Claims and threatened claims designed to close down public scrutiny, known as SLAPPs, have increasingly become of concern as information and misinformation become a key battleground across the globe.

Unlike legitimate proceedings, SLAPPs are generally not pursued for redress. They often involve powerful and well-resourced parties aiming to drain the resources of defendants and intimidate them, or deter them from pursuing their work.

The Irish High Court has recently considered a case in which both sides accused each other of SLAPP-type conduct and the decision provides some guidance on what constitutes a SLAPP, as well as emphasising that the court's existing procedures for dealing with abuses of process may be applied.

Background

As matters stand, the Irish legislature has not enacted statutory measures to deal directly with SLAPPs.

However, the EU anti-SLAPPs Directive ratified in March 2024 has established crucial safeguards for public participants against abusive lawsuits. Article 10 of the Directive stipulates that main proceedings shall be stayed until a final decision is reached on a defendant's application for early dismissal and is aimed at reducing legal costs for the defendant. Article 16 introduces a penalties clause for SLAPP filers, while Articles 17 and 18 give courts authority to refuse and adjudicate against unfounded and abusive proceedings originating from third countries. The Directive is confined to regulating matters involving cross-border issues and member states have until 2026 to enact legislation giving effect to the Directive.

The Irish government intends to introduce anti-SLAPP provisions via defamation reforms, which are set out in the General Scheme of the Defamation (Amendment) Bill published in March 2023. The Bill, if enacted, would recognise and define SLAPPs at a statutory level and provide key protections for public participants. It would align with the EU Directive at a domestic level.

However, the proposals have limitations as they are restricted to defamation proceedings. While many SLAPPs against journalists and other activists are brought as defamation claims, not all are. In England and Wales, the Economic Crime and Corporate Transparency Act 2023 has recently given courts power to strike out SLAPP claims involving economic crime. For similar abusive claims in Ireland, parties will still rely on the courts' inherent jurisdiction to address abuse of process.

There has also been a new focus from a regulatory perspective in England and Wales on lawyers as potential facilitators of SLAPPs. The Solicitors Regulatory Authority (SRA) has released and continues to update a warning notice regarding SLAPPs to solicitors, which defines what constitutes a SLAPP and solicitors' duties, beyond duties to their clients. Key behaviours that the SRA considers may contribute to SLAPPs are identified, including making allegations without merit, exaggerating consequences, sending overly aggressive letters and over-labelling correspondence as "not for publication". Solicitors are expected to identify such behaviours and decline to engage in them.

Abuse of process under Irish law

In Glenveagh Homes Ltd v. Lynch & Anor [2024] IEHC 157, the parties were in dispute concerning alleged serial objections lodged against planning applications made by the plaintiff developer, Glenveagh, which was defending a strike-out application by the two individual defendants, who were alleged to have made the objections.

An unusual feature of the case was that each side of the litigation alleged that the other side was engaged in SLAPP litigation. Glenveagh contended that the defendants had engaged in a "shakedown" by making a large number of planning observations and appeals to "extort" the plaintiff to buy land at an inflated price. The defendants moved to strike out the action, alleging that the developer was trying to shut down their entitlement to object.

Humphreys J considered the constituent features of SLAPPs, describing them as a modern form of abuse of process that should be struck out at an early stage before generating significant adverse consequences for defendants.

The court said that, given the characteristics of SLAPPs, it was necessary to consider the case in the round and take a holistic view of all the circumstances. Humphreys J examined several references including the SRA 2022 Warning Notice in relation to the conduct of lawyers in a SLAPP context; the EU Commission's (at the time of judgment proposed, but since adopted) Directive on SLAPPs; the Irish draft General Scheme of the Defamation (Amendment) Bill; and the Council of Europe's recommendation on SLAPPs and noted these references were informative, but only persuasive or contextual. He emphasised the importance of using such materials for background without engaging in "unwarranted innovation", determining that "the approach to SLAPPs is best viewed as something to be accommodated within existing legal principles with a context-sensitive understanding and application". Setting out a list of 29 indicia of SLAPP actions, grouped under four headings, the court ultimately dealt with the case under existing principles.

Ultimately, the court dismissed the strike-out application, holding that the defendants had not demonstrated sufficient indicia of a SLAPP, or otherwise of an abuse of process. Humphreys J also held that, as far as could be assessed at the motion stage, the action raised complex issues of fact and law more appropriately dealt with by way of a full trial.

In Atlas GP Limited v. Kelly & Ors [2022] IEHC 443, the defendants brought an application to strike out the plaintiff's proceedings, arguing that the proceedings were bound to fail and were brought for an improper purpose. Egan J held that the plaintiff's claim was bound to fail, which resulted in its early dismissal. She further indicated that the court's existing powers to strike out proceedings were sufficient to dispose of this application, so that it was unnecessary to consider whether the proceedings were SLAPPs.

These cases make clear that the Irish courts will rely on traditional principles which govern strike-out applications when assessing whether litigation is an abuse of process and, in the event that the proposed defamation reforms do make it onto the statute books, they will not preclude parties from raising SLAPP arguments in cases which do not involve defamation.