Court of Appeal dismisses appeal refusing stay of proceedings pending related Georgetown University Press case.

THE COURT OF APPEAL

CIVIL

Faherty J. Approved/No redactions needed

Pilkington J. Court of Appeal Record No: 2025 203

McDonald J. High Court record No: 2024/701P

Neutral Citation Number [2025] IECA 279

BETWEEN:

PAUL TWEED

Plaintiff /Respondent

and

AMAZON.COM INC

and

AMAZON UK SERVICES LIMITED

Defendants /Appellants

JUDGMENT of Mr. Justice McDonald delivered on 18th December 2025

Introduction

1. This is an appeal from a very careful and measured decision of the High Court (Barr J.) refusing the defendants/appellants’ application for an order staying these proceedings pending the determination of High Court proceeding brought by the plaintiff/respondent, Paul Tweed, as plaintiff, against Georgetown University Press, as defendant (Record No. 2023/3579P) which I will refer to as “the Georgetown proceedings”. The neutral citation for the High Court judgment is [2025] IEHC 313.

2. In this context, it is well established that the High Court has power, in appropriate circumstances, to stay one set of proceedings pending the determination of related proceedings. The relevant principles are so well known that it is unnecessary to set them out here. They are discussed in detail in the judgment of Clarke J. (as he then was) in Kalyx Fund Ltd. v. HSBC Institutional Trust Services (Ireland) Ltd. [2009] IEHC 457 [2010] I.R. 581. Recent examples of the application of those principles can be found in subsequent judgments of the High Court in Avoncore Ltd. v. Leeson Motors Ltd. [2021] IEHC 163 and Brophy v. Independent News and Media plc [2021] IEHC 713. There was no dispute before the High Court or before this Court that these are the principles that govern an application of this kind although, in the course of submissions, counsel for the defendants/appellants (“the appellants”) sought to argue that the facts and circumstances of this case are quite different to those which existed in those authorities.

3. It is important to clarify, at the outset, that, although the appellants’ application for a stay was refused, the High Court judge did not rule out the possibility that a stay might be available at a later stage of these proceedings. In para. 75 of his judgment, he said that the fact that the stay had been refused at this stage of the proceedings does not prevent the appellants from renewing the application when the case has been progressed to a stage when an application is made to list the proceedings for hearing.

Background

4. The plaintiff/respondent (who I shall refer to as “Mr. Tweed”) alleges that he has been defamed in a book called “Subversion: The Strategic Weaponisation of Narratives” by Dr Andreas Kreig, published by Georgetown University t/a Georgetown University Press. The publication date in Ireland was 1st May 2023. The book is for sale on the US and UK websites owned and operated by the appellants and it is accepted that a number of copies of the book have been supplied by the appellants to customers in Ireland. The total number of website sales to date in Ireland is very small.

5. In the Georgetown proceedings commenced in July 2023, Mr. Tweed has sued the publisher of the book while, in these proceedings (commenced in February 2024), he has brought a similar claim against the appellants arising from the sales by them of the book to customers in Ireland. In his statement of claim in these proceedings (which was delivered on 25th June 2024), he has also asserted that he should be awarded punitive and aggravated damages against the appellants on two bases. First, he maintains that, unlike other vendors, they refused to cease sales of the book in issue notwithstanding several requests made to them to do so in the period between 9th June 2023 and 21st November 2023. Second, he contends that the appellants have engaged in delaying tactics designed to frustrate him in bringing his case to trial. In that context, he complains that, initially, after service of notice of the proceedings on 7th March 2024 (through the Hague Convention process), the appellants entered a conditional appearance solely to contest jurisdiction on 19th April 2024. It should be noted that the latter date was the last day of the six-week period allowed by the O. 11 Order for the entry of an appearance. Mr. Tweed complains that, in light of the intimation that there would be a challenge to the jurisdiction, he awaited service of a motion to that effect but that no such application ever materialised. Instead, the appellants changed tack and entered an unconditional appearance on 11th July 2024.

6. Although no defence has yet been delivered by the appellants, their counsel (in their written and oral submissions) have made clear that the appellants dispute these allegations. They will contend at any trial that there is no basis to award either punitive or aggravated damages. The appellants also contend that it is Mr. Tweed who is guilty of delay and they draw attention to the fact that the initial affidavit sworn to establish sales in this jurisdiction was sworn as long ago as 28th June 2023 while the Order 11 application (seeking leave to serve notice of the proceedings on the appellants out of the jurisdiction) was not made until January 2024. They also highlight that Mr. Tweed did not swear his verifying affidavit in respect of the allegations of fact made in his statement of claim until April 2005. Section 8 of the 2009 Act requires that such an affidavit should be sworn. The appellants’ arguments in support of their application for a stay

7. In short, the appellants contend that justice requires that Mr. Tweed’s proceedings against them should be stayed pending the determination of the Georgetown proceedings. In making this case, the appellants maintain that there are a number of factors that weigh heavily in favour of such a stay.

