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

First, I thank Senators Higgins, Craughwell and Byrne for their contributions. I thanked Senator Keogan on the last occasion for her amendment also.

Before I start dealing with the amendments that have been spoken to by Senators, it is important at the outset to remind Members here of the powers which exist at present within our courts system. Sometimes as Members of the Oireachtas, we assume all sources of the law derive from our Houses, but in fact, as people will know, the common law exists in this country and there are some advantages of having a common law system operate within our jurisdiction. The effect of the common law is there is an inherent jurisdiction which operates within the High Court in Ireland which has full original jurisdiction, but also the common law means that, over the centuries, judges have looked at situations which have arisen. Even in circumstances where there is not a statutory provision in place to respond to the legal issue raised, the courts have historically, and continue to do so, applied the common law, which is judge-made law, to resolve and respond to circumstances where justice dictates there should be a response.

The reason I say this is to remind people that, for many centuries now, proceedings have been struck out in our courts because those proceedings have disclosed no cause of action, they have constituted an abuse of process or because, to use the language in our rules of court, those proceedings are regarded by the court as being frivolous or vexatious. In case people are concerned this type of issue is not being regulated or responded to by our legal system, that is not correct. It is dealt with on a frequent basis. What will happen is, if a claimant issues proceedings against a defendant in our courts, let us say in the High Court, in Ireland, and if the defendant believes this is a completely frivolous case, an abuse of process or what we are talking about here and now in the Bill - strategic litigation against public participation, there is at present an avenue pursuant to which a defendant can bring an application. If proceedings are issued making an unfounded claim, a manifestly unjust claim or a claim that is frivolous or vexatious, what generally happens is the defendant or party being sued will issue a notice of motion grounded on an affidavit and in the affidavit they will set out the basis upon which they say the claim is an abuse of process, the claim disclosed no causes of action or the claim is frivolous and vexatious. The person then bringing the claim will have to put in an affidavit with their evidence stating why that is not so. There will be an interlocutory or preliminary hearing in respect of these matters in the court before the case ever proceeds to a full hearing. This happens at present, even in the High Court and defamation proceedings, and there will not be any jury involved in this. The High Court will be required to assess whether a claim is in fact an abuse of process, frivolous or vexatious, or whether there is no reasonable cause of action. It will then proceed if it believes that has been established to strike out the proceedings.

It is important we are aware there is a remedy for this type of situation already in our legal system. What we are doing here is ultimately transposing an EU directive, namely, Directive 2024/1069, in respect of strategic lawsuits against public participation. We are all aware that, in this Bill, it is limited to defamation proceedings. However, as I have indicated, I will be bringing other legislation before the Houses for the purpose of transposing that directive in respect of all other types of proceedings. My primary purpose here is to transpose what is in the directive for the purpose of defamation proceedings. That is why when Senator Higgins raised her amendment No. 12, which was identical to Senator Keogan's amendment No. 11, I had to respond by saying I cannot accept the amendment No. 12.This is because it would interfere with the transposition of the EU directive. We know the directive defines abusive court proceedings against public participation as proceedings that have as their main purpose the prevention, restriction or penalisation of public participation. It is proposed by Senator Higgins that there be a different definition, which would focus on the effect rather the purpose. As I said in response to Senator Keogan, I cannot agree to that amendment because it would not, in my opinion, correctly transpose the directive.

However, it is worth pointing out that the rules in respect of frivolous and vexatious proceedings, the rules in respect of abusive court proceedings or where there is no reasonable cause of action that are there at present will still continue. There will be an opportunity if a defendant in defamation proceedings wants to bring proceedings, or bring an application on the basis they believe the proceedings are strategic litigation against public participation and they are abusive court proceedings against public participation, to do so on a statutory basis under this legislation, once it is enacted. Alongside that will be the ongoing rules of court and inherent jurisdiction at the High Court, which permit applications to be made for the broader reasons I set out. I cannot accept Senator Higgins's amendment No. 12. I do not believe it is necessary.

