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

I move amendment No. 25:

In page 15, between lines 23 and 24, to insert the following: “Order for damages in case of section 34F or 34G declaration

34H.(1) Where⁠—

(a) the court makes a declaration under section 34F or 34G that the defamation proceedings concerned or part thereof amount to abusive court proceedings against public participation (in this section referred to as the ‘declaration’), and

(b) the defendant in those proceedings (in this section referred to as the ‘defendant’) makes an application to the court, whether before or after the making of the declaration, on notice to the plaintiff in those proceedings (in this section referred to as the ‘plaintiff’), for an order for the payment of damages by the plaintiff to the defendant under this section, the court may, in addition to the making of the declaration and in its absolute discretion, order the plaintiff to pay damages to the defendant as a result of injury, loss or damage suffered by the defendant consequent upon the bringing of the proceedings or part thereof the subject of the declaration.

(2) In deciding whether to make an order under subsection (1), and, where applicable, in determining the amount of any damages to be paid, the court shall have regard to all of the circumstances of the case and the interests of justice, and may take into account the following matters as it considers appropriate:

(a) the nature of the public participation concerned;

(b) the purpose or purposes for which the defamation proceedings or part thereof the subject of the declaration (in this subsection referred to as the ‘proceedings’) were brought relating to the defendant’s engagement in public participation;

(c) the conduct of the proceedings;

(d) any other factors leading to the making of the declaration;

(e) whether the declaration has been made under section 34F or 34G;

(f) whether the declaration relates to all or part of the proceedings;

(g) the injury, loss or damage suffered by the defendant as a result of the bringing of the proceedings (including, where appropriate, the threat of such proceedings) and any mitigating factors.

(3) Where an application for an order for the payment of damages is made under subsection (1)(b)⁠—

(a) the plaintiff and the defendant may make submissions to the court and adduce evidence, and

(b) the court may direct that evidence be given,

in relation to the application.

(4) Where the court makes an order for the payment of damages to a defendant under this section, the court may, if it considers it appropriate to do so, apply the provisions of section 34F(2) or 34G(2), as the case may be, to costs incurred as a result of an application made by the defendant under subsection (1)(b).

(5) The damages recoverable under this section in the Circuit Court shall not exceed the amount standing prescribed, for the time being by law, as the higher of any limit of that Court’s jurisdiction in tort.

(6) The Personal Injuries Assessment Board Act 2003 shall not apply in relation to an application under subsection (1)(b).

(7) This section shall not affect the operation of sections 31 and 32.”.

Amendment No. 25 introduces a new section, 34H, into Part 7 of the Bill. Section 34H empowers a court to award damages to those who have been subject to abuse of court proceedings against public participation. This transposes Article 15 of the anti-SLAPP directive, which requires member states to make provision for effective, proportionate and dissuasive penalties or other equally effective appropriate measures, including the payment of compensation for damages or the publication of the court decision on the party that brought the SLAPP proceedings. Section 34H provides that damages may be awarded only where a court has declared the proceedings in question to be abuse of court proceedings against public participation under section 34F or section 34G of the Act.

In determining the amount of damages to be awarded, the court must have regard to the circumstances of the case and the factors set out in section 34H(2). These include the injury, loss or damage suffered by the target of the proceedings as a result not only of the bringing of the proceedings but also, where appropriate, the threat of those proceedings. This recognises that the purpose of SLAPP proceedings is not to gain access to justice or to genuinely exercise a right, but rather to intimidate those engaging in public participation, creating a chilling effect on public debate.

The court must also consider the conduct of the parties, the purposes for which the proceedings were brought, the factors leading to the making of the declaration and any mitigating factors. The court may seek evidence before making a determination as to damages and the parties may make submissions to the court on the issue. This is a significant provision that recognises the impact of SLAPPs, including psychological and financial impacts. It provides a remedy to compensate victims of SLAPPs for harm suffered and adds significant weight to the existing safeguards contained in Part 4A of the Bill. It also strikes an appropriate balance between the right to public participation and the right of access to the courts. It does this, first, by providing that damages are only available where a declaration has been made by the court that the proceedings are abusive and, second, by directing the court to take into account, among other things, any mitigating factors and the purpose for which the proceedings were brought, when considering the amount of damages to be awarded.

Amendment No. 26 replaces the previous section 34H, which provided for the publication of judgments and orders of the Circuit Court. The purpose of providing for the publication of judgments and orders in SLAPP cases, as set out in the anti-SLAPP directive, is twofold. On the one hand, it acts as a deterrent to the bringing of such proceedings while, on the other hand, it provides a source of learning and awareness in relation to SLAPP cases. With those objectives in mind, this amendment seeks to expand the requirement to publish SLAPP judgments beyond the Circuit Court to any court that makes a finding that proceedings are abusive proceedings against public participation in a defamation action.

Additionally, it clarifies that the requirement is to publish written judgments, and, where there is no judgment, to publish the relevant court order. This is a very appropriate provision contained in amendment No. 26 and consideration should be given to using it outside the area of SLAPPs. It is something I am considering in other areas as well.

Amendment No. 27 provides that the provisions of Part 4A of the Defamation Act 2009 relating to SLAPPs will only apply to defamation proceedings brought on or after the date on which those provisions come into operation. Amendments Nos. 28 to 33, inclusive, renumber provisions, which is necessary following the insertion of several new sections by the amendments proposed today. Amendment No. 29 removes reference to the fact that the current provisions of section 34J are without prejudice to the Mediation Act 2017.

See this speech in context