In 1989, George W Pring described so-called SLAPPs (Strategic Lawsuits Against Public Participation) as a “new (and, we believe, growing) litigation phenomenon” in America. Since then, although there has been significant adoption of anti-SLAPP laws across the United States and further afield, British courts have been hesitant to accept the protestations of defendants who argue that the claim being brought against them is a SLAPP.
However, on 8 January 2024, Master Bell, sitting in the High Court of Northern Ireland, handed down a judgment containing what appears to be the first instance of a court in the United Kingdom striking down a claim because it amounts to a SLAPP.
Kelly v O’Doherty [2024] NIMaster 1 arose from two radio interviews on U105 and BBC Radio Ulster, during which Malachi O’Doherty, a journalist and author, claimed that Gerry Kelly, an IRA prisoner who escaped from the Maze prison in 1983 and who is now a politician, had shot a prison officer during the escape. Consequently, Mr Kelly brought a claim for libel, which Mr O’Doherty sought to have struck out on the basis that, amongst other reasons, the proceedings were an abuse of process and amounted to a SLAPP.
What does ‘SLAPP’ stand for?
The acronym ‘SLAPP’ refers to ‘strategic litigation against public participation’.
In its factsheet on SLAPPs, the UK Government describes them 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.”
The commonly described purpose of a SLAPP is to stifle legitimate speech in order to protect a claimant’s reputation, and, therefore, related issues usually (but not always) arise in relation to defamation claims.
In the factsheet, the government goes on to set out what it considers to be typical characteristics of a SLAPP: a wealthy claimant pursuing a publisher or journalist defendant; aggressive pursuit of litigation, particularly in pre-action correspondence; and the bringing of several claims against the same defendant in different jurisdictions.
Other characteristics identified elsewhere include the claim’s concerning a publication said to be on a matter of public interest, and its being brought against the individual journalist or author despite a claim also lying against the wealthier publisher (and a consequent power imbalance between the parties caused by the disparity of resources available to them).
Some of the aforementioned elements are now found in the statutory definition of a SLAPP under s. 195 of the Economic Crime and Corporate Transparency Act 2023. By s. 194, the CPR will be amended, to create a new basis for striking out a claim which the court considers (a) is a SLAPP within the definition of s. 195 and (b) is less than likely to succeed at trial. However, importantly, the new power to strike out will be strictly limited to the publication of information concerning economic crime. The power will also, at least for now, be limited to claims brought in England and Wales: the Act does not place an obligation to amend the court rules applicable to civil claims in the courts of Scotland and Northern Ireland.
The arguments for and against legal reform
In its call for evidence, the government outlined why it felt that additional action, which would go beyond the court’s current case management powers, was considered necessary:
“[SLAPPS] are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy.
[…]
SLAPPs pile on the pressure until investigations into corruption are shut down, and some individuals or corporations are regarded as ‘no go’ zones, because of the risk of legal retaliation.”
There was evidence of a substantial personal effect on defendants, the government said, following its consultation, both in terms of financial and psychological damage caused to the subjects of SLAPPs. That, in turn, gave rise to the risk of a chilling effect on publications on matters of substantial public interest.
However, support for SLAPP reform is not universal. The Society of Media Lawyers have argued in their recent letter that there is an insufficient evidential basis for reforming the law. Moreover, they say:
“the media/government’s position on SLAPP reform risks offending general principles of the rule of law and access to justice (as well as the need to protect Article 6 and 8 ECHR rights) for victims of press behaviour […].”
The Society goes on to note that, at the time the letter was published in October 2023, no defamation case in England and Wales had been held to be a SLAPP by a judge. That remains the case as at the time of this article being published.
However, following the decision in Kelly, the same can’t be said of defamation cases in the United Kingdom more widely.
Kelly v O’Doherty
In Kelly, Master Bell accepted that the claim amounted to a SLAPP because:
“[72] […] The absence of any defamation proceedings in respect of the wide reporting over the years that Mr Kelly shot Mr Adams, taken together with recent proceedings having been instituted only against these two particular freelance journalists, suggests that, rather than being a genuine attempt to defend a reputation which has been damaged by an untruth, the proceedings are what has been referred to as a SLAPP, namely an attempt to silence two bothersome journalists with the threat of legal costs. The proceedings appear to be a strategic effort to intimidate them, to deprive them of time and resources, and ultimately to silence them. This would amount to the proceedings having been brought for an improper collateral purpose.
[73] It is difficult to discern any valid reason why defamation proceedings against Dr O’Doherty and Ms Edwards were brought after what Mr Kelly had written his book The Escape. […] 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. I note that the Solicitors Regulation Authority in England and Wales in its guidance to the profession observes that one of the “red flags” that helps identify a SLAPP is that the client asks that the claim is targeted only against individuals where other corporate defendants are more appropriate. Freelance journalists are particularly vulnerable without the support of a media outlet behind them. This is clearly the position in these proceedings. 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.”
Here, Mr Kelly had admitted in his own book, The Escape, that during the prison break, he had been armed with a gun and had threatened to shoot a prison officer, although he had not admitted to firing the gun. Moreover, he had been named widely as the individual who had fired the shots that hit the officer, including by the Secretary of State for Northern Ireland in a non-statutory inquiry published in 1984, and a BBC documentary broadcast in 2008.
By way of postscript, the decision in Kelly is notable not just for being the first case in the United Kingdom in which a judge has struck out the claim as a ‘SLAPP’, but also because it is one of the few (and perhaps only the second, coming an entire decade after Ewing v Times Newspapers Ltd [2013] NICA 74) in which the courts of Northern Ireland have found that a defamation claim amounts to Jameel abuse. As is well known, the Jameel jurisdiction arises where no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures. In other words, “the game is not worth the candle”.
The ongoing relevance of the Jameel jurisdiction in defamation claims brought in England and Wales claims has come under scrutiny following the introduction of the serious harm requirement under s. 1 of the Defamation Act 2013, since there is now likely to be a substantial overlap between the factors that may be relevant to whether serious harm has been caused and to whether there can be said to be have been any real and substantial tort. Indeed, the Supreme Court recently considered the point in Mueen-Uddin v SSHD (in which my colleagues Jacob Dean and Lily Walker-Parr appeared for the appellant, with judgment outstanding).
However, the Defamation Act (Northern Ireland) 2022 did not introduce a serious harm requirement, and so the threshold remains as it was at common law. Nonetheless, the Master’s decision to find that the claim should be struck out as a Jameel abuse might be considered overlapping with, and duplicative of, his other reasons for striking out the claim, including that it was a SLAPP.
Finally, the decision is also of interest as a rare instance of the courts in Northern Ireland awarding costs on the indemnity basis.
Conclusion
While Kelly is a significant decision of the courts of Northern Ireland, and is an interesting decision on its own terms, it remains to be seen whether courts elsewhere in the United Kingdom will demonstrate a willingness to strike out claims because a defendant alleges the litigation amounts to a SLAPP, whether in the context of economic crime or otherwise.
This article was written by Samuel Rowe.