A libel action taken by the Sinn Féin Assembly member Gerry Kelly against writer and journalist Malachi O’Doherty has been struck out and described as “scandalous, frivolous and vexatious”.
In a decision published on Monday, the Master of Belfast High Court, Evan Bell, said he was also striking out Mr Kelly’s defamation action on the basis that “the proceedings are an abuse of process”, it “has no realistic prospect of success”, and it failed to “pass a minimum threshold of seriousness”.
He said “rather than being a genuine attempt to defend a reputation which has been damaged by an untruth, the proceedings are what has been referred to as a Slapp [a strategic lawsuit against public participation]” which was an attempt to silence two bothersome journalists with the threat of legal costs.
“The proceedings appear to be a strategic effort to intimidate them, to deprive them of time and resources, and ultimately to silence them,” he said.
He also noted that the defamation action against Dr O’Doherty – and a similar case against the writer and journalist Ruth Dudley Edwards – were initiated against them as individuals and not the media organisations that carried their words.
Mr Kelly was ordered to pay the costs of the application and the costs of the action on an indemnity basis, which will result in a higher payment to reflect the court’s view that the action should not have been taken.
In his judgment, Master Bell said that in his view, “where a court is satisfied on the balance of probabilities that a defamation action amounts to a Slapp [a strategic lawsuit against public participation] then an award of costs to the defendant on an indemnity basis is an inevitable consequence as a demonstration of the court’s repudiation of the way in which a plaintiff has abused the processes of the court”.
Responding to the decision, Dr O’Doherty said he hoped it would be “a warning to others bringing gratuitous and vexatious cases aimed more at silencing journalists and stifling free speech than advancing anyone’s human right”.
In a brief statement Mr Kelly said it was a “substantive judgment and I will take time to study it with my legal adviser”.
Currently an MLA for North Belfast, Mr Kelly was in 1973 sentenced to life imprisonment for his part in the IRA bombing of two locations in London, including the Old Bailey, and 10 years later was involved in a mass breakout from the Maze prison outside Belfast.
In 2020 he issued a writ claiming damages for libel in respect to two radio interviews conducted by Dr O’Doherty with Frank Mitchell on U105 and with Stephen Nolan on BBC Radio Ulster in 2019, in which Dr O’Doherty said Mr Kelly had shot a prison officer.
Mr Kelly claimed that as a result he had been “gravely damaged in his character and reputation” and his standing as an elected public representative had been “called into disrepute”, a claim rejected by the High Court.
Master Bell found that whether Mr Kelly or another individual fired the shot that hit the prison officer, “the content of his books appears to make Mr Kelly civilly liable, on the balance of probabilities, for the shooting of [the prison officer] Mr Adams.
“In the light of that, these defamation proceedings against Dr O’Doherty are completely untenable. For that reason the court strikes them out on the basis that they are scandalous, frivolous and vexatious.”
In his judgment, Master Bell also noted that “since the amendment of the law on double jeopardy, where an author has been tried and acquitted of criminal offences, and his criminal memoir contains material which amounts to new and compelling evidence against him, he may expose himself to re-prosecution for that offence under Part 10 of the Criminal Justice Act 2003 if his book contains new evidence”.
Sinn Féin leader Mary Lou McDonald previously denied there was a policy in the party to take legal actions for defamation against the media, saying that “when a line is crossed ... people have the right to use the mechanisms available to them to vindicate their name”.
In November, the Dublin Bay South TD Chris Andrews initiated legal action against The Irish Times and journalist Harry McGee in the latest in a series of legal actions taken by Sinn Féin representatives against media outlets and political opponents. The Irish Times is strongly defending the action.
The NUJ assistant general secretary, Séamus Dooley, said the determination was “extremely significant” in the context of ongoing concern at the use of Slapps.
“This case had no realistic prospect of success,” he said. “Since 2020 the shadow of defamation proceedings has loomed over Malachi O’Doherty and, in a separate action, over Ruth Dudley Edwards.
“Such threats have a chilling impact on journalists and journalism. The unambiguous language used in the determination should give those intent on using Slapps pause for thought.”
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