Defamation claim stayed dismissed; US forum barred by statute of limitations; Irish court retains jurisdiction.

APPROVED [2025] IEHC 62

THE HIGH COURT

2021 1110 P

BETWEEN

DECLAN GANLEY

RIVADA NETWORKS LTD

PLAINTIFFS

AND

CABLE NEWS NETWORK, INC.

CABLE NEWS INTERNATIONAL LTD

TURNER BROADCASTING SYSTEM EUROPE LTD

DEFENDANTS

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 February 2025

INTRODUCTION

1. This judgment is delivered in respect of an application to stay the within proceedings by reference to the principle of forum non conveniens. The proceedings take the form of an action for defamation. The Defendants contend that the events, the subject-matter of the alleged defamation, are all connected to the United States of America. It is said, therefore, that any claim for defamation should have been pursued before a court in that country. It has been suggested, NO REDACTION REQUIRED belatedly, that a claim for defamation could have been brought before the Federal Courts or Local Courts in Washington, District of Columbia.

2. The Plaintiffs oppose the application on a number of grounds. In particular, it is contended that any claim for defamation in the USA would now be statute barred and that, in any event, the rules in relation to defamation under US law are less favourable to a plaintiff than those under domestic law.

3. For the reasons explained in an earlier judgment in these proceedings, the hearing of the application had been adjourned to allow both sides file expert evidence on foreign law (Ganley v. Cable News Network, Inc [2024] IEHC 140).

THE CLAIM FOR DEFAMATION

4. The claim for defamation relates to a news story published on various platforms by CNN in October 2020. The news story was published by way of a broadcast on the CNN news channel and as an article on the CNN website. There is a dispute between the parties as to which entity within the CNN group bears responsibility for publication and distribution. This is the subject of a separate motion between the parties whereby it is sought to have the proceedings struck out as against the second and third named defendants.

5. The meaning and effect of the news story will, ultimately, be a matter for the court of trial in whichever jurisdiction has seisin of the claim for defamation. For present purposes, it is sufficient to summarise the broad gist of the news story as follows. It is alleged that the Department of Defence in the USA came under pressure from the Trump White House to award a lease of mid-band spectrum to an entity described in the news story as “Rivada”. The parties are in disagreement as to whom this description refers. The Defendants submit that it refers to a US registered company known as Rivada Networks Inc; the Plaintiffs submit, conversely, that it refers to a wider group of companies including the second named plaintiff which is an Irish registered company. It is also contended on behalf of the Plaintiffs that the companies are identified with the first named plaintiff, Mr. Declan Ganley. Mr. Ganley is an Irish citizen and asserts that he is habitually resident in the Irish State. The question of whether the Irish company and Mr. Ganley can be “identified” as the parties defamed is, again, a matter for the court of trial.

6. It is pleaded in the statement of claim, which has been delivered in these proceedings, that the news story bears the following defamatory meanings: “i. The Plaintiffs had engaged in a corrupt or improper process to obtain a lucrative contract to lease the US Department of Defense’s mid-band spectrum;

ii. The Plaintiffs had intended to secure a no-bid contract and

preclude a competitive bidding process for this opportunity; iii. The Plaintiffs’ actions were corrupt, or that they had corrupt intent; iv. The Plaintiffs lied and were hypocritical in their denials of the unfounded allegations;

v. The Plaintiffs had sought to improperly influence the US

government and the US President in respect of a public

contract; vi. The Plaintiffs lied and were hypocritical in the denials of the unfounded allegations”

7. Counsel for the Plaintiffs has submitted that the claim in these proceedings is confined to a claim for damages for loss of reputation within Ireland by reason of an (alleged) defamation published in Ireland. Put otherwise, these proceedings are not intended as an omnibus worldwide claim which would extend to loss of reputation in the USA.

8. The Defendants have indicated that they will defend any claim for defamation on the basis that the news story is, in substance, true, and relates to a matter of public interest. It is asserted, in general terms, that defences along these lines are available under the (Irish) Defamation Act 2009 and under US law, respectively.

9. It is accepted on behalf of the Defendants that the article was published in Ireland for the purposes of the Defamation Act 2009 because it appeared on the cnn.com website which is available in this jurisdiction. It is also accepted that the broadcast was published in Ireland because it was published on the “CNN International” television channel which is available in Ireland through Sky, Vodafone Ireland Ltd, Virgin Media Ireland and Eircom Ltd.

