Defamation / Reputation, SLAPPs
Tata Sons Limited v. Greenpeace International
India
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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.
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.
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.
O’Doherty argued that Kelly’s general reputation was of a “convicted bomber and former member of an organisation proscribed by law and responsible for the maiming of many hundreds of people”. [para. 87] O’Doherty submitted that Kelly was convicted of the Old Bailey bombings and sentenced to a significant prison sentence and that he was convicted of the false imprisonment of five prison officers during the prison escape. O’Doherty submitted that Kelly had never ever expressed any regret over his involvement in Old Bailey bombings or the escape from the Maze Prison, rather he glorified his previous convictions in his books. Therefore, according to O’Doherty Kelly’s reputation was not restored in the mind of right-thinking people.
Relying on the principles of Jameel v Dow Jones and Co [2005] EWCA Civ 75, O’Doherty contended that the case should be dismissed as the cost of pursuing proceedings was disproportionate to what they might achieve. He submitted that Kelly’s reputation could not be any further lowered in the mind of right-thinking people through O’Doherty’s comments, as it was bad to begin with.
O’Doherty further submitted that the proceedings were an abuse of the process of court and amounted to SLAPP since the case attempted to “frighten those who are his critics and stifle the expression of their opinions of him by the threat of legal costs”. [para. 64] O’Doherty highlighted that proceedings were not instituted against BBC who had aired the interview but only against him. He also highlighted that Kelly had filed a similar complaint against Ms Edwards for her comments on the same topic but not against the Belfast Telegraph which published it. He further submitted that there had been several publications containing statements about Kelly shooting Adams including in 2008 BBC documentary and Wikipedia page. However, according to O’Doherty, Kelly singled out and targeted only two freelance journalists. O’Doherty described this “litigation tactic” as the one focusing on “suing a journalist with limited means rather than a national broadcaster.” [para. 65]
O’Doherty also made an application under section 8 of the Defamation Act 1996 for summary disposal of these proceedings on the basis that Kelly’s action had no realistic prospect of success.
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 emphasized that the field of political speech which includes “not only what politicians say but also what others say about politicians, their policies and their actions” should be carefully handled. [para. 70] Relying on Riley v Sivier [2022] EWHC 2891 (KB) and Reynolds v Times Newspapers and Others [2001] 2 AC 127, the Court observed that “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.” [para. 72]
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.
Lastly, the Court noted that judicial precedents indicate that the damage to reputation cases must pass a minimum threshold of seriousness as observed in Lachaux v Independent Print Ltd and another [2019] UKSC 27. The court discussed Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985. In the former case, the plaintiff had sued the publishers of the Wall Street Journal for a statement published online in Brussels that he had been funding terrorism. The statement was shown to have reached just five people in England and Wales. The Court of Appeal held that it was an abuse of process for the action before them to proceed where so little was at stake. [para. 80] The case laid down that the threshold should be low and the damage should be more than minimal. The Court noted that the Jameel case introduced a procedural threshold of seriousness. In the latter, a substantive threshold of seriousness was considered before the statement could be considered defamatory.
In Higinbotham (formerly BWK) v Teekhungam & Anor [2018] EWHC 1880, principles from the Jameel case were summarised. The court held that the claim should be dismissed if no real or substantial wrong had been committed and no legitimate benefit proportionate to costs and use of court procedures, would be derived.
Applying the Jameel case, the Court considered two situations if a) Kelly did not pull the trigger but was a joint tortfeasor with Storey who fired the shot; b) Kelly was neither the one who pulled the trigger nor was a joint tortfeasor. In the first case, the Court ruled that the Jameel case could be successfully applied since a right-thinking person would see both participants as being equally liable for the shooting. In the second situation, the Court considered Kelly’s previous convictions of terrorist explosions and the false imprisonment of five prison officers during the prison escape. The Court accepted O’Doherty’s contention that Kelly’s reputation was not restored in the mind of hypothetical right-thinking people.
The Court accepted that the reputation was capable of being restored and Kelly became an MLA post-conviction and imprisonment. However, the evidence suggested that Kelly had never renounced his terrorist activities and his reputation was not restored in the minds of right-thinking persons. The Court determined that in the absence of renunciation of his terrorist activities, a hypothetical right-thinking reader would see the shooting of Adams as something that Kelly might well have done in support of his political and military objectives. While the Court acknowledged that this particular argument was weaker than other arguments, nevertheless, on the balance of probabilities, O’Doherty’s argument succeeded. The Court determined that an incorrect allegation that Kelly had shot a prison officer in the head would not have damaged his reputation. The Court acknowledged that without the publication of Kelly’s books, O’Doherty’s interviews would likely have been found defamatory.
The Court dismissed Kelly’s defamation action against O’Doherty based on the principles set out in Jameel v Dow Jones that they fail to pass the minimum threshold of seriousness. The court noted that penning a criminal memoir might limit the ability of an author to institute defamation proceedings when others discuss his past actions.
Regarding the imposition of the costs, the Court considered Order 62 Rule 3(3), Order 62 Rule 3(4) and various judicial precedents of England and Wales, which could be applied to Northern Ireland as well. In Excelsior Commercial and Industrial Holdings v Salisbury Hamer Aspden and Johnson [2002] EWCA Civ 879 and London Borough of Southwark v IBM UK Ltd [2011] EWHC 653 (TCC), the courts had observed that indemnity costs could be granted if the conduct is unreasonable to a high degree and deserving of moral condemnation. In Fitzpatrick Contractors v Tyco Fire and Integrated Solutions (UK) Limited [2008] EWHC 1391 (TCC), the judge remarked that the use of litigation for ulterior commercial purposes and unjustified personal attack could lead to the grant of indemnity costs.
Accordingly, the Court ruled that where a court is satisfied on the balance of probabilities that a defamation action amounts to a SLAPP, then an award of costs must be awarded to the defendant on an indemnity basis to demonstrate the court’s repudiation of the plaintiff’s abuse of the processes of the court.
Therefore, the Court awarded O’Doherty both the costs of the application and the costs of the action on an indemnity basis.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression and provides safeguards against SLAPP (Strategic Lawsuit Against Public Participation) suits. This case was considered a SLAPP suit because Kelly targeted freelance journalists with limited means rather than larger media organizations that had published similar content, suggesting an intention to intimidate and financially burden the journalists, which is characteristic of SLAPP suits. Kelly had also commenced similar defamation proceedings against another well-known freelance journalist, Ruth Dudley Edwards, for making essentially the same statement about the shooting of Mr Adams during the Maze escape. The Court found that Kelly’s claim lacked substance and that his selective litigation strategy was a deliberate attempt to silence critics. Emphasizing the importance of protecting free expression in matters of public interest, the Court concluded that Kelly’s defamation suit was an abuse of the judicial process designed to infringe on these fundamental rights. By awarding costs on an indemnity basis, the Court set a precedent to deter future SLAPP suits, reinforcing protections for free expression and preventing misuse of the legal system to harass journalists.
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