Court of Appeal dismisses appeals on forum non conveniens and no reasonable cause grounds, affirming Irish jurisdiction.

APPROVED NO REDACTIONS NEEDED

THE COURT OF APPEAL

Court of Appeal Record Numbers: 2025/101

& 2025/99

High Court Record Number: 2021/1110P

Neutral Citation Number: [2026] IECA 33

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 of Mr. Justice Denis McDonald delivered on 13th March 2026

Introduction

1. There are two appeals before the Court in respect of orders made by the High Court (Simons J.) on 25th February 2025. In the first appeal, all of the defendants are appellants. In the second appeal, the second and third defendants are the sole appellants. The first appeal relates to the refusal by the High Court of the defendants’ application for an order pursuant to O. 12, r. 26 of the Rules of the Superior Courts (“RSC”) setting aside service of notice of the plenary summons on the defendants out of the jurisdiction. That application was made on the ground 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. While the defendants argue that the litigation could be heard in a number of U.S. States, they have identified Washington D.C. as the most appropriate forum. A challenge to jurisdiction on such grounds is often characterised by reference to the Latin tag, forum non conveniens. For the reasons discussed in some detail below, I have concluded that the appeal should be dismissed on the basis that Ireland is the most appropriate forum for the hearing of the plaintiffs’ claim.

2. The second appeal relates to the refusal by the High Court of the application brought by the second and third named defendants under O. 19, r. 28, RSC, 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. For the reasons discussed below, I have concluded that this appeal should also be dismissed. It is not clear at this stage of the proceedings that the claims against the second and third defendants are bound to fail.

The parties

3. In order to understand the issues which arise on this appeal, it is necessary to briefly describe the parties and the nature of the claim made by the plaintiffs/respondents in these proceedings. The first plaintiff (“Mr. Ganley”) is a well-known businessperson but he is also widely known outside the business community in Ireland as a result of his prominent role in a number of Irish referendum campaigns including the campaign in relation to the Treaty of Lisbon. The second plaintiff (“Rivada Ireland”) was established in 2005 by Mr. Ganley. It is an Irish subsidiary of Rivada Networks Inc., a company incorporated in the United States which I will refer to as “the US parent company”. Mr. Ganley says that the US parent company trades under the name “Rivada Networks” in that jurisdiction. Mr. Ganley is the Chief Executive Officer (“CEO”) of both entities. According to Mr. Ganley, Rivada Ireland functions as the Irish office of the US parent company. Mr. Ganley also says that the US parent company, Rivada Ireland, and a second subsidiary of the US parent, Rivada Networks LLC (which is also incorporated in the United States) provide communication services and operate under the direction of Mr. Ganley and their respective boards of directors. Mr. Ganley further says that these Rivada entities all operate as “Rivada Networks” in the various jurisdictions in which they carry on business.

4. The first defendant (“CNN”) is incorporated in the United States and has its registered office and headquarters in Atlanta, Georgia. It is an international cable news network and media company. It owns and operates numerous news platforms and services including the CNN and CNN International news channels. The second defendant (“CNIL”) is a company incorporated in the United Kingdom with its registered office in London. It is an indirect subsidiary of CNN. The third defendant (“Turner”) is a private limited company which is also incorporated in the United Kingdom with its registered office in London. According to the evidence before the court, Turner is an affiliate, but not a subsidiary of CNN and both companies have the same ultimate owner (Warner Bros. Discovery, Inc.).

The plaintiffs’ claim

5. The plaintiffs complain that on 20th October 2020 the defendants defamed the plaintiffs in the course of two publications, the first comprising a broadcast on the CNN International news channel on that date and the second in an article published on the CNN.com website on the same day. The defendants accept that the article was published in Ireland for the purposes of the Defamation Act 2009 (“the 2009 Act”) because it appeared on the website which is available in Ireland and because it was published on the CNN International television channel which is also available in Ireland.

For the purposes of this judgment, it is unnecessary to set out the full terms of either the broadcast in question or the article in question. It is sufficient to note that it is the plaintiffs’ case that the broadcast and article suggest that the plaintiffs have initiated a corrupt process to obtain a contract to lease the US Department of Defence’s mid-band spectrum in circumstances which are designed to preclude a competitive bidding process for this opportunity. The plaintiffs claim that the publications directly identified the trading name of Rivada Ireland namely, “Rivada Networks” and that they also indirectly identified Mr.

Ganley who the plaintiffs maintain is clearly identifiable by any reasonable reader or viewer in Ireland who either observed the broadcast or read the on-line article. In para. 11 of their statement of claim, they contend that Mr. Ganley has a high profile in this jurisdiction and that his identity is synonymous with that of Rivada Ireland. The plaintiffs also claim that, subsequent to the original publications on 20th October 2020, there were a number of re-publications by third parties which served to exacerbate the damage caused to the plaintiffs and which the plaintiffs allege were foreseeable to the defendants.

These include a number of social media posts but also re-publication in online reports by Irish based print media including in the Irish Times on 21st October 2020 under the headline “Declan Ganley denies Donald Trump trying to swing lucrative 5G contract for Rivada”, a further report in the Irish Times on 22nd October 2020, a report in the Irish Independent on 21st October 2020 under the headline “Businessman Declan Ganley denies US report of ‘no bid contract’ push”, a further report in the Irish Independent on 22nd October 2020 “Trump is not giving me special help, insists Ganley” and a publication in the London Times (Irish edition) on 22nd October 2020 “Declan Ganley denies claim White House officials are trying to fast-track 5G deal”.

The correspondence between the parties prior to commencement of the proceedings

6. Very soon after the publications in question, the plaintiffs’ solicitors wrote to CNN on 30th October 2020 complaining that they had been defamed. CNN responded on 9th November 2020 in which they stated (among other things) that, if the plaintiffs insisted on bringing an action against CNN in Ireland “where you would not have jurisdiction over CNN”, their claims would fail for two reasons: –

(a) in the first place, CNN would rely on section 26 of the 2009 Act on the basis that the material in issue was published in good faith concerning a subject of public interest and that it was fair and reasonable to publish the material;

(b) second, in the event that the plaintiffs prevailed in a defamation claim in Ireland, CNN maintained that the resulting judgment would be unenforceable in the United States as a consequence of the Federal Speech Act enacted in 2010 under which foreign judgments for defamation are not recognised in the United States unless the US courts determined that the law applied by the foreign jurisdiction is at least as “speech-protective” as the First Amendment to the US Constitution and the law of the relevant State.

7. At that point, CNN was the only addressee of the correspondence issued by the plaintiffs’ solicitors. However, following a further exchange of correspondence between the parties later in November 2020, in which CNN had again emphasised the impact of the Speech Act, the plaintiffs’ solicitors sent a further letter dated 18th January 2021 to CNIL in similar terms to its original letter of complaint addressed to CNN. A letter was also sent to Turner on the same day. This correspondence was met with a response on 29th January 2021 from Mr. David C. Vigilante, the Executive Vice President and General Counsel of CNN Worldwide, in which he stated that CNN is the entity that broadcast the reports about which the plaintiffs complain and that CNN is the entity that owns and operates CNN.com and holds the relevant licences. In the same letter, Mr. Vigilante stated that, to the extent that the plaintiffs wished to bring a claim, they must do so against CNN.

The application to the High Court under Order 11

8. Subsequently, the plaintiffs applied to the High Court (O’Connor J.) on 15th February 2021 under Order 11 seeking leave to serve notice of a proposed plenary summons not only on CNN but also CNIL and Turner. That application was grounded on an affidavit of Mr. Paul Tweed, solicitor, sworn on 10th February 2021.

9. In his affidavit, Mr. Tweed described the publications in issue, and he made clear that the plaintiffs are making the case that a tort was committed within the jurisdiction such as to bring the plaintiffs’ claim within the ambit of O. 11, r. 1(f). In the affidavit, Mr. Tweed explained why the plaintiffs contended that the publication was defamatory of them and he stressed that the plaintiffs maintain that Rivada Networks engaged openly and legitimately in the bidding process for the relevant US contract. The affidavit also explained why it was contended that the publication occurred in this jurisdiction both in terms of the television broadcast and the report on the CNN.com website. In para.19 of the affidavit, Mr. Tweed highlighted that Mr. Ganley is an Irish citizen who is domiciled and ordinarily resides in this jurisdiction and that he has significant personal, political and business connections with Ireland. He also maintained that Rivada Ireland, similarly, has significant connections with this jurisdiction and, in those circumstances, he made the case that Ireland is the most appropriate forum for the hearing of these proceedings.

10. The affidavit did not, however, go on to address the relative appropriateness (or otherwise) of the courts of the place of residence of the respective defendants notwithstanding that this was, at that time, a specific requirement of O. 11, rr. 2 and 5. In particular, O. 11, r. 2 required, at that time, that, in the affidavit grounding an application under O. 11, the party seeking leave to serve proceedings out of the jurisdiction should provide evidence as to the comparative cost and convenience of proceedings in this jurisdiction as against the cost and convenience of proceedings in the jurisdiction in which the proposed defendants are based. For completeness, it should be noted that, with the effect from 23rd July 2024, the provisions of O. 11, r. 2 have been changed. Under the Rules of the Superior Courts (Order 11) 2024 (S.I. No. 362 2024) the terms of O. 11, r. 2 have been amended. The rule now reads: “Where leave is asked from the court to serve a summons or notice thereof under Rule 1, the court shall have regard to the generally recognised principles of international law (and may for that purpose require the filing of written legal submissions) and whether the applicant has shown prima facie grounds that he or she has a good cause of action on the merits”.

11. With regard to the position of CNIL and Turner, Mr. Tweed, in his affidavit, referred to the letter dated 29th January 2021 from Mr. Vigilante in which he had made the case that CNIL was not a publisher of the broadcasting issue. Mr. Tweed then continued as follows:

“This correspondence is only a tentative reply however, and does not clarify which entity was responsible in law for the publication, and in fact, following communication with both the BAI and Ofcom, I say and believe that at all material times hereto it was either the Intended second or third-named Defendants that were the holders of the broadcasting licence for ‘CNN’ and ‘CNN News’ in this jurisdiction, and I say and have been so advised that the broadcasting license would need to be held with an EU entity (as they were then) to allow for broadcast in this jurisdiction.”

12. On foot of Mr. Tweed’s affidavit, O’Connor J. gave liberty to serve notice of the proceedings out of the jurisdiction on each of the defendants. The order of O’Connor J. records that the intended action against the defendants appeared to fall within the class of actions set out in O. 11, r. 1(f). That subrule addresses torts committed within the jurisdiction.

The renewed correspondence between the parties subsequent to the commencement of proceedings

13. Subsequent to the making of the order of O’Connor J., Mr. Vigilante wrote again to Mr. Tweed on 9th March 2021. In that letter, Mr. Vigilante reiterated his contention that neither CNIL nor Turner had any role in the publications in issue. The letter concluded with a warning that should the plaintiffs issue proceedings in Ireland against CNN, jurisdiction would be “vigorously contested”. This was followed by correspondence from McCann Fitzgerald, the solicitors then acting on behalf of the defendants in which they reiterated the position that neither CNIL nor Turner had any role in relation to the publications.

14. Notwithstanding the correspondence from McCann Fitzgerald, Mr. Tweed continued to maintain that it was appropriate to name both CNIL and Turner as defendants. In his firm’s letter dated 5th May 2021, Gately Tweed referred to the annual returns delivered by Turner and CNIL. The letter suggested that the returns supported the position that Turner and CNIL could have a role in relation to the publications in issue. In their letter, Gately Tweed set out the following justification for the continued maintenance of the claim against those entities: “Turner Broadcasting System Europe Limited, in its annual return, states that its activities include ‘the operation of 24 hour entertainment television networks throughout the United Kingdom (the UK), Europe, Africa and the middle east’ and ‘the licensing of a 24hr news programme of Turner Broadcasting System Inc.’ The website Media.info states ‘Turner Broadcasting System Europe operates the following brands: CNN International, Boomerang, TCM, TNT Film, Cartoon Network and Boing.’ The annual return for Cable News International Limited states that its ‘principal activity is news production and news gathering which includes the research, collation, verification, creation and storage of content intended for inclusion in Cable News Network’s programming.’ Furthermore, that annual return makes it clear that the risks and uncertainties are fully integrated with the risks of the ‘Cable News Network’ group. Both companies state that their directors and officers occupy key positions within the wider organisation.

Although the Ofcom website lists Cable News Network Inc. as the licence holder or ‘CNN International’ in the UK, the address is listed as 160 Old Street, London, EC1V 9BW , the registered address of both Cable News International Limited and Turner Broadcasting System Europe Limited. Further, as appears from the Ofcom website, in the UK, the contact for CNN holds posts in both Turner Broadcasting System Europe and CNN International Limited, amongst others.

The responsibility for reporting, as you will of course be aware, includes editorial decisions and re-publication decisions which are made in respect of the broadcast in various jurisdictions and platforms and on the internet. The question of liability does not simply rest with the party responsible for the initial decision to publish in one jurisdiction, nor does it rest with a nominated licence holder. It is clear that all these operations involve ongoing collaboration between the defendants, each and/or all of them, and that each is responsible in tort for the acts of the other.

In the circumstances it does not appear appropriate to us at this stage for the Plaintiffs to discontinue proceedings against any particular entity. …”

15. The correspondence between Gately Tweed and McCann Fitzgerald continued over the course of the summer of 2021. In a subsequent letter dated 15th June 2021 to McCann Fitzgerald, Gately Tweed indicated that the plaintiffs would be prepared to proceed solely against CNN if certain assurances were given. In the applications before Simons J. and in the course of these appeals, the defendants have sought to characterise the letter as an attempt to “barter away” the claims against CNIL and Turner. The defendants make the case that the letter supports their contention that the plaintiffs’ case against CNIL and Turner is without substance. For that reason, it is necessary to set out the terms of the letter in some detail:

“Your letter of 25 May 2021 indicates that the US-based defendant, Cable News Network Inc., (‘CNN Inc.’) has sole responsibility for production and publication of the broadcast and website content. For the avoidance of doubt, this simply does not appear plausible to our client, certainly not in respect of publication within Europe. We reiterate that the question of liability does not simply rest with the party responsible for the initial decision to publish in one jurisdiction, nor does it rest with a nominated licence holder. It is clear that the operations involve ongoing collaboration between the defendants, each and/or all of them, and that each is responsible in tort for the acts of the other. However, taking your point for a moment, if it were the case that CNN Inc. is the only appropriate defendant entity (which is denied), it strikes us as most peculiar that you would refuse our proposal to agree to limit the parties to the proceedings and thereby save resources.

It remains our client’s view that there is a clearly strong and stateable case in these proceedings. You have stated that only one defendant, CNN Inc., is the appropriate entity for these purposes. Therefore, we reiterate our proposal that the following conditions are agreed upon by all the named defendants:

(a) That the said defendant, CNN Inc., is liable for any and all publication by CNN or related entities of the statements the subject matter of the proceedings;

(b) That the said defendant, CNN Inc., does not challenge the jurisdiction of the Irish Courts in respect of publication within the European Union and Ireland in particular; and

(c) That in the event that an award or other order is made in our clients’ favour, the defendants, each and/or all of them, will honour the said award and abide by any order, and will not seek to have recourse to any jurisdictional law or national protection such as the SPEECH ACT to prevent our client from enforcing said award. The above proposal is a reasonable measure between parties to enable just and expeditious progress of these proceedings and allow us to finalise and deliver our Statement of Claim in this matter.”

