High Court dismisses jurisdiction applications against French entities due to forum non conveniens and procedural non-compliance.

THE HIGH COURT

[2026] IEHC 243

Record No. 2022/2005 P

Between

RONNIE DELANY

Plaintiff

and

SAS SOCIÉTE D’EXPLOITATION ET DE DÉTENTION HÔTELIÈRE VISTA, GILLES DE BOISSIEU AND SHEIKH HAMAD BIN KHALIFA AL THANI

Defendants

AND

THE HIGH COURT

Record No. 2022/2500 P

Between

RONNIE DELANY

Plaintiff

and

MAYBOURNE HOTELS LIMITED, MARC SOCKER, HAMAD BIN KHALIFA AL THANI and HAMAD BIN JASSIM BIN JABER AL THANI

Defendants

Judgment of Mr. Justice Conor Dignam delivered on the 24th day of April 2026 TABLE OF CONTENTS

INTRODUCTION ...................................................................................................... 1

THE THREE APPLICATIONS ...................................................................................... 4 APPLICABLE GENERAL PRINCIPLES ......................................................................... 6

Default jurisdiction .................................................................................................. 7

Departure from default position ................................................................................ 8 Burden of Proof in relation to the jurisdictional gateways ............................................ 10 Standard of proof on the jurisdictional gateway ......................................................... 10 Burden and standard of proof in respect of the Court’s discretion ................................. 14 Forum non conveniens ........................................................................................... 19 MAYBOURNE JURISDICTION APPLICATION ........................................................... 23

Order 11 Grounds ................................................................................................. 24

Defamation .......................................................................................................... 24

Conspiracy ........................................................................................................... 26

Discretion – Rules (2) and (5)................................................................................. 32

Issues re Notice of Summons and service in Maybourne ............................................. 42

Conclusion in relation to the Maybourne proceedings ......................................... 45 SEDH APPLICATIONS ............................................................................................ 45 Want of jurisdiction as against the first and second defendants .................................... 46 Failure to specify jurisdictional basis ........................................................................ 61

Conclusion in relation to the first and second-named defendants .......................... 62 Application in relation to the third-named defendant ............................................ 62 Failure to obtain leave to serve prior to issuing proceedings ........................................ 62 Forum Non Conveniens .......................................................................................... 64 Service of the Summons rather than Notice .............................................................. 65

Conclusion in relation to the third-named defendant ............................................. 65

SUMMARY ............................................................................................................. 65

INTRODUCTION

1. This judgment concerns three applications: an application by the defendants in each of the sets of proceedings concerning the jurisdiction of the courts of Ireland to hear and determine the proceedings; and an application by the plaintiff in the first set of proceedings for an Order amending the endorsement under Regulation (EU) Number 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (“Brussels Recast”) on the Plenary Summons. I return to the detail of these applications in due course.

2. I will refer to the first set of proceedings (Record number 2022/2005P) as “the SEDH proceedings” and to the second set (Record number 2022/2500P) as “the Maybourne proceedings”.

3. The proceedings essentially comprise claims for relief in respect of alleged defamation and conspiracy. A Statement of Claim has been delivered in each case. Defences have not yet been delivered. The following summary of the proceedings and the background should therefore not be taken as constituting findings of fact.

4. The claims arise as follows. The plaintiff is a businessman with interests in the property, construction and hospitality sectors, including project management activities. He has worked closely for a long number of years with another businessman, Mr. Paddy McKillen, and with a company entitled Hume Street Management Consultancy Limited, which is owned by Mr. McKillen.

5. Maybourne Hotels Limited, a company registered in the United Kingdom, owns and manages a hotel group known as the “Maybourne Hotel Group”. SAS Societé D’Exploitation et de Detention Hoteliére Vista (“SEDH”) is a company within that group. At the relevant time, SEDH owned a hotel which was being developed in the south of France, known as the “Maybourne Riviera”. SEDH is a private limited company incorporated in France with its office in Paris.

