In January, the High Court of Northern Ireland struck a major blow to anyone looking to abuse the legal system to harass and intimidate their opponents.
Its striking out of a “scandalous, frivolous and vexatious” libel claim brought by former Provisional IRA member Gerard 'Gerry' Kelly (now the Sinn Fein Member of the Northern Ireland Assembly for North Belfast) against award-winning journalist Dr Malachi O’Doherty can be considered a victory for freedom of speech.
In his judgment, Master Bell found that the proceedings brought by Mr Kelly bore the hallmarks of a SLAPP (strategic lawsuit against public participation) — remarking that “the abuse of process in this case is so blatant that it would be utterly unjust if the court were to allow the proceedings to continue. The Court therefore has no hesitation in striking them out”.
Here, our litigation specialist Ed Lunt explains how the decision was reached and what it may mean for future claimants.
What is a SLAPP?
The UK Government defines a SLAPP as a “legal action typically brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system”. Typically, a SLAPP will be sent by a well-funded Claimant, threatening a claim that they (and their lawyers) know to be weak and frivolous but in the knowledge that the very threat of legal proceedings may be enough to frighten and silence a less well-funded recipient.
Although SLAPPs aren’t restricted to threats of defamation proceedings, these have attracted the most criticism and attention from the SRA (Solicitors Regulatory Authority). This is because a SLAPP’s main intention is to silence critics. They’re fundamentally unethical and serve to undermine freedom of speech.
The purpose of a defamation claim is to compensate a Claimant for the reputational damage caused when a false statement was made by a Defendant. To succeed in a defamation claim, a Claimant must establish that they have a reputation to protect, and that their reputation suffered harm as a result of the Defendant’s statement. This proved to be problematic for Mr Kelly.
Mr Kelly’s libel claim
In August 2019, two Northern Irish radio stations — U105 and BBC Radio Ulster — hosted interviews with Dr O’Doherty.
During his interview with Frank Mitchell on U105, the following exchange took place:
Frank Mitchell: “These women are right at the cutting end with the terrorism. They aren’t stealing chocolate out of a shop.”
Dr O’Doherty: “And that makes them no different from a lot of people that we know and work among in Belfast and in Derry. You know that is the reality. You and I. I’m not going to start naming names. Well, Gerry Kelly for instance. Gerry Kelly MLA has spoken very frankly about shooting a prison warder in the head, right? He did that. He shot a prison warder in the head. We interview him on the radio, we … talk to him about his responsibilities as a minister or the intentions of his party, and we don’t say ‘I’m having nothing to do with you because you shot a prison warder in the head.’ We just say … we have just decided that that was political motivation and he’s moved on and we don’t expect him to shoot any more prison warders in the head …”
During his interview with Stephen Nolan on BBC Ulster, the following exchange took place:
Stephen Nolan: “Do you let people connected with paramilitaries on air so that they could be challenged? Or do you keep them off air and they don’t get a voice? What’s the answer to that, Malachi?”
Dr O’Doherty: “… And we were discussing this in the Good Morning Ulster office and saying, well how could we even function in Northern Ireland if every time we were going to interview Gerry Kelly, we had to notify the family of the prison officer he shot?”
Dr O’Doherty’s comments were made in reference to Mr Kelly’s involvement in the 1983 Maze Prison Escape, in which 38 Provisional IRA members escaped from H-Block 7 of the prison.
Mr Kelly brought claims for damages for libel in respect of the words used by Dr O’Doherty during the two interviews. He claimed that as a result of those words, his reputation has been gravely damaged and that his standing as a respected public representative of all those in the constituency of the Northern Ireland Legislative Assembly in which he was elected had been called into disrepute.
Judgment
In his Judgment, Master Bell considered the question of whether Mr Kelly’s reputation had been damaged in any way by Dr O’Doherty’s words. Dr O’Doherty’s counsel argued that it hadn’t and that, to the contrary, Mr Kelly was a man with an already poor reputation with a large volume of similar material and allegations previously published about him.