16. That proposal was rejected by McCann Fitzgerald in a letter dated 16th September 2021. In the same letter, McCann FitzGerald indicated that the defendants intended to bring both an application to challenge the jurisdiction of the Irish courts to hear the proceedings and an application to strike out the proceedings against CNIL and Turner on the basis that they are not proper defendants to the proceedings. In the letter, McCann Fitzgerald also sought confirmation that the plaintiffs would be prepared to accept that CNIL and Turner are entitled to issue the application without entering an unconditional appearance and on the understanding that the application would not involve a waiver of jurisdiction. That confirmation was given by Gately Tweed on 30th September 2021 The defendants’ applications to the High Court

17. Applications seeking the relief described in paras. 1 and 2 above were subsequently brought by the defendants on 21st December 2022 and were given a first return date of 20th February 2023. The motions initially came on for hearing before Simons J. in early 2024. In a judgment delivered on 22nd March 2024 ([2024] IEHC 140) Simons J. highlighted that neither side had adduced any direct expert evidence in respect of the jurisdiction of any court within the United States to entertain a claim, at the suit of an Irish citizen or an Irish domiciled company, arising out of the publication, within this jurisdiction, of an allegedly defamatory statement. On that basis, Simons J. came to the conclusion that, on the current state of the evidence, it was not possible for him to carry out the requisite assessment of, and comparison with, an alternative forum in the United States. He therefore directed the parties to exchange expert reports in relation to the position in the United States.

18. Subsequently, an expert report of Mr. Paul Smith was put in evidence by the defendants on 30th May 2024. The replying report of Ms. Megan L. Meier was delivered on behalf of the plaintiffs on 14th November 2024. To the extent that they are relevant to the issues which arise on this appeal, those reports will be addressed in more detail at a later point in this judgment. At this point, it is sufficient to note that, in his report, Mr. Smith identified that the plaintiffs would be able to bring proceedings before the courts of the District of Columbia but he also identified that actions for defamation in that jurisdiction are subject to a one-year limitation period. Given that the publications had been made in October 2020, that limitation period had already expired prior to the bringing of the current motions. In her report, Ms. Meier agreed with Mr. Smith’s view in relation to the limitation period. After this exchange of expert evidence, no additional factual evidence was provided by either side.

The High Court judgment of 11th February 2025

19. Following the exchange of expert evidence, the matter came on for hearing again before Simons J. in early 2025. Simons J. delivered judgment on 11th February 2025. In that judgment, he identified that the criteria governing the defendants’ application under O. 12, r. 26 were outlined by the Supreme Court in Irish Bank Resolution Corporation v Quinn [2016] 3 I.R. 197 (“the IBRC case”) at paras. 68 to 70. It will be necessary to consider those paragraphs in due course. At this point, it is sufficient to note that, in the IBRC case, Clarke

J. (as he then was) expressed the view that there are two basic principles to bear in mind in considering a forum non conveniens challenge:

(a) In determining whether Ireland is the appropriate forum, 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 in order to decide whether the applicant has established that there is an alternative forum which is clearly or more distinctly appropriate than Ireland such that it could be said to be “the natural forum” for the conduct of the proceedings; and

(b) In the event that the applicant surmounts that hurdle, the Court is then required to consider whether the respondent to the application has put forward any sufficient basis for suggesting that justice nonetheless requires that the proceedings should be tried in Ireland.

20. Simons J. also referred to the decision of the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd. [1987] A.C. 460 which Clarke J., in the IBRC case, described as being “at least broadly indicative of the law in this jurisdiction”. In Spiliada, Lord Goff dealt (among other things) with the position where proceedings have become time barred in the jurisdiction which the court concludes is the more appropriate forum for the trial of the action. At pp. 483-484, Lord Goff suggested that a “ strong theoretical argument” could be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay of the English proceedings should generally be granted even though the plaintiff’s action would be time barred in the jurisdiction which has been held to be the appropriate forum. However, he added that practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in England within the relevant limitation period applicable in England and did not act unreasonably in failing to commence proceedings in the competing jurisdiction within the applicable limitation period there, it would not be just to deprive the plaintiff of the ability to pursue the claim in England. At the same time, Lord Goff warned that, when the applicable principles became “more clearly established and better known”, it was likely to become increasingly difficult for plaintiffs to prove “lack of negligence in this respect.”

21. Simons J. came to the conclusion that it would not be in the interests of justice to grant a stay of the proceedings in circumstances where it is now too late for the plaintiffs to institute proceedings in the United States and where the defendants are not prepared to waive the limitation period. Notwithstanding that no additional evidence was presented by the plaintiffs addressing the reasons why the plaintiffs had not pursued a claim in the United States, Simons J. held that the plaintiffs had acted reasonably in instituting proceedings before the Irish courts and in not issuing proceedings, on a protective basis, in the courts of the District of Columbia. In reaching that view, Simons J. observed, at para. 34 of his judgment, that it is “telling” that the defendants did not suggest Washington D.C. as an appropriate forum until after they filed their motion seeking to stay the proceedings. He highlighted that the motion was not filed until December 2022 which was more than two years after the date of publication and more than one year after the limitation period had already expired in Washington DC.

22. Simons J. highlighted that the plaintiffs confined their claim to publication in Ireland. He emphasised that this is not a case where a defamed party has sought 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 the place where the defamatory statement was most widely published. He also held that three factors showed that the proceedings have a strong connection with Ireland. First, he noted that the plaintiffs comprise an Irish citizen and an Irish registered company. Second, he said that the plaintiffs’ claim is restricted to loss and damage caused by the publication within Ireland. Third, he said that the CNN Group broadcast to consumers within the State. He also concluded that it could not be said that either the federal courts or the local courts in Washington, D.C. represented “such an obvious alternative forum” that the plaintiffs acted unreasonably in failing to issue a protective writ there.

23. With regard to the motion to strike out the proceedings against CNIL and Turner, Simons J. came to the conclusion that there was no basis to dismiss the proceedings under

O. 19, r. 28. He also decided that there was no basis to dismiss the proceedings under the inherent jurisdiction of the court in circumstances where this would involve the court making findings of fact and deciding issues of statutory interpretation on a motion. Simons J. came to the conclusion that it would not be appropriate to determine the issues that arise in relation to CNIL and Turner in a such a “peremptory manner”.

The appeal in respect of the refusal to strike out the claims against CNIL and Turner

24. As it can be disposed of more briefly, I turn first to the appeal in respect of the High Court’s refusal to strike out the claims as against CNIL and Turner. As noted earlier, this application was brought on two bases. First, it was contended that the claims should be struck out under O. 19, r. 28 on the basis that the pleadings disclose no reasonable cause of action against CNIL and Turner and that the claims are frivolous or vexatious. As the relevant motion was issued prior to 22nd September 2023, that aspect of the application falls to be assessed under the version of O. 19, r. 28 which existed prior to the enactment of the Rules of the Superior Courts (Order 19) 2023 (S.I. No. 456/2023). It is well settled that, under that version of the rule, the Court proceeds on the basis that the allegations made in the pleadings are true and no regard is had to additional evidence on affidavit. In the course of the hearing of the appeal, no attempt was made, either in the defendants’ oral or written submissions, to argue that the pleadings failed to disclose a cause of action against CNIL and Turner. In the statement of claim, the case is made that publication of the material in issue was done by all three defendants. In those circumstances, I can see no basis on which it could be said, solely by reference to the pleadings, that the statement of claim does not disclose a cause of action against CNIL and Turner. It plainly does disclose a cause of action. It follows that Simons

J. was entirely correct to reject this aspect of the defendants’ application.

25. Second, as noted in para. 2 above, CNIL and Turner also invoke the inherent jurisdiction of the Court. This aspect of their application was pursued both in written and oral submissions. They contend that it is very clear that the plaintiffs’ claim against them is bound to fail. In so far as that aspect of the application is concerned, the Court is not confined to an examination of the pleadings. Affidavit evidence is admissible.

26. In the defendants’ written submissions, it is contended that the plaintiffs have provided no evidence to support their contention that CNIL and Turner are liable for defamation. CNIL and Turner submit that this is because no evidence exists to substantiate such a case. In para. 50 of their submissions, they maintain that the naming of CNIL and Turner as defendants in the case relates solely to the television broadcast of 20th October 2020 on the CNN International News channel. They suggest that the plaintiffs have not disputed the defendants’ case that CNIL and Turner had no participation in or any responsibility for the article published on the CNN website. In para. 51, they suggest that the furthest which the plaintiffs have gone is to speculate that CNIL may have participated in the publication.

27. The defendants have also referred to the letter of 15th June 2021 from the plaintiffs’ solicitors which, as previously noted, they characterise as “an attempt to barter away” the joinder of CNIL and Turner as defendants in exchange for the defendants’ dropping their challenge to Ireland as the appropriate forum. They submit that this demonstrates that the plaintiffs do not truly believe that they have any serious cause of action against CNIL or Turner and that it lends support for the view that they have been named solely for the purposes of attempting to “shore up the very obvious jurisdictional problems” with the plaintiffs’ case. The defendants also submit that the High Court judge took an unduly cautious approach which was excessively generous to the plaintiffs and that “the uncontroverted evidence” before the High Court was that neither CNIL nor Turner had any role in relation to the impugned publications and that “whatever minimal involvement Turner had in the broadcast on CNN International would very obviously benefit from the defence of innocent publication”. On that basis, it was submitted this this was very obviously an appropriate case in which to grant the relief sought.

28. There was no dispute between the parties in relation to the applicable legal principles that govern an application of this kind. Both parties referred to the decisions of the Supreme Court in Keohane v. Hynes [2014] IESC 66 and Lopes v. Min. for Justice [2014] 2 I.R. 301. In the latter decision, Clarke J. (as he then was) highlighted the distinction between the approach taken on an application under the court’s inherent jurisdiction and that taken on an application that is pursued on the basis that the pleadings do not disclose a cause of action. As I have previously explained, in the latter case, the court looks solely at the pleadings. If, on the basis of the facts as pleaded, it is clear that the case is bound to fail, the claim will be dismissed. Conversely, where the facts pleaded disclose a cause of action, that is the end of the enquiry. At p. 309, Clarke J. in Lopes explained that, when the inherent jurisdiction of the court is invoked, a more expansive approach can be taken:

“[17] … If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail on the merits, then the inherent jurisdiction of the court to prevent abuse can be invoked.”

29. That is essentially what is alleged by CNIL and Turner here. In substance, they maintain that there is no credible basis for the plaintiffs’ case that those parties had a role in the offending publications. For that reason, it is necessary to review the evidence placed by both sides before the High Court. However, in doing so, there are a number of matters that must be kept in mind. First, as Clarke J. emphasised in Lopes, at p. 309, the courts have many times restated the proposition that this aspect of the court’s jurisdiction “should be sparingly exercised”. Similarly, in Barry v. Buckley [1981] I.R. 306, at p. 308, Costello J. (as he then was) stressed that a court would only exercise this jurisdiction in “clear cases”.

30. Second, it is necessary to understand why the courts take such a cautious approach. This was explained in clear terms by Clarke J. in Lopes at pp. 309-310, as follows: “[19] … 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] 1 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.”

31. Clarke J. also explained that the jurisdiction to strike out proceedings on this ground may be more readily invoked in document dependent cases than in cases which turn on oral testimony. At p. 310, he said: “At the same time, it is clear that certain types of cases are more amenable to an assessment of the facts at an early stage than others. Where the case is wholly, or significantly, dependent on documents, then it may be much easier for a court to reach an assessment as to whether the proceedings are bound to fail within the confines of a motion to dismiss …”

32. Bearing those principles in mind, I now turn to consider the relevant evidence. I do so against the backdrop that, on an application of this kind, the defendants bear the burden of demonstrating that it is clear that the plaintiffs cannot succeed in their case against CNIL and Turner.

33. In support of the application to strike out the proceedings as against CNIL and Turner, an affidavit was sworn by Ms. Karyn Harty, Solicitor, on 21st December 2022 in which she addressed the position of Turner and CNIL. Ms. Harty stated that CNIL is the UK bureau of CNN and employs CNN's UK team. According to Ms. Harty, it had no role in the creation or distribution of the publications in issue. She also stated in paragraph 13 of her affidavit that, although employees of CNIL create content for publication “on occasion”, that was not the case in respect of the impugned publication of 20th October 2020.

34. Plainly, Ms. Harty has no personal knowledge of any of these matters or the further material described below. However, Mr. Vigilante has since sworn an affidavit in which he has asserted that, through his role as executive vice president and general counsel of CNN Worldwide and in the performance of his duties as an employee, he has “familiarised [himself] with the structure, responsibilities and functions of the relevant entities.” On that basis, he has said that the relevant averments made by Ms. Harty are correct.

35. With regard to Turner, Ms. Harty said, in para. 14 of her affidavit, that Turner is the licensed distributor of the “CNN International” channel to affiliates in Europe under an agreement with CNN and that Turner is a “sub-licensor of the channel as compiled by CNN and so a distributor in technical terms only, and does not have a role in the content published”.

36. With regard to the website publication, Ms. Harty stated in para. 15 of her affidavit that CNN owns and operates that website and is the only one of the three defendants responsible at law for any publications on the website. She further stated that neither CNIL nor Turner had “any hand, act or part in the authorship or publication of the article” and that responsibility for the content of both the US edition of the website and the international edition of the website lies solely with CNN.

37. Turning to the television broadcast publication, Ms. Harty said in para. 16, that CNN Inc. owns and operates both the CNN Television News channel in the United States and the CNN International Television News channel, internationally. She further asserted that neither CNIL nor Turner had any role or function in the creation of the impugned publications which she acknowledged had appeared on the CNN International television channel.

38. In paras. 17 and 18 of affidavit, Ms. Harty noted that CNN is the licence-holder for both the United Kingdom and Europe in respect of broadcasting and she exhibited a number of licences namely:

(a) A licence granted to Turner dated 17th July 1995 by the Independent Television Commission of the United Kingdom under the Broadcasting Act 1990 (UK) to provide a non-domestic satellite service for the service known as CNN International;

(b) A transfer of the said licence on 13th December 2012, transferring it from Turner to CNN; and

(c) A confirmation dated 3rd December 2020 from authorities in Luxembourg addressed to CNN to the effect that, following the withdrawal by the United Kingdom from the European Union, Luxembourg would be the jurisdiction for regulating CNN International from 1st January 2021.

39. In para. 61 of this affidavit, Ms. Harty addressed the proposal made by Gately Tweed in their letter of 15th June 2021 quoted in para. 15 above and which subtends the submission made by the defendants (summarised in para. 27 above) that the plaintiffs were prepared to “barter away” the joinder of CNIL and Turner. She said: – “61. It is worth observing that, at that juncture, Gateley Tweed appeared willing to ‘barter away’ the joinder of Cable News International and Turner, in exchange for the Defendants dropping their jurisdictional challenge, indicating that the Plaintiffs do not truly believe that they have any cause of action against Cable News International or Turner. Conditions (ii) and (iii) bear virtually no relationship whatsoever to the stated basis for Cable News International and Turner being included in the litigation. Either the Plaintiffs believe that Cable News International and Turner were publishers, or they do not; I believe it is improper for the Plaintiffs to include those parties in the proceedings as a mere bargaining chip.”

40. A replying affidavit was sworn on behalf of the plaintiffs on 11th May 2023 by Mr. Tweed in which he maintained that the defendants are seeking to engineer a situation where the only remaining defendant is domiciled in the United States and thus protected by US law regarding the enforcement of foreign judgments in defamation actions. In para. 11 of his affidavit, he stated that, while CNN may have held the relevant broadcasting licence at the relevant times, there is no “conclusive evidence” that CNIL and Turner had no role or function in the creation or dissemination of the publications in issue.

41. In para. 13 of his affidavit, Mr. Tweed referred to the annual return for Turner for the year ending 31st December 2021 in which it described its activities as including: - “‘The operation of 24-hour entertainment television networks throughout the United Kingdom (the UK), Europe, Africa and the middle east’ and ‘the licensing of a 24hr news programme of Turner Broadcasting System Inc.’”