FORUM NON CONVENIENS

Overview

10. It should be explained that the Defendants now accept that the Irish Courts have jurisdiction to entertain these defamation proceedings. More specifically, it is accepted that the relevant gateway under Order 11(1)(f) of the Rules of the Superior Courts is open: the action is founded on a tort committed within the jurisdiction (allegedly). Therefore, this is not a case where a defendant is contesting jurisdiction in the strict sense. Rather, it is contended that the Irish Courts should decline to exercise their jurisdiction on the grounds that there is a more appropriate forum available.

11. Save where the allocation of jurisdiction is governed by Regulation (EU) No 1215/2012 (Brussels I recast), the Irish Courts have an inherent jurisdiction to stay proceedings on the grounds of forum non conveniens. The criteria informing the exercise of that inherent jurisdiction have been authoritatively stated by the Supreme Court in Irish Bank Resolution Corporation v. Quinn [2016] IESC 50, [2016] 3 IR 197 (at paragraphs 68 to 70) as follows:

“The first principle is that the court must look at practical

factors such as those affecting convenience, expense,

applicable law and the location or place of business of the

parties to determine whether the applicant has established

that there is an alternative forum which is clearly or distinctly more appropriate than Ireland and, thus, the natural forum for the conduct of the proceedings.

Second, in the event that the applicant meets that obligation,

the court is required to consider whether the respondent has

put forward any sufficient basis for suggesting that justice

nonetheless requires that the proceedings be tried in Ireland.

It seems to me that much of what is set out in the passage

cited derives from one or other of those two underlying

principles. The initial burden of proof rests on the applicant

although, as in all cases, if the respondent wishes to put

forward additional practical factors which might be said to

favour the trial remaining in Ireland then it is for the

respondent to put forward whatever evidence it may wish to

rely on in that regard. Next if the interests of justice are said by the respondent to require that the proceedings be tried in Ireland despite those practical factors clearly pointing to an alternative forum then the onus rests on the respondent in that regard. The standard or threshold is that of it being shown that there is another jurisdiction which is clearly or distinctly more appropriate. The court exercises a broad adjudicative role and can take into account any practical factor which, in the circumstances of the case in question, has a bearing on which jurisdiction may be more appropriate. However, the sort of factors which will most normally come into play are those of convenience, expense, applicable law and location of the parties. Most of the other points made are encompassed within those general observations. The final point made is that the fact that a claimant may be deprived of “a legitimate personal or juridical advantage” is not in itself sufficient to prevent a stay being granted provided that substantial justice would be done in the available alternative forum. This point may be seen as an example of the sort of matter which should not be regarded as a practical factor influencing whether the first general principle is met or as supporting the view that such a point is not a sufficient factor to establish the second general principle unless, of course, there was a real risk that justice would not be done in the alternative forum.”

12. As appears, the court must assess whether there is an alternative forum, which is clearly or distinctly more appropriate than Ireland, before which the claim should be pursued. This assessment requires consideration of practical factors such as those affecting convenience, expense, applicable law, and the location or place of business of the parties.

13. At the risk of stating the obvious, it is a condition precedent to the carrying out of such an assessment that the moving party must nominate an alternative forum. The assessment cannot be carried out in the abstract. The moving party must be able to nominate an alternative forum and adduce evidence which establishes that the named forum would have jurisdiction to entertain the claim which it has been sought to litigate before the Irish Courts. It should be emphasised that this requires the identification of a court or tribunal: it is not sufficient simply to point to another country and say that the claim has a stronger connection with that country. The principle of forum non conveniens requires an assessment of, and comparison with, an alternative forum. It is not enough to say, for example, that most of the witnesses relevant to litigation, which has been brought before the Irish Courts, reside in the foreign country unless it is first established that the courts of that country would have jurisdiction to entertain the type of claim which the plaintiff is pursuing before the Irish Courts.

