1. Introduction: strategic lawsuits against public participation
In an earlier post on this blog, I argued that Equity can develop new orders and injunctions when necessary, and that there was space for it to develop a new order or injunction to prevent strategic lawsuits against public participation (anti-SLAPP orders). There have been several subsequent developments which compel me to revisit that post and make good on my promise in it to return to the topic.
First, the jurisdiction to develop new equitable injunctions has continued to evolve. In Pepper Finance Corporation (Ireland) DAC v Persons Unknown [2023] IESC 21 (31 July 2023), the Supreme Court held that, in exceptional cases, proceedings may be issued against persons unknown. Once such proceedings were properly issued, Hogan J (O’Donnell CJ, and Dunne, Charleton and O’Malley JJ concurring) assumed that an injunction could be ordered against persons unknown, and he proceeded directly to a consideration of the procedural steps to enforce it by means of the contempt jurisdiction, untroubled by any discussion of the basis of this heretofore unspotted injunction. The jurisdiction to award injunctions against persons unknown had been considered by the Court of Appeal of England and Wales in Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303 (05 March 2020), which Hogan J cited with approval in Pepper Finance, so it may be that he felt that it was not necessary to revisit the question. Moreover, Canada Goose was in turn approved by the UK Supreme Court in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 (29 November 2023), which recently confirmed the jurisdiction to develop new equitable orders when necessary. Here, Lords Reed, Briggs and Kitchin (in a joint judgment in which Lords Hodge and Lloyd-Jones concurred) referred to the evolution “in recent times of several new kinds of injunction in response to the emergence of particular problems” ([2023] UKSC 47 [20]). Other recently-developed injunctions include orders to control litigation, such as the anti-suit injunction and the related injunction to restrain the presentation or advertisement of a winding-up petition. On the facts of Wolverhampton, they affirmed the development of newcomer injunctions to restrain unauthorised occupation and use of land, and subsequent cases have firmly established the legal basis for such injunctions, and the principles on which they should be granted (Heathrow Airport Ltd v Persons Unknown [2024] EWHC 2599 (KB) (14 October 2024) [4] (Knowles J)). There is no reason in principle, therefore, why the jurisdiction to develop new equitable injunctions could not develop equitable orders to restrain SLAPPs, similar to other orders to control litigation.
Second, the jurisdiction to develop new equitable injunctions is not the only relevant source of orders to control SLAPPs. In Kelly v O’Doherty [2024] NIMaster 1 (08 January 2024) (noted here and here) Evan Bell, Master of the King’s Bench in Belfast, Northern Ireland, accepted the similar argument of the defendant, Malachi O’Doherty, a journalist (pictured above left) that a defamation claim brought by the plaintiff, Gerry Kelly, a politician, amounted to an abuse of process. Kelly’s connected claim against Ruth Dudley Edwards, a journalist and historian, was subsequently dismissed. Hence, in the second part of this post, I want to look at Master Bell’s judgment and to consider the extent to which an Irish court could similarly find, in appropriate case, that a SLAPP suit amounts to an abuse of process.
The argument accepted by Master Bell in Kelly v O’Doherty echoes the decision of the European Court of Human Rights in OOO Memo v Russia 2840/10 (2022) 75 EHRR 3, [2022] ECHR 229 (15 March 2022) and of the Constitutional Court of South Africa in Mineral Sands Resources (Pty) Ltd v Reddell (CCT 66/21) 2023 (2) SA 68 (CC); 2023 (7) BCLR 779 (CC); [2022] ZACC 37 (14 November 2022). Hence, in the third part of this post, I want put the jurisdiction to restrain SLAPPs in comparative perspective. And, in the fourth and final part of this post, I want to consider whether it is more appropriate to exercise that jurisdiction by means of an equitable order to control litigation or as part of the inherent jurisdiction of the court to restrain an abuse of process.
2. The decision in Kelly v O’Doherty
In Northern Ireland, Order 18 Rule 19(1)(d) of the Rules of the Court of Judicature (1980, as amended) provides that the Court may order a pleading to be struck out if it amounts to “an abuse of the process of the court”. In AB v Universitair Ziekenhuis Gent and Belfast Health & Social Care Trust [2021] NIQB 47 (06 May 2021), in the course of a comprehensive statement of the position regarding applications for the striking out of pleadings on the ground that they were an abuse of process, McFarland J held (at [44]):
The correct approach to dealing with alleged abuse of process is for the court to adopt a two-stage test. First the court has to determine whether the plaintiff’s conduct is an abuse of process. If so, the court is then required to exercise its discretion as to whether or not to strike out the proceedings or to take such other steps or make such other orders as are appropriate. That second stage question requires a balancing exercise, and in particular will require a consideration of proportionality.