It was argued that Mr Kelly’s reputation comprises of him:
a) publicly accepting being a member of the Provisional IRA — an organisation that was made illegal in 1931 and again in 1936
b) being convicted of the Old Bailey Bombings and sentenced to a significant prison sentence
c) being convicted of the false imprisonment of five prison officers during The Maze Prison Escape
d) publicly accepting being involved in the Maze Prison Escape in a leadership role — during which a prison officer was shot in the head and another died of a heart attack
e) publicly accepting being in the possession of a firearm during the Maze Prison Escape, pointing it at a prison officer and threatening to shoot him
f) in his own book (The Escape), narrowing the pool of suspects in the murder of a prison warden during the Maze Prison Escape down to two people — himself and another escapee, and
g) speaking in various interviews of his great pride in the escape.
Master Bell noted that there “was no evidence to the contrary submitted on behalf of Mr Kelly as to a restored reputation” and that Mr Kelly — despite being a politician — didn’t hold a “restored reputation”, stating that “a right-thinking person would take the view that anyone who is guilty to the criminal standard of proof of exploding car bombs in a capital city, putting the lives of dozens or hundreds of people at risk, has lost his moral compass as he places little value on human life”.
As a result, it was found that Dr Doherty’s words could not have damaged Mr Kelly’s reputation and the claim was struck out.
It was argued by Dr O’Doherty’s counsel that the litigation tactic deployed by Mr Kelly “focuses on suing a journalist with limited means rather than a national broadcaster” and described the proceedings as a cynical attempt to frighten him. In other words, Dr O’Doherty argued that the proceedings amounted to a SLAPP.
Master Bell expressed his view that:
“The field of political speech (and I use this term in the widest possible sense so as to include not only what politicians say but also what others say about politicians, their policies and their actions) is a field which must be carefully handled lest the fabric of democracy be damaged. Defamation actions in this field need to be carefully considered in case they are being used to attack legitimate free speech”.
He noted that despite the wide reporting that Mr Kelly had shot the prison officer (including on Wikipedia and in a 2008 BBC documentary), Mr Kelly has singled out a freelance journalist to pursue for defamation.
It was found that:
“It is difficult to discern any valid reason why defamation proceedings against Dr O’Doherty and Ms Edwards were brought after what Mr Kelly had written his book The Escape. There was neither affidavit evidence from Mr Kelly nor any submissions from Mr McKenna which attempted to explain or justify the initiation of defamation proceedings against the two journalists and the absence of such proceedings against the two media organisations which carried their words. On the balance of probabilities therefore the proceedings do bear the hallmarks of a SLAPP and have been initiated not for the genuine purposes of vindicating a reputation injured by defamatory statements, but rather for the purpose of stifling the voices of his troublesome critics. I note that the Solicitors Regulation Authority in England and Wales in its guidance to the profession observes that one of the ‘red flags’ that helps identify a SLAPP is that the client asks that the claim is targeted only against individuals where other corporate defendants are more appropriate. Freelance journalists are particularly vulnerable without the support of a media outlet behind them This is clearly the position in these proceedings. The abuse of process in this case is so blatant that it would be utterly unjust if the court were to allow the proceedings to continue. The court therefore has no hesitation in striking them out.”
Mr Kelly was ordered to pay Dr O’Doherty’s costs on an indemnity basis — resulting in a higher than standard costs contribution. Master Bell expressed his view that “where a court is satisfied on the balance of probabilities that a defamation action amounts to a SLAPP, then the award of costs to the defendant on the 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”.
Commentary
At the time of writing, no defamation claim in England and Wales has been held to be a SLAPP by a judge. Going forward, it will be interesting to see whether the courts in England and Wales will consider whether claims could be deemed SLAPPs and if they will award similar costs penalties.
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