42. Mr. Tweed also referred to the media.info website which states: “Turner Broadcasting System Europe operates the following brands: CNN International, Boomerang, TCM, TNT Film, Cartoon Network and Boing.” While I understand that the website in question is not one with which the defendants have any connection, it seems clear that this material was cited with a view to suggesting that evidence may exist which contradicts that put forward on behalf of CNIL and Turner by their solicitor, Ms. Harty.

43. Mr. Tweed next turned to the position of CNIL. He referred to the annual return of CNIL for the year ending 31st December 2021 which describes its principal activity as “news production and news gathering which includes the research, collation, verification, creation and storage of content intended for inclusion in cable news network’s programming”. This chimes with what Ms. Harty said in para. 13 of her affidavit to the effect that CNIL employees create content for publication on occasion albeit that she contends that this was not the case in respect of the publications in issue.

44. Mr. Tweed noted that the annual return for CNIL also made it clear that the risks and uncertainties facing that entity are fully integrated with the risks of the “Cable News Network” group and that both CNIL and Turner state in their respective returns that their directors and officers occupy key positions within the wider organisation. Mr. Tweed further noted that the address of CNN in the United Kingdom is also the registered office of both CNIL and Turner. In para. 16 of his affidavit, he added: – “I say and am advised that the responsibility for reporting and liability for the offending publications includes editorial, distribution and republication decisions which are made in respect of the broadcast in various jurisdictions and platforms and on the internet. The question of liability cannot simply rest with the party responsible for the initial decision to publish in one jurisdiction, nor does it rest with a nominated licence holder. Or if it does, this is certainly not a matter that can be determined summarily. It is clear that all operations and publications by CNN involve ongoing collaboration between the Defendants, each and/or all of them, and that each is responsible in tort for the acts of the other. Therefore, the question of whether all or one or other of the Defendants is liable for the offending publications is not a question that can be determined by this Honourable Court at this stage.”

45. In para. 17 of his affidavit, Mr. Tweed also noted that it had been accepted by the defendants in Ms. Harty’s affidavit that the offending publications were published in this jurisdiction for the purposes of the 2009 Act on a TV channel and Mr. Tweed stated that this channel is accessible in millions of homes throughout Ireland via a number of different platforms. On that basis, he maintained that, even if it is the case that the claim as against CNIL and Turner is limited to the live television broadcast, they are “still proper parties to these proceedings”.

46. Furthermore, in para. 21 of his affidavit, Mr. Tweed stated that: – “It is clear that as with any international broadcaster, all operations, distributions, and publications by CNN in Europe involve ongoing collaboration between the Defendants, each and/or all of them, and that each is responsible in tort for the acts of the other. Therefore, the question of whether all, or one or other of the Defendants is liable for the offending publications, is not a question that can be determined summarily by this Honourable Court at this stage.”

47. In reply, Mr. Vigilante swore an affidavit on behalf of the defendants on 6th July 2023. In paras. 18 to 25, Mr. Vigilante addressed the material contained in Mr. Tweed’s affidavit. In para. 18, he said that, “in addition to the averments made by Ms. Harty in her grounding affidavit”, Turner is “in essence” an agent in Europe whose function it is to negotiate commercial terms for the distribution of various television channels in Europe. In para. 19, he stated that Turner previously held a licence from Ofcom (the relevant regulatory body in the United Kingdom) to distribute the CNN television channel in the United Kingdom. However, in 2008, that licence was transferred to CNN Inc. “because Ofcom required that the entity holding the licence should have editorial control over the content.” He added that, because Turner does not have such editorial control over content, it could not hold the licence.

48. With regard to Turner’s Annual Return, Mr. Vigilante contended that, in the Return, Turner distinguished and highlighted the difference between the networks it operates (which include Cartoon Network and Boomerang) versus the network it licences namely CNN International. With regard to the media.info website, Mr. Vigilante suggested that the averment made by Mr. Tweed “is hearsay and factually incorrect”. It is true that Mr. Tweed’s averment is hearsay but it is clear from Lopes that, on an application of this kind, a plaintiff does not have to prove all of the material on which the plaintiff relies to defeat the application. As Clarke J. explained, at pp. 309-310, it is sufficient if the plaintiff can 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.

49. Mr. Vigilante addressed the position of CNIL in paras. 23 and 24 of his affidavit. In para. 23, Mr. Vigilante acknowledged that it is true that CNIL engages in news production and news-gathering activities through its London bureau but he maintained that none of its personnel had been involved in the reporting of the publications in issue. He added in para.

24 of his affidavit that there is no individual who holds the position of director or officer of all three defendants simultaneously. He then concluded his affidavit in the following terms in para. 25:

“Mr. Tweed avers at paragraph 19 of his affidavit that there is no admissible evidence that CNN, Inc. alone is responsible for the impugned publications. I hereby confirm that that is the position and that I know this because I am familiar with the operations of CNN, Inc. and related companies (including Turner and Cable News International).”

50. It is clear from Mr. Vigilante’s affidavit that the defendants strongly reject the case made by the plaintiffs that CNIL and Turner had some role in the website and broadcast publications in issue. However, unlike Barry v. Buckley, this is not a case which is wholly or significantly dependent on documents. None of the evidence advanced on behalf of CNIL and Turner (including the broadbrush assertion made by Mr. Vigilante in para. 25 of his affidavit) has yet been tested by cross-examination. It would plainly have been inappropriate to have sought to do so on an application of this kind.

51. The observations of Clarke J. in Lopes must be borne in mind. As outlined in para. 30 above, Clarke J. emphasised that there are a range of procedures available to assist in establishing the facts at trial. Documents can be obtained through the discovery process both from opposing parties and, where appropriate, from non-parties. Interrogatories can be delivered. Witnesses can be subpoenaed and can be required to bring their documents with them. It is also the case that evidence can also be sought from abroad through requests made to foreign courts by means of letters rogatory. Thus, in a case such as this which is not document dependent (unlike an action for specific performance of a contract for the sale of land), the picture presented by the moving party on affidavit may, on enquiry, be shown at trial to have been inaccurate, incomplete or even misleading.

52. While the defendants have suggested that there is no evidence at all to support the plaintiffs’ case as to involvement by CNIL and Turner in the publications in issue, the position, even on their own evidence is, by no means, clear cut. In so far as CNIL is concerned, Ms. Harty has acknowledged in para. 13 of her affidavit that employees of CNIL, on occasion, create content. Similarly, Mr. Vigilante has conceded that CNIL is engaged in news production and news-gathering activities. In my view, these are significant concessions. While Ms. Harty and Mr. Vigilante have both contended that CNIL was not so engaged on the occasion of these publications, these assertions are plainly capable of being tested and interrogated by means of some or all of the mechanisms identified by Clarke J. in Lopes.

53. Moreover, as Simons J. observed in para. 51 of his judgment, liability for the publication or republication of a defamatory statement is not confined to the entity which created the statement. Thus, even if it ultimately found to be the case that CNIL had no role in the initial creation of the statements in issue, that would not necessarily be the end of the enquiry. I believe that the judge was correct in his conclusion that it will be necessary for a court, in due course, to reach a view on the precise interaction between the three defendants. At this point in the proceedings, there is insufficient evidence before the Court to allow such a view to be formed.

54. In these circumstances, I do not believe that the defendants have shown that this is a sufficiently clear case to allow a court to form the view, at an interlocutory stage of the proceedings, that the plaintiffs’ claim against CNIL is bound to fail.

55. It seems to me that similar considerations apply in so far as the case against Turner is concerned. In this context, Ms. Harty has acknowledged that Turner is a distributor albeit that she has suggested this is so “in technical terms only”. It is true that Mr. Vigilante has sought to further diminish its distribution role and has exhibited some documents in support of that contention. But there is no averment that these are the only relevant documents that may exist and, even if there were, any such averment would also be capable of being tested in due course at an appropriate stage of the proceedings. It is also noteworthy that, as set out in para. 27 above, the defendants go so far, in their written submissions, as to suggest that whatever “minimal involvement Turner had in the broadcast on CNN International”, the broadcast should benefit from the defence of innocent publication. That submission implicitly acknowledges that Turner may have had a role. If it did have such a role, it would not be appropriate, on the basis of the very limited evidence currently available, to determine whether such a defence is – or is not – open to it. Whether Turner would be entitled to benefit from such a defence would depend on the facts and circumstances established at trial.

56. In addition, notwithstanding the transfer of the licence from Turner to CNN in December 2008, as described by Ms. Harty, the Strategic Report contained in Turner’s annual return for 2021 continues to speak (as Mr. Tweed has highlighted) of the company “operating” 24-hour entertainment television networks throughout Europe and to describe Turner as being engaged in the “licensing” of 24-hour news programming of CNN Inc. Both are identified on p. 2 of the report as “principal activities” of Turner. On the following page, it is expressly stated that: “The company licenses and creates programmes for sale to its customers” (emphasis added). As noted above, Mr. Vigilante has suggested, in his replying affidavit, that Turner, in its annual report, highlights the difference between the networks operated by it (such as the Cartoon Network) and those which it licenses (such as CNN International). However, I do not believe that the return suggests such a bright line division between the licensing aspects of Turner’s business, on the one hand, and the programme creation aspects of its business, on the other. Accordingly, it cannot be said, on the basis of the limited material currently before the Court, that the evidence clearly establishes that Turner is not engaged in any content creation in so far as news programming is concerned. In turn, it cannot be said, at this stage of the proceedings, to be sufficiently clear that Turner had no role in the creation of any element of the publications in issue.

57. For completeness, I should record that in reaching the conclusions outlined above, I have not had any regard to the proposal made in the Gately Tweed letter of 15th June 2021 described in para. 15 above. The defendants have suggested that the letter shows that the plaintiffs were prepared to “barter away” the joinder of CNIL and Turner, in exchange for the defendants dropping their jurisdictional challenge and that this was, in some way, an indication of the plaintiffs’ non-belief in their cause of action against CNIL and Turner. However, I do not believe that the letter necessarily suggests that the plaintiffs do not truly believe that they have any cause of action against CNIL or Turner. It seems to me that the letter is equally capable of being interpreted as a perfectly rational litigation offer in circumstances where the Speech Act was being relied on by CNN. If CNN did not seek to rely on the Speech Act and if it agreed to submit to the jurisdiction, the need to pursue the additional defendants would not arise. The plaintiffs would have, in CNN alone, a “mark” against whom any award of damages could be enforced.

58. For all of these reasons, I am satisfied that the High Court judge was correct to refuse the application by CNIL and Turner to strike out the proceedings as against them. It follows that the appeal in relation to his decision to that effect must be dismissed.

The appeal in relation to the appropriate forum

59. In so far as the appeal on forum is concerned, it is necessary to keep in mind the nature of the defendants’ challenge to the jurisdiction of the Irish courts. It is expressly accepted in Ms. Harty’s grounding affidavit that there was publication in Ireland for the purposes of the 2009 Act. In para. 24 of that affidavit, she said:

“It is accepted that the article was published in Ireland for the purpose 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 for the purpose of the Defamation Act 2009 because it was published on the ‘CNN International’ television channel, which is available in Ireland through Sky Vodafone Ireland Limited, Virgin Media Ireland, and Eircom Limited. The ‘CNN’ channel is not broadcast in Ireland.”

60. This means that there is no contest that the case falls within O. 11, r. 1(f) on the basis that the alleged tort occurred within the jurisdiction. The defendants’ challenge is based on the contention that the courts of the United States and, in particular, the courts of the District of Columbia, are a more appropriate forum than the courts of Ireland. The basis on which they put forward their case to that effect is well summarised in para. 6 of Ms. Harty’s grounding affidavit sworn on 21st December 2022. In that paragraph, Ms. Harty described her clients’ position as follows:

“that, having regard to the contents of the impugned publications in these proceedings and the surrounding facts, the appropriate jurisdiction for the hearing of the Plaintiffs' case is the United States of America. The events and personalities referred to in the impugned publication are all based in the United States. The impugned publications make no reference whatsoever, either express or implied, to Mr Ganley, Rivada Networks Limited, or any person or thing connected with Ireland”

61. As I have previously mentioned, no complaint is made in Ms. Harty’s affidavit that there was a failure on the part of the plaintiffs to address the requirements of O. 11 rr. 2 and

5. Under the terms of those rules in force at the time the application was made to O’Connor J., a party seeking an order authorising service of proceedings out of the jurisdiction was required to address the comparative cost and convenience of proceedings in Ireland as against the cost and convenience of the jurisdiction in which the proposed defendants reside. In paras. 17 and 19 of his affidavit sworn on 5th February 2021 grounding the plaintiffs’ application under O. 11, Mr. Tweed addressed the basis on which it is contended that Ireland is the appropriate forum in which the plaintiffs’ claim should be heard and determined. However, his affidavit is silent on the issue as to why the plaintiffs contend that it provides a more appropriate forum than the United States or England & Wales which are the jurisdictions in which all of the defendants reside. As the decision in Merck KGaA v. Merck Sharp & Dohme LLC [2025] IECA 192 illustrates, a failure to address the comparative position as between Ireland and the defendant’s jurisdiction may result in the setting aside of an order for service out of the jurisdiction under O. 11. However, that is not the approach that was taken in Ms. Harty’s affidavit grounding the application to set aside service of the proceedings in this case. Instead, the case made in Ms. Harty’s affidavit is that, as a matter of fact, the U.S. courts are a more appropriate forum than Ireland for the purposes of determining the plaintiffs’ claim. In essence, the defendants’ application is based on forum non conveniens grounds.

62. As noted in para. 19 above, the judgment of the Supreme Court in the IBRC case makes clear that, in the context of a forum non conveniens challenge, the Court should first seek to determine whether there is another more appropriate forum than Ireland for the resolution of the underlying dispute. If the Court is satisfied that there is another more appropriate forum, the Court is then required to consider whether the respondent to the application has put forward any sufficient basis for suggesting that justice nonetheless requires that the proceedings should be tried in Ireland. In the event that the Court determines that Ireland is the more appropriate forum, the second issue falls away.

63. In determining the first issue (i.e. whether a foreign forum is the appropriate forum), a court will look at practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties in order to decide whether it has been established that there is an alternative forum which is clearly or more distinctly appropriate than Ireland such that it could be said to be “the natural forum” for the conduct of the proceedings.

Who bears the burden of proof?

64. At the hearing of the appeal, there was a dispute between the parties as to which side bears the burden of proof in respect of the first issue. Although the defendants had accepted in their written submissions that they bear the burden of establishing that the courts of Washington D.C. represent a clearly or more distinctly appropriate forum than the courts of Ireland, their counsel, in oral submissions, took a different position. Counsel argued that Clarke J. was in error in expressing the view in the IBRC case that the relevant burden lay on the defendants in an application of this kind. In this context, it may, at first sight, seem audacious that a suggestion could be made in the Court of Appeal that the Supreme Court was in error. However, counsel for the defendants stressed that, in the IBRC case, it was conceded by the relevant foreign defendant in that case that it bore the burden of proof. This is expressly recorded at p. 214 where Clarke J. observed that “…it was common case that the burden of proof rests on the moving party, Mecon in this case, to establish the basis for the stay sought” A similar statement can be found on p. 216 of the report. Given the agreement of the parties on that issue, it was obviously unnecessary for the Supreme Court to interrogate the issue. Without examining the issues, the Court proceeded on the assumption that the burden lay on the defendant and the Court did not have to reach any

decision of its own on the issue. In those very particular circumstances, it seems to me that, on the basis of the approach taken in the IBRC case, it was open to counsel to make this submission to this Court in relation to that case. However, as discussed below, there is earlier Supreme Court authority which is to the same effect namely Analog Devices v. Zurich Insurance [2002] 1 I.R. 272. In both cases, the Supreme Court took that approach while, at the same time endorsing the views expressed by Lord Goff in Spiliada (which, as noted in para. 20 above was also cited by the High Court judge in this case).