In Kelly v O’Doherty, the defendant gave interviews in which he said of the plaintiff that he “has spoken very frankly about shooting a prison warder in the head” during the course of a prison escape, but that “he’s moved on and we don’t expect him to shoot any more prison warders in the head”. Master Bell held that the books the plaintiff had published (in particular, The Escape (2013)) “clearly demonstrate[d]” that he and other escapees were, in the plaintiff’s words, “clear that if it was necessary to use force to physically protect Volunteers or to safeguard the escape then there could be no hesitation”. Applying the first stage of McFarland J’s test above, Master Bell (at [62]) held that “[i]nitiating defamation proceedings in these circumstances is, without doubt, an abuse of process”.
As to the second stage of McFarland J’s test, Master Bell held defamation actions in the field of political speech “need to be carefully considered in case they are being used to attack legitimate free speech” (70]), and he continued:
72. … The absence of any defamation proceedings in respect of the wide reporting over the years that Mr Kelly shot Mr Adams [the prison warder], taken together with recent proceedings having been instituted only against these two particular freelance journalists, suggests that, rather than being a genuine attempt to defend a reputation which has been damaged by an untruth, the proceedings are what has been referred to as a SLAPP, namely an attempt to silence two bothersome journalists with the threat of legal costs. The proceedings appear to be a strategic effort to intimidate them, to deprive them of time and resources, and ultimately to silence them. This would amount to the proceedings having been brought for an improper collateral purpose.
73. It is difficult to discern any valid reason why defamation proceedings against Dr O’Doherty and Ms Edwards were brought after what Mr Kelly had written [in] his book The Escape. There was neither affidavit evidence from Mr Kelly nor any submissions from Mr McKenna which attempted to explain or justify the initiation of defamation proceedings against the two journalists and the absence of such proceedings against the two media organisations which carried their words. On the balance of probabilities therefore the proceedings do bear the hallmarks of a SLAPP and have been initiated not for the genuine purposes of vindicating a reputation injured by defamatory statements, but rather for the purpose of stifling the voices of his troublesome critics. I note that the Solicitors Regulation Authority in England and Wales in its guidance [link] to the profession observes that one of the “red flags” that helps identify a SLAPP is that the client asks that the claim is targeted only against individuals where other corporate defendants are more appropriate. Freelance journalists are particularly vulnerable without the support of a media outlet behind them. This is clearly the position in these proceedings. The abuse of process in this case is so blatant that it would be utterly unjust if the court were to allow the proceedings to continue. The court therefore has no hesitation in striking them out.
This is very welcome, very welcome indeed; but it must not be seen as a complete legal response to the scourge of SLAPPs. There are many indica of SLAPPs – some of those indicia, present on the facts of Kelly v O’Doherty, amount to an abuse of process. But, where many of the other indicia do not amount to an abuse of process, then that doctrine will not be able to control SLAPPs in those cases. In Kelly v O’Doherty, Master Bell noted (at [65]) that, in October 2023 for the purposes of the limited anti-SLAPP provisions in the Economic Crime and Corporate Transparency Act 2023, the UK Government defined SLAPPs as “legal actions typically brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system”. Such claims are designed to silence criticism, and they fundamentally undermine freedom of speech, democracy, and the rule of law. Indicia of SLAPP claims include (though they are by no means limited to) a radical imbalance in the relative means and power of the parties, where SLAPP plaintiffs with deep pockets take cases (often, multiple cases) that are not connected to resolving genuine disputes or advancing legal rights, aggressively demanding disproportionately high damages and other costly remedies from financially weak defendants (especially where other defendants, particularly corporate defendants, are more appropriate), with large numbers of aggressive pre-action letters and then of procedural applications, ignoring alternative fora or flexible procedures in favour of the most complex of procedures and the most draconian of remedies, and conducting the case in an oppressive, threatening or abusive manner, often in a jurisdiction with little or no real connection with the parties or events, all the while raising the costs, with the aim of delaying the publication of the public interest publication and the hope that this could even prevent that publication.
SLAPPs can be taken against a wide range of defendants exercising their right to freedom of expression to speak truth to power, and to shine a light on the wickedness that thrives in darkness; they include not only journalists like Malachi O’Doherty, or media organisations, but also advocacy groups, NGOs, human rights defenders, whistleblowers, and academics. SLAPPs impose unwarranted financial and psychological strain, distract such groups from their vocations, and intimidate others from exercising their right to freedom of expression. Only some of these indicia and consequences amount to an abuse of process as that term was understood in Kelly v O’Doherty, so that doctrine cannot address the full range of problems presented by SLAPPs. The decision of Master Bell in Kelly v O’Doherty is a very important development, but it does not represent the complete answer to all of the problems associated with SLAPPs.