6. Maybourne Hotels Limited is owned jointly by Sheikh Hamad Bin Khalifa Al Thani and Sheikh Hamad bin Jassim bin Jabber Al Thani. Mr. McKillen had an ongoing business relationship with the Al Thanis and the Maybourne Hotel Group. As I understand it, Mr. McKillen and another associate, Mr. Liam Cunningham, were on the board of Maybourne Hotel Group. Mr. McKillen introduced Mr. Delany to agents of the Al Thanis and he was engaged to act in a lead position on the project team for the Maybourne Hotel Group. At the time, the Maybourne Riviera was being developed and Mr. Delany’s initial focus was on that development. After some time, his focus, along with that of a Mr. Frank Sinton, was shifted to another development, the Emory Hotel in London, which was being developed by a company called Goldrange Properties Limited, another company in the group.

7. In April 2022, Mr. McKillen and Mr. Cunningham were removed as directors of the Maybourne Hotel Group.

8. On the 13th April 2022, a letter was sent to the plaintiff by SEDH in which it was stated, inter alia: “This letter is to notify you that any rights of access you may have to the hotel known as The Maybourne Riviera (the Site) are hereby withdrawn while we look into a number of matters.” The letter was signed by the second-named defendant in the SEDH proceedings, Mr. Gilles de Boissieu. He is described by Mr. Delany as the “legal representative” of SEDH. The letter was also sent to a Mr. Marc Socker who, according to the Statement of Claim in the Maybourne proceedings, is co-chief executive officer of Maybourne Hotels Limited. It was also copied to a Mr. Gianluca Muzzi who, according to the Statements of Claim in both proceedings, is cochief executive officer of the Maybourne Hotel Group. This letter is the subject of the SEDH proceedings.

9. On the same date, the 13th April 2022, three letters were sent to the plaintiff by Maybourne Hotels Limited or other companies in the group. These were in similar terms to the SEDH letter but, rather than only referring to one site as the letter in the SEDH proceedings had, they referred to the offices of Maybourne Hotels Limited as well as the Maybourne Riviera and the Emory Hotel site and the Berkeley Hotel, another hotel in the group. A fourth letter was addressed to Mr. McKillen and sent to a Ms. Anne Marie Ryan, and Mr. Liam Cunningham. All four letters were also sent to Mr. Gianluca Muzzi. The letters were signed by Mr. Marc Socker. It is worth pausing at this point to note that it is common case that Mr. McKillen can not be contacted directly and that he is contacted through Ms. Ryan who has been his personal assistant for a long number of years. It is also common case that Ms. Ryan forwarded the email to Mr. McKillen and that he was in Japan when he received it. This fourth letter stated:

“We are writing to inform you that we (and the relevant owning entities of the relevant hotels) have withdrawn any access rights that Frank Sinton and Ronnie Delany have to Berkely [sic] Hotel, the Emory Hotel site, the Maybourne Riviera and the offices of Maybourne Hotels Limited (the Sites) whilst we look into a number of matters.”

10. Mr. Delany claims that these letters were defamatory of him in the manner pleaded in the Statements of Claim.

11. He also claims that they were published by the defendants for the purpose of the Defamation Act 2009. There is an important difference between the two sets of proceedings in relation to publication. There is no claim in the SEDH proceedings of specific publication of the letter in Ireland. Rather, Mr. Delany relies on his reputation being centred in Ireland and on foreseeable republication. In the Maybourne proceedings, he claims that the letter was published in this jurisdiction to Ms. Ryan.

12. Mr. Delany claims that SEDH, Mr. de Boissieu, Mr. Socker, Goldrange Properties Limited, and Berkeley Limited were acting as servants or agents of the Al Thanis. He also claims that all of the defendants, their servants or agents, were party to a coordinated concert of action amounting to an actionable conspiracy which was effected with the sole or predominant purpose of causing injury or loss to Mr. Delany by way of a combination of lawful and unlawful means.

13. In essence, the plaintiff claims that a dispute arose between Mr. McKillen and the Al Thanis and, as part of that dispute, the defendants set out to and/or conspired to damage Mr. Delany (and Mr. Sinton) who, it is claimed, were perceived as being in Mr. McKillen’s camp.

14. The SEDH proceedings were issued on the 24th May 2022. The Maybourne proceedings were issued on the 23rd June 2022. Conditional appearances were entered on behalf of the various defendants and ultimately the current motions were issued.