65. Counsel for the defendants argued at the hearing of the appeal that it is clear from the speech of Lord Goff in Spiliada and the commentary by the authors of Dicey, Morris & Collins “The Conflict of Laws” (16th Ed., 2025) that the burden of proof on the appropriate forum issue lies, at all times, on the plaintiff save in those cases where the defendant has been served as of right (i.e. without the necessity of an order under O. 11). In so far as English case law is concerned, I believe that counsel for the defendants was entirely correct in his submission to that effect. It is clear that the observations of Lord Goff in Spiliada, at p. 476, in relation to the burden of proof is contained in a section of the decision dealing with cases where jurisdiction has been founded as of right. That section commences on p. 474 where Lord Goff said:

“In cases where jurisdiction has been found at as of right, i.e. where in this country the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the court to exercise its discretion to stay the proceedings on the ground, which is usually called forum non conveniens.”.

66. Thus, the observation made by him on p. 476 that “in general the burden of proof rests on the defendant” must be seen in that context. It was not until p. 478 of the report that Lord Goff commenced his consideration of the position in cases where the court exercises its discretionary power under O. 11. Having reviewed relevant case law, he concluded, at p. 481, that in such cases the burden lies on the plaintiff. He said:

“The fact is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words, the burden is, quite simply, the obverse of that applicable where a stay is sought of proceeding started in this country as of right.”

67. A similar approach is suggested in Dicey, Morris & Collins at para. 12-059 but it is unnecessary, in my view, to address what the authors say or the many cases cited by them in that paragraph. It is sufficient to record that their views chime with the approach taken by Lord Goff in Spiliada.

68. However, although Spiliada has been expressly endorsed by the Supreme Court both in the IBRC case and in Analog Devices, those decisions suggest that, in cases where a defendant asserts that Ireland is not the appropriate jurisdiction, the defendant bears the burden of proof on that issue. While I fully accept that the issue was conceded in the IBRC case, there is nothing to suggest that a similar concession was made in Analog Devices. In the latter case, the second defendant was a U.S. insurer which had been served with Irish proceedings pursuant to an O. 11 order. Thus, the U.S. insurer had not been served as of right. The insurer was in a similar position to the defendants in these proceedings. It brought an application under O. 12, r. 26 on two bases. First, it argued that the Irish courts lacked jurisdiction against it under O. 11. It also argued in the alternative that Ireland was not the appropriate forum in which to litigate the dispute. At p. 288, Fennelly J. held that although the plaintiff bore the burden of proof in relation to the O. 11 aspect, the burden of proof lay on the second defendant in so far as the forum non conveniens application under O. 12, r. 26 was concerned. He said: “The principal difference between this rule which concerns the original grant of leave and the application by the second defendant is that, in the latter instance, the burden of proof rests on the moving party. The applicable legal principles have been fully reviewed quite recently by this court in Intermetal Group Ltd. v. Worslade Trading Ltd. [1998] 2 I.R. 1.” (emphasis added).

69. It is clear from the context that the words “this rule” in that passage are intended to refer to O.

11. The words “in the latter instance” plainly refer to the application under O. 12, r.

26. That decision is, of course, binding on this Court. In light of the approach taken by the Supreme Court in that case, I believe that, under the current state of the law in Ireland, the defendants must be taken to bear the burden of proof on an application of this kind. This Court is not in a position to proceed on the basis that the Supreme Court erred in its approach. That said, this is an issue that I respectfully suggest would merit further examination by the Supreme Court in a case where the burden of proof may have a decisive impact on the outcome.

In this context, it should be noted that the decision in Intermetal Group Ltd. v. Worslade Trading Ltd. cited by Fennelly J. in the Analog Devices case was a challenge on forum non conveniens grounds by an Irish registered defendant company. In other words, it was a case where the defendant had been served as of right. In addition, it is clear from the terms of O. 11, rr. 2 and 5 that, where a plaintiff seeks leave of the court to serve proceedings out of the jurisdiction, the plaintiff is required to demonstrate in the grounding affidavit that Ireland is a more appropriate forum for the resolution of the dispute than the place of the defendant’s residence.

As the decision of this Court in Albaniabeg Ambient Sh.p.k. v. Enel S.p.A. [2018] IECA 46 suggests, there are strong grounds for the view that this obligation should not be confined solely to the moment when the plaintiff applies, without notice to the defendant, for leave to serve the proceedings out of the jurisdiction and that it should apply equally where such a defendant brings an application to set aside the ex parte order. In his judgment in that case, Hogan J. explained the rationale as follows at pp. 7-8: “18. It is true that as this is an application under Ord. [12], r. 26, the moving party should normally carry the burden of proof.

As I explained, however, in … Cornec v. Morrice … [2012] 1 LR. 804, 812-813 (in the context of the not dissimilar procedure which was obtained under s. l of the Foreign Tribunals Evidence Act 1856), this is necessarily true of all orders obtained ex parte: ‘The first issue which arises was already the subject of a ruling by me in the course of the proceedings, namely, the status of the original ex parte order. The present application comes before me formally as a motion on the part of Mr. Garde and Ms. Tallant to set aside an order made by me ex parte pursuant to s. 1 of the Act of 1856.

The application is made ex parte precisely because that is the procedure contemplated by the Act of 1856 and Ord. 39, rr. 39-44 RSC. While I duly made the orders sought, I duly made it clear at the time that the order simply had a provisional status and that the moving party (Ms. Morrice) would carry the burden of making the application afresh in the event that the addressees of the order (Mr. Garde and Ms. Tallant) sought to have it set aside. The Act of 1856 is, of course, a pre-Constitution statute which must, where necessary be read in a fashion which would make it conformable to the modern understanding of the requirements of fair procedures as prescribed by Article 40.3.

It is absolutely clear that the courts cannot constitutionally make an order ex parte finally affecting the rights of the parties. An abundance of contemporary authority attests to this point: see, e.g., the judgment of Keane CJ. in DK v. Crowley [2002] 2 I.R. 744, that of Finlay Geoghegan J. in Chambers v. Keneflick … [2007] 3 LR. 526 and my own judgments in Doyle v. Gibney [2012] 1 I.L.R.M. 314 and Re Custom House Capital Ltd. (No.I) [2011] IEHC 399. It was for this reason that I indicated that the ex parte procedure did not and could not finally affect the rights of Mr.

Garde and Ms. Tallant and the fact that an initial order was made in favour of Ms. Morrice created no presumption in her favour.’

19. Accordingly, therefore, it is the party who obtained the ex parte order for service out of the jurisdiction under Ord. 11 (in this instance, Albaniabeg) who must carry the burden of demonstrating that the order in question had been properly granted. It is only fair to add that both sides accepted that this was so.”

70. In turn, this aspect of the decision in Albaniabeg was cited with approval by this Court in Donnelly v. Vivier & Co. Ltd. [2022] IECA 104 although it should be noted that, in that case, the Court did not have to go so far as to consider any issue of forum conveniens. In Donnelly v. Vivier & Co. Ltd the plaintiff’s case foundered on her inability to bring her claim within the ambit of O.11, r. 1 and, as the judgment of Fennelly J. in Analog Devices shows, the burden of proof of that issue always falls on the plaintiff. More recently, the Supreme Court in MD (a Minor) v. Board of Management of a Secondary School [2024] IESC 11, held that, in the case of an application to set aside an interim order made on foot of an ex parte application in judicial review proceedings, the burden of proof remained on the party who sought the order in the first place. While that case was concerned with a different type of proceedings, Collins J. in para. 25 of his judgment expressly cited Albaniabeg as an illustration of a case where a court had held that, in the case of a challenge to an order made on an ex parte application, the burden of proof remained on the party who sought the relevant order. This suggests that the Supreme Court may well be minded to take a similar approach to that adopted by this Court in Albaniabeg.

71. However, it is manifestly not for this Court to assume that the Supreme Court will take that course. In light of the approach taken in Analog Devices, I believe that, until the Supreme Court expressly decides otherwise, this Court must proceed on the basis that the current position in Irish law is that, on an application of this kind under O. 12, r. 26, where the defendant has been served as a consequence of an order made under O. 11, the defendant must be taken to bear the burden of establishing that the courts of its jurisdiction provide a more appropriate forum in which to litigate the dispute than the courts of Ireland.

72. That said, it is important to keep in mind Lord Goff’s perceptive observation at p. 476 in Spiliada to the effect that, irrespective of where the legal burden lies, both sides will, inevitably, bear the evidential burden of proof in relation to the existence of factors on which they rely in support of the appropriateness of the forum for which they respectively canvass. He said:

“It is, however, of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter, the evidential burden will rest on the party who asserts its existence.”

73. For that reason, counsel for the defendants was right to recognise, in the course of oral submissions, that the issue as to where the legal burden lies is not “central to the resolution” of the appeal. I entirely agree. There may be cases where the burden of proof will play a more significant role but this is not one of them. Ultimately, as the case law shows, the issue as to appropriate jurisdiction is usually resolved by means of a balancing exercise in which the pointers in favour of both jurisdictions are weighed and assessed, one against the other.

The approach to be taken by an appellate court on an application of this kind

74. A further issue arises in this case as to the approach to be taken by an appellate court in respect of a High Court decision on an issue of this kind. In VTB Capital plc v. Nutritek International Corporation [2013] 2 AC 337, the U.K. Supreme Court took the view that, where a High Court judge had made an evaluative judgment as to whether England was the appropriate forum, an appellate court should refrain from interfering with the decision unless satisfied that a significant error had been made. In that case, Lord Neuberger, at p. 377, referred with approval to the following observation made by Lord Bingham in Lubbe v. Cape plc [2000] 1 WLR 1545 at p. 1556:

“This is a field in which differing conclusions can be reached by different tribunals without either being susceptible to legal challenge. The jurisdiction to stay is liable to be perverted if parties litigate the issue at different levels of the judicial hierarchy in the hope of persuading a higher court to strike a different balance in the factors pointing for and against a foreign forum.”

75. Lord Neuberger added that precisely the same principle applies in cases involving permission to serve proceedings out of the jurisdiction. However, the position in Ireland is somewhat different. In the recent decision of this Court, Trafalgar Developments Ltd. v. Mazepin [2025] IECA 280 (delivered after the appeal in this case was heard) the Court took the view, at paras. 144 to 148, that the approach in Stafford v. Rice [2022] IECA 47 should apply to an appeal which involved a consideration of O. 11, rr. 2 and 5. Those rules address the issue of appropriate forum and, for that reason, it seems to me that a similar approach should be taken here. In summary, the Court, in Trafalgar Developments Ltd. v. Mazepin, took the view that, while this Court has full appellate jurisdiction in respect of discretionary orders made by the High Court, the Court proceeds on the basis that the High Court is entitled to some margin of appreciation. Some material error of assessment on the part of the High Court will normally have to be demonstrated before this Court will intervene. The burden is on the defendant to establish some error of assessment on the part of the High Court judge and the Court should not likely substitute its view for the view taken by the High Court judge.

76. In this case, it is clear that there was, uncharacteristically, an error on the part of the High Court judge. He elided the two stage approach mandated by the IBRC case. It is clear from paras. 26 to 37 of his judgment that his decision to refuse the defendants’ motion was based on his conclusion that it would be unjust, in his view of the particular circumstances of the case, to stay the proceedings. He took that approach in circumstances where he was of the view that a stay 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, and where it would now be too late for the plaintiffs to institute proceedings in the United States. Notwithstanding the fact that the plaintiffs had not placed any evidence before the High Court addressing why they had not issued proceedings on a protective basis in the United States, Simons J. also concluded that the plaintiffs had acted reasonably in confining themselves to instituting proceedings before the Irish courts. Crucially, he did not separately address the anterior question as to whether the courts of Ireland or the relevant courts of the United States are the more appropriate forum in which to hear and determine the claim. As the judgment of Clarke J. in the IBRC case makes clear, that is the first question that falls to be considered on an application of this kind. It is only where the court decides that question against a plaintiff that the second issue arises as to whether, notwithstanding a finding that a foreign court is the more appropriate forum, the justice of the case nonetheless requires that the case should proceed in this jurisdiction.

77. In these particular circumstances, it seems to me to be necessary, for the purposes of this appeal, that this Court should consider de novo the issue as to appropriate forum. It follows that it is necessary to consider the evidence placed by both sides before the High Court in relation to the issue raised by the defendants as to whether Ireland or some U.S. jurisdiction is the more appropriate jurisdiction in which to try the plaintiffs’ claim. The evidence on both sides is confined to that issue. As I have previously mentioned, neither side placed any additional evidence before the High Court following exchange of expert evidence on U.S. law. Such evidence could potentially be of importance in relation to the second element of the two-stage test laid down by the Supreme Court in the IBRC case as to whether, even if the courts of Washington D.C. are a more appropriate forum than the courts of Ireland, justice nonetheless requires that the proceedings be tried in this jurisdiction.

The test to be applied in assessing the evidence

78. In the IBRC case, Clarke J. at p. 220 of the report, provided some very helpful guidance as to the approach to be taken in considering the evidence of the parties on the appropriate forum issue. He said:

“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.” (emphasis added).

79. In similar vein, it is also useful to keep in mind the observations of Lord Goff at pp. 477-478 in Spiliada where he said: “Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at ‘substantially less inconvenience or expense.’ … I … consider that it may be more desirable … to adopt the expression used by … Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398, 415, when he referred to the ‘natural forum as being ‘that with which the action had the most real and substantial connection.’ So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business.” (emphasis added).

80. For the purposes of this appeal, it is therefore necessary to carefully consider the evidence placed by the parties before the High Court and to identify the factors that point either to the courts of Washington D.C. or to the courts of Ireland as the more appropriate forum for the resolution of the substantive dispute. In this context, while the burden of proof on the issue of appropriate forum lies on the defendants, the resolution of that issue always depends on weighing the competing factors with a view to determining which venue is the more appropriate forum. In addition, as noted in para. 72 above, each of the parties bear the evidential burden of establishing the existence of the individual factors on which they seek to rely.

The evidence of the parties in respect of the appropriate forum

81. Turning first to the factors on which the defendants rely, Ms. Harty, in paras. 35 to 39 of her affidavit, provided more detail in relation to the basis on which the defendants suggest that the courts of the United States are a more appropriate forum to resolve the dispute than the Irish courts. In those paragraphs, she highlighted that the publication related to events in the United States and involved a range of personalities all of whom reside in the United States. She stated as follows:

“35. It is clear from the contents of the impugned publications and the surrounding circumstances that the appropriate jurisdiction for the hearing of any action brought by Mr. Ganley or any Rivada entity is the United States of America. The principle of forum non conveniens is more properly a matter for legal submission than affidavit evidence, and accordingly my averments below are confined to matters of fact.

36. The subject matter of the impugned publications pertains entirely to the United States. What is described in the publications is the process by which the Trump White House pressured various parts of the U.S. government to award to Rivada a contract for the provision of 5G spectrum in the United States owned by the U.S. Department of Defense. The article carries comment from US politicians and US analysts, and quotes a ruling from a US judge. The story relates to transparency in public procurement in the United States only. The implications of the proposed awarding of the contract are described by reference to, inter alia, the US Army, the Pentagon, the US Federal Trade Commission, US telecoms companies, the US judiciary, and the US political system.

37. In summary, all of the underlying events described in the impugned publications (including, if this Honourable Court were to accept the meanings contended for by the Plaintiffs, the activities of the Plaintiffs giving rise to the defamatory material) took place in the United States.