3. Anti-SLAPP orders in comparative perspective
The decision of Master Bell in Kelly v O’Doherty echoes the decision of the European Court of Human Rights in OOO Memo v Russia 2840/10 (2022) 75 EHRR 3, [2022] ECHR 229 (15 March 2022) and of the Constitutional Court of South Africa in Mineral Sands Resources (Pty) Ltd v Reddell (CCT 66/21) 2023 (2) SA 68 (CC); 2023 (7) BCLR 779 (CC); [2022] ZACC 37 (14 November 2022).
In OOO Memo, the European Court of Human Rights recognised that SLAPPs cases infringed the right to freedom of expression protected by Article 10 of the European Convention on Human Rights. Here, the applicant company was the founder of a website devoted to the political and human rights situation in the south of Russia. The website published an article critical of the suspension by the Administration of the Volgograd Region of a transfer of funds to the Town of Volgograd. The Administration brought civil defamation proceedings against the applicant company, and obtained an order requiring the applicant to publish a retraction on the website. The ECHR characterised SLAPPs as lawsuits with an intimidating effect ([23]), and it held that, by virtue of its role in a democratic society, the interests of a body like the Administration of the Volgograd Region, which is a body of executive vested with State powers, in maintaining a good reputation, essentially differ from both the right to reputation of natural persons and the reputational interests of legal entities that compete in the marketplace ([46]), so that a civil defamation proceedings brought, in its own name, by such a legal entity that exercises “may not, as a general rule, be regarded to be in pursuance of the legitimate aim of ‘the protection of the reputation … of others’ under Article 10(2) of the Convention” ([47]).
In Mineral Sands Resources (Pty) Ltd v Reddell, environmental activists had criticised the operations and activities of various mining companies, and the companies sued the activists for defamation. The High Court dismissed the claim as a SLAPP amounting to an abuse of process, and the Constitutional Court of South Africa upheld. Majiedt J (for a unanimous Court) held that, distilled to its essence, the defence that the mining companies’ claim constituted a SLAPP was really one of abuse of process. He noted that SLAPPs were generally described as cases without merit brought to discourage a party from pursuing or vindicating rights, often with the intention not necessarily to win the case, but simply to waste the resources and time of the other party, until they abandon their defence. He noted that the hallmark features of SLAPP suits are that they often, but not necessarily always, lack merit, and are brought with the goal of obtaining an economic or other advantage over a party by increasing the cost of litigation to the point that the opposition’s case is weakened or abandoned. Majiedt J therefore concluded that both merit and motive played a role in the assessment of a SLAPP suit defence. However, rather than bringing such concerns within existing heads of abuse of process, he asked instead whether there may be a further species of abuse case that falls within the inherent jurisdiction of a court to ensure that the court’s processes are not abused. And he concluded that there was. In particular, he considered that such an order should be made where court processes were clearly not being used to resolve a genuine dispute, but were instead employed to achieve a result that undermines Constitutional rights, especially (as in this case) the defendants’ right to freedom of expression. The activists argued that the mining companies’ improper motive in bringing the defamation actions was sufficient to warrant dismissal of the actions, but Majiedt J disagreed. He held that the merits of the case also bear consideration when such defences are raised. He thus concluded that the activists had not fully established a SLAPP abuse of process, but he held that they should afforded an opportunity to amend their pleadings in this respect.
Here, rather than bringing such concerns within existing heads of abuse of process, Majiedt J asked instead whether there may be a further species of abuse case that falls within the inherent jurisdiction of a court to ensure that the court’s processes are not abused. This differs from Kelly v O’Doherty, where Master Bell brought the facts within the existing heads of abuse of process. Rather, here, Majiedt J considered whether a new head of abuse of process could be developed specifically to deal with SLAPPs. And he held that it could. This, therefore, goes far beyond what Master Bell decided in Kelly v O’Doherty.
OOO Memo v Russia, Mineral Sands v Reddell and Kelly v O’Doherty all illustrate that courts should be sensitive to the scourge of SLAPPs, and should be astute to develop orders to control them. Both Mineral Sands v Reddell and Kelly v O’Doherty looked to the doctrine of abuse of process to develop such orders, but there may be an even more appropriate route at Irish law.