8. In the first place, the appellants emphasise that they are not the original publisher of the book and they maintain that they should not be treated in the same way as the original publisher. In this context, they rely on the distinction made in s. 27 of the Defamation Act 2009 (“the 2009 Act”) between authors, editors and publishers of allegedly defamatory material, on the one hand, and distributors and vendors who can satisfy the requirements of s. 27(1), on the other hand. The marginal note to s. 27 refers to “innocent publication”. The section is broken down into three components. First, s. 27(1) sets out three conditions which must be met for the statutory defence to apply. It provides: “(1) It shall be a defence (to be known as the ‘defence of innocent publication’)

to a defamation action for the defendant to prove that—

(a) he or she was not the author, editor or publisher of the statement to which the action relates,

(b) he or she took reasonable care in relation to its publication, and

(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.”

9. While it is clear from the wide terms of s. 6(2) of the 2009 Act (which speaks of the publication “by any means” of a defamatory statement) that, for the purposes of the Act, the activities of the appellants bring them within the ambit of “publisher”, it is equally clear that the reference to “publisher” in s. 27(1) is intended to have a narrower meaning in the context of the defence of innocent publication. This is made clear by s. 27(2)(a) which provides: “(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—

(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material”

10. Thus, it will be seen that, for the purposes of the defence of innocent publication, a party who does nothing more than distribute or sell the material in issue will not be regarded as a publisher. That is the route by which the appellants seek to bring themselves within s. 27(1)(a). If they are to succeed in such a defence, they would also have to satisfy the conditions prescribed by s. 27(1)(b) (reasonable care) and s. 27(1)(c) (lack of knowledge or means of knowledge). In turn, s. 27(3) provides guidance as to how those two factors are to be assessed by the court . It provides:

“(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—

(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the person.”

11. Mr. Tweed does not accept that the appellants can avail of this statutory defence. On his behalf, counsel strongly argued that the failure of the appellants to cease sales of the book in the teeth of the correspondence from Mr. Tweed, means that the appellant cannot satisfy the conditions set out in s. 27(1)(b) and s. 27(1)(c). At this point in the proceedings, it is neither possible nor permissible to assess whether the appellants will succeed in establishing the defence of innocent publication. That was conceded by counsel for the appellants, in the course of his oral submissions to the Court. But counsel for the appellants submitted that, in principle, the defence of innocent distribution was available to his clients and that this is a important point of distinction between his clients and the defendant in the Georgetown proceedings. He described his clients as “secondary publishers” on this basis. While counsel for Mr. Tweed forcefully rejected this characterisation of the appellants, I would be prepared to accept that there is, at least, a prospect that the appellants may be able to establish that they fall into a different category to the Georgetown defendant.

12. Secondly, counsel for the appellants also submitted that the substantive defences that arise in an action for defamation of honest opinion and truth are matters which the original author and publisher are in a much better position to advance than a party in the position of the appellants. He suggested that the original author and publisher are the people who have decided to publish those words and presumably made the judgment with respect to the legal or evidential matters that are relevant in that context. He maintained that these matters will fall to be determined in the Georgetown proceedings which are at a more advanced stage than these proceedings. He also suggested that it would be more difficult for a “secondary publisher” to raise these defences because such a publisher in the normal way is unlikely to have access to the evidence and materials that underpin those defences.

13. Thirdly, counsel for the appellants placed considerable emphasis on the provisions of s. 31(6)(b) of the 2009 Act which provides a defendant in a defamation action may, for the purpose of mitigating damages give evidence: “that the plaintiff has already in another defamation action been awarded damages in respect of a defamatory statement that contained substantially the same allegations as are contained in the defamatory statement to which the first-mentioned defamation action relates.”

14. Counsel for the appellants submitted that the effect of s. 31(6)(b) is that, where a plaintiff has recovered damages in another action in respect of the damage to reputation, that can be relied on as a defence in a subsequent action. He suggested that, in so far as compensatory damages are concerned, it should provide a full defence in a situation like the present where Mr. Tweed’s action against the Georgetown defendant is in respect of the damage to his reputation in this jurisdiction in respect of all publications in this jurisdiction including the publications by the appellants. As noted earlier, Mr. Tweed’s claim against the appellants is not confined to compensatory damages but counsel sought to suggest that there was, at minimum, a serious issue as to whether Mr. Tweed could succeed in respect of his claims to punitive or aggravated damages.

Potentially, that may be so but, again, that is an issue that could not be decided on an interlocutory application of this kind.

15. Counsel for the appellants submitted that these three features (i.e. the defence of innocent publication, the contention that the Georgetown defendant is likely to be in a better position to defend a claim of this kind, and the effect of s. 31(6)(b) of the 2009 Act) represent a very important point of distinction between these proceedings and cases which were concerned with the order of hearing in relation to “normal damages claims” brought by different plaintiffs, as was the case in Kalix and Avoncore where an issue arose as to the justice in staying the claim of one plaintiff in favour of the claim of another. Counsel stressed that the present case is different because, here, the plaintiff is the same in both sets of proceedings and there is an overlap in so far as the claim for compensatory damages is concerned. On that basis, he argued that, contrary to the view taken by the High Court judge, it could not be said that the grant of a stay will result in the denial of access to the court in Mr. Tweed’s case. Counsel maintained that Mr. Tweed will still be able to vindicate all of his constitutional rights of access to the court and the protection of his good name if the “secondary publication proceeding” is deferred until there is a determination in the Georgetown proceedings. It was contended that the High Court judge failed to take account of this “fundamental difference” between these proceedings and the circumstances considered in Kalyx and Avoncore.

