SRA Codes of Conduct and cover such issues as the rule of law and integrity, and what they mean in practice.

Action may be legal, for example, but may be regarded as sharp practice – see, for example, the Solicitors Disciplinary Tribunal decision in SRA v Woolf. Mr Woolf tried to trick an 82-year-old farmer out of his protected agricultural tenancy by disguising the service of two almost identical but different notices amounting to sharp practice to hide the fact that he was serving notice to quit, one letter going by ordinary post, the other by special delivery. He was suspended for 12 months.

Interim billing

Litigators will also need to consider interim billing of costs and the impact of section 70 of the Solicitors Act 1974, recently reported to have been described as a ‘relic’ by Lord Justice Coulson. It is critical to consider whether the firm wants its interim bills to be merely on account, or statute bills, with the consequences which flow on being able to sue on them, time limits for challenge, and generally the inability to charge for anything omitted from the bill. There have been several examples of courts ordering detailed assessments of law firms’ bills amounting to many millions of pounds years after they were submitted and paid.

The disadvantage to the client of a bill being treated as a statute bill, and the practical difficulties where there is a conditional fee agreement (CFA) in place, feature in several recent decisions. The case of Blue Manchester Ltd v Howard Kennedy LLP [2024] emphasises the importance of ensuring that all documents supplied to the client – engagement letter, terms, CFA and the invoices themselves – are both clear and consistent. Merely billing monthly with a statement that ‘each bill will state the period which it covers’ was insufficient to constitute an interim statute bill in Topalsson GmbH v CMS Cameron McKenna Nabarro Olswang LLP [2025].

If you have questions or concerns about professional regulation or professional indemnity insurance law, please contact Frank Maher.