Sinn Féin MLA Gerry Kelly could face a legal bill of at least £150,000 (€174,000) after a defamation action he attempted to bring against journalist Malachi O’Doherty was thrown out by Belfast’s High Court.
Belfast-based media lawyer Paul Tweed, who has defended politicians including Gerry Adams, Arlene Foster and Peter Robinson, said that, without knowing how much background work was involved, his estimate was that the costs faced by Mr Kelly could amount to “at least £150,000, but could be as much as £200,000 to £250,000″.
In a highly critical judgment on Monday, the master of the court, Evan Bell, described Mr Kelly’s action as “scandalous, frivolous and vexatious” and “an attempt to silence ... with the threat of legal costs” and awarded Dr O’Doherty costs “on an indemnity basis”.
Describing the defamation action as a Slapp – a strategic lawsuit against public participation – he said the award of costs to the defendant on this basis 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”.
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Mr Tweed said the awarding of costs on an indemnity basis in defamation cases was “very rare” and was a clear demonstration of Master Bell’s view that the action should not have been brought.
“The judge was absolutely robust in classifying this as a Slapp, and he as a result awarded indemnity costs to Malachi O’Doherty,” Mr Tweed said. “It’s normally done as a punitive measure – it was to punish, basically, the plaintiff [Mr Kelly] for attacking the defendant, both in terms of a Slapp [and] for targeting the journalist as opposed to the primary publisher, ie the BBC.”
He added: “I’ve only had indemnity costs on about three, maybe four occasions, in 40 years, so it’s very unusual, but it says a lot – it’s a very strong statement in itself.”
The award of costs on an indemnity basis means costs will be “significantly higher,” said Mr Tweed. “An indemnity cost basis is a completely different ball game from the traditional standard costs.”
Costs in Belfast, Dublin and London are “totally different,” he said, adding that “Belfast would be the lowest-cost forum, by a considerable margin in comparison to Dublin or London”.
“Obviously Gerry Kelly will be liable for his own lawyers as well ... and don’t forget in Northern Ireland, unlike in the Republic, you are not allowed to do no win, no fee,” he said.
“Because it’s on an indemnity basis it has to be on the higher end of the scale, so I would be estimating their costs would be at least £150,000. Without knowing all the work involved, that’s my estimate.”
Sinn Féin was asked if the party would assist, either wholly or in part, in paying Mr Kelly’s costs, but did not respond.
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 breakout 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 Dr 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.
Responding to the judgment, Mr Kelly said it was “substantive” and he would “take time to study it with my legal adviser”.
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