Landmark libel win: Paper Trail case against News Letter collapses with plaintiffs paying towards costs

A major legal case against the News Letter has collapsed, two-and-a-half years after it began.
The former IRA bomber Robert McClenaghan, who was a
director of a group, Paper Trail, which got proceeds from a book written by Lyra McKee, who was murdered by republican
terroristsThe former IRA bomber Robert McClenaghan, who was a
director of a group, Paper Trail, which got proceeds from a book written by Lyra McKee, who was murdered by republican
terrorists
The former IRA bomber Robert McClenaghan, who was a director of a group, Paper Trail, which got proceeds from a book written by Lyra McKee, who was murdered by republican terrorists

The case was unusual in that the claimants sued not just the paper, but this reporter as a private individual.

It all stemmed from an article published on July 15, 2019, headlined ‘McKee book to fund ex-bomber’s group’.

THE BACKGROUND:

A snapshot of Paper Trail's website, bearing the slogan: 'Information is today's battlefield: once again our families are on the front line'A snapshot of Paper Trail's website, bearing the slogan: 'Information is today's battlefield: once again our families are on the front line'
A snapshot of Paper Trail's website, bearing the slogan: 'Information is today's battlefield: once again our families are on the front line'
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On April 18, 2019, Lyra McKee had been killed by a republican gunman in Londonderry.

Just before her death she had completed a book about the IRA murder of MP Robert Bradford.

It was announced that the proceeds of this book were going to fund a group called Paper Trail, so the News Letter decided to research what Paper Trail was.

The organisation billed itself as helping “ordinary families access official information buried in archives for decades” – and it turned out that one of its six directors was a former IRA man called Robert McClenaghan.

Mr Justice Scoffield concluded that the plaintiffs had no realistic prospect of succeeding in their claim in defamationMr Justice Scoffield concluded that the plaintiffs had no realistic prospect of succeeding in their claim in defamation
Mr Justice Scoffield concluded that the plaintiffs had no realistic prospect of succeeding in their claim in defamation
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This reporter contacted McClenaghan to ask about Paper Trail and his role in it.

At the time, early summer 2019, he sat on the Victims and Survivors Forum (because his grandfather was killed in the 1971 UVF McGurk’s Bar atrocity).

Ironically, McClenaghan was a prolific bomber himself, and admitted as much in a 2011 Dutch documentary called ‘When The War Ends’.

In it he said: “We went in and placed bombs in Belfast city centre... some would be very big.

Ben Lowry, the News Letter editor, said: “We were determined to fight this case, all the more so given that our reporter Adam Kula was named personally in the writ and the chilling effect that such a move could have on journalism"Ben Lowry, the News Letter editor, said: “We were determined to fight this case, all the more so given that our reporter Adam Kula was named personally in the writ and the chilling effect that such a move could have on journalism"
Ben Lowry, the News Letter editor, said: “We were determined to fight this case, all the more so given that our reporter Adam Kula was named personally in the writ and the chilling effect that such a move could have on journalism"
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“That just became like a common part of your job, or common part of your day after a while... we had the weapons, we had the explosives, and we went in to place the bombs.”

Speaking to the News Letter about Paper Trail, it became clear McClenaghan did not regard his past actions as wrong.

He said that his mission in the Troubles had been to “destroy the Orange state”.

Asked if he believed this meant that people had to be bombed and killed, he said: “Unfortunately, yes. It had to be destroyed. There’s no easy way.”

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And when asked what the difference was between his past actions and those of Lyra McKee’s killers, he said “now there is a political alternative”.

The News Letter then turned this interview into the July 15 story, setting out that the book proceeds were going to a group in which McClenaghan was involved.

THE LEGAL SUIT TAKES SHAPE:

Three days after publication, a lawyer from the firm Carson McDowell got in touch to say they had been contacted over the article, and that it might lead to legal proceedings.

As the case later took shape, with Ronan Lavery QC acting as the barrister for the six claimants (known in legal terms as plaintiffs), the lawsuit consisted of this:

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1) Paper Trail secretary Ciaran MacAirt, plus five directors of the organisation (but excluding the sixth, McClenaghan), complained they had been libelled by the article.