16. The appellants also suggested that freedom of expression should have been weighed in the balance by the High Court judge. They argued that freedom of expression was an important counterweight to the view expressed by the judge in para. 64 of his judgment that the appellants had a choice to make after they had been apprised by Mr. Tweed of his contention that the book was defamatory and that a publisher cannot: “decide to continue selling the book, thereby republishing the allegedly defamatory statement in the legal sense; while at the same time maintaining that the plaintiff cannot progress his action against him until he concludes other proceedings against other publishers of the allegedly defamatory statement.” In oral submissions, counsel suggested that it was wrong of the judge to take such a consideration into account but, following questions from the Court, he conceded that it was a factor that could be weighed in the balance but he suggested that it was not a decisive factor. On my reading of the High Court judgment, I do not believe that the judge treated this issue as decisive. In my view, it was just one of a number of issues to which the judge had regard.

17. In para. 33 of their written submissions, counsel for the appellants went so far as to suggest that, in circumstances where the appellants had no involvement in the contents of the book, “it was appropriate for the appellants, in considering whether to cease selling the book, to weigh in the balance the right to freedom of expression and the right to a good name. In those circumstances the fact of the decision to continue selling should not militate against the grant of a stay.” That suggests that the appellants’

decision to refuse to cease distribution was motivated by a concern about freedom of expression. However, there is no evidence before the Court as to the underlying motivation for that decision. This is so notwithstanding that, in the replying affidavit of Ms. Marie Hans sworn on behalf of Mr. Tweed, she highlighted the appellants’ refusal to suspend distribution of the book. She raised the issue in para. 8 of her affidavit and again in para. 17 and para. 19. Yet, there is nothing in the replying affidavit sworn on behalf of the appellants to explain their decision and no issue was raised in relation to freedom of expression. In those circumstances, there is no evidence to support the case made in para. 33 of the appellants’ submissions.

18. It was also suggested that, in para. 60 of his judgment, the judge had wrongly attached weight to Mr. Tweed’s contention that the appellants had delayed or attempted to frustrate the timely progression of the proceedings by refusing to nominate solicitors within the jurisdiction to accept service on their behalf, then waiting until the eve of the expiry of the elongated period for entry of an appearance, to enter their conditional appearance and, later, changing tack by bringing the current application. The judge observed that this effectively prevented the plaintiff from progressing the action. He plainly deprecated the approach taken by the appellants but I do not believe that he took this factor into account in his decision to refuse the stay. It is clear from para. 61 of his judgment that he regarded these factors as a counterweight to the suggestion made by the appellants that there had been culpable delay by Mr. Tweed in progressing these proceedings “such that he cannot resist the defendants’ application for a stay …”.

19. Finally, it was emphasised by counsel for the appellants that his clients have confirmed that, if Mr. Tweed succeeds against the Georgetown defendant, they will cease sales of the book in this jurisdiction. Thus, if Mr. Tweed succeeds against Georgetown, the offending publication will cease and compensation will have be obtained in respect of all compensatory damages for the damage to Mr. Tweed’s reputation such that Mr. Tweed’s reputation will be fully vindicated by an award in the Georgetown proceedings.

The position taken by Mr. Tweed

20. In their written and oral submissions, counsel for Mr. Tweed have highlighted that the appellants have not engaged in any way with the High Court’s finding that, if the plaintiff obtains judgment against the Georgetown defendant, “…it does not mean that the plaintiff will be able to recover on foot of that award of damages” (paragraph 68 of the High Court judgment). The Georgetown defendant is domiciled outside the jurisdiction in the United States and counsel for Mr. Tweed submit that it cannot be said with any confidence, therefore, that if successful in the Georgetown proceedings, Mr. Tweed will recover full damages for the damage to his reputation. While neither side has placed any evidence before the Court as to any obstacles that may lie in Mr. Tweed’s path in seeking to enforce any judgment obtained by him against the Georgetown defendant, I believe that it is reasonable to conclude that there is no guarantee that Mr. Tweed will be able to recover in full against the Georgetown defendant in the event that he succeeds in his case against it. In oral submissions, counsel for Mr. Tweed submitted that the appellants and the Georgetown defendant are concurrent wrongdoers within the meaning of the Civil Liability Act 1961 (“the 1961 Act”) and he stressed that, as such, they are each liable for the whole of the damage in respect of which they are concurrent wrongdoers. That is the effect of s. 12(1) of the 1961 Act. Thus, in accordance with that basic principle, Mr. Tweed should be entitled to proceed against both the Georgetown defendant and the appellants. While he could not recover twice, counsel maintained that the law recognised his right to pursue both of them to judgment.

