Strategic lawsuits against public participation: consultation

Appendix B

Model law for Scotland

Section 1

(1) The defender may, at any time, apply by motion for the court to dismiss a judicial application or a pleading as an abusive court proceeding against public participation.

(2) On a motion under Section 1, the court shall –

Grant the motion to dismiss the proceeding, in whole or in part, and provide the remedies in Sections 5 and 7 if the applicant satisfies the court that the proceeding arises from an act of public participation, unless the respondent satisfies the court that:

a. the proceedings are not an abusive court proceeding against public participation; and

b. the harm suffered or likely to be suffered by the respondent is sufficiently serious that the public interest in allowing the claim to proceed outweighs the public interest in protecting that public participation.

(3) Notwithstanding the refusal of all or part of a motion, a subsequent motion may be made where there has been a change of circumstances.

(4) In this section –

an “abusive court proceeding against public participation” means, regardless of intent, a judicial application or pleading that is disproportionate, excessive, unreasonable, causes prejudice to another person, or defeats the ends of justice, particularly if it operates to restrict another person’s public participation on a matter of public interest;

“public participation” means the making of any statement or the carrying out of any activity by a natural or legal person in the exercise of the right to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association, and any preparatory, supporting or assisting action substantially linked thereto, and which concerns a matter of public interest;

“matter of public interest” is to be understood broadly, with reference to the case law of the European Court of Human Rights, as referring to any matter which affects the public to such an extent that the public may legitimately take an interest in it;

“applicant” means the party enrolling the motion pursuant to this section;

“respondent” means a party receiving intimation of the motion pursuant to this section from the applicant.

Section 2

A motion made pursuant to Section 1 shall be heard and decided no later than 90 days after the motion is enrolled with the court, unless the interests of justice require an extension of this period.

Section 3

(1) Once a motion under Section 1 is made, no further steps may be taken in the main proceedings, including any amendment of pleadings, by any party until the motion has been finally disposed of, including any appeal of the motion.

(2) Any appeal of the motion shall be heard and decided no later than 90 days after the appeal is filed with the court.

Section 4

After a motion under Section 1 is made, the court may, without prejudice to the right to access to justice, require that the respondent provide security for the estimated expenses of the proceedings, which may include the expenses of legal representation incurred by the applicant, and damages.

Section 5

If the court, pursuant to Section 1 dismisses the proceedings in whole or in part, the applicant is entitled to expenses on the motion and in the main proceeding on a full indemnity basis, unless the court determines that such an award is not appropriate in the circumstances.

Section 6

If the court, pursuant to Section 1 dismisses the proceedings in whole or in part, the respondent is not entitled to expenses on the motion or the main proceedings, unless the court determines that such an award is appropriate in the circumstances.

Section 7

(1) If the court, pursuant to Section 1 dismisses the proceedings in whole or in part, the court may make an award of damages against the respondent unless the judge determines that such an award is not appropriate in the circumstances

(2) In determining the appropriate amount of damages to award, the court may take into account any distress and anxiety caused to the applicant.

(3) This section does not limit any other basis of claim for damages or remedy that may be available.

Section 8

If the court, pursuant to Section 1 dismisses the proceedings in whole or in part, the court may impose effective, proportionate and dissuasive penalties on the party who brought the abusive court proceedings against public participation.

Section 9

In proceedings which have not been dismissed pursuant to Section 1, if the court finds that the proceeding was an abusive court proceeding against public participation, at any time, the court may grant the defender a remedy under Sections 5 and 7 and impose penalties on the pursuer pursuant to Section 8.

Section 10

A court seised of court proceedings brought against natural or legal persons on account of their engagement in public participation shall grant leave to intervene to associations, organisations, trade unions and other entities which have a legitimate interest in safeguarding or promoting the rights of persons engaging in public participation, where the applicant so approves.

Section 11

The recognition and enforcement of a foreign judgment in Scotland in court proceedings against public participation shall be refused if those proceedings are considered abusive under Section 1 of this Act.

Section 12

A natural or legal person may be sued in Scotland in matters relating to claims for damages incurred by a natural or legal person domiciled in Scotland in connection with abusive court proceedings against public participation brought before a foreign court.

Section 13

The Scottish Ministers shall make provision for the collection and publication of data on abusive court proceedings against public participation.

Section 14

(1) The Scottish Ministers shall ensure that natural or legal persons engaging in public participation have access, as appropriate, to information on available procedural safeguards and remedies and existing support measures such as legal aid and financial and psychological support, where available.

(2) The information referred to in the first subparagraph shall include any available information on awareness-raising campaigns, where appropriate in cooperation with relevant civil society organisations and other stakeholders.

(3) Such information shall be provided in one single place in an easily accessible format via an appropriate channel.