Case Summary and Outcome

The High Court of Northern Ireland (King’s Bench Division) dismissed Gerard Kelly’s defamation lawsuit against Malachi O’Doherty, determining it was a SLAPP (Strategic Lawsuit Against Public Participation) designed to abuse the process of the court and to suppress criticism rather than to genuinely address reputational damage. Kelly claimed that O’Doherty’s statements in radio interviews, suggesting he had shot a prison officer, were defamatory. O’Doherty argued that Kelly’s general reputation was of a convicted bomber who was involved in the escape from lawful custody and shooting of a prison officer and therefore his reputation could not be lowered in the minds of the right-thinking people. The Court found that although there was ambiguity about which of the two convicts – Kelly or Storey fired the shot at Adams, it was “extremely difficult” to refute Kelly’s involvement as a joint tortfeasor in the offence of battery. The Court further noted Kelly’s selective targeting of freelance journalists, while ignoring broader media coverage of similar content, indicating an intent to intimidate rather than seek true redress. Therefore, the defamation proceedings against O’Doherty were struck down by the court as they were “scandalous, frivolous and vexatious” and an abuse of the process of the court. The Court awarded O’Doherty both the costs of the application and the costs of the action on an indemnity basis.

---

Facts

In 1987, in R v Burns, Gerard Kelly, a convicted prisoner, was prosecuted for shooting a prison officer, John Henry Adams while escaping from lawful custody. Adams and another prison officer had identified him as the assailant. However, it could not be proved beyond a reasonable doubt due to inconsistencies and discrepancies in the accounts of prison officers. Therefore, on April 27, 1988, Lord Lowry, then Lord Chief Justice acquitted Kelly.

In 1998, Kelly was elected to the Northern Ireland Assembly for North Belfast and continues to be a Member of the Northern Ireland Assembly.

In 2013, Kelly published a book, The Escape – The Inside Story of the 1983 (Escape from Long Kesh Prison) where he wrote about the implementation of the escape plan with Bobby Storey, another prisoner and how the shooting of Adams had occurred. Kelly had written his book in such a way as to conceal who fired the shot that hit the prison officer. He published another book – Playing My Part, discussing the escape plan.

On August 21, 2019, Malachi O’Doherty, the award-winning journalist and author, conducted radio interviews with Frank Mitchell on U105 and with Stephen Nolan on BBC Radio Ulster.

During the interview on U105 with Mitchell, O’Doherty stated that “Gerry Kelly MLA has spoken very frankly about shooting a prison warder [Mr. Adams] in the head, right? He did that. He shot a prison warder in the head.” [para. 2] During the BBC interview with Nolan, O’Doherty remarked “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?” [para. 3]

On August 20, 2020, Kelly claimed libel in respect of O’Doherty’s interviews. On September 23, 2022, O’Doherty sought dismissal of Kelly’s claim under Order 18 Rule 19(1)(b) and (d) of the Rules of the Court of Judicature contending that they were “scandalous, frivolous or vexatious” and “abuse of the process of the court”. O’Doherty claimed dismissal of Kelly’s proceedings under section 8 of the Defamation Act 1996.

---

Decision Overview

Master Bell of the High Court of Justice of Northern Ireland (King’s Bench Division) delivered this order. The main issue for consideration was whether the defamation proceedings initiated by Kelly against O’Doherty should be dismissed as they were “scandalous, frivolous or vexatious” and “an abuse of the process of the court”. The other issues before the consideration of the Court were whether the case should be dismissed under section 8 of the Defamation Act 1996 and whether it failed to pass the minimum threshold of seriousness.

Kelly alleged that O’Doherty’s comments in the interviews with Mitchell and Nolan were defamatory as they suggested that he “killed a prison officer by shooting him in the head”. [para. 5] As a result of these words, Kelly claimed that his character and reputation were damaged and that his standing as a respected public representative was negatively affected.

Kelly submitted that although he was prosecuted in 1987 for the shooting of Adams, he was acquitted of that offence. He argued that his book made it unclear which of the prisoners, Kelly or Storey, fired at Adams and that he made no admission about shooting Adams. Kelly argued that the evidence submitted by O’Doherty to imply that he shot at Adams, was inadmissible in the court.

Kelly argued that in defamation actions, the rule in Scott v Sampson [1882] 8 QBD 491 prohibits a defendant from introducing evidence of specific acts of misconduct related to reputation. He contended that his specific conduct concerning the Old Bailey Bombings, pertaining to general reputation, was inadmissible.

O’Doherty argued that his statements in the radio shows related to matters of public interest and were, therefore, protected by qualified privilege at common law. Based on Kelly’s book, O’Doherty argued that Kelly was a convicted prisoner who, by his own admission, escaped from lawful custody in 1983 and was a leader of that escape during which Adams was shot in the head. O’Doherty further presented the formal statement of Adams and the official file in the Public Record Office for Northern Ireland (PRONI), which identified Kelly as the person who shot him.

