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UK: An Introduction to Litigation PR & Communications

The Impact of the Growth of AI 

Litigation, and the way it is perceived, is in a period of change. The growth of Artificial Intelligence (AI) increasingly exerts an influence on all aspects, from the legal case itself through to investigations and communications. The deployment of such technology can enhance litigation and litigation adjacent work, for example optimising the process of disclosure reviews, reviewing underlying materials during asset tracing exercises or identifying key target journalists to cover a case based on previous articles.

The potential benefits – and drawbacks – of AI are well documented, given the major impact on all white-collar industries. For communications around litigation – which inherently require perfect legal accuracy, careful phrasing and detailed consideration of the wider strategic concerns – outsourcing to AI programmes is currently impractical given the limitations of the present generation of chat programmes. There is no doubt, however, that AI can be used to assist in the research process that often underlies the construction of complex litigation narratives, when properly fact-checked.

Broadcast Media 

Less cutting edge, but no less important, broadcast media has refocused minds in boardrooms across the country by reminding people that a good story well told can have real impact, even when set against a long-running litigation. Most notably, Mr Bates vs The Post Office entirely shifted public perception of a long-running scandal and miscarriage of justice. The unjust prosecution of more than 900 sub-postmasters by the Post Office since 1999, and the subsequent quest for justice, was dramatised by ITV. Humanising the proceedings thrust an old story back into the spotlight, in particular the public inquiry that has been running since February 2022.

Where there had been one or two photographers outside the inquiry building each day, this became a pack of television cameras, photographers and journalists covering key days of the hearing. The titular Alan Bates was knighted five months after the release of the drama. The appeals of numerous other postmasters have received extensive coverage. Most importantly, a law was passed to quash the unjust convictions of sub-postmasters. The impact of the drama has also influenced the wider media landscape.

Setting a Trend 

Television producers are searching for similar stories and journalists are alert for possible miscarriages of justice on the horizon. Meanwhile, many litigants are seeking to position themselves as the next ‘Mr Bates’, and their story as a great systemic injustice. However, unless this is done with care, such attempts to tie a case to that of another can appear to journalists as an attempt to ‘cash in’ on the zeitgeist surrounding an ongoing media narrative, rather than a genuine attempt to highlight a story that could add to the discourse.

Media Narratives 

By retaining experienced PR professionals who have built relationships with key journalists covering the courts, they can advise on the optimal strategy to tie your case in with wider media narratives. By doing so, your case will be positioned within the media landscape in a way that adds to - and is bolstered by – similar matters.

The Legal Position 

Conversely, a key piece of testimony that emerged from the Post Office Inquiry highlighted the risks of public relations advice that does not adequately consider the legal position. Former Post Office CEO Paula Vennells was questioned about an email from former a Director of Communications, which stated: "If we say publicly that we'll look at past cases, whether from recent history or going further back, we will open this up very significantly into front page news". Ms Vennells responded "You are right to call this out. I will take your steer".

Ms Vennells was widely criticised for this in the media, and rightly so. Litigation public relations advice should mesh seamlessly into the legal strategy, complementing it to enhance the chances of success in court while furthering goals in the public arena. In some circumstances, public relations concerns may outweigh the strength of a legal case, with settlement being necessary to prevent massively damaging materials from emerging at trial.

Advising clients to ignore legal obligations because of the optics is an error that may eventually compound the damage the original action may have caused, as shown by Ms Vennells’ testimony. PR advice during litigation is especially sensitive and, when given by an individual that has not overly engaged with legal proceedings, can be massively damaging. While civil litigations are unlikely to form part of a public inquiry, materials can end up in the public domain in a variety of ways. Politically, the refocusing on the Post Office scandal placed heavy pressure on several senior figures who were active at the time of the prosecutions and following the uncovering of the miscarriage of justice.

The General Election 

The dissolution of Parliament and calling of a General Election in May 2024 put two key pieces of legislation, with extensive impacts on the legal sector, on ice. The first, the hotly-contested ‘Strategic Litigation Against Public Participation [SLAPP] Bill’, was introduced in February 2024 on the back of extensive debate on ‘lawfare’ following the Russian invasion of Ukraine in 2022. A notoriously difficult area on which to legislate, the debate on SLAPPs has drawn clear battlelines between the legal industry and the media. This has followed into other engagements with media outlets – where a legal letter over a contentious point is sent, publications will tend to take a strong stance against the complaint.

As such, if an issue arises with reporting on a particular matter, utilising a specialist agency with experience in working closely with both lawyers and journalists can help bridge the gap of understanding that often exists between the two. A lighter and more collaborative touch can often achieve more than a robust legal letter and, vitally, achieve it more quickly.

The second was the much-awaited Litigation Funding Agreements (Enforceability) Bill, which sought to return the state litigation funding to what it was prior to the decision of the Supreme Court in PACCAR v Competition Appeal Tribunal in July 2023. Group actions, whether opt-in or opt-out, are a major feature of the litigation media landscape. Typically, David v Goliath stories – in the vein of Mr Bates v the Post Office – with issues affecting ordinary people often have a greater resonance with readers than other civil litigations.

Therefore, such cases must be properly supported from a media relations perspective. Setting out a clear narrative from day one can help a firm establish themselves as the leading claim in a highly competitive space, attracting more claimants and positioning your claimant group as the primary one in the media. However, the currently unsettled nature of the post-PACCAR litigation funding environment – vital to Group Actions – has meant workarounds have been hastily constructed to Damages Based Agreements. The current Civil Justice Council review will establish just how much oversight and regulation there will be.

The focus that will be placed on the issues underlying the two bills by the next Government is uncertain, but they are unlikely to be top of the list of priorities.

High Stakes 

In general, the stakes in highly contentious litigations, arbitrations and international disputes remain incredibly high, both in terms of matter value and reputational impact. Ensuring that you have advisors who are experienced in handling the communications around such matters is vital to protecting your individual and corporate interests.