38. Neither of the Plaintiffs are referred to (expressly or impliedly) in either of the impugned publications. The dramatis personae referred to in the publications are all based in the United States. They are:

i) Donald J. Trump, then President of the United States;

ii) Rivada Networks LLC, a US-domiciled entity;

iii) Mark Meadows, then. Chief of Staff of the White House under President Trump;

iv) An unidentified "top financial management official in the US Army";

v) Karl Rove, a former Deputy Chief of Staff of the White House under President Gorge W. Bush, and a U.S. lobbyist for, and investor in, in Rivada;

vi) Craig Moffett, described as a Wall Street analyst; vii) Newt Gingrich, former Speaker of the US House of Representatives;

viii) Brian Carney, a spokesperson for Rivada Networks LLC;

ix) Larry Kudlow, an economic adviser to President Trump;

x) Frank Pallone Jr., a member of the US House of Representatives;

xi) Mike Doyle, a member of the US House of Representatives;

xii) John Thune, a member of the US Senate;

xiii) Peter Thiel, an American venture capitalist;

xiv) AT&T, a US telecommunications company.

39. Were the trial to take place in Ireland, virtually every witness to be called by the Defendants would be a citizen of the United States who is resident there. These witnesses would include journalists employed by CNN, Inc. This is particularly relevant to the defences of Truth and Fair and Reasonable Publication on a Matter of Public Interest.”

82. It will be seen that, despite the long list of dramatis personae given in para. 38 of her affidavit, Ms. Harty does not suggest that any of them are necessary witnesses for the trial. It is noteworthy that, when Ms. Harty, in para. 39 of her affidavit, addressed the issue of the witnesses to be called, the only category she mentioned was “journalists employed by CNN …”. Then, in para. 41 of her affidavit, Ms. Harty sought to suggest that both the online article and the broadcast were primarily directed towards viewers in the United States. As will be seen from the table below (dealing with the number of visits to the articles on the CNN websites), it is certainly true that the vast majority of visits to the articles on the relevant websites were from U.S. based visitors. However, the table also shows that, up to and including December 2021, there were 240 visits from persons in Ireland. In the context of the Irish law of defamation, that figure cannot be dismissed as insignificant. It also has to be kept in mind that the story was picked up by newspapers circulating in Ireland and that the table is confined solely to visitors to the websites. The table does not address the number of viewers of the broadcast on CNN International. In that paragraph, Ms. Harty said:

“41. Both the online article and, in particular, the broadcast were published in the United States and to a very large extent reached viewers primarily in the United States. For example, the impugned publications featured in three locations: www.cnn.com, ‘edition.cnn.com’, and CNN's mobile app. Across all three platforms, based on data pulled in December 2021 from Adobe Analytics, the story reached 20,084 unique visitors. The breakdown of these unique visitors is as follows:

”

83. Ms. Harty also contended that the public interest dimension to the news story “fundamentally concerns the United States”. In para. 42 of her affidavit she said:

“… It suggests impropriety on the part of White House officials with regard to the proposed awarding of a contract to provide services in the United States (only) to a company based in the United States. Reference is made to the fact that investors in and lobbyists for Rivada Networks LLC are also supporters of the Republican Party and/or (then) President Trump. The broadcasts discuss an allegation that the White House pressured the Pentagon to approve the awarding of a ‘no-bid’ contract to Rivada Networks LLC.”

84. Against the backdrop described above, Ms. Harty continued in para. 43 of her affidavit in the following, somewhat argumentative, terms:

“43. In light of the foregoing, to describe the litigation's connection to the Irish jurisdiction as ‘tenuous’ would be overly generous. The reality is that there is no such connection. No Irish citizen, entity or subject matter is referred to in even oblique terms by the impugned publications. If the matter were allowed to proceed to trial in Ireland, the Court would likely be faced with the bizarre prospect of considering whether two news stories which related entirely to the United States were ‘fair and reasonable publications on matters of public interest’. Whether the public interest in question would be the interest of the Irish public or the American public is unclear.”

85. In para. 44 of her affidavit, Ms. Harty highlighted that no reference was made in either of the publications to Mr. Ganley or to Rivada Ireland. That is true but the case is made in the statement of claim that the publications directly identified the trading name of Rivada Ireland and that it indirectly identified Mr. Ganley who, it is alleged, would be identifiable by any reasonable reader or viewer in Ireland. Again, it must be borne in mind that Mr. Ganley’s name was specifically mentioned in each of the five republications by Irish media which are identified in para. 16 of the statement of claim.

86. In the same paragraph, Ms. Harty placed particular emphasis upon the fact that Rivada Networks LLC (which is explicitly named in the publications) is a United States Corporation and is not one of the plaintiffs. She added in para. 45 of her affidavit that Rivada Networks LLC has no connection “whatsoever” to Ireland and she contended that the proceedings have been commenced by the plaintiffs so as to create “an artificial nexus between the subject matter of the proceedings and the Irish courts”. That suggestion might have more weight had there been no hits on the website in Ireland and if the material published by the defendants had not led to the republications mentioned previously in which Mr. Ganley is named. Given those facts, and given Mr. Ganley’s public profile in Ireland, Ms. Hanley’s contention of an “an artificial nexus” is not self-evident. Bearing in mind Lord Goff’s observation cited in para. 72 above, it seems to me that, irrespective of where the ultimate burden of proof lies, the defendants manifestly bear the burden of proof in relation to that contention.

87. On 10th May 2023, Mr. Ganley swore a detailed affidavit in response to Ms. Harty’s affidavit. In paras. 12 to 14, he highlighted that the defendants had not identified the U.S. jurisdiction in which they maintain the dispute ought to be heard. This was later addressed by Mr. Vigilante in his affidavit sworn on 6th July 2023 in which he asserted that the appropriate jurisdiction is Washington D.C. That was the first occasion on which the defendants identified a specific jurisdiction or forum within the United States. I will return to Mr. Vigilante’s affidavit presently.

88. In para. 24, Mr. Ganley suggested that both he and Rivada Ireland are synonymous with the U.S. parent company and Rivada Networks LLC and that this is clear from the republications pleaded in the statement of claim which immediately made the connection between the offending publications and Mr. Ganley and Rivada Ireland. As noted above, the material published by the defendants was covered in a number of Irish publications including the Irish Times and Irish Independent very soon after the broadcast on CNN International. In addition, Mr. Ganley highlighted a tweet published by Mr. Jake Tapper of CNN on 22nd October 2020 in which he stated:

“(4) ‘Declan Ganley, CEO of Rivada Networks denies our story that senior officials in the Trump administration are alarmed that the WH is pressuring the Pentagon to give his company essentially a no bid contract to lease 5G spectrum. He’s wrong….’”

89. In para. 28 of his affidavit, Mr. Ganley rejected the suggestion made by Ms. Harty that the proceedings are primarily focused on events in the United States. He emphasised that, from his perspective, the focus of the proceedings is on the damage which he claims was done to his reputation and that of his co-plaintiff in Ireland. In para. 28, he said:

“28. … The allegations of corruption against the Plaintiffs involving this submission of interest were published in Ireland, against an Irish citizen, who is ordinarily resident in Ireland, and a company incorporated and carrying on its business in Ireland with Irish employees. The Defendants were at all material times aware that the offending publications would be published in Ireland, both on the internet and on live television, and would in fact have an enhanced impact in Ireland considering the subject matter. I say that both my reputation, and the reputation of the second-named Plaintiff, have been damaged in Ireland and I say and am advised that we are entitled to bring our claim against the Defendants in Ireland, where we have substantial connections and reputations, and to limit our claim to the damage in this jurisdiction.”

90. In paras. 39 to 52 of his affidavit, Mr. Ganley dealt with the question of the appropriate jurisdiction in more detail. He highlighted the fact that the publications continue to be accessible in Ireland and he also suggested, in para. 41 of his affidavit, that, given the timing of the publication in the run-up to the presidential election in the United States in 2020, CNN International television broadcasts are likely to have had a substantially increased viewership in Ireland at the time of the publication and that it was also likely that traffic to its website would also have increased. In addition, Mr. Ganley contended that it must, at all times, have been foreseeable to the defendants that the publications in issue would be widely disseminated in this jurisdiction.

91. In para. 43 of his affidavit, Mr. Ganley again emphasised that he is an Irish citizen who is domiciled and ordinarily resident in this jurisdiction and that he has significant personal, political and business connections within this jurisdiction. He further highlighted that Rivada Ireland is based here with significant connections in this jurisdiction and he maintained that the offending publications were about the business dealings both of him, as an Irish person, and of an Irish company, He maintained that both he and Rivada Ireland have substantial reputations here.

92. In response to the suggestion made by Ms. Harty that all of the relevant personnel referred to in the offending publications are based in the United States, Mr. Ganley contended, in para. 47 of his affidavit, that the need for transparency in public procurement processes is recognised internationally. He maintained that the plaintiffs operate on an international level and he asserted that the fact that the publications related to business dealings in the United States (as opposed to Ireland) is not relevant in circumstances where the impugned publications were published in Ireland.

93. In para. 48 of his affidavit, Mr. Ganley made clear that the plaintiffs do not accept that virtually every witness to be called in these proceedings would be a citizen of the United States. In addition to himself, he said that Rivada Ireland’s Chief Operating Officer, Francis O’Flaherty, is likely to be a witness and that Mr. O’Flaherty is based in Ireland. He also drew attention to the fact that remote or hybrid hearings are now available which he suggested would assist foreign witnesses to give evidence from abroad.

94. Mr. Ganley also addressed the concern expressed on behalf of the defendants in relation to their ability to run a public interest defence in this jurisdiction in respect of a publication in the United States. While counsel for the plaintiffs suggested at the hearing of this appeal that the defence available under s. 26 of the 2009 Act was confined to matters of public interest in Ireland, Mr. Ganley took a different view in his affidavit. In para. 49 of his affidavit, Mr. Ganley said:

“In reply to the fourth factor, the offending publications suggest impropriety not only on the part of White House officials, but on the part of your Deponent and the secondnamed Plaintiff. I am advised by Counsel that there is no law to say that the defence of fair and reasonable publication on a matter of public interest under S.26 of the 2009 Act, or as it was previously in the common law, must be confined to matters of national interest and cannot include a matter of international interest. The offending publications were published knowingly to persons in Ireland and remain accessible to persons in Ireland at the date of this application and focus on the international and national reputation of an Irish Citizen and an Irish company. Further, I am advised by Counsel that whether or not this defence is available to the Defendants is subject to an assessment of whether or not the Defendants behaved in a way that was conducive to the publication of reliable material as a matter of Irish law. These are matters that will be dealt with by way of legal submission.” (emphasis added)

Counsel for the plaintiff did not explain the basis for advancing a view at variance with what had been expressly conceded by Mr. Ganley on affidavit.

95. As noted above, Mr. Vigilante swore a relying affidavit on 6th July 2023. In that affidavit, he confirmed a number of the factual averments made by Ms. Harty including the contents of the table showing the number and breakdown of “hits” on the websites and the mobile app. He also responded to Mr. Ganley’s complaints that the defendants had failed to nail their colours to the mast in relation to the jurisdiction within the United States in which they say that the plaintiffs’ claim should be heard. In response to that complaint, Mr. Vigilante suggested that the U.S. federal court in Washington D.C. was the most appropriate forum for the resolution of the litigation. He relied a number of factors in support of that contention. He identified these in para. 7 of his affidavit as follows:

(a) First, he said that Jake Tapper, a CNN journalist, was the author of the publications in issue and that, at all relevant times, Mr Tapper has been a resident of Washington D.C. and has worked in CNN's Washington D.C. bureau.

(b) Second, the publications were reported by Mr Tapper from CNN's Washington D.C. studio from where he usually reports. While the publications were produced and edited by employees who work in a number of locations, Mr Tapper’s reporting records with respect to the reporting are maintained in Washington D.C.

(c) Third, he said that the subject matter of the publications concerned events which predominantly occurred in Washington D.C. and he said that the focus of the publications was on White House policy, which he described as “out of Washington D.C.”

The expert evidence as to U.S. law

96. As noted earlier, following the judgment of Simons J. delivered on 22nd March 2024, there was a further exchange of affidavits sworn by U.S. lawyers retained by the parties in which they addressed the issue raised by Simons J. in that judgment, namely the issue as to whether any court within the United States would have jurisdiction to entertain a claim, at the suit of an Irish citizen or an Irish domiciled company, arising out of the publication, within this jurisdiction, of an allegedly defamatory statement. Both reports are very detailed but, at this point in this judgment, I do not believe that it is necessary to drill into that detail. It may be necessary to return to the reports in more detail in the event that I conclude that the courts of Washington D.C. constitute the most appropriate forum in which to litigate the plaintiffs’ claim. As the IBRC case shows, the focus would shift at that point to consider whether the plaintiffs can show that, notwithstanding that finding, justice nonetheless requires that the proceedings be tried in Ireland.

97. At this stage, it is sufficient to note a number of features that emerge from the experts’ views. First, both experts were agreed that the relevant limitation period for defamation proceedings in Washington D.C. is one year and it appears to be the case that this is so whether the proceedings are instituted in the local Superior Court or in a Federal District Court. On that basis, it is clear that any defamation action by the plaintiffs in Washington D.C. became time barred in October 2021 while the correspondence between the parties was ongoing. Not long before the expiry of the limitation period, McCann FitzGerald had written their letter of 16th September 2021 rejecting the proposal made in Gately Tweed’s letter of 15th June 2021 and indicating that an application would be brought to challenge the jurisdiction and to strike out the claim against CNIL and Turner on the grounds that they were not “proper defendants to the proceedings”. The next feature to note is that it appears that it would not be possible for the existing plaintiffs in these proceedings to pursue CNIL or Turner either in the Courts of the District of Columbia or in the Federal District Court there. However, it appears to be the case that, in event that the Rivada Networks companies incorporated in the United States were joined as plaintiffs, that would enable proceedings to be brought against all of the existing defendants in the Federal District Court.

Assessing the evidence

98. On the basis of the affidavit evidence, there are obviously connecting factors with both the United States, on the one hand, and with Ireland, on the other. The story told in the publications in issue relates to events in the United States. The main author of the original story, Mr. Jake Tapper, is based in Washington D.C. In addition, according to Mr. Vigilante, the website publications were produced and edited by employees who work for CNN in Washington, D.C., Atlanta and/or New York. If the defendants wish to prove that the story is true or to demonstrate that it relates to a matter of public interest, it appears probable that they will need to call witnesses from the United States. In that context, counsel for the defendants, in their written submissions, maintain that the public interest and subject matter of the dispute is entirely U.S. focused, with “no relevance to Ireland”. The publications concern the awarding of public contracts by the government of the United States. They suggest impropriety on the part of White House officials with regard to the proposed awarding of a contract to provide services solely within the United States by Rivada Networks LLC which they contend is, itself, based solely in the United States. They also stress that the publications also refer to the fact that investors in and lobbyists for Rivada Networks LLC are supporters of the Republican Party and/or President Trump. The broadcasts discuss an allegation that the White House exerted pressure on the Pentagon to approve the awarding of a "no-bid" contract to Rivada Networks LLC. For those reasons, they suggest that the controversy is “one which is almost exclusively of public moment in the United States alone.”

