Strategic lawsuits against public participation: consultation

Chapter Three – Proposals for reform

Existing Procedural Safeguards in Scots Law

3.1 At present, Scottish civil procedure rules do not include bespoke anti-SLAPP measures. The Sheriff Court and the Court of Session have distinct civil procedure rules, albeit with significant similarities. Procedural devices which bear some resemblance to anti-SLAPP mechanisms include vexatious litigation orders, summary decrees, caution, and protective expenses orders.

Dismissal mechanisms

3.2 Currently, in proceedings raised under Simple Procedure a Sheriff may decide a case without a hearing.^[38] In judicial review proceedings there is a “permission stage” at which an application may be dismissed without a hearing.^[39]

3.3 Vexatious litigation orders are available where a person has habitually and persistently, without any reasonable grounds for doing so, instituted vexatious civil proceedings or made vexatious applications to the court in the course of civil proceedings.^[40] This requires a pattern of behaviour to be established.

3.4 In Sheriff Court proceedings, a party to proceedings may, at any time after defences have been lodged, apply for summary decree on the grounds that an opposing party’s case has no real prospect of success and there is no compelling reason why it should not be granted.^[41] In contrast, in the Court of Session summary decree is only available to the pursuer where there is no defence to the action or part thereof disclosed in the defences.

3.5 The court also has an inherent power to dismiss proceedings where the pursuer is found to be abusing the court process. The abuse of process mechanism has been criticised as being underdeveloped.^[42]

Caution

3.6 Security for costs is already possible under Scots law. The court can order a party to proceedings to find caution (security) in order to be allowed to proceed. Caution can be found either by securing a bond of caution or consigning a sum of money with the accountant of court.^[43] A motion for caution can be made at any point in proceedings.

3.7 The court’s decision on whether or not to order caution is not simply a question of whether the pursuer can afford to raise proceedings or pay the expenses, but is a matter within the discretion of the court. If the pursuer is a limited company then section 726 of the Companies Act 1985 applies - if it appears that there is a reason to believe that the company will be unable to pay the defender's legal expenses caution may be ordered against the company.^[44]

3.8 The court does not currently have the power to order security for a potential award of damages.

Expenses

3.9 Scottish courts have a wide discretion in terms of awards of expenses, but the general position is that the losing party pays their own legal expenses as well as the legal expenses of the winning party. The expense of litigation can, however, be used strategically in order to prevent public participation.

3.10 Currently, in Scotland a Protective Expenses Order (PEO) can be sought by individuals, in certain types of litigation, to limit the amount of expenses they may have to pay in the event that they lose the case. One of the purposes of PEOs is to address potential imbalances of financial resources between parties and such an imbalance may be found in SLAPP proceedings.

3.11 If proceedings have a real prospect of success then a PEO may be made if: there are issues of general public importance that require to be resolved; the applicant has no private interest in the outcome; having regard to the likely costs and the financial resources of the parties it is fair and just that a PEO be made; and absent a PEO the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.^[45]

3.12 In certain types of environmental litigation, a PEO can be made limiting the applicant’s liability in expenses to the respondent to the sum £5,000; and the respondent’s liability in expenses to the applicant to the sum of £30,000.^[46] Unlike SLAPP proceedings, in environmental litigation the less financially secure party is more likely to be the pursuer/applicant.

Question 8: Are you aware of any other provisions of Scots law that may support someone who is the subject of a SLAPP?

EU Directive

3.13 As mentioned above, co-legislators of the EU adopted a Directive which provides safeguards against manifestly unfounded claims or abusive court proceedings (or SLAPPs) in civil matters with cross-border implications brought against persons on account of their engagement in public participation. The Directive sets out minimum common standards (Article 3) and applies to matters of a civil or commercial nature with cross-border implications.

2.16 Some of the key provisions of the Directive are:

• Article 4 provides definitions of “public participation”, “matter of public interest” and “abusive court proceedings against public participation” (that is, SLAPPs).
• Articles 7 requires any application for procedural safeguards to be treated in an accelerated manner.
• Article 9 ensures that associations, organisations, trade unions and other entities which have a legitimate interest in safeguarding or promoting the rights of persons engaging in public participation, may support the defender, with their agreement, or provide information in those proceedings.
• Article 10 provides that courts are able to require the pursuer in a SLAPP action to provide security for the estimated costs of the action, including defender costs and the cost of any damages.
• Article 11 sets out that a court should have powers to dismiss SLAPP claims as manifestly unfounded at the earliest possible stage in the proceedings. The burden of proving that the claim is well founded rests on the pursuer (Article 12).
• Article 15 empowers courts to impose effective, proportionate and dissuasive penalties against the party who raised the SLAPP.
• Article 16 ensures that the recognition and enforcement of a third-country judgment in manifestly unfounded or abusive court proceedings against public participation is refused.
• Articles 19, 20 and 21 requires Member States to make information available to SLAPP targets on procedural safeguards, remedies, and financial and psychological supports and place a duty on Member States to submit SLAPP related data on an annual basis. The European Commission will review and submit a report on the application of the Directive every 5 years, beginning on 7 May 2031.