21. It was also emphasised by counsel for Mr. Tweed that, prior to launching these proceedings, Mr. Tweed had first sought to persuade the appellants to cease distribution of the book. He referred in this context to the correspondence exhibited to the replying affidavit of Ms. Marie Hans sworn on 24th June 2024. That correspondence commences with a letter of 9th June 2023 calling on the appellants to cease distribution. This was reiterated in a subsequent letter of 4th July 2024 in which it was stated that other online distributors had immediately agreed to do so. In turn that was followed by a further letter to similar effect on 24th July 2024 which provoked the first substantive response from British solicitors for the appellants in which it was indicated that if Mr. Tweed succeeded in his claim in the Georgetown proceedings, the appellants would take “appropriate action upon receipt of a copy of such order.” The correspondence continued until November 2024 with both sides maintaining their respective positions.

22. Counsel for Mr Tweed submitted that the appellants have failed to identify any clear error on the part of the High Court judge such as to entitle this Court to interfere with his decision. In their written submissions, they addressed each of the contentions advanced by the appellants and identified where the issue had been addressed in the High Court judgment and why they maintained that there was no error on the judge’s part.

23. In their written submissions, counsel for Mr. Tweed also maintained that, in circumstances where the appellants have not delivered a defence, the Court is not in a position to assess whether staying these proceedings would be the most efficient use of court time and/or would minimise costs. They made the case that the Court cannot second guess what defences the appellants intend on raising and cannot, therefore, assess the extent to which there is any overlap between these proceedings and the Georgetown proceedings. Without knowing the extent to which the two sets of proceedings overlap, they submitted that the Court cannot make any accurate assessment as to the efficient use of court time and/or the minimising of costs. They point out that the appellants may, for instance, elect to concede that the statements complained of by Mr. Tweed are defamatory but, at the same time, rely on the defence of innocent publication under s. 27 of the 2009 Act. They also point out that the defence under s. 27 is obviously not available to the Georgetown defendant which has denied that the material complained of is defamatory. If the appellants do ultimately deliver a defence along the lines canvassed above, counsel for Mr. Tweed suggest that there will be minimal, if any, overlap between the two sets of proceedings to the extent that a stay would not result in the efficient use of court time or in any saving of costs.

24. Finally, counsel for Mr. Tweed vigorously criticised the appellants for their failure to deliver a defence in these proceedings and they also stridently rejected the suggestion that freedom of expression could have formed any part of the decision by the appellants to refuse to cease or suspend distribution of the book. They suggested that if there is any freedom of speech issue in this case, it is an issue which may arguably apply to the Georgetown defendant and Dr. Krieg. Counsel sought to suggest that the more obvious motivating factor underlying the appellants’ approach is that they should be entitled to make money out of this and all the other publications without being accountable in damages of any kind because, on their case, they can wait until an action between a plaintiff and what the appellants suggest is the “primary publisher” has been finally determined. While they acknowledged that there have not been many sales of the book in issue here, they argued that the motivation underlying appellants’ general approach is plainly to try to extract profits in the period between notification to them and the date of any adverse judgment against a “primary publisher.” If, several years later, when the appeal process is over and there is a final and binding order made against such a publisher, they can pocket the profits earned in the intervening period, maintain that it has nothing to do with them, and then take the book down after the appeal process is finished, a long time later.

The High Court judgment

25. I do not believe that it is necessary to address the High Court judgment in detail here. I have earlier expressed the view that it is a careful and measured judgment. In it, the judge weighs a large number of factors before concluding that it was not appropriate to stay these proceedings pending the determination of the Georgetown proceedings. For present purposes, I believe it is sufficient to refer to the concluding paragraphs of the judgment which usefully illustrate the careful approach taken by the judge and also the narrow limits of his decision which, as I have previously mentioned, does not rule out the possibility that an application for a stay might be renewed at a later time. In paras

73 to 75, the judge said: “73. The court is not convinced that placing a stay on the present proceedings at this stage would result in any significant saving of court time or costs. The proceedings are at an early stage. The filing of a defence and, if necessary, a reply thereto, will not give rise to significant costs. Interlocutory issues, such as seeking discovery of documents, can be dealt with on a voluntary basis. Even if they require a court order, such matters can be dealt with quickly and cheaply in the common law motion list, or if the motion is longer, in the non-jury/judicial review motion list. Accordingly, I am satisfied that permitting the action to proceed will not take up significant court time or involve substantial legal costs.

74. For the reasons set out herein, I hold that it is not appropriate to grant a stay on the proceedings herein. When the two actions are ready for hearing it may be that it would be appropriate that they be linked and heard before the same jury. I note that the plaintiff has indicated that he is agreeable to the actions being linked in some form. I note that the defendants are not agreeable to that course being adopted. I make no observations on that matter. It will be a matter for the judge in charge of the jury list when the actions are ready to be set down for hearing, to determine in what order they should be heard.

75. Finally, I should say that the fact that I have refused the defendants' application for a stay at this stage of the proceedings, does not prevent them renewing their application when an application is made to list the matter for hearing.” (emphasis added).

26. In my view, those paragraphs of the judgment put this appeal in perspective. The immediate effect of the judgment is that the appellants will have to deliver a defence. They may also be put to the trouble and expense of engaging in a discovery process and in raising or providing particulars. As part of their defence, they may also have to carry out enquiries (to the extent that this has not already been done) to evaluate the claim made by Mr. Tweed and the approach which has been taken by the Georgetown defendant in its defence. This will obviously involve incurring expense on their part but that can be compensated by an appropriate award of costs and there is no suggestion that Mr. Tweed will not be a sufficient mark for costs in the event that he ultimately fails in his claim against them. In the circumstances, it is difficult to see how the factors which are said to distinguish this case from Kalyx and Avoncore are engaged at this stage. The High Court has not made any final decision in relation to the sequencing of the hearings as between this case and the Georgetown proceedings. Nor, has the Court ruled out the possibility of a concurrent trial.