99. On the other hand, publication took place (as the defendants have properly acknowledged) in Ireland and the plaintiffs have confined their claim to the publication which occurred in Ireland. It follows that there is a juridical basis for pursuing the defendants in Ireland. The claim falls within O. 11 , r. 1(f) i.e. a tort committed within the jurisdiction. Irish law will therefore govern the claim if it is pursued here in Ireland. Furthermore, in support of their claim that they were defamed, the plaintiffs rely on the “high reputation” which they claim to have in Ireland. Damage to reputation is an essential element of the tort of defamation. Thus, s. 2 of the 2009 Act defines a defamatory statement as one that “tends to injure a person’s reputation in the eyes of reasonable members of society”. The reference to “reasonable members of society” is important. The fact that a damaging story has been published abroad may not be of the same level of concern to a plaintiff as a publication which reaches members of the society in which the plaintiff is known. As McMahon and Binchy observe in “Law of Torts” (4th Ed., 2013) at para. 34.51, under the Irish law of defamation, everyone “even the most modest citizen whose travels or fame have never extended beyond his or her own village, is accorded a good name by the law in his or her own community.” (emphasis added). In that context, the plaintiffs highlight the republications which took place in Ireland as alleged in para. 16 of the statement of claim and they argue that these provide strong support for their contention that both of the plaintiffs were readily identifiable to an Irish audience from the publications in issue. In these circumstances, it is inevitable that evidence will have to be given by witnesses in Ireland including Mr. Ganley himself and Mr. Francis O’Flaherty, the chief operations officer of Rivada Ireland (both of whom reside here.) The plaintiffs also rely on the fact that both CNIL and Turner are based in London in close proximity to this jurisdiction.

100. How are these factors to be weighed in deciding which is the more appropriate forum to hear the dispute? In this context, it may be helpful to consider the approach taken in a number of the authorities which featured in the written and oral submissions of counsel. I do so, while keeping in mind Clarke J.’s warning in the IBRC case, at p. 218, that it is rarely useful to refer to a large number of cases. As his judgment in that case makes clear, the underlying principles are relatively straightforward. As he noted, it will almost always be possible to identify some distinction between a case cited and the case at hand. Nonetheless, the cases addressed below were cited in argument by counsel and formed part of the basis of their respective submissions. The cases are useful in showing how the courts have applied the principles in a variety of circumstances. For that reason, I propose to address them.

101. The defendants placed some emphasis on the decision of this Court in Ryanair Ltd. v. Fleming [2016] 2 I.R.254. In that case, service of proceedings on an Australian defendant was set aside by the High Court and that decision was upheld on appeal. The defendant was domiciled in Australia. He had no connections with Ireland. He posted comments adverse to Ryanair on an internet website forum that was operated by a company based in the United States. The comments were connected to events involving Ryanair aircraft which declared fuel emergencies while flying over Spain. The internet website forum was principally used as a discussion vehicle by pilots in relation to aviation matters. However, it could be accessed by members of the public although it required prior registration for that purpose. Issues raised by forum participants were, on occasion, subsequently picked up by the mainstream media. Ryanair commenced proceedings against the defendant in Ireland claiming damages for defamation and an order was made under O. 11 giving leave to serve the proceedings on the defendant in Australia. The defendant brought an application under O. 12, r. 26 seeking to set aside the O. 11 order.

102. In his judgment in this Court, Hogan J., at p. 260, expressed the view that it is a fundamental principle of Irish conflict of law rules that, absent special circumstances, a defendant should normally be sued in the place where he or she is domiciled. This is on the basis that a defendant should not be forced to defend in a foreign jurisdiction – and thereby deprived of the legal system with which the defendant is most familiar – unless “there are some special circumstances which justify the attribution of jurisdiction to the courts of the forum selected by the plaintiff.” Hogan J. said that this principle informs any consideration of whether the plaintiff can satisfy the High Court that it has jurisdiction in the matter and, even if it has, whether it would be appropriate to exercise that jurisdiction on forum conveniens grounds. Those observations are entirely on all fours with the decision of the Supreme Court in Analog Devices v. Zurich Insurance, at p. 281 where Fennelly J. said: “When the court grants leave for the service out of the jurisdiction of proceedings, it requires a person, not otherwise within the jurisdiction of our courts, to appear here and to answer the claim of a person made in what is for him a foreign court rather than leaving the plaintiff to pursue his remedy against that person in that other jurisdiction. The international comity of the courts have long required, therefore, that our courts examine such applications with care and circumspection.”

103. In Ryanair, Hogan J., at p. 260, highlighted the unfairness that would arise if a defendant could be pursued here in circumstances where the defendant’s conduct was not of a kind that would lead the defendant to foresee that he might be sued here. He said: “It would, of course, be manifestly unfair if a defendant were forced to defend in a foreign jurisdiction in circumstances where he could not reasonably have foreseen that his conduct would expose him to the real risk that he might properly be sued in that foreign jurisdiction.”

104. Having prefaced his findings in that way, Hogan J. first considered the issue as to whether the Irish courts had jurisdiction to entertain the claim. Crucially, there was no evidence that any of the material on the website had been accessed by anyone in Ireland. As a consequence, there was no evidence that publication had occurred here and, in turn, there was no basis to suggest that a tort had been committed here. Service of the proceedings was set aside on that basis. Nonetheless, Hogan J. went on to consider the issue of forum conveniens. It is this aspect of the judgment on which the defendants rely along with the prefatory observations of the judge noted above. At pp. 266-267, Hogan J. said: “40. … To my mind, it is far from clear that even if the Irish courts had jurisdiction in the matter, Irish law would be regarded as the proper law of the tort, given that these comments were made by an Australian in Australia on a website hosted in California

41. There are, however, also other considerations. The plaintiff is a huge multinational corporation with enormous assets. In the nature of things it will be far easier for the plaintiff to commence proceedings in Australia than for the defendant to travel to Ireland to defend defamation proceedings here. While it is true that a judgment from an Irish … court concerning aviation safety would be of more direct benefit to the plaintiff as compared with the verdict from an Australian court, it cannot be said that an Australian court verdict would not also be of assistance so far as the general defence of its reputation [is concerned].

42. The other major difference from Richardson v. Schwarzenegger… is the fact that the publication itself has but tenuous connections with Ireland. At least in Richardson v. Schwarzenegger …, the plaintiff could clearly point to the fact of publication in the United Kingdom in relation to events which, if they occurred at all, occurred in the United Kingdom, whereas, to repeat, there is no actual evidence of publication in Ireland. In the absence of unambiguous evidence pointing to publication in Ireland, the orderly administration of international justice strongly suggests that the more convenient forum remains the courts of the place where the defendant is domiciled. This is perhaps just another way of saying again that even if the jurisdiction of the Irish courts were to have been established in some technical sense (by, e.g, the plaintiff showing that one or two people had actually accessed the offending post in Ireland), the connections with this State would nonetheless have remained too tenuous to displace the conclusion that the courts of the defendants domicile remain the most natural forum.

43. In summary, therefore, even if … it could be said that the Irish courts had jurisdiction in this matter, jurisdiction should nonetheless be declined on forum conveniens grounds.”

105. The defendants seek to draw a parallel between the facts underlying that decision and the facts of this case. They suggest that, here too, there is nothing more than a tenuous connection between the offending publication and this jurisdiction. They urge the Court to similarly reject the plaintiffs’ case that Ireland is the appropriate forum to hear and determine the claim. However, there are a number of significant differences that seem to me to plainly distinguish this case from Ryanair:

(a) In the first place, it is accepted that publication occurred here. As noted above, there was no evidence of any publication in Ireland in the Ryanair case. That meant that there was no proof that a tort had been committed here. In turn, that meant that nothing occurred in Ireland that, in any way, affected the reputation of the airline here;

(b) Second, in circumstances where there was no evidence of publication in Ireland, there was no need for Hogan J., in Ryanair, to consider the forum conveniens issue. His observations were therefore obiter;

(c) Third, while the numbers of people who viewed the television broadcast on CNN International is not known, we know that, up to the end of December 2021, 240 visitors from Ireland accessed the material on the websites. As I have previously observed, this is not an insignificant number in the context of a defamation claim. As the material has not been taken down from the website, there may well have been further visitors in the period between January 2022 and now. While the number of visitors from Ireland is substantially less than the figure from the United States, there is still a sizeable number of visitors from Ireland;

(d) Fourth, unlike the defendant in Ryanair, the defendants here are in the business of publishing and they have chosen to extend their broadcast of CNN International to Ireland and to make their websites accessible to persons with Irish internet addresses. In this context, it is important to note that, in his judgement in Ryanair, at p. 260, Hogan J. added a salient qualification to the observation quoted in para. 103 above. In the following paragraph, he said: “Different considerations apply, of course, where the defendant has engaged in conduct in the foreign jurisdiction in question or where the wrongful act at issue occurred in that jurisdiction.”

(e) Fifth, there is a significant difference, to my mind, between a specialised internet forum of the kind at issue in Ryanair and the maintenance of news websites by a globally recognised news source such as CNN International. The difference was well illustrated by Heslin J. in Robbins v. Buzzfeed UK Ltd. [2021] IEHC 433 at pp. 51-

52 where he said: “58. …. Although BuzzFeedNews.com is a website operated from the United States, it is not in dispute that, wholly unlike the facts in Ryanair..., it has a global audience. Indeed, the letter from the defendant’s solicitors... makes specific reference to the global audience, giving specific figures in respect of the number of times the relevant articles have been viewed online globally... The letter also confirmed the percentage of the global audience represented by the audience located in Ireland (approx 0.38%) and in the United States (approx 82.71%). The Court of Appeal in Ryanair was concerned with an Internet website forum.... and, even though issues raised by foreign participants were, on occasion, subsequently picked up by mainstream media, that website forum is utterly different to a news website with a global reach and an Irish audience, which is not in dispute.”

(f) Sixth, the imbalance in resources which was highlighted by Hogan J. in Ryanair does not exist in this case. Both sides appear to be well resourced;

(g) Finally, there is nothing in the report to suggest that the Supreme Court decision in the IBRC case was cited to the Court. The IBRC case is binding on this Court and must be applied.

106. For all of the reasons outlined in para. 105 above, I do not believe that the decision in Ryanair provides support for the position advanced by the defendants. Next, the defendants sought to rely on the judgment of Teare J. in Traxys Europe S.A. v. Sodexmines Nigeria Ltd. [2020] EWHC 2195(Comm). In that case, the plaintiff brought proceedings in England arising from the supply in Nigeria of a worthless product in place of a valuable tin product which the first defendant had agreed to deliver to a bonded warehouse in Nigeria. The second defendant, Mr. Ali, was sued on the basis that he was the beneficial owner of the first defendant and that he had been personally involved in switching the product. It was alleged that Mr. Ali had arranged for an abandoned hotel to be rented for the purpose of stockpiling the worthless product. The genuine tin product which was contracted to be sold to the plaintiff, was then delivered to the hotel where it was placed in bags without seals. Rather than delivering it to the warehouse, it was sent, instead, to the first defendant's premises. In its place, the almost worthless product was packed and delivered to the bonded warehouse accompanied by the documents relating to the genuine tin product and delivered to the plaintiff in place of the tin product. It was later discovered that the products supplied did not match the description of the documents which accompanied them. The plaintiff framed its claim against both defendants in deceit and conspiracy.

107. Mr. Ali brought an application for a stay of the proceedings against him on the basis that Nigeria was a more appropriate forum than England. While the application was framed in that way, the judge took the view that, in circumstances where Mr. Ali was not served with the proceedings, as of right, in England, the burden of proof lay on the plaintiff. Teare

J. first identified the factors that supported Mr. Ali’s position. These included the fact that all of the relevant events occurred in Nigeria, all of the relevant witnesses would be Nigerian and the proper law of the tort would be Nigerian law on the basis that the damage occurred in Nigeria (in the sense that Nigeria was the place where payment was made for the goods and where the misappropriation or non-delivery took place). He also listed the factors on which the plaintiff relied. These included the fact that the first defendant, Buzzfield, had agreed to an exclusive English jurisdiction clause and had agreed that English law would govern its relationship with the plaintiff; the fact that the claim against the first defendant was proceeding in England; and that all of the evidence and all of the relevant documents would be in English. In addition, the plaintiff relied on the fact that Mr. Ali was a British citizen, albeit no longer based there. The judge considered all of the factors on both sides. He ultimately came to the conclusion that there was some doubt as to whether Nigerian law would apply but, in circumstances where no material difference had been identified between Nigerian and English law, he considered that the issue was a neutral factor. In paras. 37 to 38, he found that the plaintiff had failed to establish that England was the appropriate forum. He said: “37. Those are the factors relied upon by the claimant in support of England being the appropriate forum. They are, upon my summary analysis, lacking in cogency. There is, in truth no particular connection with England, save that England is the agreed jurisdiction for claims against the First Defendant. However, it seems unlikely that proceedings against the first defendant will in fact proceed here. …

38. In my judgment, the Claimant has not established that England is the forum where the case may be more suitably tried in the interests of the parties and the ends of justice. Indeed, had I held that the burden lay on Mr. Ali to establish that Nigeria was the forum where the case may be more suitably tried in the interests of the parties and the ends of justice, I would have held that he had done so. The claim against him lies in tort. The events which have given rise to those claims took place (in the main) in Nigeria. The witnesses upon whom the Claimant will rely to establish their claim against Mr. Ali are in Nigeria. In truth this is a Nigerian case, not an English case. The centre of gravity of the case is in Nigeria, not in England. To use the phrase used in one of the cases to which I was referred ‘the fundamental focus of the litigation’ is on Nigeria, not England.”

108. Counsel for the defendants argued that there was an obvious parallel between the facts of that case and the position of the parties here. He relied on the material highlighted by Ms. Harty in paras. 35 to 39 of her affidavit and on the material described by Mr. Vigilante in para. 7 of his affidavit. However, it seems to me that there are a number of very important differences between the facts of the Traxys case and this case. In Traxys, virtually every element of the tort occurred in Nigeria. The acts of deception occurred there, the delivery of the worthless material occurred there and, as Teare J. noted in para. 38 of his judgment, the witnesses necessary for the plaintiff to establish its claim against Mr. Ali were all in Nigeria. In contrast, in this case, it is expressly accepted by the defendants that publication occurred in Ireland. Having regard to the statutory definition of defamation in s. 6(2) of the 2009 Act, it follows that the tort occurred in Ireland. That sub-section provides that “The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person …”

109. Unlike the position in Traxys, the plaintiffs do not have to rely on anything that happened outside the jurisdiction to prove their case. In addition to publication in Ireland, the plaintiffs will have to prove that the material in issue could reasonably be understood as referring to them and that the material is defamatory of them, namely that the material tends to injure their reputation in the eyes of reasonable members of Irish society. As previously noted, Mr. Ganley claims to have a “high reputation” in Ireland. While that is a matter to be proved at that the trial, it is undoubtedly the case that Mr. Ganley has a strong public profile in Ireland. He is well known in this country and has featured in a number of referendum campaigns. While Mr. Ganley has said in his affidavit that, potentially, the plaintiffs may call witnesses from the United Kingdom and the United States, it is clear that each element of the tort could be established solely by reference to witnesses in this jurisdiction. Given that the plaintiffs have expressly confined themselves to a claim of defamation in Ireland, the events which occurred in the United States are not in any way central to their claim. While those events may be of great significance to the defendants’ defence of the proceedings, the fact remains that, unlike in Traxys, the tort in issue here occurred in the jurisdiction in which the plaintiffs have commenced their action.

