Court of Appeal dismisses appeals and orders defendants to pay plaintiffs' costs on interlocutory matters.

THE COURT OF APPEAL

Court of Appeal Record Numbers: 2025/101

& 2025/99

High Court Record Number: 2021/1110P

Neutral Citation Number [2026] IECA 117

Faherty J. Butler J. McDonald J.

BETWEEN/

DECLAN GANLEY AND RIVADA NETWORKS LIMITED

PLAINTIFFS/RESPONDENTS

-AND-

CABLE NEWS NETWORK INC., CABLE NEWS INTERNATIONAL

LIMITED AND TURNER BROADCASTING SYSTEM EUROPE LIMITED

DEFENDANTS/APPELLANTS

JUDGMENT (on costs) of Mr. Justice Denis McDonald delivered on 29th June 2026

1. On 13th March 2026, the Court gave judgment ([2026] IECA 33) on two appeals. For the purposes of this ruling, I will refer to that judgment as “the substantive judgment”. The first appeal related to the refusal by the High Court of the application made on behalf of all of the defendants for an order pursuant to O. 12, r. 26 of the Rules of the Superior Courts (“R.S.C.”) setting aside service of notice of the plenary summons on the defendants out of the jurisdiction. That application was made on the basis of a contention that Ireland is not the appropriate forum for the hearing of this litigation and that, in fact, the more appropriate jurisdiction for the hearing of the plaintiffs’ case is the United States of America where the first defendant is based. The second appeal related to the refusal by the High Court of the application brought by the second and third named defendants under O. 19, r. 28, R.S.C., and under the inherent jurisdiction of the High Court seeking to dismiss these proceedings either as disclosing no reasonable cause of action or on the grounds that the claims made against the second and third defendants are bound to fail.

2. For the reasons discussed in the substantive judgment, I concluded that both appeals should also be dismissed. In para. 146, I expressed the view that, in circumstances where the second and third defendants have been unsuccessful in their appeal in respect of the refusal of the High Court to dismiss the proceedings against them, the plaintiffs are presumptively entitled to an order for the costs of that appeal against them. In the same paragraph, I expressed the view that, in circumstances where all of the defendants have been unsuccessful in their appeal against the refusal of the High Court to decline jurisdiction, the plaintiffs are also presumptively entitled to an order for the costs of that appeal against the defendants. The defendants were given liberty to deliver written submissions if they sought to canvass for a different order in respect of costs and the plaintiffs were given liberty to respond in the event that the defendants delivered such submissions.

3. Written submissions were subsequently exchanged within the timeframe fixed by the Court. In their submissions, the defendants very properly accepted that the plaintiffs were entitled to the costs of both appeals but they sought a stay on entry and execution of the two costs orders, pending the determination of the proceedings. They referred in this context to the approach taken in Permanent TSB v. Skoczylas [2020] IECA 152 where the Court of Appeal stated at para. 53: "When a court is asked to stay an order, it is called upon to exercise its discretion and to maintain the balance the justice between the parties. It must consider all of the circumstances in the particular case. Its focus should not be unduly narrow. Frequently, the application for a stay will be made in respect of an interlocutory order or a final order which is under appeal. The proceedings have not come to an end and further judicial consideration of the merits of the proceedings are envisaged."

4. The defendants then referred to the approach which had been taken by the High Court judge and they relied on what he had said on the issue of costs in an ex tempore ruling given on 25th February 2025 where he observed: “It seems to me, and this hasn't been disputed in submission, that both parties are of significant financial means. There is no suggestion that either the Plaintiff or the Defendants has any difficulty in maintaining these legal proceedings, and there is no suggestion that if the Plaintiff isn't entitled to execute the costs order now that there is any risk that at the end of the proceedings, that one or other of the Defendant companies will have become insolvent with the result that the costs ordinary will be of no practical benefit. So it seems to me that it is appropriate to grant a stay.”

5. The approach taken by Simons J. in relation to the costs of the High Court hearings is consistent with the usual approach taken in the Commercial List of the High Court. The plaintiffs have not sought to interfere with the approach which he has taken in respect of the High Court costs.

6. The defendants also referred to a number of other judgments of Simons J. in relation to the costs of interlocutory applications in the High Court including his judgment in Carey v. Sweeney [2021] IEHC 751, where, at para. 16, he suggested that the grant of a stay was "the standard approach" and he also said, at para. 15, that the rationale for this approach is as follows): "It is unsatisfactory for parties to ‘cash in’ costs orders obtained during the course of proceedings. This is because the final costs position may be different at the end of the proceedings. A party which has, for example, lost a number of interlocutory applications along the way may ultimately be successful on the substantive issues in the case. In such a scenario, it is proper that the various costs orders be set-off against each other, with the outstanding balance being paid to whichever party is appropriate."

7. The prospect that there may be a set-off in the manner described by Simons J. in that context is expressly envisaged in O. 99, r. 26(2) R.S.C. which provides as follows: “In any case in which a party entitled to receive costs is liable to pay costs to any other party, the Legal Costs Adjudicator may adjudicate the costs such party is so liable to pay, and may adjust the same by deduction or set off without any order of the Court.”

8. In their submissions, the defendants noted that the underlying defamation proceedings will now proceed towards trial and that such trial will presumably take place before a jury. Given the early procedural status of the proceedings, they submitted that there is “every possibility” of further interlocutory applications prior to a trial (in relation to matters such as discovery or defamatory meanings). On that basis, they suggested that it is “virtually certain” that further costs orders will be made in the proceedings, and that “it is as likely as not” that there will be costs orders made in the defendants' favour such that it would be unfair for them to be required to make a payment of costs at this stage, given that they may need to seek to recover costs against the plaintiffs at some later date. They submitted that fairness accordingly required that any interlocutory costs orders to be stayed and that a reconciliation of the various costs orders on each side should take place at the conclusion of the proceedings.

