Credit: PacemakerOn 8 January 2024, the High Court of Northern Ireland handed down judgment in the case of Kelly v O’Doherty [2024] NIMaster 1 [pdf].  The Master struck out a libel claim brought by former IRA member, Gerry Kelly holding that the claim was “scandalous, frivolous and vexatious.”

Background

In August 2019, Malachi O’Doherty, a well-known journalist, author, and broadcaster, appeared as a guest on two Northern Irish radio stations, U105 and BBC Radio Ulster. In both interviews, Dr O’Doherty was asked about the platforming of ‘people connected with paramilitaries on air’ and across local media.

In his discussion with Frank Mitchell on U105, Dr O’Doherty referred to the Maze Prison Escape of 25 September 1983 (in which 38 Provisional IRA prisoners escaped from H-Block 7 of the prison), and stated that Gerry Kelly, the current Sinn Fein Member of the Northern Ireland Assembly for North Belfast, had ‘shot a prison warder [John Henry Adams] in the head’ during the escape. Similarly, in conversation with Stephen Nolan, Dr O’Doherty asked, ‘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?’

Mr Kelly subsequently issued a writ claiming damages for libel in respect of the statements made by Dr O’Doherty in the interviews. In his Statement of Claim, the Plaintiff alleged that the words used had gravely damaged his reputation and brought his standing as a public representative into disrepute. In September 2022, Dr O’Doherty issued a summons requesting that the court strike out the claim under Order 18, Rule 19(1)(b) and (d) of the Rules of the Court of Judicature, on the grounds that it was ‘scandalous, frivolous, or vexatious’ and was ‘otherwise an abuse of the process of the court.’

Hearing

At hearing, counsel for Dr O’Doherty extended the bases of his application, and contended that the proceedings ought also to be struck out under section 8 of the Defamation Act 1996 (which provides that the court may dispose summarily of the claim if it ‘has no realistic prospect of success’), and under the so-called Jameel principle articulated in Jameel v Dow Jones [2005] EWCA Civ 75 (since the cost of pursuing proceedings was disproportionate to what they might achieve).

In response, counsel for Mr Kelly contended that the Plaintiff had been acquitted of the offence at trial in 1987, that evidence cited by Dr O’Doherty contained no admission or indication of which of the prisoners had shot Mr Adams, that some of the evidence was inadmissible, and that the statement would meet the Jameel threshold due to its imputation of ‘serious criminality punishable by imprisonment.’

Decision

Master Bell examined each limb of the application in turn. First, in deciding whether the claim was scandalous, frivolous, or vexatious, Master Bell considered the evidence adduced at the Plaintiff’s criminal trial for the shooting of Mr Adams in 1987, and Lord Lowry’s judgment of April 1988. Noting the difference between the criminal and civil standards of proof, the Master stated that while he was not satisfied that the evidence from the criminal trial was ‘sufficient to satisfy a court on the balance of probabilities that Mr Kelly fired the shot that hit Mr Adams,’ Dr O’Doherty also relied on Mr Kelly’s own statements in two of his books, The Escape and Playing My Part.

Following counsel for the Defendant’s submission that Mr Kelly acted ‘in concert in the course of a joint enterprise’ with Bobby Storey to shoot Mr Adams, Master Bell reviewed the concept of joint enterprise in criminal law, and applied the principle of common design in tort. This, in turn, informed his consideration of the meaning of Dr O’Doherty’s words in the interviews:

‘I do not consider that the reasonable meaning of Dr O’Doherty’s words is that they should be narrowly interpreted so as only to mean that it was Mr Kelly’s finger which was on the trigger of the gun when it fired the shot that hit Mr Adams … Rather I consider that a secondary reasonable meaning includes that Mr Kelly and Mr Storey were acting together in a common design … and that one of them pulled the trigger that fired the shot, in circumstances where both of them are legally responsible in civil law for the battery.’ [46]

Having cited and examined a series of extracts from the Plaintiff’s books, the Master stated that Mr Kelly’s own accounts of the escape made it ‘extremely difficult, if not impossible, for him to rebut the argument that he was not a joint tortfeasor in respect of the battery. Thus, these facts lead to a complete defence for Dr O’Doherty.’ He held that, since Mr Kelly was civilly liable for the shooting, the proceedings were ‘completely untenable’ and struck them out as scandalous, frivolous, and vexatious.

