[DRAFT] Malicious Litigation Act

[Barfleur]

Malicious Litigation Act
Category: Regulation | Area of Effect: Legal Reform | Proposed by: Barfleur

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The World Assembly,

Celebrating the freedom of sapient beings to engage in lawful speech and activity, including the right to criticize individuals and institutions;

Noting that certain actors, especially those wielding significant wealth or political influence, have been found to manipulate the court systems of member nations to silence completely legal speech and retaliate against whistleblowers, among other malign purposes;

Asserting that such litigation:

1. chills protected speech, including on matters strongly relating to public interests;
2. wastes the time and resources of court staff; and
3. has the effect of making the justice system more expensive and less just for all, but especially for innocent parties:

Hereby enacts as follows:

1. Definitions.
   In this resolution:
   
   1. "court" includes an administrative tribunal or similar body, if such court, tribunal, or other body is subject to World Assembly law; and
   2. a suit is "malicious" if it is filed:
      
      1. in retaliation for or to deter:
         
         1. lawful speech, whether on the part of the defendant or of a third person, and which the defendant does not reasonably believe to be unlawful; or
         2. any act done by the defendant or by a third person, when the plaintiff does not reasonably believe the act to give rise to a cause of action under applicable law;
      2. to induce the defendant or a third person to provide goods or services to which the plaintiff has no legal right, nor reasonable belief in the existence of such a right; or
      3. to damage the defendant's ability to obtain business or employment, except in the case of a non-compete or non-disclosure agreement not forbidden by national or international law.
2. Procedure to defeat malicious suits.
   
   1. A court shall permit a defendant in a noncriminal case to argue, at the earliest possible opportunity, that the suit or any claim thereof is malicious.
   2. If the court finds that the defendant has made a colorable showing that the suit or any claim thereof is malicious, it shall order the plaintiff to demonstrate by clear and convincing evidence that the suit does not fall into any category described in section 1(b).
   3. If the court finds that the suit or a particular claim thereof is malicious, it shall:
      
      1. dismiss the suit or any malicious claim thereof with prejudice;
      2. award the defendant the cost of attorney's fees and any other costs incurred defending the suit or any claim thereof which was found to be malicious; and
      3. impose such sanctions on the plaintiff as it deems necessary to deter future malicious litigation by that plaintiff.
   4. A finding that a suit or claim is malicious shall be subject to ordinary appellate review, except that the plaintiff shall bear the burden of proving that the suit or claim was not malicious.
   
   
3. Sanctions on attorneys.
   A court, upon finding that an attorney has repeatedly filed or participated in the prosecution of cases known by that person to be malicious, shall impose such disciplinary measures as it deems necessary to deter such conduct.
   
   
4. Further provisions.
   
   1. This resolution does not preclude member nations from forbidding other uses of the legal process for malicious purposes, or the repeated filing of frivolous suits.
   2. Member nations may, notwithstanding this resolution, enact further protections for lawful speech and activity.

"I appreciate all advice, barring that which is vexatious in nature."

[Desmosthenes and Burke]

We propose that 1(b)(i) be amended by striking "lawful" from the text and substituting "to give rise to a harm compensable under applicable law" for "to be unlawful".

We propose this on the grounds that there are causes of action that may taken from lawful acts that give rise to harms that should be compensated for. In the Anglican Common Law Tradition, for instance, nuisance most often arises from one party doing something that is entirely lawful, but nevertheless interferes with another's enjoyment. For instance, it is entirely lawful for citizens to engage in backyard composting in Roma. Nevertheless, the courts will generally ask you to compensate your neighbours if you decide to compost your faeces underneath their bedroom or kitchen windows (and/or suggest you find a more appropriate method/location). We understand that certain forms of negligence may operate in a substantially similar manner (at least in some jurisdicitons under some circumstances), and this is of course subject to differing interpretations of what "unlawful" means.

In the end, we think it is simply better to focus on whether the act did (or at least arguably did) cause a harm that the legal system recognizes.

[Tigrisia]

We applause the Delegation of Barfleur for this initiative to stop SLAPPs. However, we believe that the resolution needs to be more comprehensive. We miss for example provisions that counter common strategies of plaintiffs in such cases, for example the subsequent amendment to claim or pleadings. We recommend to adjust the current draft.