9. In response, the plaintiffs submitted that, while it may be appropriate for the High Court to grant such a stay on the costs of interlocutory applications, this is not the correct approach in the Court of Appeal. The plaintiffs highlight that the defendants have gone no further than suggesting that a “netting-off scenario is the standard approach” and that the defendants have not shown that they would suffer irreparable harm in the event that a stay is refused.

10. The plaintiffs maintain that there is no risk of injustice to the defendants in this case and no risk of possible irreparable harm should a stay be refused. On the other side of the equation, while the plaintiffs acknowledge that they “are not impecunious”, they stress that the first-named plaintiff is a private citizen and they say that the defendants’ applications to the High Court and these appeals have caused considerable costs to be incurred in these proceedings at a very early stage. They also submit that the fact that they are not impecunious is a factor that, in turn, negates any irreparable harm issue.

They also point out that the unsuccessful applications and appeals brought by the defendants have caused significant delay in these proceedings and they suggest that the defendants were “utilising their unlimited resources to avoid this trial for as long as possible.” As a consequence, they say that the trial remains a very long way off.

11. In support of their arguments, the plaintiffs rely on the decision of this Court in Keena v. Promontoria [2023] IECA 319. That judgment dealt with whether a stay should be granted on an order for costs in the plaintiff’s favour where the plaintiff had succeeded in an appeal from a decision of the High Court dismissing her case on the grounds that, at trial, she had failed to make out a prima facie case. The Court of Appeal upheld the plaintiff’s appeal and directed that the matter should be sent back to the High Court and that the trial should continue. The defendants did not resist an order against them in respect of the costs of the appeal but they sought a stay on the costs order pending the determination of the High Court proceedings. Like the defendants in this case, the defendants in Keena v. Promontoria argued for the netting-off approach. In particular, they submitted that, since the substantive action had to resume before the High Court and its ultimate conclusion was uncertain, the various potential outcomes included the possibility that the plaintiff’s proceedings might be dismissed with an order for costs against her. Thus, it was contended, it would be both premature and unfair that she obtain payment of her costs in respect of this appeal prior to the conclusion of the proceedings. This argument was not sufficient to persuade the Court to grant a stay on the order for costs.

12. At para. 18 of her judgment on the issue of a stay, Whelan J. emphasised that the burden rests on the unsuccessful appellant to “establish on the balance of probabilities that it is in the interests of justice that a stay of execution of the costs … of this appeal be granted pending conclusion of the proceedings before the High Court”. At para. 19, Whelan J. said that, in the context of whether a stay should be placed on the costs of an interlocutory hearing, there was “a fundamental distinction of substance” between the approach to be taken in respect of the costs of first instance hearings of interlocutory matters in the High Court and the costs of appeals dealing with orders made by the High Court in such hearings. In that context, Whelan J. cited the observations of Faherty J. in Minister for Communications Energy & Natural Resources v. Wymes [2020] IECA

274 at para. 44 where the latter stressed that: “…The onus clearly rests on the party seeking such a stay to satisfy the Court that it is in the interests of justice to do so …”

13. The plaintiffs draw attention to the fact that, at para. 29 of her judgment in Keena v. Promontoria, Whelan J. observed that it was significant that the respondents in that case had failed to identify any material risk of injustice in the event of a refusal of a stay “beyond the inevitable routine inconvenience of having to satisfy an order for costs validly made”. They also highlight that, at para. 33, Whelan J. noted that there was no suggestion of impecuniosity on the part of the successful appellant and they re-iterate that this is equally true here. On the basis of the approach taken by the Court in Keena v. Promontoria, the plaintiffs submit that no stay should be imposed on the costs orders to be made.

Ruling on the application for a stay

14. In light of the approach taken in Keena v. Promontoria and Minister for Communications Energy & Natural Resources v. Wymes, it is clear that the defendants bear the burden of establishing that it is in the interests of justice that a stay should be granted on the orders for costs to which the plaintiffs are entitled, It is equally clear from Keena v. Promontoria, that, in the Court of Appeal, the possibility that there may be a set-off of costs in the future is not sufficient in itself to justify the grant of a stay. That position may be different where the party entitled to the costs of an appeal is impecunious or where there is some other potential impediment to a successful set-off of costs. Crucially, there is no suggestion here that the plaintiffs are impecunious or that there will be any particular difficulty in recovering costs against them in the event that the defendants are successful in recovering orders for costs against them at a later point in these proceedings.

15. In these circumstances, it follows that the applications for a stay on the orders for costs should be refused.

16. I should make clear that the principle addressed in this judgment is confined to the costs of appeals of interlocutory orders made by the High Court. It is not intended to affect the manner in which the High Court deals with applications for stays on the costs of interlocutory hearings in that Court.

The order to be made

17. The plaintiffs are entitled to the costs of both appeals, such costs to be adjudicated in default of agreement. In the appeal in respect of the refusal of the High Court to decline jurisdiction, the order for costs is as against all of the defendants. In the appeal against the refusal of the additional orders sought by the second and third defendants, the order for costs is solely against those defendants.

18. The defendants’ application for a stay on the orders for costs is refused.

19. Faherty and Butler JJ. have confirmed that they agree with this judgment and the orders proposed above.