14. As of the date of the initial hearing of the stay application (February 2024), neither side in the present proceedings had yet adduced any direct expert evidence in respect of the jurisdiction of any court or tribunal within the USA to entertain a claim, at the suit of an Irish citizen or an Irish domiciled company, arising out of the publication, within the Irish State, of an allegedly defamatory statement. This court cannot simply assume that such a claim would be entertained. Whereas it might be legitimate to take judicial notice of the fact that a tort of defamation is recognised under the federal law of the United States of America, this court has no direct knowledge of the detail of such a tort. It would not be fanciful to anticipate that there might be procedural and jurisdictional niceties which would present difficulties for foreign domiciles maintaining such a claim in respect of publication outside the USA.

15. More broadly, the Plaintiffs had contended that any proceedings in the USA would now be statute barred. It had been suggested in submission that there is a one year limitation period on such proceedings and that this has long since expired. The Plaintiffs had also contended that the (supposedly) broad sweep of the defences open to a defendant under US law are such that a claim for defamation before a US Federal Court would not vindicate the first Plaintiff’s constitutional right to a good name under the Constitution of Ireland.

16. On the state of the evidence as of the initial hearing, it had not been possible for this court to carry out the requisite assessment of, and comparison with, an alternative forum. For the reasons explained in a written judgment delivered on

22 March 2024, the hearing of the stay application had been adjourned to allow each party an opportunity to file evidence in respect of foreign law (Ganley v. Cable News Network, Inc [2024] IEHC 140).

17. Each side subsequently filed an expert report on foreign law. The hearing of the stay application resumed on 20 January 2025.

Foreign proceedings are statute barred

18. The experts engaged by the respective parties are agreed that any proceedings before either the Federal Courts or the Local Courts in Washington, DC are now statute barred. The relevant limitation period is one year. The experts are agreed that the mere fact that proceedings were issued elsewhere within time does not “toll” for the purpose of the limitation period. It would, in principle, be open to the Defendants to waive the time bar but they have indicated, through counsel, that they are not prepared to do so.

19. It follows, therefore, that the practical effect of the Irish Courts granting a stay on these proceedings is that the Plaintiffs would be precluded from pursuing a claim for defamation arising out of the statements first published in October 2020. This is so notwithstanding that the statements were published within this jurisdiction, and that the Plaintiffs instituted proceedings before the Irish Courts well within the one year limitation period prescribed under the (domestic) Defamation Act 2009.

20. There was some disagreement between the parties as to how the time bar issue should be characterised for the purposes of the forum non conveniens analysis. In particular, the parties differed as to whether it should be characterised merely as the loss of a “juridical advantage”, or whether it should be regarded as more fundamental, i.e. going to the very question of whether there is an alternative forum available at all.

21. The Defendants advocated for the former position, citing the decision of the House of Lords in Spiliada Maritime Corpn v. Cansulex Ltd [1987] A.C. 460 (“The Spiliada”). There, it had been suggested obiter that the legal test was to ask whether it had been unreasonable for a plaintiff not to safeguard their position in respect of the limitation period by issuing a protective writ before the foreign forum. See pages 483/84 of the reported decision as follows:

“Let me consider how the principle of forum non conveniens

should be applied in a case in which the plaintiff has started

proceedings in England where his claim was not time barred,

but there is some other jurisdiction which, in the opinion of

the court, is clearly more appropriate for the trial of the

action, but where the plaintiff has not commenced

proceedings and where his claim is now time barred. Now,

to take some extreme examples, suppose that the plaintiff

allowed the limitation period to elapse in the appropriate

jurisdiction, and came here simply because he wanted to take

advantage of a more generous time bar applicable in this

country; or suppose that it was obvious that the plaintiff

should have commenced proceedings in the appropriate

jurisdiction, and yet he did not trouble to issue a protective

writ there; in cases such as these, I cannot see that the court

should hesitate to stay the proceedings in this country, even

though the effect would be that the plaintiff’s claim would

inevitably be defeated by a plea of the time bar in the

appropriate jurisdiction. Indeed a strong theoretical

argument can be advanced for the proposition that, if there is

another clearly more appropriate forum for the trial of the

action, a stay should generally be granted even though the

plaintiff’s action would be time barred there. But, in my

opinion, this is a case where practical justice should be done.

And practical justice demands that, if the court considers that

the plaintiff acted reasonably in commencing proceedings in

this country, and that, although it appears that (putting on one

side the time bar point) the appropriate forum for the trial of

the action is elsewhere than England, the plaintiff did not act

unreasonably in failing to commence proceedings (for

example, by issuing a protective writ) in that jurisdiction

within the limitation period applicable there, it would not, I

think, be just to deprive the plaintiff of the benefit of having

started proceedings within the limitation period applicable in

this country. […]”.

