Gerard Kelly and Malachi O’Doherty
| Jurisdiction | Northern Ireland |
| Judge | Master Bell |
| Judgment Date | 08 January 2024 |
| Neutral Citation | [2024] NIMaster 1 |
| Date | 08 January 2024 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2024] NIMaster 1
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: 2024NIMaster1
ICOS No:
Delivered: 08/01/2024
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
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KING’S BENCH DIVISION
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BETWEEN:
Gerard Kelly
Plaintiff
and
Malachi O’Doherty
Defendant
___________
Mr McKenna (instructed by Ó Muirigh Solicitors) for the Plaintiff
Miss Herdman (instructed by Shean Dickson Merrick Solicitors) for the
Defendant
___________
Master Bell
Introduction
[1] On 21 August 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.
[2] In the course of his interview on U105 the following exchange took
place:
Frank Mitchell: “These women are right at the cutting end
with the terrorism. They aren’t stealing chocolate out of a
shop.”
2
Dr O’Doherty: “And that makes them no different from a lot
of people that we know and work among in Belfast and in
Derry. You know that is the reality. You and I. I’m not going
to start naming names. Well, Gerry Kelly for instance. Gerry
Kelly MLA has spoken very frankly about shooting a prison
warder in the head, right? He did that. He shot a prison
warder in the head. We interview him on the radio, we …
talk to him about his responsibilities as a minister or the
intentions of his party, and we don’t say ‘I’m having nothing
to do with you because you shot a prison warder in the head.’
We just say … we have just decided that that was political
motivation and he’s moved on and we don’t expect him to
shoot any more prison warders in the head …”
[3] During his BBC interview Dr O’Doherty had the following exchange:
Stephen Nolan: “Do you let people connected with
paramilitaries on air so that they could be challenged? Or do
you keep them off air and they don’t get a voice? What’s the
answer to that, Malachi?
Dr O’Doherty: “… And we were discussing this in the Good
Morning Ulster office and saying, well 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?”
[4] On 20 August 2020 Mr Kelly, the Member of the Northern Ireland
Assembly for North Belfast, issued a writ claiming damages for libel in
respect of the words used by Dr O’Doherty during those two interviews.
[5] Following on from the issue of his writ, Mr Kelly served his Statement
of Claim on 31 May 2022 alleging that, in their natural and ordinary meaning,
the words used by Dr O’Doherty meant:
(a) That the plaintiff killed a prison officer by shooting him in the head;
(b) That the plaintiff assaulted a prison officer intending to kill or cause
grievous bodily injury or other personal injury to him;
(c) That the plaintiff deliberately discharged a firearm at a prison
officer’s head or at his person thereby assaulting him;
(d) That the plaintiff unlawfully discharged a firearm;
(e) That the plaintiff was in unlawful possession of a firearm and/or
ammunition with the intent to endanger life
(f) That the plaintiff was in unlawful possession of a firearm and /or
ammunition.
3
[6] As a result of these words, Mr Kelly claims that he has been gravely
damaged in his character and reputation. Further, his standing as a respected
public representative of all those in the constituency of the Northern Ireland
Legislative Assembly in which he was elected has been called into disrepute.
[7] Dr O’Doherty then issued a summons on 23 September 2022 seeking
that the court strike out Mr Kelly’s claim under Order 18 Rule 19 of the Rules
of the Court of Judicature. Grounding the application are two affidavits by Ms
McCloskey and one by Ms McKay, exhibiting Mr Kelly’s two books. In
response to Dr O’Doherty’s application, an affidavit by Mr Ó Muirigh has
been filed, exhibiting a copy of the written judgment of Lowry LCJ in the trial
of R v Burns and others which dealt with the offences charged following the
escape from the Maze prison.
[8] I am grateful to Miss Herdman and Mr McKenna for their helpful oral
and written submissions.
[9] Mr Kelly has 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. That statement was published in the Belfast Telegraph. Miss
Edwards has similarly filed an application to strike out Mr Kelly’s
proceedings. Mr Lockhart of counsel appeared on behalf of Ms Edwards and
it had been hoped that, given the considerable overlap in the two
applications, her application to strike out Mr Kelly’s litigation could have
been dealt with at the same hearing as Dr O’Doherty’s application. However,
Mr McKenna was not in a position to deal with both applications. Rather than
having Ms Edwards’ application listed shortly after the O’Doherty
application, Mr Lockhart has indicated that his client would await the
decision of the court with regard to Dr O’Doherty’s application.
The Law: The Test For Striking Out
[10] Order 18 Rule 19 of the Rules of the Court of Judicature provides:
“(1) The Court may at any stage of the proceedings order to
be struck out or amended any pleading or the indorsement
of any writ in the action, or anything in any pleading or in
the indorsement, on the ground that-
(a) it discloses no reasonable cause of action or defence, as
the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the
action; or
(d) it is otherwise an abuse of the process of the court,
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