NUJ hails significant SLAPPs ruling in Northern Ireland
The union has welcomed a judgment in favour of journalist Malachi O'Doherty, in "vexatious" defamation proceedings brought by Gerry Kelly MLA.
The National Union of Journalists has welcomed the decision of the Master of the High Court in Northern Ireland to strike out a defamation claim against Belfast journalist and author Malachi O’Doherty by NI Assembly member Gerry Kelly. Master Evan Bell described the claim by Gerry Kelly MLA as “scandalous, frivolous and vexatious” and awarded costs against Mr Kelly.
Séamus Dooley, NUJ assistant general secretary, said the determination was “extremely significant” in the context of ongoing concern at the use of strategic lawsuits knows as SLAPPs (strategic lawsuits against public participation) against journalists in both Northern Ireland and the Republic.
In the decision published on Monday, The Master of Belfast High Court, Evan Bell, described Mr Kelly’s defamation action as an abuse of process, that it “has no realistic prospect of success”, and that it failed to “pass a minimum threshold of seriousness.”
Mr Kelly was ordered to pay the costs of the application and the costs of the action on an indemnity.
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.”
“This case had no realistic prospect of success. 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.”
In 1973 Mr Kelly was 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 break-out from the Maze prison outside Belfast. He is author of a biography, Playing My Part, in which he sets out his record as an IRA activist.
In 2020 he issued a writ claiming damages for defamation 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 Mr 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 which hit the prison officer, “what Mr Kelly has written in his books, in my view, makes 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 in respect of the defamation action Mr Kelly has brought”, he wrote.
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.”
The NUJ will be making a submission to the review of defamation law in Northern Ireland and has instructed counsel to assist in the submission. The union is consulting members on the review, with reference to the impact of SLAPPs.