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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, 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.
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.
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.
He 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.
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 is 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.
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