4. Anti-SLAPP orders in Equity
We have see above that there is a very wide range of indicia and consequences of SLAPPs, and that Kelly v O’Doherty deployed the doctrine of abuse of process against some of them. Master Bell’s approach in that case would not, however, reach the full range of SLAPPs harms. Majiedt J’s approach in Mineral Sands v Reddell is expressly intended to do so. In Ireland, Murray J in the Supreme Court in McCool Controls and Engineering Ltd v Honeywell Controls Systems Ltd [2024] IESC 5 (27 February 2024 [33] held that
while the range of circumstances in which conduct will be found abusive of the Courts’ process is not closed, they will usually fall into one of four categories – (a) proceedings that involve a deception on the Court or are fictitious or constitute a sham, (b) proceedings in which the process of the Court is not being fairly or honestly used but is employed for an ulterior or improper purpose or in an improper way, (c) proceedings which are manifestly without foundation or which serve no useful purpose, or (d) multiple or successive proceedings which cause or are likely to cause oppression …
Following the lead in Kelly v O’Doherty, many SLAPPs cases can be brought within all four of these categories; and, following the lead in Mineral Sands v Reddell, since the range of categories is not closed, an additional category strike out SLAPPs as an abuse of process could be developed. However, a more fruitful legal route, capable of responding to the whole range of indicia and consequences of SLAPPs in a more nuanced way, to prevent the use of the legal system by plaintiffs with resources to harass and silence those who exercise their right to freedom of expression on matters of public importance or social significance, would be to develop an equitable injunction to control SLAPPs. In my earlier post on the issue, I demonstrated that equity can continue develop injunctions. A key example in that post was the recognition that a website blocking order can be made on ordinary principles of equity (Cartier International AG v British Telecommunications plc [2018] 1 WLR 3259, [2018] UKSC 28 (13 June 2018) [15] (Lord Sumption)). Since that post, Equity has developed another powerful new order, the newcomer injunction recognised in Wolverhampton (above) and Pepper Finance (above). Many of the orders developed by Equity in this context are directed to ensuring the proper course of litigation: the Mareva freezing order prevents a defendant from dissipating its assets so as to frustrate judgment (O’Mahony v Horgan [1995] 2 IR 411, [1996] 1 ILRM 161, [1995] IESC 6 (7 November 1995)); the Anton Piller order preserves evidence (Microsoft v Brightpoint [2001] 1 ILRM 540, [2000] IEHC 194 (12 July 2000); the Bayer order restrains a defendant from leaving the jurisdiction (Health Service Executive v Bradley (No 2) [2020] IEHC 281 (05 June 2020)); and the anti-suit injunction prohibits a party from pursuing oppressive or vexatious proceedings in another jurisdiction (Walters v Flannery [2017] IEHC 736 (07 December 2017)). All of these orders flow from “the power of the courts to control litigation in the interests of seeking a true and just result” (Costello v Ireland [2022] IESC 44 (11 November 2022) [38] (Charleton J)). The harms of SLAPPs set out above equally demand an equitable order, flowing from the power of the courts to control litigation in the interests of seeking a true and just result, to restrain strategic lawsuits against public participation.
There would seem to be little to choose between a strike out for abuse of process and an equitable order to restrain strategic lawsuits against public participation. But there is one factor that suggests that the equitable route is a more fruitful one. The EU Anti-SLAPP Directive (Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) (OJ L, 2024/1069, 16.4.2024) indicates that, as well as an expeditious route to strike out a SLAPP, a range of other remedies and penalties can be appropriate, especially a declaration that a case is a SLAPP, so that, instead of striking the case out, the court can instead penalise the SLAPP plaintiff in costs. And a declaration is an equitable remedy (Hellfire Massy Residents Association v An Bord Pleanala (No 5) [2023] IEHC 591 (27 October 2023) [42] (Humphreys J) (emphasis added)). If equity can develop an order to restrain SLAPPs, it can just as easily develop a declaration that a case is a SLAPP. Conversely, if it is to develop the declaration, then it makes more sense that the order to restrain a SLAPP should be equitable in nature too.
I concluded my previous post on this issue by observing that it is clear that Equity can, indeed develop new orders and injunctions when necessary. The question therefore arises whether it can develop an anti-SLAPP injunction. I conclude this by observing that the answer to that question is that it can and should develop an anti-SLAPP injunction and associated declarations. Of course, this could all be overtaken by a comprehensive anti-SLAPP regime in the provisions of Part 7 of the Defamation (Amendment) Bill 2024 implementing the Directive. I will address that question in a subsequent post, when I reach that Part in my ongoing series on the Bill.