The High Court has dismissed a bid by Gerry Adams to strike out parts of the BBC's defence against his defamation action against the UK broadcaster over its reporting of the murder of Denis Donaldson.
In a separate pretrial motion relating to his claim, the High Court also ruled that the BBC was entitled to the discovery of one category of materials and documents the former Sinn Féin leader may have regarding his alleged relationship with the IRA, including documents evidencing his alleged membership of the IRA and the IRA’s army council.
The court dismissed the BBC’s application for discovery of a second category of material and documents, namely material he may have relating to comments he allegedly made in a 1987 press conference that the consequence of informing on the IRA is death.
At the High Court on Friday, Ms Justice Emily Egan ruled that certain aspect of the broadcaster's defence Mr Adams sought to have removed from the proceedings should go before the jury hearing his action against the BBC.
The judge’s decision came in her ruling on two pre-trial motions in a case​ where Mr Adams is suing the BBC claiming it defamed him when he claims it falsely alleged, he sanctioned the killing of former Sinn Féin official Denis Donaldson in 2006 who worked for decades as a spy for the British.
Wanted
His action is being brought before the Dublin High Court over a 2016 BBC Spotlight programme in which the allegation was made.
There was also a follow-up article on the BBC website in which the same defamatory allegation was made, he claims.
Mr Adams denies any suggestion that he anything to do with Mr Donaldson’s death.
The BBC denies defamation.
In a pretrial motion, Mr Adams sought an order striking out the BBC’s defences under Section 18, which concerns the defence of qualified privilege, and Section 26, namely that the articlfe was a fair and reasonable publication concerning a matter of public interest, of the 2009 Defamation Act.
He claims the defences pleaded in relation to the article are bound to fail, on grounds including that the article, with a defamatory headline stating that Mr Admas had sanctioned Donaldson’s killing, had not been amended or adjusted when new information came to light.
This new information, counsel said included reports that a man outside the jurisdiction with alleged links to dissident republicans was wanted by the Garda on charges in connection with the murder.
Dissident republicans had claimed responsibility for Donaldson’s murder in 2009.
Mr Adams also claims that the BBC could not make a claim of qualified privilege in relation to the article.
Complex
The BBC rejected Mr Adams’ arguments and said its defence of both the claim concerning the broadcast and the article should be allowed go before a jury hearing the defamation claim.
In her judgement, Ms Justice Egan said that the arguments raised in the motion seeking to remove the sections of the defence were “complex,” but said they should be explored at the full trial of the action.
The issues arising out of the parts of the defence, the judge added, were “something for the jury” at the full hearing, and “not this court” to decide on.
The judge said that given the current nature of the proceedings as pleaded it was “difficult to conclude” that that the striking out of the defence at this juncture would result in a “substantial saving of court time, jury time, or legal costs.”
In its pre-trial motion the BBC sought the discovery of certain documents and materials from Mr Adams which it claims are relevant to its defence of his claims.
These include any documents, recordings or materials Mr Adams has in his possession regarding his relationship and association with the IRA.
The BBC also sought discovery of any evidence, knowledge, or recordings he has regarding his alleged knowledge of the treatment of those who informed on the IRA.
It further seeks materials, including recordings, concerning a press conference given by Mr Adams in 1987 where he said that “Everyone in West Belfast knows that the consequence of informing is death.”
Mr Adams opposed the discovery application.
IRA membership
In her decision Ms Justice Egan said the BBC was entitled to discovery of material regarding Mr Adam’s alleged membership of the IRA and its army council after holding that they were relevant to the broadcaster’s defence.
Those documents, the judge said, “clearly have the potential to strengthen or weaken the parties’ positions”.
She said that she did not accept the argument that discovery of that category of documents would be burdensome on the plaintiff.
The judge said that she did not believe that there was a large existence of documents sought in this category.
Ms Justice Egan doubted that an illegal and secret organisation like the IRA produced and circulated to its members, agendas minutes of meetings, correspondence and other documentation that were commonplace in lawful organisations.
“Even if such documents were generated and circulated, it is improbable that they were retained,” she said.
The judge dismissed the discovery application regarding the statement made in 1987 on the grounds that that their relevance was “less apparent”.
It was difficult to see how Mr Adams knowledge of the IRA's treatment of informers, given his lengthy involvement in politics in Northern Ireland, was relevant to the assessment of whether the publication was fair and reasonable, she said.
Even if such documents existed, the judge said that the cost of producing such material would be burdensome.
The court also said it was not proportional to make an order against Mr Adams in relation to this category of documents.
Reputation damaged
In his claim against the BBC Mr Adams claims he suffered damage to his reputation over what he says is the false allegation made by an anonymous source in the programme that he sanctioned the killing of Donaldson (55), who was shot dead at his isolated cottage near Glenties, Co Donegal in April 2006.
The anonymous source, referred to as “Martin” in the programme, said he (Martin) was also a paid agent for British State security services including MI5 while a member of the IRA.
The BBC denies defaming Mr Adams and claims the programme/publication was put out in good faith and during discussion on a subject of public and vital interest.
It constituted responsible journalism, which was the result of careful investigation, it argues.
As part of its defence the BBC claims Mr Adams was a leading member of the IRA, on its army council and lied about being in the IRA.
It also claims that Mr Adams was a leading member of the IRA during its campaign of violence throughout the Troubles and had a history of not condemning the killing of informers.