27. But before any decision can be reached by this Court on the appeal, it is essential to consider the test to be applied on an appeal from an order of this kind. For the reasons canvassed below, I am of the view that both sides have misstated the nature of the applicable test. The test to be applied on an appeal from the High Court from an order of this kind

28. In the appellants’ written submissions delivered in advance of the hearing, it was argued that the relevant test to be applied on an appeal of this kind is that laid down in Collins v. Min. for Justice [2015] IECA 27 which involved an appeal from an order of the High Court refusing to dismiss proceedings on the grounds of inordinate and inexcusable delay. In her judgment in that case, Irvine J. (as she then was) explained, at p. 26, that, in an appeal from a High Court decision involving the exercise of discretion, the relevant test is that suggested by MacMenamin J. in the Supreme Court in Lismore Builders Ltd. (in Receivership) v. Bank of Ireland Finance Ltd. [2013] IESC where he said: “Although great deference will normally be granted to the views of the trial judge, this court retains the jurisdiction of exercising its discretion in a different manner in an appropriate case. This is especially so, of course, in the event there are errors detectable in the approach adopted in the High Court. The interests of justice are fundamental…”

29. At p. 27 of her judgment, Irvine J. emphasised that the power of an appellate court to intervene was not confined to errors of principle. She said: “If, however, the scope of appellate review was to be confined to demonstrating that there had been an error of principle on the part of the trial judge, then, as was pointed out in Lismore Homes, this might have compromised the ability of the Supreme Court to do justice or to provide an effective remedy in any given case.”

30. In Collins, Irvine J. examined and analysed the governing case law and arrived at the following conclusion on p. 28: “For all of these reasons, therefore, we consider that the true position is that set out by MacMenamin J. in Lismore Homes, namely, that while the Court of Appeal (or, as the case may be, the Supreme Court) will pay great weight to the views of the trial judge, the ultimate decision is one for the appellate court, untrammelled by any a priori rule that would restrict the scope of that appeal by permitting that court to interfere with the decision of the High Court only in those cases where an error of principle was disclosed.”

31. In contrast, in the written submissions delivered on behalf of Mr. Tweed, it was submitted that, in the case of interlocutory orders made by the High Court, significant deference should be afforded to the decision of the High Court judge. Counsel referred to another judgment of Irvine J. which made this clear namely Lawless v. Aer Lingus Group plc [2016] IECA 235 which arose in the context of an appeal from a High Court discovery order. At pp. 9-10, she said:

22. The first matter to be briefly addressed in the course of this ruling is the court's jurisdiction on this appeal. This is an appeal against an order made by the High Court judge in the exercise of her discretion in relation to an interlocutory matter. This is not a re-hearing of that application and that being so this court should afford significant deference to the decision in the High Court. It is nonetheless clear that if an appellate court can detect a clear error in the manner of the approach of the High Court judge it is of course free to interfere with that decision. Further, even if the appellant cannot identify such an error the appellate court may nonetheless allow an appeal if satisfied that the justice of the case can only be met by such an approach. The Court is able to do this because it has available to it all of the affidavit evidence that was before the High Court at the time the original interlocutory decision was made. The role of the appellate court in this regard is set out in the decision of this court in Collins v. Minister for Justice, Equality and Law Reform [2015] IECA

27 and by McMenamin J. in Lismore Homes Ltd. v. Bank of Ireland Finance Ltd. [2013] IESC 6.

23. However, it seems to me that all too often parties who are somewhat dissatisfied by interlocutory orders made in the High Court seek to use this Court as a venue to re-argue their application de novo in the hope of persuading this court to exercise its discretion in a somewhat different fashion from that which was adopted by the High Court judge at the original hearing. That is a practice which I believe is not to be encouraged. In order for this Court to displace the order of the High Court in a discovery matter the appellant should be in a position to establish that a real injustice will be done unless the High Court order is set aside. It should not be sufficient for an appellant simply to establish that there was a better or more suitable order that might have been made by the trial judge in the exercise of their discretion.”

32. In my view, the decisions in Collins and Lawless are not directly on point. It seems to me that the decision of the High Court here was in the nature of a case management direction. The application made by the appellants was in relation to the sequencing of hearings. If granted at this stage of the proceedings, the relief sought by the appellants would also have deferred the delivery of pleadings and the making of discovery. These are quintessentially case management issues. This was plainly on the mind of the High Court judge. In making his order, the judge did not rule out the possibility that further case management might arise at a later point in the proceedings.