Before I deal with Senator Craughwell's issues, I will proceed by dealing with amendments Nos. 13 to 15, inclusive, put forward by Senator Higgins, which seek to delete the reference to "manifestly unfounded" contained in section 34E of the Bill. 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 these proceedings are manifestly unfounded. I understand the Senator'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 of claim "is an abuse of the process of the court", which would seem to reflect the Senator's point in relation to abusive proceedings. The list is expressed to be non-exhaustive and is broader than that contained in the general scheme, taking account of the recommendations made by the justice committee in pre-legislative scrutiny. The wide definition aims to allow the court enough flexibility to balance those rights as fairly as possible in the circumstances of each case. These amendments would substitute the current requirement for a court to be satisfied that proceedings were "manifestly unfounded" with a requirement merely to be satisfied that 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 that the amendments would provide any additional protections. Therefore, I cannot accept amendments Nos. 13 to 15, inclusive.

Amendment No. 16, tabled by Senator Keogan, would insert a new section 34EA into Part 4A. Section 34EA(1) would prohibit the taking of any further steps in proceedings in respect of which an application for early dismissal has been made under section 34E. I do not consider such an amendment to be necessary. First, section 34E requires the court to act as expeditiously as possible in determining an application for early dismissal and, second, 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. Rules of court also provide the court with discretion to stay proceedings, where an order to strike out those proceedings has been made. This provides flexibility to the court so that cases can be dealt with according to their particular circumstances rather than the Legislature providing for a blanket rule, which may not suit all cases.

At present, in circumstances where an application is made to strike out proceedings on the grounds they are abusive, frivolous or vexatious, the effect of that application is the proceedings are, in effect, stayed. No further steps are taken in the proceedings because nothing can happen until that interlocutory application is determined. Even if that interlocutory application is then appealed, nothing would happen in the proceedings because the proceedings cannot go any further until such time as that issue has been finally determined.

Section 34EA(2) introduced by amendment No. 16 would prevent a plaintiff from amending their pleadings in proceedings, subject to an early dismissal application, in order to avoid such dismissal or to continue the proceedings after dismissal. This is also the effect of the new section 34EA(2) proposed by Senators Higgins and Ruane in amendment No. 18. Amendment No. 18 would also insert a new section 34EA(1) which would allow the target of SLAPP proceedings in a defamation case to apply for a declaration that the proceedings in question are abusive proceedings at the same time as he or she applies for early dismissal of those proceedings. This is already provided for in the existing section 34F(1) to be inserted by section 19 of the Bill, so it is unnecessary.

I understand the intention behind these amendments. I note that section 34EA(2) proposed in both amendments reflects the requirement in Article 8 of the anti-SLAPP directive, which requires member states to ensure that subsequent amendments to claims, pleadings or withdrawals of claims made by the claimant in SLAPP proceedings do not affect the possibility for the defendant to apply for remedies provided for by the directive. However, as the rules of court provide for rules and limitations with respect to the amendment of proceedings, I do not consider it necessary to introduce any additional provisions specifically in relation to applications under section 34E. For those reasons, I cannot accept amendments Nos. 16 and 18.

Amendments Nos. 17 and 19 provide that where an application is made for early dismissal under section 34E, the claim shall not be struck out if the claimant demonstrates, first, that the claim is likely to proceed at trial and, second, "the harm suffered or likely to be suffered by the claimant as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in dismissing the case before trial." My understanding is that this provides for a somewhat automatic presumption in favour of strike-out, once an application has been made, unless a defendant can demonstrate not only that a claim is likely to prevail at trial, but also that the harm suffered by the claimant in the proceedings is sufficiently serious that the public interest in permitting the proceedings to continue outweighs the public interest in dismissing the case before trial.

I understand the purpose of this amendment is to enhance protections for the targets of SLAPP proceedings. I also note that Article 12 of the directive provides that where a defendant has applied for early dismissal, it shall be for the claimant to substantiate the claim in order to enable the court to assess whether it is manifestly unfounded. However, it must be remembered that the striking out of proceedings represents a limitation on the right of access to the courts. The amendments put forward, in this case, would deprive a claimant of the right to take proceedings, which they had demonstrated were likely to proceed, unless it could be demonstrated that it was in the public interest to allow that claim to continue. This gives rise to a serious risk that the provision would be seen as an unjust interference in an individual's constitutional right not only to access the courts, but also to vindicate their right to a good name.