15. Before setting out the details of the motions, it is worth noting the following agreed facts as they are relevant to the questions which have to be addressed:

(i) SEDH and Mr. de Boissieu are domiciled in the French Republic;

(ii) The Al Thanis are domiciled in the State of Qatar;

(iii) Maybourne Hotels Limited is domiciled in the United Kingdom;

(iv) Mr. Socker is domiciled in the United Kingdom;

(v) The letter in the SEDH proceedings and the letters in the Maybourne proceedings were sent in the context of a dispute concerning the ownership and control of a hotel in France and various hotels in the United Kingdom, and communicated the fact that rights of access to a hotel in France and premises in the United Kingdom respectively were being withdrawn;

(vi) Other than the plaintiff himself, the recipients of the SEDH letter were Mr. Socker and Mr. Muzzi; the recipient of the first three Maybourne letters was Mr. Muzzi; and the recipients of the fourth Maybourne letter were Mr. Paddy McKillen, Mr. Liam Cunningham, Ms. Anne-Marie Ryan, and Mr. Muzzi;

(vii) Mr. Socker was in the United Kingdom when he first read the SEDH letter;

(viii) Mr. Muzzi was in the United Kingdom when he read the SEDH and the Maybourne letters;

(ix) Mr. McKillen was in Japan when he read the Maybourne letter;

(x) Mr. Cunningham was in the United Kingdom when he read the Maybourne letter;

(xi) Ms. Ryan was in Ireland when she first accessed the Maybourne letter (it was initially not agreed that she was in Ireland when she first read it but matters evolved during the course of the hearing and the defendants accepted that she read it in Ireland).

THE THREE APPLICATIONS

16. The defendants in the SEDH proceedings issued a Notice of Motion in those proceedings on the 26th January 2023 in which the following relief is sought:

(a) An Order pursuant to Order 12 Rule 26 and/or Order 124 Rule 1 of the Rules of the Superior Courts and/or the court’s inherent jurisdiction setting aside service of the Plenary Summons on the basis that the defendants must be sued in France in accordance with article 4(1) of Regulation (EU) Number 1215/2012 (“Brussels Recast”);

(b) An Order pursuant to Order 124 Rule 1 and/or Order 11A Rule 2 and/or the court’s inherent jurisdiction dismissing, striking out or placing a permanent stay on the proceedings on the same basis;

(c) An Order pursuant to Order 124 Rule 1 and/or Order 4 Rule 1A and/or the court’s inherent jurisdiction dismissing, striking out or placing a permanent stay on the proceedings on the basis that the Plenary Summons does not specify the basis upon which jurisdiction is claimed by Mr. Delany;

(d) An Order pursuant to Order 124 Rule 1 and/or the inherent jurisdiction of the court dismissing, striking out or placing a permanent stay on the proceedings against Mr. Hamad Bin Khalifa Al Thani on the basis that the plaintiff did not obtain the leave of the High Court to issue and serve the proceedings outside of the jurisdiction;

(e) An Order pursuant to Order 12 Rule 26 and Order 124 Rule 1 and/or the court’s inherent jurisdiction setting aside service of the Plenary Summons and placing a permanent stay on the proceedings against Mr.

Hamad Bin Khalifa Al Thani on the basis of the doctrine of forum non conveniens.

17. Part of the basis of the SEDH defendants’ application was that the indorsement on the Plenary Summons under Brussels Recast did not disclose jurisdiction. The indorsement claimed jurisdiction under article 4 and/or article 8 and/or article 25 of Brussels Recast. It was stated on behalf of Mr. Delany in replies to the defendants’ “Notice for Particulars Relating to the Basis Upon Which Jurisdiction is Claimed” that this was the incorrect indorsement and the defendants’ consent to an amendment was sought. It was stated that “Reliance will be placed on Article 7 of Brussels Recast and not Article 4, 8 or 25. Without trespassing into the domain of legal submission, this jurisdiction is based on the locus of commission of the relevant torts.” The defendants did not consent to the amendment and Mr. Delany issued a motion seeking the amendment of the indorsement on the basis that “the jurisdiction of this Honourable Court was...based on the situs of the wrongs committed, pursuant to Article 7, rather than domicile or the prorogation of jurisdiction.”. This is the second application in the SEDH proceedings.

18. The defendants in the Maybourne proceedings have also brought a jurisdiction motion. The reliefs they seek are as follows:

(a) An Order pursuant to Order 12 Rule 26 and/or Order 124 Rule 1 and/or the court’s inherent jurisdiction (i) setting aside service of the Plenary Summons on each of the defendants and (ii) discharging the Order of Reynolds J dated 30th May 2022 (granting liberty to issue the proceedings) on the basis that the proceedings do not fall within the scope of Order 11 Rule 1(f).

