Friday, April 16, 2010

Allister v Paisley Jr: Lessons for the rest of UK?

Couple of days late with this but I think it has important implications well beyond the present bunfight between the Prod Ultras in North Antrim, implications affecting political campaigning in the rest of UK.

It was a strange case for a couple of reasons but mainly the judge's summing up:
"It is open to argument that the words complained of do not amount to an untrue statement of fact but are part and parcel of the political opinions that seem to have been the hallmark of the campaign to date between these two candidates.

"In coming to this conclusion I am conscious of the need to ensure the free expression of opinion by those who put themselves into the democratic process for election by the population at large.

"I pause to observe again that I am far from ruling that these words may not be capable of defamatory meaning or that a jury may not come to a conclusion favourable to the plaintiff.

"I am not satisfied, however, that it is appropriate that an interlocutory injunction should be granted at this time and accordingly I refuse the plaintiff's application."
Ploughing through the double negatives, the judge seems to be implying that at election-time, in terms of whether or not an injunction should be granted, "free expression of opinion" is paramount. Which is fine, if it is opinion. Paisley Jr's leaflet however listed "facts" (ie he wasn't saying "Allister is dodgy" but was giving "objective reasons" why he thought he was dodgy). "Facts" which, unlike "opinion", need to be proven true or false before being put out in to the public domain surely?

Paisley's lawyers (and the man himself) argued the case was about "freedom of speech" and that Mr Paisley was "making statements which are both true and already in the public domain". Now, leaving aside Mr Paisley's sudden attachment to the principle of "freedom of speech" (that'll have several journalists and at least one local blogger choking on their coffee), there have been for several months a whole host of DUP-related rumours, both financial and personal, in the public domain - a quick flick round some of the ROI's political sites (and no, I'm not linking them) will easily pull up the offending material in question. Following the separate strands of both the Judge's and the Paisley legal team's logic that material could now find itself published in election material and be distributed before its veracity was tested (a long time after the damage was done) in a separate libel action?

OK, I said there were couple of strange aspects with this case, first was the judge's reasoning. Second was not the Paisley Legal team argument (some of their client's chutzpah, for want of a better word, appears to have rubbed off on them), but the fact that Allister brought this in the first place. He's a QC, he knows the law, yet still he attempted an injunction rather than a more likely to succeed defamation case (which would have had the same ultimate effect).


-Simply the timescale involved (ie the effect of an injunction is more or less immediate)?
-Or was he perhaps testing the legal water before firing away with some "words which may be capable of defamatory meaning" of his own, allegations which would be allowed to be published because of the all-encompassing "freedom of expression" now apparently permitted at election time?

Perhaps I'm overestimating Allister's Machiavellianism... but for whatever reason, the judge's ruling has set a precedent which may well rebound back on the DUP.

1 comment:

Anonymous said...

"Perhaps I'm overestimating Allister's Machiavellianism... but for whatever reason, the judge's ruling has set a precedent which may well rebound back on the DUP. "

I had exactly the same thought. Paisley Junior may not be the person in the DUP it rebounds on most.