At present, section 34E allows a plaintiff to apply for early dismissal of proceedings on the basis that those proceedings are manifestly unfounded. The court has indicated in previous cases that it can apply the strike-out doctrine so that a defendant can make out a prima facie case of abuse by showing that the case has indicators of a SLAPP action. The onus would then shift to the plaintiff to demonstrate that the case was bona fide and not taken for the purpose of oppression. Section 34E seeks to transpose the directive and carefully balances the right of access to the courts and freedom of expression.

I consider section 34E to provide sufficient flexibility to the court to ensure cases that should go to full hearing are permitted to do so. It will also be remembered that even where an application for early dismissal is unsuccessful, it remains open to the target of SLAPP proceedings to seek a declaration at any stage before, during or at the conclusion of the action that the proceedings are abusive proceedings. Where such a declaration is obtained, the target of those proceedings may not only recover their costs on a more generous basis than normally provided for, but may also seek damages to compensate for any harm suffered as a result of those proceedings. On that basis, I consider Part 4A to provide protection for the targets of SLAPP proceedings, while maintaining an appropriate regard for the constitutional right of access to the courts and the obligation on the State to vindicate the individual's right to a good name. For those reasons, I cannot accept amendments Nos. 17 and 19.Senator Higgins approached her amendments from the point of view of the perspective of individuals who may be sued before our courts and who may regard themselves as being the target of SLAPP proceedings. From the perspective of those individuals, I have to say that the provisions that have been introduced in Part 4A are very effective and novel in terms of providing a mechanism, not just for the person to bring the application to strike out or get a declaration, but also for a claim on damages on the basis that they can say that they have been sued inappropriately, that they were the subject and target of strategic litigation against public participation and, as a result of that, they are entitled to remedy beyond the standard remedy, which is the award of costs. In the Part that I am proposing to introduce, not only will they get higher costs if they can establish that they were the target of strategic litigation against public participation, but they also will have the remedy of seeking and perhaps being ordered damages. That is my response in respect of Senator Higgins's amendments and comments.

Senator Craughwell, in fairness to him, looked at it - and this is the great balance we get in this House - more with the eye of a claimant. It is important that we get a perspective in this House that looks at it not just from the point of view of parties who may be sued, but also from the point of view of a party who is a claimant. One of the issues that was raised by Senator Craughwell was his concern about innuendo and whether the Bill sufficiently takes into account the innuendo that can be used for the purpose of communicating and publishing a defamatory meaning. My own belief, and it is a strong one, is that this is adequately provided for already in the Defamation Act and in our defamation laws. It is a matter for the court to determine what is the meaning of a publication. As I mentioned here on another occasion, a very damaging meaning can be communicated through the use of an innuendo or a reference. I think Senator Ruane referred, on Committee Stage, to how a prominent politician brought proceedings simply because a publication had been put up on social media, asking "Why is politician X so quiet at present?" That might appear to individuals in this House as being a completely innocuous, non-defamatory publication but, in fact, that was published on social media at a time when the whole of social media was engrossed by the fact that a politician who had not been identified was alleged to have been involved in the abusive sexual assault of another person. The meaning of that statement, "Why is politician X so quiet?", in that context was indicative, and the court held it to mean that it is clearly an innuendo suggesting that he was the politician who was involved in that sexual assault. At present, in our law, innuendo is well covered. It is not just in the law at present. The Senator referred to the case of Berry v. The Irish Times. The plaintiff in that case was a former Secretary General of the Department of which I am now the Minister. That was a case that involved a photograph and a sign, a reference to him as being a modern-day felon setter. That was a case in which he ultimately succeeded.

