A "SLAPP" in the face

Earlier this year, Master Bell in Kelly v O’Doherty [2024] NIMaster 1 handed down a judgment striking out a claim as a consequence of it amounting to a SLAPP.

This decision holds an importance in the legal community as it is one of the first that identifies the hallmarks of a SLAPP and resulted in a successful strikeout. At the end of this article, I will be exploring three practical points to bear in mind.

“SLAPP” is an acronym that stands for for Strategic Litigation Against Public Participation. The UK Government, in its SLAPPs factsheet, summarises SLAPPs as actions that are:

“ … 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 factsheet also sets out characteristics which it considers to be typical of a SLAPP. These include:

• A wealthy claimant pursuing a publisher or journalist defendant;
• Aggressive pursuit of litigation, particularly in pre-action correspondence; and
• Issuing several claims against the same defendant in different jurisdictions.

Elements of these characteristics can be found in the statutory definition of a SLAPP under s.195 of the Economic Crime and Corporate Transparency Act 2023.

Whilst SLAPPs are not limited to defamation proceedings, this is a practice area under the spotlight, as SLAPPs have the potential to restrict both freedom of speech and free press, challenging the “fundamental liberties that are the lifeblood of our democracy”.

In Kelly v O’Doherty [2024] NIMaster 1 Mr Kelly commenced an action for defamation, to seek compensation for reputational damage by an apparent false statement made by Dr O’Doherty. The publications complained of arose from two interviews on U105 Radio and BBC Radio Ulster with Dr O’Doherty, in which he claimed that Mr Kelly (at the time an IRA prisoner) shot a prison officer during his escape. Mr Kelly claimed that the publication had gravely damaged his reputation. It was this latter point that proved problematic.

Key points from Master Bell’s judgment are as follows:

• It was Master Bell’s view that there “was no evidence to the contrary submitted on behalf of Mr Kelly as to a restored reputation”, despite Mr Kelly now being a politician.

• Master Bell stated that “a right-thinking person would take the view [that he has the reputation of] anyone who is guilty to the criminal standard of proof”.

• In respect of the characteristics of the claim in question, Master Bell said that “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.”

In this instance, it was telling that Mr Kelly had commenced an action against the journalist in question, rather the radio stations themselves. Mr Kelly pursued an individual of limited means, in order to financially intimidate them. Accordingly, “the abuse of process in this case [was] so blatant that it would be utterly unjust if the court were to allow the proceedings to continue” and so the claim was struck out.

Comment

Whilst this case is notable for being the first claim in the United Kingdom for being struck out as a SLAPP, it remains to be determined whether the Courts of England and Wales follow suit or whether economic crime will need to be evidenced given the context in which legislation is framed. In the meantime, it is worth keeping in mind the following:

1. It is likely that allegations of claims being SLAPPs will be tactically used in litigation especially when there is a financial imbalance between parties;

2. Before commencing an action (whether that be for defamation or not), it is worth discussing with a claimant client the possibility of SLAPPs allegations being made against it; and

3. Where SLAPPs allegations are made against a claimant client, it is important to ensure that they are thoroughly reviewed. Due to the level of uncertainty referred to above, it would not be in the interest of the claimant party to abandon to a claim which has legal merits simply due to the fact that there is a financial imbalance between the parties.

Should you have any queries in relation to instances of defamation and the possibility of a SLAPPs please feel free to contact Humna Nadim.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.