3.14 Please refer to the Directive in Appendix A when responding to the following questions:

Question 9: Can you envisage any conflicts between the Directive and other provisions of Scots law?

Question 10: Are there any features not included in the Directive that should be considered for inclusion in possible legislation?

Question 11: In your view, are there any other relevant factors that Scottish Ministers should consider if EU alignment in this area is to be considered?

Model law

3.15 The Model anti-SLAPP law in Appendix B was drafted by interested stakeholders^[47] to, in their view, give effect to the Scottish Government’s ambition to incorporate international human rights protections into Scots law, the United Kingdom’s ongoing obligations as a member of the Council of Europe, and recent developments in the European Union to counter strategic lawsuits against public participation (as set out above).

3.16 In addition to drawing inspiration from the European instruments cited above, the Model law seeks to reflect best practice from outside Europe, including Canada and the United States.^[48] Consideration was also given to academic commentary on the criteria for evaluating the strength of anti-SLAPP laws.^[49]

3.17 The Model law does not represent the Scottish Government’s views or proposals but is provided merely as a basis for discussion for consultation purposes.

3.18 Please refer to the Model law in Appendix B when responding to the following questions:

Question 12: Are you content with the provision on security for costs and damages set out in Section 4? If not, please give your reasons.

Question 13: Are you content with the remedies made available to defenders in Sections 5 and 7? If not, please give your reasons.

Question 14: Are you content with restricting SLAPP pursuer’s entitlement to expenses as set out in Section 6? If not, please give your reasons.

Question 15: Are you content with imposing penalties on SLAPP pursuers as set out in Section 8? If so, what would be an appropriate penalty in Scots law? Please provide reasons for your view.

Question 16: Are you content with allowing public interest interventions as set out in Section 10? Please provide reasons for your view.

Question 17: Are Sections 11-12 sufficient to prevent cross-border SLAPPs? Please provide reasons for your view.

Question 18: Does the Model law give adequate expression to the EU Directive and Council of Europe recommendation while taking account of the specific character of Scots law? Please provide reasons for your view.

Question 19: Can you envisage any conflicts between the Model law and other provisions of Scots law? Please provide reasons for your view.

Question 20: Are there any features not included in the Model law that should be considered for inclusion in possible legislation? Please provide reasons for your view.

The Directive and Model law: points of comparison

Definitions

3.19 “Public participation”, “matter of public interest” and “abusive court proceedings against public participation” are defined differently for the purposes of the Directive (see Article 4) and the Model law (see section 1(4)). The matter can be approached in other ways. For example, the approach taken in England and Wales is to not provide a definition of what is meant by ‘public interest’ with the matter left to the courts to determine on a case-by-case basis.

Early dismissal

3.20 The Directive provides that courts may dismiss early proceedings against public participation as “manifestly unfounded” (Article 11). There is no such early dismissal mechanism for “abusive court proceedings”. The Model law, on the other hand, does not make such a distinction, providing instead that any proceeding against public participation which is abusive may be dismissed early.

Expedited hearing

3.21 Both the Directive and the Model law provide that hearings on applications for dismissal are expedited. The Model law provides that hearings on dismissal should take place within 90 days of the application being lodged (and any appeal of the court’s decisions at that hearing), unless the interests of justice require an extension of this period.

3.22 The Directive does not set a time limit for hearing an application for early dismissal, setting out instead only that it should be treated in an accelerated manner. It does, though, provide that applications for security of costs are also treated in an accelerated manner (see Articles 6 and 7).

3.23 Please refer to the Directive and Model law in Appendices A and B when responding to the following questions:

Question 21(a): Do you prefer the definition of “public participation” as set out in Article 4 of the Directive or Section 1(4) of the Model law or neither? Please provide reasons for your view.

Question 21(b): Do you prefer the definition of “matter of public interest” as set out in Article 4 of the Directive or Section 1(4) of the Model law or neither? Please provide reasons for your view.

Question 21(c): Do you prefer the definitions of “abusive court proceedings against public participation” as set out in Article 4 of the Directive or Section 1(4) of the Model law or neither? Please provide reasons for your view.

Question 22: Do you prefer the approach to early dismissal of proceedings as set out in the Directive or the Model law or neither? Please provide reasons for your view.

Question 23: Should there be a time limit for an expedited hearing on a motion for early dismissal of proceedings? If so, is 90 days sufficient?