22. The House of Lords indicated that, had it been necessary to decide the question for the purpose of resolving the proceedings before it, the House of Lords would have decided that the plaintiff there had acted reasonably in not issuing a protective writ. The House of Lords further indicated that it would only have set aside the domestic proceedings, to enable proceedings to be brought in the foreign forum, on the condition that the defendant should waive their right to rely on the time bar.

23. Counsel on behalf of the Defendants emphasises that these indications were given against a background where there had been a significant clarification of the law in relation to forum non conveniens. The House of Lords noted that as the applicable principles became more clearly established and better known, it would become increasingly difficult for plaintiffs to prove lack of negligence in failing to issue a protective writ.

24. Counsel on behalf of the Plaintiffs placed emphasis on the fact that the observations of the House of Lords were by way of obiter dicta only, and that this aspect of the decision has not been addressed or adopted by the Supreme Court in Irish Bank Resolution Corporation v. Quinn. Counsel submits that the ability to prevent a party from accessing court at all, i.e. by reliance on a time bar, cannot amount to a mere litigious advantage which must be disregarded in assessing forum non conveniens.

25. Counsel submits that, with the benefit of the recently filed expert evidence, the court should now be satisfied that, as a matter of evidence, there is no alternative forum available. Counsel further submits that, in any event, the Plaintiffs acted reasonably in not issuing a protective writ. Counsel draws attention to the fact that the notice of motion seeking to stay the proceedings was only issued at a date after the limitation period in Washington, DC, had already expired, and that prior to that date, the Defendants’ position in correspondence had been to contest the very jurisdiction of the Irish Courts to entertain the proceedings.

Decision

26. It is a condition precedent to an order staying domestic proceedings on the grounds of forum non conveniens that there must have been an alternative forum available to the plaintiff. The question which arises in the present case is whether it is enough that a foreign forum might have been available at an earlier stage, even if access to that forum is now shut out by reason of the expiration of a limitation period. The pragmatic approach which has been adopted by our common law neighbours in the United Kingdom is to ask whether the plaintiff acted reasonably in failing to issue a protective writ in the foreign forum. This approach has much to recommend it. The stricter approach, whereby a stay on the grounds of forum non conveniens would only ever be granted if the foreign forum remained available as of the date of the hearing of the stay application, runs the risk that a plaintiff, by deliberately allowing the limitation period to expire, might present the court with a fait accompli.

27. For the purpose of this motion, therefore, I am prepared to assume, without definitively deciding the point, that the expiration of a limitation period in the foreign forum is not necessarily fatal to an application to stay proceedings on the grounds of forum non conveniens. Rather, this judgment has been prepared on the following working assumption. Whereas the fact that the foreign forum is not actually available, by dint of the expiration of a limitation period, is certainly a significant consideration to be weighed in the balance, it will not always be the decisive consideration. Rather, it is appropriate to consider the reasonableness of the conduct of a plaintiff in pursuing proceedings before the Irish Courts alone, without taking the precaution of issuing a protective writ in the foreign forum.

28. In assessing reasonableness, it will be relevant to consider factors such as any differential between the limitation periods applicable under domestic law and the law of the foreign forum, respectively. If, for example, it is apparent that a putative plaintiff, who missed a shorter limitation period governing proceedings before the foreign forum, is seeking to remedy this omission by availing of a more generous limitation period under domestic law, then it may be proper to grant a stay. Such a sequence of events might well support an inference that the choice of the Irish State as a forum has been influenced by the more generous limitation period rather than by any genuine connecting factors.

29. It will be relevant to consider the strength of the other factors pointing towards the foreign forum. The more obvious it is that there is an alternative forum which is clearly or distinctly more appropriate than Ireland and, thus, the natural forum for the conduct of the proceedings, the less reasonable it will be for a putative plaintiff not to have issued a protective writ.

30. It will also be relevant to consider the extent, if any, to which a putative defendant has identified the foreign forum as the appropriate forum in advance of the expiration of the limitation period.