Senator Craughwell also mentioned a few other things in terms of discovery and bad faith. What we have to realise is that when proceedings get before a court, every aspect of the dispute is taken into account by the court. Sometimes when it comes to drafting legislation, we should not try to be too prescriptive in what we provide or how we define bad faith. A court understands what is meant by the terms "bona fides" and "bad faith". We have to be careful about being too prescriptive in our definition. I disagree with the senior counsel who gave advice to whomever it was that every case is 50-50. Not every case is 50-50. If every case was 50-50, there would be no purpose in retaining lawyers or anyone to advocate on your behalf. There is no case which is not without risk, certainly in terms of defamation cases. It is certainly not correct to say that every case is 50-50.

The Senator mentioned that one cannot go to court for defamation without money. That is not my assessment of it. I am not going to read them out now, but if you look at some of the very prominent cases that have been taken in defamation in recent years, particularly when the people have been very successful in their defamation claims, very many of them have been people who were hard on their luck, did not have much money and were able to take a case because of the principle that operates for funding in most Irish litigation, which is that the solicitor will take the case on the basis of no foal, no fee. If you win the case, you get your costs; if you lose the case, you get nothing. I know people are sometimes cynical about that rule, but it is a significant aspect of funding litigation in Ireland. It requires lawyers to carefully assess whether a case is good or not. It is fair to say that a lawyer is not going to devote a huge amount of time and energy to a case which they believe is not going to succeed if, at the end of the day, they do not get paid anything for it.

Senator Byrne raised a couple of questions. The first was about the reference to the pursuit of unfounded claims in section 34A. The Senator asked if there will always be an application at the outset of defamation proceedings. The answer to that is "No". Most defamation proceedings are not black and white. Where you are dealing with strategic litigation against public participation or abuse of court proceedings, my own view is that they will be a very small element of proceedings which are issued in defamation. It is unquestionably the case that defendants in defamation proceedings will not like it. Very many of them will regard the claim as being unfair or abusive, but it is not for them to determine that. Just because a defendant thinks it is unfair that they are being sued for defamation does not mean that it is abuse of court proceedings. There will not always be interim applications. If somebody issues proceedings in the High Court against an entity - let us say a Senator is sued and they believe they are being targeted for abuse of court proceedings - the defendant in that instance can bring an application, pursuant to what is set out here, seeking to strike out the claim under section 34E or looking for a declaration under section 34F. That will be heard promptly. It will be heard before the case progresses any further. If the defendant succeeds in it, they may then be able to proceed and claim damages. I suspect, in most cases, people will realise that it is a big task to be able to convince a court that proceedings being instituted against a person are abuse of court proceedings. In my own experience, most people do not issue court proceedings for the purpose of intimidating others, although that can be the effect of them.

The Senator also asked about abusive forum shopping, which is contained in section 34A(d). When we talk about forum shopping, generally that is a term that arises where people are looking to bring proceedings in different jurisdictions. It can happen now in defamation because of publication online. If somebody publishes information about an individual online, it is published all around the world. Notwithstanding that, generally people institute proceedings in the area where their reputation is established, where they are best known. That sometimes can be more difficult with a very famous person or a person who is renowned internationally. There are many American people living in America who will have reputations here. I do not want to get too detailed, but a court will take into account whether or not the forum is the forum conveniens- the appropriate forum for the taking of proceedings.

The Senator also asked if there will be further amendments regarding forum shopping. I do not believe there will be further amendments. If this legislation is enacted, I do not think we will be seeing many applications being brought under Part 4A because it is already the case that when it comes to issuing defamation proceedings, plaintiffs are aware and will be advised that issuing abuse of court proceedings is not a sensible thing to do. In the first instance, you will be met with an application to strike out. If you are not, you are ultimately going to end up in court for the case to be determined.If you have an abusive case that is not merited, you will lose your case and that will have negative consequences for you. From the point of view of Part 4A, what really distinguishes it is that if someone does it, they find themselves in a situation where the party being sued can also bring a claim for damages against them.

That is all I have to say in respect of those amendments contained within the grouping, namely, amendments Nos. 11 to 19, inclusive. I hope I have answered the Senators' questions.