OOC: You may have a look at https://eur-lex.europa.eu/legal-content ... 2022PC0177. It's pretty short (when you ignore all the EU-typical stuff, such as preamble, explanatory memorandum and some other, mainly procedural, provisions).

[Barfleur]

"We appreciate the advice from D&B, which we have gladly taken. As for Tigrisia, clause 2(a) requires dismissal with prejudice, which would bar a subsequent amendment to the civil complaint. Note that this only applies if the plaintiff is unable to show that the suit is not vexatious--in other words, the plaintiff gets a fair opportunity, but after that, that's the end of the case, barring appeals."

[Bananaistan]

"1b(ii) is problematic. The mere fact of someone having a legal right to do something does not automatically trump all other interests. For example, while one person has a legal right to enjoy their property, this does not mean that they can do anything they wish with or in that property with absolutely no concern about how it may impact a neighbour's enjoyment of their own property. And ultimately, in many common law systems, the court decides what is or isn't a nuisance. This provision would just outright prohibit any cases."

[Barfleur]

"1b(ii) is problematic. The mere fact of someone having a legal right to do something does not automatically trump all other interests. For example, while one person has a legal right to enjoy their property, this does not mean that they can do anything they wish with or in that property with absolutely no concern about how it may impact a neighbour's enjoyment of their own property. And ultimately, in many common law systems, the court decides what is or isn't a nuisance. This provision would just outright prohibit any cases."

"I appreciate the advice, Ambassador Hornwood. To this end, I have both clarified that clause 1(b)(ii) applies to speech as well as to acts and adopted the same 'the plaintiff does not reasonably believe [the act] to give rise to a harm compensable under applicable law' language proposed by the mission from Demosthenes and Burke. Also, we will never turn down the opportunity to add more nested clauses. Now if there could just be some way to get to 1(b)(ii)(A)(III)..."

[Kenmoria]

(OOC: 1-b-i should not use “compensable” as a standard. There are legitimate legal actions which do not have a compensatory function; see Ashley v CC of Sussex Police [2008] UKHL 25.)

[Wallenburg]

1.b.ii.B doesn't seem to belong separate from 1.b.i, seeing as their language is near-identical.

[Barfleur]

OOC: Re Kenmoria: Good advice, I have changed it to depend on whether the plaintiff reasonably believes the act to give rise to a cause of action, regardless of whether or not compensation can be expected. I imagine many vexatious plaintiffs file expecting to not make any profit for themselves, only to harm or threaten to harm the defendant financially.

Re Wallenburg: 1(b)(i) is backwards-looking, while 1(b)(ii) is forward-looking. In other words, 1(b)(ii) applies where a person wishes to preempt lawful speech or activity that they anticipate, as opposed to something that has already happened.

[Wallenburg]

Re Wallenburg: 1(b)(i) is backwards-looking, while 1(b)(ii) is forward-looking. In other words, 1(b)(ii) applies where a person wishes to preempt lawful speech or activity that they anticipate, as opposed to something that has already happened.

This is a bad reason to make the definitions section such an obscenely large fraction of the total text length, when a more streamlined and readable version is possible.

[Barfleur]

Re Wallenburg: 1(b)(i) is backwards-looking, while 1(b)(ii) is forward-looking. In other words, 1(b)(ii) applies where a person wishes to preempt lawful speech or activity that they anticipate, as opposed to something that has already happened.

This is a bad reason to make the definitions section such an obscenely large fraction of the total text length, when a more streamlined and readable version is possible.

OOC: Good point, I've made the change.

IC: An elderly man, who has not held a position for the past two decades but has inexplicably stuck around with the delegation--and continued to collect his salary--shakes his cane. "Obscene? You kids have no idea how good you have it these days! When I was, er, earlier in my career, we had to worry about things like 'indecency' and 'obscenity,' before our idiot courts came in and said it was all free speech. We have to make it tasteful! Now all the youngins are just on their eDevices all day long and have nothing to say except 'skibidi rizz Ohio LeGyatt!' You don't seriously think things are--"

Ambassador Norfield gently but uncompromisingly ushers him away. "Alright, Fergus, let's get you back to the casino. Er, I'll have my staff make the adjustment you've suggested."