(b) An Order pursuant to the same rules and/or the court’s inherent jurisdiction setting aside service and discharging Reynolds J’s Order on the basis of the doctrine of forums non conveniens.

(c) An Order pursuant to the court’s inherent jurisdiction dismissing, striking out or placing a permanent stay on the proceedings on the basis of the doctrine of forum non conveniens.

19. While the SEDH applications were the first to be issued, I propose to deal with the Maybourne proceedings first. Before doing so I will set out some of the applicable general principles that are relevant to both cases i.e. principles applying to Order 11 of the Rules of the Superior Courts and to forum non conveniens. Some separate issues arise in the SEDH case. I consider these later in the judgment.

APPLICABLE GENERAL PRINCIPLES

20. There was a significant level of agreement between the parties as to the applicable principles. Following the conclusion of the hearing, the parties very helpfully prepared a document identifying any issues upon which there was agreement. I am very grateful for the work that was put into this exercise. After the delivery of that document but before I delivered judgment, the Court of Appeal gave its judgment in Trafalgar Developments Ltd & Ors v Mazepin & ors [2025] IECA 280 (from a decision of Barniville J) and I invited the parties to make submissions in light of this judgment (as Barniville J’s judgment in the High Court was referred to extensively before me). The parties made supplemental written and oral submissions. They were agreed that the Court of Appeal judgment did not cause either party to resile from the points that were agreed in the shared document.

Default jurisdiction

21. The parties were agreed that the default position in respect of jurisdiction is that a defendant should ordinarily be sued in the jurisdiction in which they are domiciled. In Ryanair Limited v Fleming [2016] 2 IR 254 Hogan J said at paragraph 19:

“Before considering the particular issues of jurisdiction and forum conveniens, it should be noted that a fundamental principle of our conflict of laws rules is that, absent special circumstances, a defendant should normally be sued in the place where he or she is domiciled. The basis for this principle is obvious, since a defendant should not be forced to defend in a foreign jurisdiction – and be thereby deprived of the legal system with which he or she is most familiar, not to speak of the attendant costs and expense of defending proceedings in a foreign jurisdiction

– unless there are some special circumstances which justify the attribution of jurisdiction to the courts of the forum selected by the plaintiff. This general principle must, accordingly, inform any consideration of whether the plaintiff can satisfy the court that the High Court had jurisdiction in the matter and, even if it had, whether it would be appropriate to exercise that jurisdiction on forum conveniens grounds.”

22. He went on at paragraph 20 to say:

“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. An underlying purpose, therefore, of our conflict of laws rules should, therefore, be to promote the orderly administration of international justice so that potential defendants can arrange their affairs in such a manner as

will enable them to predict where such conduct will or (as the case may be) will not render them liable to suit.”

Departure from default position

23. Order 11 of the Rules of the Superior Courts provides for departure from that normal rule in certain circumstances.

24. Order 11 was amended after I had reserved judgment. The applicable version is the one that was in force at the time the application for leave to issue and serve out of the jurisdiction was made and at the time the applications were heard by me.

25. The applicable version of Order 11 provides, inter alia:

“(1) Provided that an originating summons is not a summons to which Order 11A applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the court whenever

(a) ...

...

(f) the action is founded on a tort committed within the jurisdiction...

(2) Where leave is asked from the court to serve a summons or notice thereof under rule 1, the court to whom such application shall be made shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience of proceedings in Ireland, or in the place of the defendant’s residence...

...

(5) Every application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a citizen of Ireland or not, and where leave is asked to serve a summons or notice thereof under rule 1, stating the particulars necessary for enabling the court to exercise a due discretion in the manner in rule 2 specified;

and no leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order.”

26. In Trafalgar Developments Ltd v Mazepin, Collins J, on behalf of the Court of Appeal (at paragraph 149) said in relation to Order 11:

“On its face, Order 11 RSC simply provides for service of proceedings out of the jurisdiction. However, it in fact provides a regulatory framework which sets out the circumstances in which the Irish Courts will assume jurisdiction over persons, arrangements, or events which are not located within this jurisdiction: Delany & McGrath, §§1–15&1–16. The questions of service and jurisdiction are inextricably combined not merely because valid service is necessary to ground the court's jurisdiction to hear an action but also because in making an order to permit service out under Order 11, an Irish court is deciding both whether it is entitled to and whether it should assume jurisdiction over a foreign defendant.”