110. Counsel for the defendants emphasised that, as appears from the approach taken by the U.K. Supreme Court in VTB Capital plc v. Nutritek International Corporation [2013] AC 337, the English cases suggest that the place of commission of the tort is not the only question that should be taken into account. In the VTB Capital case, the plaintiff company was incorporated and regulated in England. It was the subsidiary of a Russian state-owned bank based in Moscow. Following negotiations conducted principally through the Russian bank, the plaintiff entered into a facility agreement in London (governed by English law) with a Russian company, RAP, for a loan to enable RAP to purchase six Russian dairy companies and associated enterprises from the first defendant, a company incorporated in the British Virgin Islands with operations in Russia and controlled through the second and third defendants which were companies incorporated in the British Virgin Islands and Russia respectively, and the fourth defendant, an international businessman living in Russia. The plaintiff brought an action in England seeking damages in deceit and conspiracy, alleging that it had been induced to enter the facility agreement by the misrepresentations of the first defendant, acting in concert with the other defendants. It was alleged that RAP and the first defendant had misrepresented the value of the dairy companies by putting forward valuations that were greatly in excess of their true worth. An application was brought by the defendants to set aside the order giving leave to serve the proceedings on them.

111. In his judgment in the VTB Capital case, Lord Mance referred, at p. 357, to the traditional approach which had been taken in cases such as The Albaforth [1984] 2 Lloyd’s Rep. 91 to the effect that the place where the tort occurred is a weighty factor in determining the appropriate forum issue. But counsel for the defendants drew attention to the way in which this was qualified by Lord Mance, at p. 358, in the following terms: “The Albaforth Line of authority is no doubt a useful rule of thumb or a prima facie starting point, which may in many cases also prove to give a final answer on the question whether jurisdiction should appropriately be exercised. But the variety of circumstances is infinite, and the Albaforth principle cannot obviate the need to have regard to all of them in any particular case. The ultimate over-arching principle is that stated in The Spiliada and, if a court is not satisfied at the end of the day that England is clearly the appropriate forum, then permission to serve out must be refused or set aside.”

112. Counsel for the defendants also referred to Lord Mance’s observation on p. 369 to the effect that the place of commission of the tort should be treated as no more than a starting point that may be outweighed by other factors. Lord Mance said: “The place of commission is a relatively relevant starting point when considering the appropriate forum for a tort claim. References to a presumption are, in my view, unhelpful. The preferable analysis is that, viewed by itself and in isolation, the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction. But, especially in the context of an international transaction like the present, it is likely to be over-simplistic to view the place of commission in isolation or by itself, when considering here the appropriate forum for the resolution of any dispute is. The significance attaching to the place of commission may be dwarfed by other countervailing factors.”

113. In that case, each of the High Court, the Court of Appeal of England and Wales and the U.K. Supreme Court took the view that Russia was the appropriate forum in which the claim should be pursued. The relevant circumstances which justified that view were described in detail by Arnold J. in the High Court and are replicated on pp 365-366 of the report. They included the following facts: Each of the parties had Russian connections. VTB was controlled by a related company, VTB Moscow which, as its name suggests, was Russian. The litigation was being managed by a Russian entity, VTBDC. The other defendants were all Russian. The events giving rise to the torts all took place in Russia. The transaction was introduced to VTB Moscow at meetings between Russian individuals in Russia. The negotiations mainly took place in Russia. The alleged misrepresentations originated in Russia albeit that they were received by the plaintiffs in London. The more important misrepresentation concerned the performance of Russian dairy companies. The Ernst & Young valuation of the dairy companies was done by that firm's Moscow office and was based on information provided by Nutritek’s Russian management. The misrepresentations were primarily relied upon by VTB Moscow, acting through its credit committee and management board in Russia. They dealt in Russia with RAP’s default and sought to enforce the security in Russia which was secured over assets located in Russia. The discovery of the fraud took place in Russia. Although the loss was sustained by VTB in England (such as to allow it to be said that the tort occurred there), the ultimate economic impact was in Russia. Most of the witnesses were Russian and many of the documents were in the Russian language and located in Russia. Even the deponents of all but one of the affidavits grounding the application for service out of the jurisdiction were sworn by Russian witnesses. The factors pointing to Russia were therefore overwhelming and it is unsurprising why, on the particular facts of the case, the courts took the view that the connections with Russia were so strong that Russia was the more appropriate forum in which to hear and determine the claim. In truth, it was only in a very technical sense that the tort in that case could be said to have occurred in England.

114. In contrast, in this case, on the assumption that the material published by the defendants was defamatory of the plaintiffs, the plaintiffs can show that each element of the tort of defamation took place here. As noted earlier, it is accepted that publication occurred here. The plaintiffs have a reputation here and the republications by Irish newspapers provide the plaintiffs with an arguable basis for their contention that the publications were understood to refer to them. While the publication dealt with events which are alleged to have occurred in the United States, and while those alleged events are likely to feature strongly in the defendants’ defence of the proceedings, the tort of defamation is concerned with the words published by the defendants and the plaintiffs’ claim is focused solely on the words published in this jurisdiction.

115. It seems to me that the VTB Capital case illustrates Clarke J.’s observation in the IBRC case that many of the decisions in this area are fact dependent. It is nonetheless of some assistance in so far as it makes clear that the place of commission of a tort may provide a prima facie basis pointing to the appropriateness of a particular jurisdiction but that, depending on the other aspects of the case, it is not necessarily decisive.

116. In an earlier English authority, namely Berezovsky v. Michaels [2000] WLR 1004, the place of commission of the tort was regarded as a very important factor in a decision that England was the appropriate forum to hear and determine a defamation claim against Mr. James W. Michaels the editor of “Forbes” magazine and its publisher, Forbes Inc., both of whom were based in the United States. Both sides in this appeal sought to rely on this authority, albeit for quite different reasons. Before turning to this aspect of the parties’ arguments, I should explain that Mr. Berezovsky was a prominent Russian businessman who, at the relevant time, held a senior post in the Russian government. He was said to be a close associate of President Boris Yeltsin. He was also a frequent visitor to England and some family members lived there. In its issue of 30th December 1986, an article appeared in Forbes magazine under the headline: “Is he the godfather of the Kremlin? Power, Politics, Murder. Boris Berezovsky can teach the guys in Sicily a thing or two.” The article suggested that he was a major leader of organised crime and corruption in Russia. He and an associate commenced defamation proceedings in London seeking damages solely in respect of the publication which occurred in England and Wales. At the time, sales of Forbes magazine in England and Wales were about 1,900 copies. This compared to much more substantial sales in the United States and Canada amounting to 785,000 copies. By my calculation, 1,900 copies represents approximately 0.24% of the figure for sales in the United States and Canada. If one were to do a similar exercise in relation to the table of visits to the websites contained on para. 41 of Ms. Harty’s affidavit, the figure of 240 visits by Irish visitors would represent 1.54% of the figure of 15,530 visits by those in the United States.

117. In the Berezovsky case, leave was given to serve the proceedings on the defendants in the United States. The defendants subsequently brought an application to set aside the order granting leave. That application succeeded before Popplewell J. who held that the plaintiffs’ connections with England and Wales were tenuous and that they had failed to establish that England and Wales was the most appropriate jurisdiction for the trial of the action. In turn, his decision was set aside by the Court of Appeal, which admitted new evidence to the effect that the article was known to executives of financial institutions in London and had deterred them from entering into or continuing London-based in negotiations with companies with which the plaintiffs were associated. The Court of Appeal held that the judge had failed to take account of authority to the effect that, prima facie, England was the appropriate forum for the trial of any substantial complaint arising out of the circulation in England of a foreign publication. The defendants appealed to the House of Lords.

118. In the House of Lords, the defendants made a new argument which is described as follows by Lord Steyn on p. 1012 of the report as follows: “But counsel put forward the global theory on a reformulated basis. He said that when the court, having been satisfied that it has jurisdiction, has to decide under Order 11 whether England is the most appropriate forum ‘the correct approach is to treat the entire publication-whether by international newspaper circulation, transborder or satellite broadcast or Internet posting-as if it gives rise to one cause of action and to ask whether it has been clearly proved that this action is best tried in England.’ If counsel was simply submitting that in respect of trans-national libels the court exercising its discretion must consider the global picture, his proposition would be uncontroversial. Counsel was, however, advancing a more ambitious proposition. He submitted that in respect of trans-national libels the principles enunciated by the House in the Spiliada case [1987] A.C. 460 should be recast to proceed on assumption that there is in truth one cause of action. The result of such a principle, if adopted, will usually be to favour a trial in the home courts of the foreign publisher because the bulk of the publication will have taken place there. Counsel argued that it is artificial for the plaintiffs to confine their claim to publication within the jurisdiction.” (emphasis added).

119. The “trans-national” argument was rejected by the House of Lords. Lord Steyn referred to a long-established feature of the English law of defamation (dating back to Duke of Brunswick v. Harmer (1849) 14 Q.B. 185) that each communication of a defamatory statement is a separate tort. At pp. 1012-1013, Lord Steyn said that counsel’s argument: “ignores the rule laid down in Diamond v. Sutton (1866) L.R. 1 Ex. 130, 132 that a plaintiff who seeks leave to serve out of the jurisdiction in respect of publication within the jurisdiction is guilty of an abuse if he seeks to include in the same action matters occurring elsewhere: see also Eyre v. Nationwide News Pty. Ltd. [1967] N.Z.L.R. 851. In any event, the new variant of the global theory runs counter to well established principles of libel law. It does not fit into the principles so carefully enunciated in Spiliada. The invocation of the global theory in the present case is also not underpinned by considerations of justice. The present case is a relatively simple one. It is not a multi-party case: it is, however, a multijurisdictional case. It is also a case in which all the constituent elements of the torts occurred in England. The distribution in England of the defamatory material was significant. And the plaintiffs have reputations in England to protect. In such cases it is not unfair that the foreign publisher should be sued here. Pragmatically, I can also conceive of no advantage in requiring judges to embark on the complicated hypothetical enquiry suggested by counsel. I would reject this argument.”

120. A majority of the House of Lords held that, in circumstances where the plaintiffs had significant connections with, and reputations to protect in England, and where the tort had occurred there, England was the most appropriate forum in which to hear and determine the claim. With some justification, counsel for the plaintiffs argued that there is a clear parallel between the facts of that case and the facts here. Like Berezovsky, the story published here, related to events which took place abroad. There is also a parallel in so far as the number of website visits in North America dwarfed the modest number of visits here. The same pattern can be seen in the number of magazine sales in Berezovsky. Thus, like Berezovsky, the tort of defamation occurred here and the plaintiffs have reputations to protect here. Again, with some justification, their counsel argued that, in fact, the plaintiffs have a much stronger connection with this jurisdiction than either of the Russian plaintiffs in Berezovsky could claim to have with England.

121. However, counsel for the defendants submitted that Berezovsky can be distinguished. He argued that the position under Irish law is different. He maintained that, as a consequence of s. 11 of the 2009 Act, the trans-national argument (which was rejected by the House of Lords in Berezovsky) should be upheld in this jurisdiction. Section 11 of the 2009 Act deals with “multiple publication” which is defined in s. 11(3) as “Publication by a person of the same defamatory statement to 2 or more persons … whether contemporaneously or not.” Counsel for the defendants submitted that this is what occurred here through the worldwide broadcast and the subsequent dissemination of the material on the websites.

Under s. 11(1) of the 2009 Act, a person has “one cause of action only in respect of a multiple publication” although s. 11(2) empowers a court to grant leave to a person to bring more than one defamation action in respect of a multiple publication where the court considers that “the interests of justice so require”. Counsel for the defendant argued that s. 11 constitutes a statutory reversal of the approach taken in Duke of Brunswick v. Harmer although he acknowledged that the consequences of s. 11 have “not been fully worked out” and that the interaction between s. 11 and the decision of the Court of Justice in Case C-68/93 Shevill v.

Presse Alliance [1995] ECR I-415 is “not clear”. For completeness, it should be noted that, in Shevill, the Court of Justice held that, in the case of an international defamation through the printed media, a plaintiff was entitled to sue in every Member State in which he or she is known or, in the alternative the plaintiff could sue the publisher in the place where the publisher is established. As the subsequent decision in Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH shows, the position has since been modified in the case of defamatory website publications.

In such cases, the plaintiff may still sue separately in every Member State in which the website material is available in respect of the individual damage to the plaintiff in each such Member State. Alternatively, the plaintiff may instead pursue a single action for damages in respect of all damage suffered in which case the plaintiff has the option either to sue the website publisher in the Member State in which the publisher is established or to sue the publisher in the Member State in which the plaintiff’s centre of interests lies. In a later case (Case C-800/19 Mittelbayerische Verlag), the Court of Justice made clear that the latter option is confined to cases where the content of the relevant website publication contains objective and verifiable elements which make it possible to identify the plaintiff either directly or indirectly.

As evidenced by the republications pleaded in para. 16 of the statement of claim, I am of the view that the plaintiffs here have put forward a good arguable case that they are identifiable from the publications in issue.

122. It seems to me that there is an obvious difficulty with the defendants’ argument based on s. 11 of the 2009 Act. That argument presupposes that, in enacting s. 11 of the 2009 Act, the Oireachtas intended to capture not only actions in respect of defamatory publications occurring in this jurisdiction but also defamatory publications abroad. Having regard to the presumption against the extra-territorial effect of legislation discussed in Thornton v. Revenue Commissioners [2023] IECA 316, that seems to me to be a highly doubtful proposition. However, it is unnecessary to reach any final view on the issue. It is sufficient to observe that counsel for the defendants did not provide any basis to substantiate his assertion that s. 11 could have this effect. The submissions did not address the presumption against extra-territorial effect and whether there was anything in the 2009 Act that might arguably be said to displace it. Irrespective of who bears the overall burden of proof on this application, it seems to me that the defendants undoubtedly bear the burden of proof in establishing an arguable basis for their submission as to the effect of s. 11. In my view, their submissions on this issue were far too tentative and incomplete to establish such a basis. In the circumstances, I do not believe that it is necessary to consider this aspect of the defendants’ submissions any further.

123. In circumstances where the defendants’ s. 11 argument has not been made out, it follows that the defendants’ basis for distinguishing this case from Berezovsky falls away. That said, the fact that there is a parallel between this case and Berezovsky is not the end of the enquiry. It is still necessary to consider all of the relevant factors at play in this case in order to determine whether the courts of Washington D.C. are a clearly or distinctly more appropriate forum than the courts of this jurisdiction.

Conclusion on the issue of appropriate forum

124. It is clear from the IBRC case that, in considering whether there is a forum which is clearly or distinctly more appropriate than Ireland, it is necessary to weigh in the balance the competing factors that point towards the respective fora in issue. That exercise must be carried out objectively. It is also essential to take the position of both sides into account. In the Intermetal case, Murphy J., at p. 33, expressly adopted Lord Goff’s formulation in Spiliada to the effect that a stay would only be granted on forum non conveniens grounds where: “the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice." (emphasis added)

125. As I have observed earlier, there are a number of competing factors, some of which point towards Ireland as the appropriate forum and some of which point towards the United States. The fact that the plaintiffs have confined themselves to a claim in respect of the publications which have occurred in Ireland strongly points towards Ireland as the appropriate forum in which to litigate their claim. That means that the relevant tort (if there was one) occurred here and that Irish law applies to it. As the case law shows, the place of commission of a tort is, at the very least, a starting point suggesting that the courts of that place provide the most appropriate forum for the resolution of the dispute. It seems to me that, in defamation cases, this factor carries more weight than might be the case in the context of other torts. This is for the reason that, as noted in para. 99 above, the tort of defamation is concerned with injury to a person’s reputation in the eyes of reasonable members of society. To paraphrase the extract from McMahon & Binchy quoted in that paragraph, the tort is concerned with the preservation of a person’s good name in his or her own community. The importance accorded to the locality of the plaintiff in a defamation action is, by no means, confined to domestic Irish law. It is also to be seen in the decision of the Court of Justice in eDate Advertising. In that case, the Court said at para. 48: “… Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice…”

126. Secondly, both the IBRC case and Spiliada identify that the governing law is a relevant consideration. Accordingly, the fact that Irish law applies to the publications in issue is also a factor pointing towards this jurisdiction. The case law nonetheless suggests that it is not necessarily a decisive factor.