The Court considered the arguments presented by Kelly and O’Doherty. Relying on Jeynes v News Magazine Limited [2008] EWCA Civ 130, the Court firstly outlined how the meaning of words should be approached in defamation actions: the governing principle being reasonableness, where a reasonable person will not select one bad meaning if other non-defamatory interpretations are available. [para. 45] The Court adjudged that O’Doherty’s words could not be narrowly interpreted to mean that Kelly fired the shot at Adams. A secondary reasonable meaning could be that Kelly and Storey were acting together in a “common design” and that one of them pulled the trigger. In such circumstances, both would be legally responsible in civil law for the battery. [para. 46]

The Court noted that all O’Doherty had to demonstrate in these defamation proceedings was that, on the balance of probabilities, Kelly acted in a way that furthered the commission of a battery by Storey on Adams, and that Kelly did so in pursuance of a common design to commit the battery. To adjudge whether O’Doherty was able to demonstrate this, the Court relied on the findings of Lord Lowry in R v Burns along with the additional material written by Kelly in his books – The Escape and Playing My Part.

The Court noted that Lord Lowry had acquitted Kelly because his offence could not be proved beyond a reasonable doubt in a criminal case. The Court observed that the evidence insufficient to satisfy Lord Lowry that Kelly had shot Adams might well be sufficient to convince a High Court judge in civil proceedings that Kelly had done so. Therefore, it was not enough to simply argue that Kelly was acquitted of the charges. [para. 36]

In the present case, Kelly’s books were written in such a way which made him civilly liable, on the balance of probabilities, for the shooting of Adams, even if he had not explicitly admitted pulling the trigger. [para. 57] According to the Court, it was inherently probable that one of them – Kelly or Storey forced open the door to the control room to widen the gap for the gun and the other one fired the shot. The Court found that although there was ambiguity about which of the two fired the shot at Adams, it was “extremely difficult” to refute Kelly’s involvement as a joint tortfeasor in the offence of battery. [para. 56]

In light of these findings, the defamation proceedings against O’Doherty were struck down by the court as they were “scandalous, frivolous and vexatious”. [para. 58]

The Court further considered whether the defamation proceedings filed by Kelly were an abuse of the process of the court. The Court adopted a two-stage test, first determining whether the plaintiff’s conduct was an abuse of process, and second, considering proportionality.

While determining whether the current case amounted to an abuse of the process of the Court, the Court noted that the concept of SLAPPs has recently entered public discourse. The Court observed that the UK government in October 2023 had published a policy paper on the issue in which it noted that “SLAPPs are a rising problem and amount to abusive proceedings.” [para. 65] It defined SLAPPs as: “legal actions 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.” [para. 65] It noted that: “Actions are typically brought against investigative journalists, writers and publishers, and are designed to silence criticism.” [para. 65] The Court noted that the Solicitors Regulation Authority in England had issued a warning against SLAPP cases but the Law Society in Northern Ireland was yet to publish it.

The Court noted that in the Hemming v Poulton [2023] EWHC 3001 (KB), Justice Hill remarked that “It is an abuse of process to pursue a claim for an improper collateral purpose.” [para. 68] This Case concerned litigation brought by a former Member of Parliament against a freelance journalist and broadcaster. Justice Hill observed that there are two categories where proceedings are brought for an “improper collateral purpose”, one of which is if the proceedings are conducted in a way that does not vindicate a right but rather causes the defendant problems of expense and harassment would be a misuse of the process, as described in the White Book in England and Wales dealing with the Civil Procedure Rules. [para. 68] The court noted that in Northern Ireland too, abuse of process would include a case initiated for an improper collateral purpose as held by Sir Raymond Evershed MR in In re Majory [1955] Ch. 600. 

The Court failed to understand why defamation proceedings were instituted against only two individuals when there was wide reporting about Kelly shooting Adams. The Court also failed to find a valid reason why defamation proceedings were brought after what Kelly had written in his book The Escape. The Court noted Kelly’s failure to file an affidavit explaining why proceedings were not instituted against the two media organisations that published the comments. Based on this, the Court determined that the proceeding was not a genuine attempt, but rather a SLAPP case aimed at silencing freelance journalists or “troublesome critics” with the threat of legal costs. [para. 73] The Court noted that the proceedings were “a strategic effort to intimidate them, to deprive them of time and resources, and ultimately to silence them” which amounted to proceedings brought for an improper collateral purpose. [para. 72] The Court noted that this case had the hallmarks of SLAPP suits which aim to target only vulnerable individuals like freelance journalists without the support of media outlets, even if other corporate defendants are more appropriate.

The Court called these proceedings an abuse of the process and struck them down. The Court further dismissed Kelly’s action under section 8 of the Defamation Act 1996 which provides for summary disposal since the defamation proceedings had no realistic prospect of success.

---