The BP action against Greenpeace is but the latest example of this import from the US. Increasingly, civil injunctions are being used or threatened against individuals and groups involved in legitimate environmental protest. Readers will be aware of the McLibel Two, but many others - local councillors, residents' groups, road protesters, land rights campaigners - are being intimidated to stop them exercising their democratic rights by the prospect of being banned from an area, silenced in public debate, bankrupted by lawyers' costs, and possibly imprisoned.
Often there is no prospect of such litigation coming to full trial. The litigant company merely satisfies the court that it has a case to argue - nothing has to be proved - and that the balance of convenience justifies the injunction sought. Once the injunction is granted, the case is usually stayed.
The courts and the Legal Aid Board are failing to attribute sufficient weight to the right to express dissent or blow the whistle. Legal aid is rarely available to fight such cases, and the courts invariably favour a developer's commercial convenience over the fundamental rights of the citizen.
Incorporation of the European Convention on Human Rights may improve matters, but until it does and the Courts see SLAPPs to be the abuse of the legal process that they are, our justice system will continue to succumb to the same forces that endanger our environment.
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