[Kenmoria]

(OOC: On the definition of a vexatious suit, I suggest the following further rewording, which is more concise and which standardises the requirement of there not being a cause of action across the entire definition.

b. a suit is "vexatious" if it is filed:

1. in retaliation for or to deter lawful speech or actions act done by the defendant or by a third person, or
2. to induce the defendant or a third person to provide goods or services to which the plaintiff has no legal entitlement, nor reasonable grounds for believing there to be such an entitlement,

when the plaintiff does not reasonably believe the act to give rise to a cause of action under applicable law.

)

[Barfleur]

(OOC: On the definition of a vexatious suit, I suggest the following further rewording, which is more concise and which standardises the requirement of there not being a cause of action across the entire definition.

b. a suit is "vexatious" if it is filed:

1. in retaliation for or to deter lawful speech or actions act done by the defendant or by a third person, or
2. to induce the defendant or a third person to provide goods or services to which the plaintiff has no legal entitlement, nor reasonable grounds for believing there to be such an entitlement,

when the plaintiff does not reasonably believe the act to give rise to a cause of action under applicable law.

)

OOC: I don't think clause 1(b)(ii) needs to be further modified by "when the plaintiff does not reasonably believe the act to give rise to a cause of action under applicable law," seeing as it is already governed by the reasonable grounds language.

[Kenmoria]

(OOC: On the definition of a vexatious suit, I suggest the following further rewording, which is more concise and which standardises the requirement of there not being a cause of action across the entire definition.

b. a suit is "vexatious" if it is filed:

1. in retaliation for or to deter lawful speech or actions act done by the defendant or by a third person, or
2. to induce the defendant or a third person to provide goods or services to which the plaintiff has no legal entitlement, nor reasonable grounds for believing there to be such an entitlement,

when the plaintiff does not reasonably believe the act to give rise to a cause of action under applicable law.

)

OOC: I don't think clause 1(b)(ii) needs to be further modified by "when the plaintiff does not reasonably believe the act to give rise to a cause of action under applicable law," seeing as it is already governed by the reasonable grounds language.

(OOC: I would regard vexatiousness, in terms of a claim of action, as necessarily including futility of the claim as a component. A suit that is intended to induce someone to provide to the plaintiff goods to which the plaintiff has no legal entitlement is certainly in mala fides, but it does not strike me as vexatious unless it is also a suit with no reasonable chance of success.)

[Barfleur]

OOC: I don't think clause 1(b)(ii) needs to be further modified by "when the plaintiff does not reasonably believe the act to give rise to a cause of action under applicable law," seeing as it is already governed by the reasonable grounds language.

(OOC: I would regard vexatiousness, in terms of a claim of action, as necessarily including futility of the claim as a component. A suit that is intended to induce someone to provide to the plaintiff goods to which the plaintiff has no legal entitlement is certainly in mala fides, but it does not strike me as vexatious unless it is also a suit with no reasonable chance of success.)

OOC: Good point. Fixed.

[The Ice States]

Support in general. I would prefer that Section 2b be rewritten to something similar to the following, instead of unconditionally awarding the fees etc to the attorney and not the defendant,

award both the defendant and their attorney any fees and other costs incurred by the relevant person in defending the suit

[Barfleur]

Support in general. I would prefer that Section 2b be rewritten to something similar to the following, instead of unconditionally awarding the fees etc to the attorney and not the defendant,

award both the defendant and their attorney any fees and other costs incurred by the relevant person in defending the suit

OOC: Amended to clarify that that.

[Simone Republic]

I've looked at this since John Oliver did Slapp Suits in season 6. The difficultly is the intent part - there's a tipping point between free speech, defamation and vexatious litigation which is an extremely fine line.

[Verdant Haven]

"I heartily endorse anti-SLAPP legislation. My only notable concerns are related to the fact that this is covering topics for which most modern nations will already have at least some existing national legislation. In particular:

1) The term "vexatious litigation" and its kin are routine and widely understood legal terms, and are typically far more broad than this limited definition provides. Declaration of a person as a vexatious litigant is typically a far greater step than herein defined, carrying lifelong consequences and restrictions for a person so designated. I would encourage inclusion of language that clarifies that this resolution adds to, but does not replace, any existing national legislation on this subject.

2) Anti-SLAAP legislation, too, may exist in various nations. I would encourage this being defined as a minimum, rather than exclusive, response to such activity.

With those protections acknowledged for existing, and usually stronger, national legislation, I would be fully in support."