Secondly, the Master examined the Defendant’s submission that the proceedings constituted an abuse of process. Based on his previous finding that ‘Mr Kelly would be as legally liable for the shooting in civil proceedings as if he had pulled the trigger himself,’ Master Bell held that ‘initiating defamation proceedings in these circumstances is, without doubt, an abuse of process.’

Third, in considering whether the claim should be struck out under section 8 of the 1996 Act, Master Bell concluded on the same bases that the proceedings had no realistic prospect of success and met the test for summary disposal.

Finally, on the question of whether the proceedings met the Jameel threshold of seriousness, Master Bell accepted counsel for the defendant’s submissions that the court was ‘entitled to take Mr Kelly’s previous criminal convictions into account on reaching a conclusion as to what his reputation is or was,’ and 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 … has lost his moral compass as he places little value on human life.’

The key question was whether Mr Kelly’s reputation would have been damaged by Dr O’Doherty’s allegation had the allegation been false. Master Bell held that no evidence had been submitted to show that Mr Kelly enjoyed a ‘restored reputation’ and that ‘Mr Kelly’s convictions … resulted in him having a bad reputation and that, despite his political service, his reputation was still bad.’ Since the statements would not have damaged the Plaintiff’s reputation, the claim was struck out accordingly.

SLAPPs

While Master Bell’s reasoning in deciding the second limb of the application followed his rationale in deciding the first, he also observed that the concept of abuse of process includes circumstances ‘where litigation is intended for an improper collateral purpose’ and commented that defamation actions in the field of political speech ‘need to be carefully considered in case they are being used to attack legitimate free speech.’

Counsel for the Defendant emphasised that the litigation tactic adopted by Mr Kelly focused on ‘suing a journalist with limited means rather than a national broadcaster,’ and argued that the proceedings constituted a strategic lawsuit against public participation (or a ‘SLAPP’). Master Bell noted that the Plaintiff had issued proceedings against Dr O’Doherty, but not against the BBC or U105, and, in another recent defamation action, against Ruth Dudley Edwards though not against the Belfast Telegraph who published her comments: ‘for some reason, however, it is only these two freelance journalists … whom Mr Kelly has singled out and pursued for defamation.’

The resulting analysis constitutes Northern Ireland’s first judicially-identified SLAPP. Noting that Mr Kelly had strikingly failed to issue defamation proceedings against numerous reports since 1983 that he had shot Mr Adams, Master Bell found that:

‘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, namely 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. This would amount to the proceedings having been brought for an improper collateral purpose … The court therefore has no hesitation in striking them out.’ [72]

Identification of the action as a SLAPP was also the key determinant in the eventual costs award. The Master held that where a SLAPP is issued, ‘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 process of the court.’ He awarded Dr O’Doherty both the costs of the application and the costs of the action on an indemnity basis.

Comment

This significant judgment is both welcome and timely, given that the Department of Finance’s Review of Defamation Law in Northern Ireland consultation (statutorily mandated under section 11 of the recently implemented Defamation Act (Northern Ireland) 2022) is currently open for responses from stakeholders.

As Master Bell acknowledged, one outcome of the Review may be the recommendation of new anti-SLAPP measures or legislation in the jurisdiction. This case, and others like it, clearly illustrates the need for legislative debate and scrutiny on such matters. It remains to be seen whether the judgment signals the development of a more judicially activist approach to identifying SLAPPs, and whether it will deter similar actions in the ‘field of political speech’ (and cause Mr Kelly to abandon his action against Miss Edwards), amid a sequence of recent libel claims by political parties and actors.

Although prospective legislative action on SLAPPs remains a live and pressing issue, it is hard to avoid the impression that, in this case, a serious harm threshold could have spared the Defendant much of the nearly three-and-a-half years of anxiety that he experienced as a consequence of the action.  Although identified as the weakest ground, the case was struck out on the Jameel principle, essentially because the statements would not have caused sufficiently serious harm to the Plaintiff’s reputation.

Would the existence of a serious harm threshold, an altogether higher bar comparable to that in section 1 of the Defamation Act 2013 in England and Wales, have been effective to preclude the action altogether? Certainly, an early hearing on the issue of serious harm would have curtailed the claim well before now. As we have argued previously, consideration of the threshold for libel claims in Northern Ireland may well be the necessarily primary issue to be addressed.

In the meantime, with Northern Ireland’s devolved institutions still suspended, case law seems likely to remain the most effective site for the incremental development of the law on SLAPPs in the jurisdiction.

Ciaran O’Shiel is a Partner and Tim Carson is a Trainee Solicitor in A&L Goodbody Northern Ireland’s Litigation & Dispute Resolution team.