27. As intimated in the final sentence of that passage, there are two elements to the court’s function under Order 11. The first is to determine whether the court is entitled to assume jurisdiction and the second is to determine whether, even if it is entitled to do so, it should do so. The first of these is a question of whether the claim falls within one (or more) of the categories of claims set out in Order 11 Rule 1(a) –

(s) (“the jurisdictional gateways”). The second involves an assessment of whether the case is a proper one for service out of the jurisdiction in all the circumstances, including the matters specified in Order 11 Rules 2 and 5, and involves the exercise of a discretion by the court.

28. That there are these two separate elements to Order 11 is clear and was accepted by the parties. The parties were also agreed that this means that even if the court is satisfied the jurisdictional gateway has been met, the Court retains a discretion to decline to permit service out. In Analog Devices BV v Zurich Insurance Company [2022] 1 IR 272, Fennelly J explicitly stated at page 287 that an Order granting leave to effect service out of the jurisdiction is a matter of discretion. He stated that this is clear from Order 11, Rules 2 and 5. Rule 5 provides that “no leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this order.” The Court of Appeal in Trafalgar also emphasised the necessity to distinguish between the decision as to whether a case comes within one of the jurisdictional gateways in Order 11 Rule

1 and the decision as to whether the court should exercise its discretion to allow service out, i.e. whether jurisdiction should be accepted. At paragraph 156, Collins J said:

“At the outset, it should be noted that Order 11(1), which at the material time contained 19 subparagraphs, lists the grounds upon which the Irish courts can assume jurisdiction over a foreign defendant on an exhaustive basis. If a case does not come within at least one of the categories defined in the 19 subparagraphs, the Irish courts simply do not have jurisdiction at all to compel the appearance of a foreign defendant to answer it. However, even where it is established that the case does fall within one of the subparagraphs of Order 11(1), the court is not obliged to assume jurisdiction in respect of it. In contrast to the position under the Brussels Recast Regulation and/or the Lugano Convention, under Order 11 no plaintiff is entitled as of right to sue a foreign defendant here: rather, the court at all times has a discretion to allow or to decline the application to serve the summons out of the jurisdiction. The exercise of that discretion is governed by other provisions of Order 11, most particularly Order 11(2) and (5) to which we shall return.”

Burden of Proof in relation to the jurisdictional gateways

29. The original application pursuant to Order 11 is initially made ex parte. The burden of proving that the matter is an appropriate one for an Order permitting service out of the jurisdiction is, of course, on the plaintiff at that stage. An application to set aside an Order made pursuant to Order 11 may be made under Order 12 Rule 26 (see also Order 124 Rule 1). While it was suggested in the plaintiff’s written submissions that the defendant bears the evidential burden to demonstrate that the original

decision to grant leave was incorrect, ultimately it was agreed by the parties that the plaintiff retains the burden of proof where an application is made by the defendant to set aside the Order permitting service out. This is clear from the authorities. Hogan J at paragraph 19 of his judgment in Albaniabeg Ambient Sh.p.k v Enel S.p.A [2018] IECA 46 said “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.” (see also Barniville J’s judgment in Trafalgar Developments Limited & Ors v Mazepin & Ors [2022] IEHC 167, in particular paras 134-139)

Standard of proof on the jurisdictional gateway

30. In order to establish that a case is one in which the court may assume jurisdiction the plaintiff must establish to the required standard both that there is merit to the underlying case and that it falls within one of the categories set out in Order 11 Rule 1.

31. The standard of proof applicable to these matters is that of a ‘good arguable case’. The plaintiff emphasised in his written submissions that the test is a low bar. The parties were agreed that the ‘good arguable case’ is the applicable standard and that it applies to both limbs of the first element.

32. Fennelly J in the Supreme Court in Analog Devices identified this as the applicable standard. He noted at pages 281 and 282 of his judgment that an Order permitting service out of the jurisdiction involved requiring a person to appear before what is for him a foreign court and that the international comity of the courts requires the court to examine such applications with care and circumspection. He also noted that an Order permitting service out is unlike other interlocutory applications as an Order for service out irrevocably affects the position of the other party (subject to his entitlement to seek to have the Order set aside). In those circumstances, Fennelly J rejected a lower test and, having referred to a number of cases, concluded that the ‘good arguable test’ is the appropriate standard. The importance of the need for “care and circumspection” was also emphasised by Hogan J in Albaniabeg and by Barniville J in Trafalgar (paragraphs 142 and 143).