33. Appellate courts are very reluctant to interfere with case management orders made by the High Court. The approach to be taken was comprehensively summarised by Collins

J. in Meta Platforms Ireland Ltd. v. Data Protection Commissioner [2025] IECA 97 where he also made clear that an application for a stay of this kind falls within the ambit of case management. At pp. 12-13, he said: “20. Appellate courts wisely refrain from entertaining appeals from case management orders and orders to adjourn one set of proceedings pending the determination of others are no exception. As in P.J. Carroll & Co. Ltd.

v. Minister for Health and Children [2005] 1 I.R. 294 Geoghegan J.

observed at p. 314 that: -

‘Most orders by way of case management in the Commercial

Court are, to some extent, of a discretionary nature and in practice most of them would be unappealable. I would take the view that as a general rule this court should be slow to interfere with case management type orders in the Commercial Court unless there is a clear error of law involved or the managing judge has clearly not exercised his or her discretion correctly.’

21. At paragraph 19 of his judgment in Weavering Macro Fixed Income Fund Ltd. v. PNC Global Investment Servicing [2012] IESC 60;

[2012] 4 I.R. 681, Clarke J. (as he then was: McKechnie and

MacMenamin JJ. conc.) quoted from paragraph 3.5 of his judgment

in Dowling v. Minister for Finance [2012] IESC 32 to the effect that appeal courts should intervene only where it is shown that a High Court case management order causes ‘irremediable prejudice’. Clarke J. was, nonetheless, of the view that the Supreme Court could properly take into account the extent to which such an order might have ‘a potentially fundamental impact on the proceedings.’. He observed at paragraph 5.4 that: - ‘The range of orders which can be made in a case management process varies significantly. Orders can, at one end of the spectrum, involve the imposition of time limits for taking steps, or purely procedural directions as to how a trial is to be conducted. At the other end of the spectrum there can be decisions which have the potential to have a very significant impact on how litigation is to progress. There will, of course, be many types of orders which fall somewhere between those two extremes. Following on from the principles identified in Dowling […] it seems to me that it is unlikely that this court would consider it appropriate to interfere save in cases which are at the end of the spectrum where the consequences of the case management order under appeal have the potential to significantly affect the litigation. It is difficult to see how, except in very unusual circumstances, case management orders which did not have consequences of such a nature could be said to be irremediable.’”

34. The reluctance of appellate courts to intervene in case management decisions of the High Court is also evident from the judgment of Costello P. in Tracey v. Irish Times [2025] IECA 256. That judgment was concerned with an appeal from an order of the High Court directing the concurrent trial of four defamation actions taken by the same plaintiff against four different newspaper proprietors arising out of reports in their respective newspapers of a hearing in the District Court in which the plaintiff, Mr. Tracey, had been involved. The Court of Appeal refused to interfere with the decision of the High Court. In her judgment in that case, Costello P. said at pp. 3-4: “6. Before considering the substance of the appeal, it is important to emphasise that the order appealed against is a case management decision by the High Court, directing the mode and manner of trial. It is an order made in the ordinary course of the management of litigation. It is well established that the threshold for appellate intervention in respect of such an order is very high. In Rice v Muddiman [2018] IECA 402, at para. 31, Irvine J stated:

‘. . . an appellate court will only set aside . . . a case management

decision if the appellant can demonstrate that to fail to do so would call into question the proper administration of justice.’ Irvine J observed that High Court judges, administering a list, must be afforded a significant margin of appreciation as how best to manage the court’s own scarce resources. The observations of the Supreme Court in Dowling v Minister for Finance [2012] IESC 32, and Dome Telecom Ltd v Eircom Ltd [2008] 2 IR 726, to the effect that an appellate court should not lightly interfere with a case management order are also relevant. In O’Connor v Legal Aid Board [2022] IECA 216 this Court held that an order consolidating sets of proceedings was the type of order an appellate court would be slow to set aside.” (emphasis added)

35. The judgment in Tracey is also instructive for another reason. It very usefully illustrates that it is often appropriate, in cases involving similar issues, to direct a concurrent hearing of such cases. Costello P. explained the position as follows at pp. 4-5 of her judgment: “ 8. In considering whether the order made by the High Court was one which called into question the proper administration of justice and thus is one which this Court ought to set aside, this Court must consider the power and scope of the High Court to regulate how proceedings are tried. In Delaney, MacGrath & Egan, ‘Civil Procedure in the Superior Courts’ (5th Ed. 2023), at para. 7-26, the authors note that: ‘As Clarke J commented in Kalix Fund Ltd v HSBC Institutional Trust Services (Ireland)Ltd, in ordering its business, a court should ensure that its resources and the resources of parties to litigation are not inappropriately wasted by unnecessary duplication. It is also important to minimise the risk of inconsistent determinations arising from different proceedings. Accordingly, where there is some commonality between proceedings, and regardless of whether the criteria for the consolidation of proceedings are satisfied, the courts have an inherent jurisdiction to make directions as to the trial of proceedings.’

9. This passage neatly summarises a number of points. The courts have an inherent jurisdiction to make directions as to the trial of proceedings. If it were otherwise, they could not properly administer justice. It is well established that in appropriate cases, the court may direct that cases may be consolidated or that related cases may be heard simultaneously. This occurs reasonably frequently and does not result in the denial of justice to the parties to either proceedings, where properly managed. This includes defamation proceedings.