127. The location and place of business of the parties is another relevant factor. At first sight, that factor might appear to be neutral in circumstances where the fact that the plaintiffs are based here is counterbalanced by the fact that all of the defendants are based abroad. Arguably, it might be said that, in light of the fact that only one of the defendants is based in the United States, this factor is tilted somewhat towards Ireland rather than towards the United States. However, I would not give much weight to that slight imbalance. On the other hand, the fact that the proceedings are concerned with an alleged defamation makes the place where the plaintiffs are based more relevant and, for the reasons advanced in para. 125 above, this is factor that weighs in favour of Ireland.

128. In so far as witnesses are concerned, the defendants emphasise that the underlying story relates to events in the United States and that all of the witnesses necessary to prove the truth of the story and to assist in establishing a public interest in its publication are based in the United States. They also highlight that the plaintiffs themselves say that they may call some witnesses from the United States. This is a factor that points towards the United States as the appropriate forum.

129. However, it is important to keep in mind that, while Ms. Harty identified a long list of “dramatis personae” in para. 38 of her affidavit (all of whom are based in the United States), she did not go so far as to contend that any of them would be called as witnesses at any trial. On the contrary, her affidavit is quite vague as to the number of witnesses to be called and para. 39 of her affidavit suggests that the witnesses would largely be journalists employed by CNN. Significantly, no issue was raised in the defendants’ affidavits about any difficulty with compellability of witnesses or any problem in securing the necessary witnesses to give evidence in Ireland should the case proceed here. In those circumstances, it seems to me to follow that the issue that arises is not that CNN would not be able to defend the proceedings in Ireland but that, because of the travel distances involved, a trial in Ireland would lead to inconvenience for the defendants – or at least, for CNN. On the other hand, as Ms. Harty stressed in her affidavit, Mr. Ganley has business interests in the United States, such that a trial there will not lead to the same level of inconvenience for him.

130. In addition, neither Ms. Harty nor Mr. Vigilante identified the witnesses to be called by CNIL and Turner (both of which are based in London). While the issue was not addressed by them, it would be reasonable to presume, on the basis of the contentions advanced that neither of those entities had any role in the publications in issue, that they will wish to call witnesses to deal with that issue. Given that they are both based in London, it would seem likely that those witnesses will also be based there. It would therefore be more convenient from their perspective to travel to Ireland than to the United States. That is a factor that weighs to some extent in favour of Ireland but it could not be said to be of the same weight as the inconvenience to CNN in the event that it is necessary for its witnesses to travel to Ireland for a trial here. On the other hand, that inconvenience to CNN can be ameliorated by the fact that at least some of the evidence might be given by video link from the United States.

131. It has been strongly argued on behalf of the defendants that the public interest underlying the impugned publications is exclusively focused on the United States with no relevance to Ireland. In this context, it must be borne in mind that the publications concern the awarding of public contracts by the Government of the United States, and they suggest impropriety on the part of White House officials with regard to the proposed awarding of a contract to provide services in the United States to a company based there. However, I believe that the defendants have somewhat overstated the position. As the follow-up articles in Irish newspapers show, the story was immediately connected in this jurisdiction with Mr. Ganley. It is therefore going too far to suggest that it has no relevance to Ireland. The plaintiffs may succeed in showing that the publications refer to them and, if they do, the story has an obvious Irish dimension. Nevertheless, the public interest in relation to the publications is predominantly focused on events in the United States. This is clearly relevant to the defence which the defendants intend to pursue and is a factor that weighs in favour of proceedings in the United States.

132. It is necessary to make clear that there are some issues canvassed in the parties’ affidavits about which no conclusions can be reached at this stage of the proceedings and which cannot therefore be weighed in the balance in determining the forum conveniens issue. Thus, for example, no reliance can be placed on Ms. Harty’s suggestion in para. 43 of her affidavit that no Irish citizen or entity “is referred to in even oblique terms by the impugned publications.” That contention is contested by the plaintiffs who rely on the republications mentioned previously. That is a matter that can only be resolved at trial, wherever that takes place. Likewise, for the reasons discussed in para. 86 above, the Court cannot accept that the defendants have established an evidential basis for their contention that the proceedings have been commenced by the plaintiffs rather than Rivada Networks LLC in order to create “an artificial nexus” between the subject matter and the Irish courts.

133. Similarly, with regard to the figures for website visits discussed by Ms. Harty in para.

41 of her affidavit, it may well be correct to suggest (as Ms. Harty does) that the online article and the broadcasts were primarily directed towards viewers in the United States. However, as I have observed in para. 82 above, the figure of 240 website visits from persons in Ireland cannot be dismissed as insignificant in the context of the Irish law of defamation. Moreover, that figure deals only with visits up to December 2021 and does not include the number of Irish viewers of the broadcast. As I noted in para. 105(d) above, the defendants here, unlike the defendant in the Ryanair case, are in the business of publishing and they have chosen to extend their broadcasting of CNN International to Ireland and to make their websites accessible to online visitors with Irish internet addresses.

134. It is also the case that, as Clarke J. identified in IBRC, at p. 220, the fact that a plaintiff may be deprived of a legitimate personal or juridical advantage in the foreign forum is not a factor to be weighed in the balance in determining which forum is clearly or distinctly more appropriate. Thus, the fact that the plaintiffs may be at a litigious disadvantage in seeking to pursue their claim in Washington D.C. rather than in Ireland is not to a factor to be considered at this point. The fact that any action by them would now be statute barred is not an issue that falls to be considered in the context of the appropriate forum issue. It may, however, be relevant in the event that it becomes necessary to consider whether justice demands that the proceedings be heard in Ireland (an issue on which there can be no doubt that the burden of proof lies on the plaintiffs). The same principle would appear to me to apply to the defendants in relation to any litigious disadvantage that they may suffer if they have to defend the claim here rather than in Washington D.C. Thus, it would not be appropriate, in the context of the forum conveniens issue, to give weight to the fact that, from the defendants’ perspective, a more supportive view may be taken of the rights of the media in the United States than in this jurisdiction. Clarke J. stressed that, in considering the appropriateness of the forum, it is practical issues that fall to be weighed.

135. In light of the discussion in paras. 125 to 134 above, it seems to me that the principal factors that weigh in favour of Ireland as the appropriate forum are the fact that the tort occurred here and the fact that, as a consequence, Irish law governs the tort. In this context, having regard to the way in which the tort of defamation is designed to protect reputation, I am of the view that the fact that the alleged tort occurred here (i.e. not just publication but the alleged causing of reputational damage here) is a weighty factor in favour of Ireland as the appropriate forum. This factor has added significance in this case in light of the fact that Mr Ganley, in particular, is a well-known public figure in this jurisdiction. In addition, some witnesses are based here and there is also the likelihood that, if CNIL and Turner wish to defend the claim on the basis that they had no role in the publications in issue, Ireland would appear to be a more convenient forum than Washington D.C, for witnesses travelling from London where those entities are based.

136. On the other hand, if CNN wishes to pursue a defence based on justification or public interest, it will need to call witnesses who are based in the United States and, if the trial is to proceed in Ireland, that will cause obvious inconvenience and expense. Furthermore, the facts underlying the subject matter of the impugned publications is predominantly focused on events which are alleged to have taken place in the United States and the public interest in revealing the story is also most relevant in the context of the United States.

137. When one weighs these conflicting factors in the balance, it seems to me that there is a strong basis to conclude that Ireland is clearly and distinctly a more appropriate forum than Washington D.C. or any other venue within the United States. In my view, that is so irrespective of who bears the burden of proof on the issue. To my mind, the most significant factor in play is the fact that publication occurred in this jurisdiction and that the plaintiffs claim that their reputation was damaged here, such that the tort (if there was one) occurred here.

While that is described in the case law as a starting point, it is clear that, to paraphrase Lord Mance in the VTB Capital case, it will also, in many cases, prove to give the final answer on the question whether jurisdiction should be appropriately exercised. On the facts, it did not provide the final answer in the VTB Capital case. That was because of the very extensive Russian connections which existed with all parties in that case coupled with the fact that almost all of the underlying constituents of the tort (other than the receipt of the alleged misrepresentations) occurred in Russia.

The relevant connections with Russia are summarised in para. 113 above. It is readily apparent why they were considered sufficient to displace the starting position that the tort occurred in England. On the particular facts of that case, they pointed overwhelmingly to Russia. Lord Mance described the position on pp. 355-356. He said that, even though the tort of deceit occurred in England, the tortious responsibility of all of the respondents depended on it being established that they were party to a common design and he described that common design as “thoroughly Russian”.

Later, on pp. 369-370, he summarised the position as follows: “Here the common design on which the respondents’ tortious responsibility is based was formed in Russia. Further, both the alleged representations emanated from Russia, in the form of the Ernst & Young 2007 report and the information that Mr Alginin was the effective beneficial owner of RAP. The history of the transaction … indicates that the transaction was introduced, pursued and approved predominantly in Moscow. It is difficult to avoid the conclusion that VTB was effectively following suit on decisions taken there.

Further, significant aspects of the facts which are said to have rendered the representations untrue existed in Russia: particularly, the dairy company's business and financial positions, but also … the factual control, which Mr. Malofeev is said to have exercised directly or through Marcap Moscow over RAP.”

138. It will therefore be seen that, in VTB Capital, it was only in a very formal sense that the tort could be said to have occurred in England and it is understandable that the view was taken in that case that the underlying factual connections with Russia were so overwhelming as to outweigh the force to be accorded to the place of commission of the tort. In contrast, in this case, there is no material of equivalent strength before the Court to displace the starting position. In this context, although extensive publication took place abroad, the only tort that is relied upon in these proceedings is defamation arising from the publication of the material in Ireland. The plaintiffs have not sought to make any case arising from the extensive publication of the material outside Ireland. Unlike VTB Capital, no element of the tort requires the plaintiffs to prove anything that occurred abroad. The tort is governed by Irish law and the only matters required to be proven by the plaintiffs are the fact and the extent of publication in Ireland, the defamatory nature of the material published and that the material would be understood to refer to them. In so far as they rely on the alleged republications in Irish media, they will also need to prove that the republications were the natural and probable consequence of the original publications. Under Irish law, if those matters are proved, damage to reputation will be presumed although it seems likely that, having regard to the “high reputation” claimed by the plaintiffs in their statement of claim, they will wish to give specific evidence of their reputation in this jurisdiction. In turn, that leads to the related consideration namely, that it is a fundamental aspect of the law of defamation that the tort involves injury to a person’s reputation in the eyes of reasonable members of society. For the reasons previously discussed in paras. 99, 125 and 135 above, that is a very weighty reason why it usually makes sense that a party alleging defamation should be entitled to pursue a claim in the jurisdiction where that party is based.

139. When one weighs the considerations outlined in para. 138 above against the considerations identified in para. 136, it seems to me that the balance firmly swings in favour of Ireland as the forum which is clearly or distinctly more appropriate in which to litigate the plaintiffs’ claim. I fully appreciate that this will give rise to additional inconvenience and expense to the defendants – or at least to CNN – who will need to call witnesses from the United States in order to pursue the proposed defences of justification and public interest. However, I believe that this factor is not sufficient to displace the starting proposition that Ireland is the appropriate forum. In so far as expense is concerned, no case has been made that the plaintiffs would not be a good mark for an order for costs in the event that the plaintiffs ultimately fail in their claims. With regard to inconvenience, it cannot be denied that a trial in Ireland will give rise to inconvenience for the defendants and their witnesses from the United States. In my view, such inconvenience does not come close to displacing the starting proposition in favour of Ireland as the place where the tort was committed. It falls far short of the position in the VTB Capital case where the evidence on both sides was overwhelmingly Russian-based and where the plaintiffs were relying on events in Russia in order to establish the necessary common design and the facts giving rise to the tort. Equally, it falls far short of the position in Traxys Europe S.A. v. Sodexmines Nigeria Ltd. where, as noted in para. 108 above, virtually every element of the tort occurred in Nigeria. The acts of deception occurred there, the delivery of the worthless material occurred there and the witnesses necessary for the plaintiff to establish its claim against the second defendant were all in Nigeria.

140. It is significant that the defendants have not raised any difficulty about the compellability of witnesses in relation to a trial in Ireland. They have not suggested that any of their witnesses would be unwilling to travel here. Thus, there is no concern that witnesses will be unavailable. The concern relates to the inconvenience of bringing witnesses here. That is, of course, a relevant factor but, for the reasons outlined in para. 138 above, that inconvenience carries less weight than the interest in the trial taking place in the jurisdiction of the tort. Moreover, there are a number of ways in which the inconvenience can be ameliorated. For example, it is no longer uncommon for witnesses to give evidence remotely from abroad. While it is likely that, in a defamation action, the defendants will wish their main witnesses to give evidence through physical attendance in the court room, remote attendance by the less significant witnesses could readily be accommodated. Another mechanism that can be availed of is the taking of evidence on commission or pursuant to letters rogatory. It is also the case, as is well known, that there are very extensive flight connections between Ireland and North America which means that, despite the distance involved, travel between the two locations is generally unproblematic.

141. I have not lost sight of the fact that, in addition to the inconvenience in having witnesses travel from the United States to Ireland for a trial, the defendants strongly argue that their public interest defence is firmly rooted in a United States context. However, I do not believe that this creates a practical difficulty. It is important to keep in mind that any legal issue that arises in relation to the defence under s. 29 of the 2009 Act will be resolved by the trial judge in the usual way and that, in so far as factual issues are concerned, juries in defamation trials are required to reach their conclusions on the basis of the evidence. That is so whether there is evidence about relevant events in Ireland or events which occur abroad. It will be for the defendants to place the appropriate evidence before the Court to establish the facts on which the defence is based. The fact that the evidence may relate to matters which have occurred overseas does not affect the approach to be taken. The jury will be appropriately directed by the trial judge and the defendants will also have an opportunity to address the jury through counsel.

142. To the extent that the defendants have a concern that the s. 29 defence may not be available in relation to events occurring abroad, that is not an issue that falls to be considered in the context of the appropriate forum issue. As previously explained, the IBRC case makes it clear that the loss of a litigious or juridical advantage are not matters that are weighed in the balance when considering the appropriateness of one forum over another.

143. In all of these circumstances, weighing the factors raised by the parties, one against the other, I have come to the conclusion that Ireland is clearly and distinctly the more appropriate forum for the hearing and determination of the plaintiffs’ claims against the defendants. That seems to me to be so irrespective of who bears the burden of proof.

144. In the circumstances, it is unnecessary to consider the second issue identified in the IBRC case namely whether justice demands that the proceedings should be tried in this jurisdiction. As Clarke J. made clear, that issue only arises if it is determined that a foreign court is clearly and distinctly a more appropriate forum than Ireland. It follows that it is unnecessary to consider whether the High Court was correct in holding that it would be unjust to stay the proceedings on the basis set out in para. 37 of the judgment of Simons J. namely that it would result in the plaintiffs “who are unblameworthy, being denied access to the courts in either jurisdiction.”

The orders to be made

145. In light of the conclusions which I have reached in respect of both of these appeals, it follows that both appeals should be dismissed and the orders made by the High Court should be affirmed.

146. 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. Likewise, 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. If any of the defendants wish to canvass for the making of a different order for costs, they should furnish short written submissions (not exceeding 1,500 words) within 14 days from the date of this judgment. In the event that such submissions are furnished, the plaintiffs are at liberty to furnish relying submissions (not exceeding 1,500) words within 14 days from receipt of the defendants’ submissions, following which the Court will issue a ruling electronically on the issue.

147. Faherty and Butler JJ have authorised me to confirm that they agree with this judgment and the orders which I propose.