[Barfleur]

I've looked at this since John Oliver did Slapp Suits in season 6. The difficultly is the intent part - there's a tipping point between free speech, defamation and vexatious litigation which is an extremely fine line.

"I heartily endorse anti-SLAPP legislation. My only notable concerns are related to the fact that this is covering topics for which most modern nations will already have at least some existing national legislation. In particular:

1) The term "vexatious litigation" and its kin are routine and widely understood legal terms, and are typically far more broad than this limited definition provides. Declaration of a person as a vexatious litigant is typically a far greater step than herein defined, carrying lifelong consequences and restrictions for a person so designated. I would encourage inclusion of language that clarifies that this resolution adds to, but does not replace, any existing national legislation on this subject.

2) Anti-SLAAP legislation, too, may exist in various nations. I would encourage this being defined as a minimum, rather than exclusive, response to such activity.

With those protections acknowledged for existing, and usually stronger, national legislation, I would be fully in support."

"I appreciate both delegations' feedback. I hope the new clause 4 is sufficient to ensure that this proposal, if passed, would not have any inadvertent effects of the kind mentioned."

[Barfleur]

OOC: Bump.

[Simone Republic]

OOC: Bump.

"Colorable showing that the suit is vexatious" is too weak, in my view.

A long-standing, bitter argument between two parties (such as the back and forth between Jeffrey Archer and Private Eye in the UK) is not necessarily vexatious (of course, in that case, it ended with Jeffrey Archer imprisoned for perjury).

[Barfleur]

OOC: Bump.

"Colorable showing that the suit is vexatious" is too weak, in my view.

A long-standing, bitter argument between two parties (such as the back and forth between Jeffrey Archer and Private Eye in the UK) is not necessarily vexatious (of course, in that case, it ended with Jeffrey Archer imprisoned for perjury).

OOC: The current language does not presume that a lawsuit filed between parties who are engaged in a bitter argument is vexatious, only that the defendant has a fairly low burden at this stage. I don't see anything wrong with requiring the plaintiff to show their cards, so to speak, as they would have to do so anyway at a later point (discovery), and moving it forward allows genuinely vexatious suits to be tossed before they succeed in bleeding the defendant dry. That being said, I know a lot less about civil law than criminal law, so I'm no expert here. Would "plausible" be a better word than "colorable"? Or are they too similar?

[The Overmind]

"Colorable showing that the suit is vexatious" is too weak, in my view.

A long-standing, bitter argument between two parties (such as the back and forth between Jeffrey Archer and Private Eye in the UK) is not necessarily vexatious (of course, in that case, it ended with Jeffrey Archer imprisoned for perjury).

OOC: The current language does not presume that a lawsuit filed between parties who are engaged in a bitter argument is vexatious, only that the defendant has a fairly low burden at this stage. I don't see anything wrong with requiring the plaintiff to show their cards, so to speak, as they would have to do so anyway at a later point (discovery), and moving it forward allows genuinely vexatious suits to be tossed before they succeed in bleeding the defendant dry. That being said, I know a lot less about civil law than criminal law, so I'm no expert here. Would "plausible" be a better word than "colorable"? Or are they too similar?

Colorable seems more appropriate.

Outside of law, the use of colorable has slightly less stringent requirements than plausible. A colorable claim is one that only needs to be seemingly plausible, while a claim that is called plausible is demonstrably so.

But, more to the point, in law, a colorable claim is one that has a reasonable chance of success at trial, which seems like the intent here.

[Barfleur]

OOC: The current language does not presume that a lawsuit filed between parties who are engaged in a bitter argument is vexatious, only that the defendant has a fairly low burden at this stage. I don't see anything wrong with requiring the plaintiff to show their cards, so to speak, as they would have to do so anyway at a later point (discovery), and moving it forward allows genuinely vexatious suits to be tossed before they succeed in bleeding the defendant dry. That being said, I know a lot less about civil law than criminal law, so I'm no expert here. Would "plausible" be a better word than "colorable"? Or are they too similar?

Colorable seems more appropriate.

Outside of law, the use of colorable has slightly less stringent requirements than plausible. A colorable claim is one that only needs to be seemingly plausible, while a claim that is called plausible is demonstrably so.

But, more to the point, in law, a colorable claim is one that has a reasonable chance of success at trial, which seems like the intent here.

OOC: "Reasonable chance of success at trial" is what I was going for. So I'll keep the current language.