33. In IBRC v Quinn [2016] 3 IR 197, Clarke J appeared to formulate a different standard of proof. He referred at paragraph 38 to a test of whether the case was one “which was reasonably capable of being proven”. At paragraph 43 of his judgment, he stated:

“…The court is not engaged in some assessment of the relative strengths of IBRC's and Mecon's case. Rather the court has to determine whether there is a sufficient basis for the proposition that IBRC may have a claim under one of the qualifying categories in O.11 which could justify bringing Mecon to this jurisdiction to answer the claim concerned. The bar is a low bar. It is simply designed to prevent a defendant being brought to this jurisdiction to answer an unstateable claim which has no reasonable prospect of being capable of proof...Except in quite extraordinary circumstances it is difficult to envisage on what basis it could be contended that there should be a testing of evidence purely designed to meet a very low threshold of demonstrating that the plaintiff has a claim which is reasonably capable of proof.”

34. At paragraph 53, Clarke J again referred to the Court having to come to a view as to whether whatever is alleged “may be reasonably capable of being proven in evidence”.

35. In Trafalgar, Barniville J held that the applicable standard is that of ‘a good arguable case’ and that this gave effect to the principles set out by the Supreme Court in Analog Devices and in IBRC v Quinn. He considered whether there was a difference in the standards set out in Analog Devices and IBRC v Quinn. He concluded at paragraph 168 that the Supreme Court (Clarke J) did not intend to disagree with Analog Devices. Barniville J stated at paragraph 170:

“…Clarke J. in IBRC v. Quinn was setting out in a practical way how a court should deal with an application for leave to serve out of the jurisdiction under O. 11, r.

1(h) in terms of the evidence to be adduced, the weight to be attached to that evidence (including evidence adduced by the defendant), and the approach to be taken by the court to the assessment of the evidence and submissions with a view to determining whether a plaintiff has satisfied the two relevant limbs of the test, which, for present purposes, are, whether it has a good arguable case in terms of its claim against the proposed foreign defendant and whether it has a good arguable case that its claim falls within one of the paragraphs of O. 11, r. 1. I must, therefore, approach the evidence and submissions relied on by both sides in this application by reference to the test in Analog as described and as applied in IBRC v. Quinn.”

36. The Court of Appeal in Trafalgar also considered whether Analog Devices and IBRC v Quinn were prescribing different standards of proof. The Court noted the difficulties in reconciling the two judgments (see paragraphs 192-194) and went on to say at paragraphs 251-253:

“251. In our view the overarching standard to be applied by the court to the determination of these issues is that identified by Fennelly J in Analog Devices, namely that of a “good arguable case”...

252. The fact that the question of jurisdiction was being determined irrevocably, albeit at an interlocutory stage, led Fennelly J to the view that the standard to be met was a higher one than mere stateability or arguability. This is evident from the manner in which he explained the good arguable case standard in the context of Order 11(1)(h). There had to be a “sound basis” for the contention that the party to be served was a proper party: there had to be “reality in fact and law” to the case made against the party in the jurisdiction: the inclusion of the anchor defendant could not be a “mere device” and there had to be a “substantial element”

to the claim against both the anchor and foreign defendants.

253. While on one level the emphasis placed by Clarke J in IBRC v Quinn on the threshold test under Order 11(1) representing a “low bar” might seem inconsistent with Fennelly J's formulation of that test in Analog, the requirement that the plaintiff's claim against both the foreign defendant and the anchor defendant be reasonably capable of being proved is perhaps closer to the requirement that the claim have a “sound basis”, a “substantial element” and “reality in fact and law”

than might initially appear. It is reasonable that a simple denial of the plaintiffs'

claim without more should not disturb a court's view that that claim is otherwise sound, substantial or realistic. Where the defendant's evidence goes further than simple denial, it is also reasonable to expect that the court will not decide the substantive issues in the proceedings in order to determine jurisdiction. The court is required to assess the evidence adduced by both parties, but that assessment remains one for the purposes of ascertaining whether the good arguable case test is met and not for the purposes of embarking upon any greater determination of the issues between the parties.”

