ENGLAND & WALES Trends and Developments Contributed by: James Lynch, Maltin PR
in damaging information being made public. Where information can now remain online and easily accessible for many years, contemporane- ous court reports can form part of a company’s reputation for years to come where previously they may have faded into memory. Ensuring that a comprehensive strategy is in place to deal with the risks that are known as litigation is being contemplated, which can be refined as a case develops, is paramount – something that is increasingly recognised by legal teams. Lawyers are often now expected to be able to advise on such topics, and help guide clients through the public impact of litigation, whether themselves or working with other specialists. As well as forming part of the legal strategy, the reputational aspects of a litigation can some- times outweigh the strength of the legal case. While rare, such circumstances can arise where information would be made public that provides an existential threat to a company’s ability to continue to do business. As an example, while the legal case against an ex-employee may be strong, allegations of racism and abuse from management may serve to damage a business’ relationship with other employees, stakeholders and business partners. Similarly, references to dishonesty in agreements with other compa- nies in internal emails revealed in disclosure and read into open court may impact on the ability of a company to win new business. In such cir- cumstances, consideration should be given to whether the information about to emerge is dam- aging enough to justify seeking to settle ahead of this occurring. On the other hand, the implicit threat of reputa- tional damage is often used by claimants in both the various forms of group and collective pro- ceedings in the English courts against the typi- cally corporate defendants, as well as in other
corporate disputes where one side may have more to lose in the press than the other. Securing media coverage can often influence the strategy of counterparties, with the protections afforded to reporters serving to assist in the publication of articles that would otherwise not be possible. Even with this, however, coverage will always include the arguments of both sides, reflecting the filings in the legal proceedings. While litigation can impact on reputation, it can also be deployed in an effort to protect reputa- tion. Defamation proceedings, or the threat of them, have often been used to seek to prevent media coverage pre-publication. There con- tinues to be a public backlash over SLAPPs – strategic lawsuits against public participation – which have no fixed definition under law but have attracted extensive public, political and journalistic opprobrium. A Private Members bill was seeking to legislate against such litigation, but did not pass any law before the July 2024 election, and the new Labour government has indicated that it has no intention of legislating on this quickly. Quite aside from the legal and regulatory ques- tions around SLAPPs – with the Solicitors Disci- plinary Tribunal scheduled to hear a case against a solicitor over an alleged SLAPP in December 2024 – they often backfire in terms of seeking to protect a reputation. The fact of a case being brought against a journalist tends to amplify the initial reporting, as any legal proceedings will inevitably result in further media coverage as they proceed. Careful management of pre-pub- lication correspondence, without legal threats, can result in the removal of any false allegations from coverage if evidence exists to rebut them. A heavy-handed approach will often have the opposite effect, particularly if there is no direct
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