Specifically, they said it was defamatory to report that “the posthumous book by paramilitary murder victim Lyra McKee is helping to fund a group directed by a former IRA bomber”.

Among the other sentences which they said was defamatory was this: “(Paper Trail’s office) address is the Ashton Centre in the republican-dominated New Lodge estate in north Belfast.”

2) Secondly, the plaintiffs said the article constituted a breach of their privacy.

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3) Thirdly, they said “there was no lawful basis for processing of the personal data” in the article.

4) And lastly they claimed the article “amounted to harassment”.

They argued “Mr McClenaghan’s history has been unlawfully and sensationally utilised in order to cause substantial damage to Paper Trail and all of its representatives”, and complained that the News Letter had “failed to offer any apology or retraction”.

As such, they wanted “aggravated damages”.

THE NEWS LETTER REACTS:

The News Letter’s lawyers responded that “there is nothing at all defamatory or otherwise unlawful” about the article.

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When it came to the claim of harassment, the News Letter countered that “there must be conduct which occurs on at least two occasions... calculated in an objective sense to cause alarm or distress, [and being] oppressive and unacceptable” – and that this did not apply to the News Letter’s reporting.

Meanwhile the plaintffs’ data protection and privacy claims rested on the fact that the News Letter had listed all the directors of Paper Trail and their respective professions, alongside the following statement: “There is no suggestion Mr MacAirt or any of the other directors are connected to violence or criminality.”

The News Letter argued that the names of the directors and their professions are all publicly listed on the UK’s official company register, Companies House, which any member of the public can access online in seconds.

Therefore the paper said that the plaintiffs “cannot seriously sustain their claim that their role as directors or company secretary of Paper Trail and their professions is private”, and that the data protection claim was “novel” and “fundamentally misconceived”.

JUDGE REJECTS HALF THE CLAIMS:

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Then in Belfast High Court in April 2021, Mr Justice Scoffield threw out two of the four claims.

In doing so, he said: “It is clear from the [News Letter’s print and online] articles that the plaintiffs associate with, or are associated with, Mr McClenaghan, who was previously involved in violent terrorist activity and appears to be unrepentant about that.

“However, read fairly and as a whole, the articles convey that Mr McClenaghan – whilst seeking to justify his criminal past – is no longer involved in terrorism and is now focused on peaceful work which has been accepted as having a charitable purpose ...”

He did not accept “that the hypothetical reasonable reader would tar [the other directors of Paper Trail] with the same brush when the articles are read reasonably and as a whole... their connection with Mr McClenaghan was through the charitable organisation, of which they were all mere co-directors; and there was an express statement that there was no suggestion that any of them was ‘connected to violence or criminality’.”

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The judge concluded that “the plaintiffs have no realistic prospect of succeeding in their claim in defamation”.

When it came to the breach-of-privacy accusation, he said that “the plaintiffs cannot sustain their claim” that being a company director represents private information – “and nor does information about their professions”.

He said that the information the plaintiffs were complaining about “is freely available – and, indeed, has been put in the public domain by the plaintiffs themselves”.

He allowed the harassment claim and the misuse of personal data claim to stand, though at the same time he voiced “misgivings about the strength of the plaintiffs’ case” on these two surviving complaints.

CASE COLLAPSE AND VINDICATION:

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In light of half their four claims being thrown out, and a judge expressing doubt about the remaining two, by the turn of 2022 the plaintiffs got in touch saying they wanted to settle the case.

They initially wanted to simply walk away from the claim, which had absorbed large amounts of man-hours and legal fees, with each side bearing their own costs.

The News Letter said no.

In the end, the plaintiffs agreed to pay a substantial sum towards the News Letter’s costs (though the exact amount is confidential).

They also agreed to drop a claim they had submitted to the Information Commissioners’ Office.

And so on January 20 the case formally ended.

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The News Letter was represented throughout by Tony Jaffa of Jaffa Law, and by the barristers Gerry Simpson QC and Jonathan Scherbel-Ball.

Ben Lowry, the News Letter editor, said: “We were determined to fight this case, all the more so given that our reporter Adam Kula was named personally in the writ and the chilling effect that such a move could have on journalism.

“We are pleased that the case has been dropped and that Adam’s reportage has been vindicated on what was clearly a matter of public interest.”

——— ———

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