10. The passage also identifies some of the factors which may be taken into account when a judge is deciding whether to consolidate proceedings, direct concurrent trials or sequential hearings. In deciding whether to hear cases simultaneously, a court is concerned inter alia with whether there will be a substantial saving of expense and inconvenience, whether the likelihood of confusion, inconsistent determinations or other miscarriage of justice may arise and whether there is a risk that awards of damages in separate trials may either overor under-compensate a successful plaintiff (see for example O’Neill v Ryanair (No 2) [1992] 1 IR 160).”

The application of the test to this case

36. Having regard to the authorities, it is clear that, before this Court can interfere with the order made by the High Court judge, the appellants must establish that the order has exposed them to irremediable prejudice. The fact that an appellate court might have been inclined to make a different order to that made by the High Court is not a sufficient basis for intervention. Similarly, the fact that an appellate court might disagree with some of the findings made by the High Court is not enough in itself unless, of course, those findings are such as to give rise to irremediable prejudice.

37. When the decisions in Meta and Tracey were brought by the Court to the attention of the parties, counsel for the appellants sought to argue that the order made by the High Court judge went beyond case management. He put the matter as follows at p. 83 of the transcript of the appeal hearing: “Here, we are raising a more fundamental issue, and that goes to the fairness and justice of this case being heard before the substantive case. Not as [counsel for Mr. Tweed] seems to suggest where there's no basis for raising other defences but where it is more difficult to raise other defences and more particularly more difficult to substantiate them without the evidence in the other case. It's not a question, as he speculates, as to whether we did or didn't go to anybody, it's a question that the author and the original publisher would have access in principle to information to sustain the allegation and presumably evidence in that regard. That is different and that's why I say this is not just a case management, and that's why I have presented it in terms of the administration of justice. And we say the correct principles are to be found in Lawless because I will be disadvantaged in a serious way.”

38. I do not accept this submission. For the reasons stated in para. 32 above and having regard to the approach taken in Meta, it is quite clear that the decision by the High Court judge was in the nature of case management. Of course, some case management decisions are capable of having a profound impact on how proceedings are to be progressed but that does not alter their status as aspects of case management. The applicable test caters for such eventualities. Thus, it is clear from the decision of the Supreme Court in Weavering Macro Fixed Income Fund Ltd. v. PNC Global Investment Servicing [2012] IESC 60; [2012] 4 I.R. 681 that, where a case management order made by the High Court has a potentially fundamental impact on proceedings, this may be sufficient to constitute irremediable prejudice such as to justify intervention by an appellate court. However, as I have previously explained, the order of the High Court judge here has a very limited effect. It does not expose the appellants to injustice or unfairness of the kind suggested by their counsel. On the contrary, the High Court judge expressly envisaged that a further application could be made in the future once all of the pre-trial steps have been completed. As a result, in the unlikely event that these proceedings were at risk of being listed for hearing before the Georgetown proceedings, the appellants will have the opportunity to make any arguments they wish to make about the suggested unfairness of such a sequencing. The order made by the High Court wisely leaves that opportunity open.

39. Moreover, the concerns expressed by counsel for the appellants in the passage quoted in para. 37 above, raise the obvious question as to whether it would make sense that there should be a concurrent trial of both sets of proceedings. That is ultimately a question for the High Court but, in my view, it is an issue to which serious consideration should be given. At first sight (and I stress that this is no more than first sight) such a course would seem to address many of the concerns expressed on behalf of the appellants. It is true that, having regard to the fact that the statutory defence of innocent publication would not be open to the Georgetown defendant, the issues in both actions will not be identical. But, as in Tracey, the actions arise out of the same underlying material namely “Subversion: The Strategic Weaponisation of Narratives” by Dr Andreas Kreig . As a consequence, it is likely that there will be some commonality between the issues to be determined in both cases. On his side, Mr. Tweed has already indicated that he would be prepared to proceed in that way. It may also commend itself to the High Court as the most efficient way in which to address these two actions rather than having to convene two separate hearings with two separate juries with the attendant risk that inconsistent findings might be made. In this context, it is important to recall that, in assessing such issues, the High Court is not confined to a consideration of the interest of the immediate parties. The High Court also has an interest itself in ensuring the efficient processing of its business and the fair allocation of scarce judicial resources among litigants as a whole. In para. 22 of his judgment in the Meta case, Collins J. cited an important aspect of the judgment of McKechnie J. in Ryanair Ltd v. Bravofly Ltd [2016] IESC 53 in relation to the need to have regard to the “functional operability” of the wider administration of justice in case management decisions. Collins J. said: “22. In managing cases at first instance, courts are not limited to a choice between the solutions that parties propose for adoption. As McKechnie

J. (MacMenamin, Laffoy, Dunne, Charleton JJ. conc.) observed at

paragraph 42 of his judgment in Ryanair Ltd v. Bravofly Ltd [2016] IESC 53: - ‘It has often been said that the underlying purpose of the commercial rules is to implement three imperatives in respect of actions admitted to that list. Firstly, that the parties should engage in a fair trial of the issues so identified; secondly, that such issues should be dealt with and disposed of with reasonable expedition; and, thirdly, that costs should be reduced so far as possible in such litigation (O. 63A, r. 5 & 14(7) R.S.C.). I agree with this particular classification and would only add a general observation, even if trite, namely that justice is the ultimate objective of case management. This may suggest an inter partes evaluation only, but that is not the case: the administrative system is an integral part of the justice objective and its functional operability is a real factor for consideration on an application such as that moved before the trial court.’” (emphasis added)