31. For the reasons which follow, I have concluded that, having regard to the expiration of the limitation period in the foreign forum, it would not be in the interests of justice to grant a stay on the present proceedings. To do so would have the practical effect of depriving an Irish Citizen, who is habitually resident here, of the right to pursue an action for defamation in respect of statements published within the jurisdiction of the Irish Courts. It is now too late for the Plaintiffs to institute proceedings in the foreign forum: the one year limitation period has expired, and the Defendants are not prepared to waive the limitation period.

32. The Plaintiffs acted reasonably in confining themselves to instituting proceedings before the Irish Courts, and in not issuing a protective writ in Washington, DC. The claim made in these proceedings is confined to publication within the Irish State and is brought by an Irish Citizen, who is habitually resident here, and by an Irish registered company. This is not a case where a defamed party seeks to pursue, in a single jurisdiction, an omnibus claim for worldwide damages. In such a scenario, there might well be an argument that the more appropriate forum would be that wherein the defamatory statement was most widely published. If, counterfactually, the Plaintiffs here were seeking to recover, in the context of proceedings before the Irish Courts, monetary compensation for loss of reputation caused by publication in the United States, there might well have been a cogent argument for saying that it would have been a reasonable precaution to issue a protective writ. The evidence before the court to date indicates that the broadcast and article were viewed by far more people within the United States than here.

33. Having regard to the following three factors, it can reasonably be said that these proceedings have a strong connection to the Irish State: (i) the Plaintiffs are, respectively, an Irish Citizen habitually resident here and an Irish registered company, (ii) the Plaintiffs’ claim is restricted to loss and damage caused by publication within the Irish State, and (iii) the CNN group broadcasts to consumers within the Irish State (cf. Ryanair Ltd v. Fleming [2016] IECA 265, [2016] 2 IR 254 (at paragraph 21)). It certainly cannot be said that either the Federal Courts or Local Courts in Washington, DC represents such an obvious alternative forum that the Plaintiffs acted unreasonably in failing to issue a protective writ there.

34. It is telling that the Defendants themselves did not posit Washington, DC as an appropriate forum until they filed their motion seeking to stay the proceedings. The motion was not filed until December 2022, that is some two years after the date of publication and more than one year after the limitation period had already expired in Washington, DC. Moreover, the initial posture adopted by the Defendants in correspondence had been to indicate that they would be challenging the very jurisdiction of the Irish Courts to entertain the proceedings. It was only with the filing of the motion in December 2022 that the Defendants retreated to their current position, namely that the Irish Courts do have jurisdiction but should decline to exercise same on the grounds that there is a more appropriate forum available.

35. It is correct to say that a defendant is not required to advise proofs for a plaintiff. Nevertheless, the failure of a defendant to flag, at an early stage, an intention to seek to stay proceedings on the grounds of forum non conveniens may be relevant to an assessment of the reasonableness of a plaintiff not issuing a protective writ. This is especially so in cases, such as the present, where the alternative forum contended for by a defendant is not immediately obvious. Here, the proceedings had been served upon the Defendants at a time well before the limitation period had expired in Washington, DC. Had the Defendants asserted then that this was the appropriate forum, there would still have been time to bring proceedings there. Instead, the initial correspondence was confined to a jurisdictional objection which was ultimately not pursued.

36. It should also be observed that this is not a case where a putative plaintiff, having missed the limitation period in the appropriate forum, scrambles to take advantage of a more generous limitation period in what is obviously a less appropriate forum. Here, the limitation period before the respective fora is twelve months in each case. The Plaintiffs instituted the proceedings comfortably within the one year period allowed under section 11 of the Statute of Limitations 1957 (as amended by section 38 of the Defamation Act 2009).

37. In summary, as of the date of the filing of the motion, there had been no alternative forum available. The notional loss of such a forum, i.e. by dint of the expiration of the limitation period in Washington DC, cannot be attributed to any negligence on the part of the Plaintiffs nor to a litigation strategy whereby they seek to avail of a more generous limitation period in this jurisdiction. It would be unjust to stay these proceedings as it would result in plaintiffs, who are unblameworthy, being denied access to the courts in either jurisdiction.

MOTION TO STRIKE OUT TWO DEFENDANTS

38. The Defendants have brought a separate motion seeking to strike out the proceedings as against the second and third named defendants. The parties are now agreed, following some initial procedural skirmishing, that this motion should be heard and determined in conjunction with the application to stay the proceedings on the grounds of forum non conveniens. This is so notwithstanding that, strictly speaking, a defendant who has filed only a conditional appearance would not normally be allowed to pursue any motion other than one directly concerned with contesting jurisdiction. The parties have taken the pragmatic view that there is a saving in time and costs to be had if both motions are heard and determined together.

