A HIGH Court judge threatened to refer a barrister to a professional body as a libel action against Sinn Fein today proceeded to a trial due to start in just over a week.
Mr Justice Gillen admonished Martin McCann, who was appearing for Sinn Fein in the case brought by former Northern Ireland Water director Declan Gormley, on several occasions for interrupting Mr Gormley’s lawyer.
Mr Gormley, who was sacked by the then Sinn Fein minister Conor Murphy in 2010 but has always maintained his innocence, alleges that two Sinn Fein press releases about him were libelous and has issued proceedings against the party, MLA Cathal Boylan and former MLA Willie Clarke.
Yesterday, during what is expected to be the final substantive hearing before trial, there were testy exchanges right from the start. As Nicolas Hanna QC for Mr Gormley said there has been “a number of amendments” to the defence case at late notice, Mr McCann interrupted to say: “There have not been”.
Mr Hanna went on to say that he had “now lost count” of the number of versions of the defence argument which had been put forward, noting that originally Sinn Fein was pleading the defence of justification, but that had now been dropped.
Mr McCann, who had been sighing heavily as Mr Hanna spoke and was visibly displeased, again interrupted and continued to speak as Mr Justice Gillen intervened. The judge said: “I will not have you speaking to me when I’m speaking.” Mr McCann apologised.
Later Mr McCann again began to speak while Mr Hanna was on his feet and the judge interrupted to say: “Mr McCann, I will not allow counsel to engage in banter in the court. Now not a word from you.”
A third time Mr McCann spoke while Mr Hanna was addressing the court and Mr Justice Gillen said: “If you interrupt one more time, Mr McCann, I will refer this to the professional conduct committee. You have interrupted this case on numerous occasions. I really am cross about this.”
However, by the end of the two-hour hearing when Mr McCann again offered an apology to the judge, Mr Justice Gillen said: “These things happen. You’re normally in the pattern of good behaviour.”
At the request of Sinn Fein, there will be a jury at the trial. Counsel for the party asked for anyone actively involved in politics to be kept off the jury, arguing that the political element to the case “cannot be ignored”. Mr Justice Gillen agreed and ruled that several groups of people should be excluded from the jury, including members of any Northern Ireland political party, any member or relative of a member of Stormont’s Public Accounts Committee, employees of NI Water and civil servants at DRD who deal with water issues.
Mr Hanna said that Sinn Fein had dropped an earlier defence of ‘fair comment’ and ‘justification’ and was now relying on a defence of qualified privilege (the law which allows publishers to report what is said in certain settings such as a court even if it is defamatory) pleaded “on two separate limbs”.
Those were, he said, a “Reynolds-type defence” (which provides for stories in the public interest where the publisher acted responsibly) and a “reply to an attack” defence.
Mr Hanna argued against the later defence where he said Sinn Fein was contending that where someone makes a political attack on political representatives those representatives are entitled to reply with defamatory statements about their accuser.
“That [defence] is frankly astonishing,” he said, arguing that when one responds to an attack “you have to be very careful what you say”.
After debate where Mr Justice Gillen said such a defence was not compatible with the law, the judge allowed leave for the defence to be altered to say that Sinn Fein was entitled to respond to an attack with a defamatory statement “provided they are published bona fide and are fairly relevant to the accusations made”.
Mr Hanna said that dropping the defence of justification was significant: “The defendants are not now seeking to say that the decision to sack Mr Gormley was justified.”
But Mr McCann said that there was “a suspicion that this is part of a broader strategy employed by Mr Gormley [to attack Sinn Fein].”