Gerry Kelly libel case: “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.”

As the BBC report, Belfast High Court has thrown out a libel case brought by Sinn Féin MLA Gerry Kelly against freelance journalist Malachi O’Doherty, describing it as “scandalous, frivolous and vexatious”. As the Irish Times report notes

In a decision published on Monday, The Master of Belfast High Court, Evan Bell, also struck out Mr Kelly’s defamation action on the basis that “the proceedings are 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 basis, which will result in a higher payment to reflect the court’s view that the action should not have been taken.

In his judgement, 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”.

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 break-out 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 Mr O’Doherty said Mr Kelly had shot a prison officer.

From the High Court ruling [pdf]

[72] Of course every individual has the right to defend their good name but, as elected representatives, politicians have a duty to display a greater degree of restraint when it comes to taking to legal action against journalists. The absence of any defamation proceedings in respect of the wide reporting over the years that Mr Kelly shot Mr Adams, taken together with recent proceedings having been instituted only against these two particular freelance journalists, suggests 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.

[73] 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.

The Belfast Telegraph report adds

Two months ago, Master Bell rejected an attempt by Sinn Féin’s Michelle O’Neill to secure compensation from former DUP councillor John Carson over a crude Facebook message. The judge said then: “When the court’s time is taken up with cases involving disputes between politicians involving insults which one imagines are sometimes heard in school playgrounds or outside pubs on Saturday nights, then serious cases… inevitably suffer delay. This is undesirable and not in the public interest.”

Six weeks ago, the High Court in Dublin dismissed a defamation action against the Sunday Life which had been taken by schoolteacher and Sinn Féin constituency organiser Liam Lappin.

Mr Lappin claimed that a photograph of him and 13 others at a Sinn Féin Christmas party — which the newspaper highlighted contained Frank McCabe, an IRA commander whose gang was implicated in the notorious murder of Paul Quinn — had defamed him, even though McCabe was circled in the photo to identify him.

The judge said the claim “stretches credulity”.

Last year, the Council of Europe accused Sinn Féin leader Mary Lou McDonald of “intimidation of journalists” over a defamation action against RTÉ. The Taoiseach and Tánaiste criticised the party’s legal threats for having a “chilling effect” on democracy. Sinn Féin dismissed this, saying those involved had “no option but to vindicate their good name in the face of false accusations made by others”.

And finally from the Irish Times again

[The Master of Belfast High Court, Evan Bell] said the decision “obviously has implications for Mr Kelly’s similar defamation proceedings against Miss [Ruth Dudley] Edwards which will not be lost on his legal advisers and hers”.

Responding to the decision, Mr 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”. Sinn Féin and Mr Kelly have been asked for a comment on the matter.

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