39. The Defendants allege that the second and third named defendants have been joined to the proceedings principally for the purpose of resisting the application to stay the proceedings on the grounds of forum non conveniens. The two defendants are companies which are registered in the United Kingdom.

40. Turner Broadcasting System Europe Ltd recites, in its annual return, that its activities include the operation of 24 hour entertainment television networks throughout, inter alia, the United Kingdom and Europe and also include the licensing of a 24 hour news programme. It is the licensed distributor to affiliates in Europe of the “CNN Channel”. The annual return for Cable News International Ltd states that its principal activity is news production and newsgathering which includes the research, completion, verification, creation and storage of content for inclusion in Cable News Network’s programming.

41. It is correct to say that the Ofcom website identifies Cable News Network Inc as the licence holder in the United Kingdom. However, the address given is the same registered address as of Cable News International Ltd and Turner Broadcasting System Europe Ltd.

42. Both companies have indicated, in publicly available annual returns, that their directors and officers occupy key positions within the wider CNN organisation.

43. The strike out motion was filed on 21 December 2022. The date of filing thus predates the amendments introduced to Order 19, rule 28 by the Rules of the Superior Courts (Order 19) 2023 (SI No. 456 of 2023). The amendments are effective from 22 September 2023. This judgment has been prepared on the basis that the motion falls to be determined by reference to the legal regime pertaining prior to the amendments.

44. The motion invokes both the provisions of the unamended version of Order 19, rule 28 and the court’s inherent jurisdiction. For the reasons explained by the Supreme Court in Lopes v. Minister for Justice Equality and Law Reform [2014] IESC 21, [2014] 2 IR 301 (at paragraphs 16 to 18), it is important to distinguish between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court’s inherent jurisdiction. An application under the Rules of the Superior Courts is designed to deal with circumstances where the case as pleaded does not disclose any cause of action. For this exercise, the court must assume that the facts— however unlikely that they might appear—are as asserted in the pleadings.

45. By contrast, in an application pursuant to the court’s inherent jurisdiction, the court may, to a very limited extent, consider the underlying merits of the case. If it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings can be dismissed as an abuse of process. In order to defeat a suggestion that a claim is bound to fail on the facts, all that a plaintiff needs to do is to put forward a credible basis for suggesting that it may, at trial, be possible to establish the facts which are asserted, and which are necessary for success in the proceedings.

46. The limitation on the assessment of credibility has been explained as follows by the Supreme Court in Lopes v. Minister for Justice Equality and Law Reform (at paragraph 19):

“It is also important to remember that a plaintiff does not

necessarily have to prove by evidence all of the facts asserted

in resisting an application to dismiss as being bound to fail.

It must be recalled that a plaintiff, like any other party, has

available the range of procedures provided for in the RSC to

assist in establishing the facts at trial. Documents can be

discovered both from opposing parties and, indeed, third

parties. Interrogatories can be delivered. Witnesses can be

subpoenaed and can, if appropriate, be required to bring their

documents with them. Other devices may be available in

particular types of cases. In order to defeat a suggestion that

a claim is bound to fail on the facts, all that a plaintiff needs to do is to put forward a credible basis for suggesting that it may, at trial, be possible to establish the facts which are asserted and which are necessary for success in the proceedings. Any assessment of the credibility of such an assertion has to be made in the context of the undoubted fact, as pointed out by McCarthy J. in Sun Fat Chan v. Osseous Ltd. [1992] I.R. 425, at p. 428, that experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance.”

47. The Supreme Court has consistently stated—in its case law on inherent jurisdiction applications—that whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss proceedings as being bound to fail is not a means for inviting the court to resolve issues on a summary basis. See, for example, Keohane v. Hynes [2014] IESC 66 (at paragraphs 6.5 and 6.6) as follows:

“[…] the underlying basis of the jurisdiction to dismiss as

being bound to fail stems from the court’s inherent

entitlement to prevent an abuse of process. Bringing a case

which is bound to fail is an abuse of process. If it is clear to

a court that a case is bound to fail, then the court has

jurisdiction to prevent that abuse of process by dismissing

the proceedings. However, as again noted by Murray J. in

Jodifern, whatever might or might not be the merits of some

form of summary disposal procedure, an application to

dismiss as being bound to fail is not a means for inviting the

court to resolve issues on a summary basis.