40. In the course of his oral submissions to the Court, counsel for the appellants suggested that it might be difficult for a jury, at a concurrent trial, “to single out the different position of the secondary publisher and the original publisher and the issues that arise in that regard.” I believe that this seriously underestimates the abilities of a properly instructed jury. As Costello P. observed in Tracey, at p. 10: “I agree entirely with the judge’s assessment that it would be perfectly possible to instruct the jury clearly in relation to any issues …. This is amply borne out by the frequency with which juries try cases against multiple defendants, sometimes facing differing charges, arising out of a common set of facts, without any difficulty or confusion.”

41. Counsel for the appellants also sought to suggest that there is a parallel to be drawn between this case and Meta and he urged that the order made by the High Court has a potentially fundamental impact on the proceedings within the meaning of the Supreme Court decision in Weavering Macro Fixed Income Fund Ltd. v. PNC Global Investment Servicing. Again, I do not accept that submission. In Meta, the High Court order staying the proceedings was shown to have a fundamental impact such that the threshold for intervention by an appellate court had been surmounted. In that case, the effect of the stay was contrary to the public interest in circumstances where the stay greatly delayed the ability of the parties to obtain clarity from the Court of Justice in relation to an issue of EU law that potentially affected the validity of a decision of the Data Protection Commissioner which had EU wide effects. In contrast, here, for all of the reasons outlined in para. 38 above, the High Court order has a very limited and narrow effect. I do not believe that the appellants have any basis to contend that it could have any fundamental impact on the proceedings. On the contrary, it preserves the ability of the appellants to come back to the High Court in the future.

42. When counsel for the appellants was asked to address how such an order could be said to have a fundamental impact on the proceedings, he referred to two matters. First, he identified the possibility that his clients could be exposed to an increased award of damages if they raised a defence which is ultimately not borne out. Second, he said that the order of the High Court did not go so far as to direct case management of the proceedings and, accordingly, there remained the possibility that these proceedings could be listed for hearing in advance of the Georgetown proceedings.

43. I do not believe that either of these concerns could be said to satisfy the “irremediable prejudice” test. In so far as the delivery of a defence is concerned, it seems to me that this is a concern that arises in every defamation case and does not distinguish this case from others. While counsel made the case that his clients, as “secondary publishers”, are not equipped with the same level of knowledge as the Georgetown defendant, there is no evidence of any attempts made by the appellants to equip themselves with knowledge about the underlying facts. Furthermore, there is no evidence of any insuperable difficulties that may lie in their path in investigating the underlying facts. In addition, as counsel for Mr. Tweed observed, the appellants will always have the ability to seek to amend their defence in the event that they conclude in advance of a trial that there is no proper basis to stand over it. The delivery of a defence now does not commit the appellants to an irrevocable or irreversible course.

44. Turning to the concern about the sequencing of the trials, I believe that this is capable of being addressed in a very straightforward way by bringing an application to the High Court on notice to Mr. Tweed and the Georgetown defendant seeking to have both cases case managed together. While it will be entirely a matter for the High Court, it seems to me that it may well make sense, both from the perspective of the parties and the efficient use of the resources of the High Court, that they should be case managed together. It appears from the grounding affidavit of Keith Smith sworn in support of the appellants’ application for a stay that the appellants understood that the Georgetown proceedings were likely to come on for hearing imminently. However, that is not the case. The pleadings have closed but there is a significant and somewhat complex issue between the parties in relation to an aspect of the Georgetown defendant’s defence which was the subject of a recent hearing before the High Court. Judgment on that issue has been reserved and, depending on the outcome, there may well be an appeal. In those circumstances, there is no reason why this case cannot catch up with the Georgetown proceedings. Given the length of time these proceedings have been in being and the very distinguished legal teams on both sides, it is reasonable to expect that the pleadings could be closed within a relatively tight timeframe.

45. I reiterate that it will be entirely a matter for the High Court to decide on whether both cases should be case managed together and the views of the Georgetown defendant will have to be weighed in the balance. In the event that the High Court determines that the cases should be case managed together, consideration can be given to how discovery is to be managed and shared and whether there should be a concurrent trial or whether the trials should be sequenced. The appellants will have the opportunity to have an appropriate level of input into that process and will have the ability to make whatever submissions may be necessary to protect their interests.

46. For all of these reasons, I am of the view that the appellants have failed to establish any sufficient basis to warrant interfering with the order of the High Court. It follows that their appeal should be dismissed and the order of the High Court should be affirmed.

47. Given the outcome of the appeal, Mr. Tweed is presumptively entitled to the costs of the appeal although I would be prepared to place a stay on execution of the order for costs until the determination of the proceedings. If either side wishes to contend for a different order to be made in respect of costs, they have liberty to deliver written submissions (not exceeding 1,500 words) not later than 16th January 2026 with liberty to the opposing side to deliver replying submissions (again not exceeding 1,500 words) not later than 30th January 2026.

48. Faherty and Pilkington JJ. confirm that they agree with this judgment and with the order to be made.