Sinn Fein MLA Gerry Kelly’s attempt to sue a writer and journalist for claiming he shot a prison officer is to be struck out, the High Court has ruled.
A judge held that the libel action brought against Malachi O’Doherty was “scandalous, frivolous, and vexatious”.
Master Bell declared that the defamation proceedings related to Mr Kelly’s role during a mass escape from the Maze Prison 40 years ago were untenable.
The Sinn Fein politician was also ordered to foot the legal bill for the case.
Prison officer John Adams was shot in the head during the mass break-out from the Maze by IRA inmates in 1983.
Mr Kelly was later prosecuted but ultimately acquitted of the shooting. He had previously been convicted on explosive charges related to the IRA bomb attack on the Old Bailey court bombing in London in 1973.
He sued Dr O’Doherty for libel over comments made in two radio interviews on BBC Radio Ulster and U105 in August 2019.
During the programmes the journalist alleged that Mr Kelly had shot the warder in the head.
It was claimed that those comments gravely damaged the Sinn Fein representative’s character and reputation.
His standing as a respected public representative and MLA for North Belfast had been called into disrepute, according to the defamation action.
Similar proceedings have also been issued against another freelance journalist, Ruth Dudley Edwards, over a newspaper article about the Maze escape shooting.
Lawyers for Dr O’Doherty sought to have the case against him struck out, citing material contained in Mr Kelly’s autobiographies as part of their application.
In his ruling, Master Bell held that the description of events in the politician’s books demonstrated a “common design”, regardless of who fired the shot.
“It is clear from his statement, ‘It galvanised them into action’ that he did something, even if he does not tell the reader what that was,” the judge said.
He added: “A court would, in my view, conclude that, having been an active participant in the escape moments earlier, it was inherently improbable that Mr Kelly suddenly became a passive bystander, stood there, and did nothing at such a critical moment in the execution of the plan.”
Dr O’Doherty has successfully established a complete defence to a defamation action which is untenable, Master Bell concluded.
“What Mr Kelly has written in his books is, in my view, a clear statement of common design in respect of the battery of Mr Adams,” he said.
“Even if one accepts the submission that Mr Kelly has not explicitly admitted pulling the trigger, the content of his books appears to make Mr Kelly civilly liable, on the balance of probabilities, for the shooting of Mr Adams.”
Dealing with the alleged reputational harm, the judge stated: “I consider that a right-thinking person would take the view that anyone who is guilty to the criminal standard of proof of exploding car bombs in a capital city, putting the lives of dozens or hundreds of people at risk, has lost his moral compass as he places little value on human life because he is prepared to take risk with their lives as collateral damage.”
It was pointed out that Mr Kelly did not file any affidavit expressing regret for past terrorist activities.
“In the absence of such a renunciation, a hypothetical right-thinking reader would see the shooting of Mr Adams as something that Mr Kelly might well have done in the support of his political and military objectives,” the judge said.
He went on: “An incorrect allegation that he had shot a prison officer in the head would not have damaged Mr Kelly’s reputation because that action would have been within the range of possible actions which Mr Kelly might have been willing to carry out in the pursuit of his objectives.”
Lawyers for Dr O’Doherty also argued that the intention of the defamation proceedings was to frighten outspoken critics by the threat of legal costs through the use of a Strategic Lawsuit Against Public Participation (SLAPP).
Backing that assessment, Master Bell said: “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.
“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.”
He added that his decision to strike out the action “obviously has implications for Mr Kelly’s similar defamation proceedings against Miss Edwards”.
Awarding costs to Dr O’Doherty on an indemnity basis, the judge determined it was “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”.