It is for that reason that all of the jurisprudence emphasises

that the jurisdiction is to be sparingly exercised and only

adopted when it is clear that the proceedings are bound to fail

rather than where the plaintiff’s case is very weak or where

it is sought to have an early determination on some point of

fact or law. It is against that background that the extent of

the court’s entitlement to look at the facts needs to be

judged.”

48. An application to strike out proceedings will, almost by definition, have been brought at an early stage of the proceedings, at a time when the possibility of pursuing procedural mechanisms—such as the discovery of documents, interrogatories, and the power to subpoena witnesses—will not yet have been exhausted. The court hearing the strike out application must be confident that there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings. As emphasised in the earlier case law, experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance. It is not enough that the court might be satisfied that the case is a very weak one and is likely to be successfully defended. Rather, the court must be satisfied that the proceedings disclose no cause of action and/or are bound to fail.

49. A strike out application will not be appropriate where the issues of law raised are not straightforward. See Jeffrey v. Minister for Justice, Equality and Defence [2019] IESC 27, [2020] 1 I.L.R.M. 67 (at paragraph 7.4):

“It is now well settled that, in the context of a summary

judgment motion in which a plaintiff seeks judgment in

summary proceedings, a court can resolve straightforward

issues of law or the interpretation of documents, where there

is no real risk that attempting to resolve those issues within

the limited confines of a summary judgment motion might

lead to an injustice. By analogy, I would not rule out the

possibility, without so deciding, that it may be possible to

resolve a simple and straightforward issue of law within the

confines of a Barry v. Buckley application. However, even if

that should be possible, it could only be appropriate where

the issue was very straightforward and where there was no

risk of injustice by adopting that course of action.”

50. These various limitations on the strike out jurisdiction have an especial resonance in the present case. The Defendants invite the court to determine, on a summary basis, that there is no reasonable cause of action against the second and third named defendants. To do so would necessitate the court making findings of fact and deciding issues of statutory interpretation. In particular, it would be necessary for the court to reach a definitive view on the precise interaction between the three CNN entities and to determine which of same is responsible for the publication of the allegedly defamatory statements in this jurisdiction. This is not straightforward: it will be recalled that the publication took the form of both a broadcast and an article hosted on a website. As to statutory interpretation, the Defendants invite the court to decide that Turner Broadcasting System Europe Ltd is a mere distributor and, as such, is entitled to avail of the defence of “innocent publication” under section 27 of the Defamation Act 2009.

51. It would not be appropriate to determine these issues in a peremptory manner. It would appear from the, admittedly limited, evidence currently before the court that there is a potential overlap between the functions of the three defendants in respect of the publication of broadcasts and written articles in Ireland. The Defendants contend that the second and third named defendants did not have a role in the “creation” of the broadcast and article the subject-matter of these proceedings. With respect, liability for the publication and republication of a defamatory statement is not confined to the entity who created that statement.

52. The resolution of these issues will have to await the trial of the action, or, possibly, the trial of a preliminary issue on an agreed set of facts.

CONCLUSION AND PROPOSED FORM OF ORDER

53. It is now too late for the Plaintiffs to institute proceedings before the courts of the mooted foreign forum, Washington, District of Columbia. This is because the one year limitation period has expired, and the Defendants are not prepared to waive the limitation period. It would be unjust to stay the proceedings before the Irish Courts as it would result in plaintiffs, who are unblameworthy, being denied access to the courts in either jurisdiction. See paragraphs 26 to 37 above.

54. The separate motion to strike out the proceedings as against the second and third defendants is refused for the reasons explained at paragraphs 38 to 52 above.

55. As to legal costs, my provisional view is that the Plaintiffs, having been entirely successful in resisting both motions, are entitled to recover their legal costs as against the Defendants. The proceedings will be listed before me on 25 February 2025 at 10.45 o’clock for final orders.

Appearances

Mark Harty SC and Alannah McGurk for the plaintiffs instructed by WP Tweed & Co Eoin McCullough SC and Hugh McDowell for the defendants instructed by Dentons Ireland LLP