Jim O'Callaghan (Dublin Bay South, Fianna Fail)

I might respond formally to Deputy Gannon's amendments.

I understand the purpose of amendment No. 3 would be to delete the reference to "manifestly unfounded" contained in section 34E of the proposed Part 4A. Section 34E transposes Article 11 of the directive under which a court may strike out proceedings that have been initiated against a person on account of their engagement in public participation without proceeding to a full hearing if satisfied they are manifestly unfounded. I understand the Deputy's desire to provide protection for those targeted by abusive proceedings against public participation. However, this aim must also be balanced with the constitutional right of access to the courts. Section 34E(2) outlines an indicative list of circumstances where proceedings might be considered manifestly unfounded. For example, it includes where the endorsement or pleading or claim is "an abuse of the process of the court", which would seem to reflect the Deputy's point on abusive proceedings. The list is expressed to be non-exhaustive and is broader than that contained in the general scheme, taking account of recommendations made by the committee in its pre-legislative scrutiny report. The wide definition aims to allow the court enough flexibility to balance those rights as fairly as possible in the circumstances of each case. Deputy Gannon's amendment would substitute the current requirement for a court to be satisfied proceedings were "manifestly unfounded" with a requirement merely to be satisfied the proceedings came within the definition of abusive proceedings against public participation. I am satisfied the list provided in section 34E is sufficiently broad and appropriately reflects the requirements of the directive. I do not consider Deputy Gannon's amendment would provide any additional protections and therefore cannot accept it.

Deputy Gannon's amendment No. 4 would essentially freeze proceedings while an application for strike-out or any appeal arising from such an application is being heard or considered. That would include a prohibition on amendments to pleadings. However, in accordance with section 34E, the court, in determining such an application, is under an obligation to act as expeditiously as possible. In practical terms it is difficult to envisage what further steps in the proceedings would arise in advance of the determination of that application by the court. Further, amendment to pleadings is already a matter for the court provided for by the rules in court. I do not consider it necessary to introduce any such additional provisions specifically in relation to applications under section 34E and accordingly do not propose to accept this amendment.

There are a number of issues with Deputy Gannon's amendment No. 5. As I understand it the amendment is linked to amendment No. 3 and proposes that rather than using the "manifestly unfounded" test to strike out proceedings it should be open to a court to strike out proceedings that fit the definition of abusive proceedings against public participation, but the claimant should be allowed to defeat such a strike-out application if they satisfy the court that the claim is likely to prevail at trial and that the public interest in allowing the claim to continue outweighs the public interest in dismissing the claim. The striking out of proceedings represents a limitation on the right of access to the courts. Section 34E seeks to transpose the directive and carefully balances the rights of access to the courts and freedom of expression. Likelihood of success at trial is a matter that would be considered in any such strike-out application and it would be difficult to foresee how the circumstances envisaged by Deputy Gannon's amendment could arise in practice. I consider section 34E to provide sufficient flexibility to the court to ensure the cases that could go to full hearing are permitted to do so.

While I appreciate and recognise the intention to strengthen the protections provided in relation to section 34E by Deputy Gannon, the amendments as proposed would not achieve that objective and are inconsistent with the purpose of that section. For that reason I cannot agree to them.

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