37. Collins J went on to consider developments in English jurisprudence (“the Canada Trust gloss”, which entails an assessment of the relative merits of the parties’ claims), and at paragraph 294 rejected that approach and restated the court’s acceptance of the “good arguable case” standard in Analog Devices.

38. Barniville J made clear in Trafalgar that this standard applies to both aspects of the first element of Order 11 Rule 1, i.e. to the assessment of both the underlying claim and whether the case falls within one of the categories in Order 11 Rule 1. He said at paragraph 146:

“146. Leaving aside for a moment the requirements imposed on a plaintiff under

O. 11, rr. 2 and 5, the end result of the exchanges between the parties, which continued throughout the hearing and in post-hearing written submissions, was that in order to establish primary jurisdiction under the Rules of the Superior Courts, an applicant for leave to serve proceedings out of the jurisdiction under one of the paragraphs of Order 11 r. 1 must provide evidence and submissions to demonstrate:

a) that it has a good arguable case on the merits of its claim against the foreign defendant in respect of which leave is sought; and

b) that there is a good arguable case that the cause or causes of action relied upon by the applicant as against the foreign defendant falls or fall within one or more the jurisdictional gateways in O. 11, r. 1.”

Burden and standard of proof in respect of the Court’s discretion

39. The burden of showing that the case is a proper one for service out of the jurisdiction and that the Court should exercise its discretion in favour of permitting service out also rests on the plaintiff (see Barniville J in Trafalgar). This burden must, of course, be discharged in the context of the general rule that a person should ordinarily be sued in the jurisdiction in which they are domiciled, that the jurisdiction to permit service out is “exorbitant” (Fennelly J in Analog Devices), and of the care and circumspection that the comity of courts require.

40. The Court of Appeal rejected the application of the ‘good arguable case’ standard to this discretionary element, i.e. the question of whether the case is a proper one for service out of the jurisdiction. At paragraphs 329 – 331 of Trafalgar, Collins J noted that the logic of applying that test to the jurisdictional gateways is readily apparent but went on to say:

“330. The same considerations do not necessarily apply to the exercise of the court's discretion. Of course, it remains the case that the onus of establishing that the court's discretion should be exercised in favour of granting leave to serve out remains on the plaintiffs even after they have established the applicability of the relevant jurisdictional gateway. In exercising its discretion, the court is required to consider and balance a range of factors, which will vary from case to case. There is no specific proposition and certainly no factual proposition that must be proved or disproved in order for the court to exercise its discretion in favour of granting leave to serve out of the jurisdiction, save that to do so is, in general terms, consistent with the interests of justice. There is certainly no factual proposition which, if established, mandates the exercise of the court's discretion in a particular manner.

331. It is open to both parties to seek to rely on particular matters and, in so far as they do so, the onus lies on the party seeking to advance an argument relevant to the exercise of discretion to adduce sufficient evidence to establish the factual basis for any argument they wish to make. It is important to appreciate that even if such underlying facts are established, precisely because the court is exercising a discretion it does not follow that the discretion must be exercised in favour of that party. For this reason, it is not, in our view, accurate to speak in terms of the exercise of the court's discretion under Order 11 as being subject to the good arguable case test. In weighing up the various factors that go to the exercise of the court's discretion, it does not follow from the fact that the plaintiffs might have adduced sufficient evidence to ground their argument, that the court is obliged to accept that argument even in the absence of evidence on the point from the other side.”

41. The exercise under this element of Order 11 is focused on identifying whether Ireland is the forum conveniens having regard to all of the circumstances, or “a range of factors, which will vary from case to case” (per Collins J in Trafalgar). Fennelly J said in Analog Devices: “…the applicant must satisfy the court, i.e. has the burden of proving, at the ex parte stage, that Ireland is the forum conveniens.” Fennelly J also explained that “The court should grant leave only after careful consideration, not only of the existence of grounds upon which the court is empowered to grant leave, but of the appropriateness of the courts of this jurisdiction to try the case. The latinism, "conveniens" may, as has been pointed out in some of the cases, mislead; the proper translation is not "convenient," but suitable or appropriate.” In Trafalgar, the Court of Appeal said that “…under Order 11 the onus is on the applicant for service out to establish affirmatively that Ireland is the appropriate forum (forum conveniens)…”

42. Collins J addressed the general principles in relation to the exercise of the discretion at paragraphs 327-328 of his judgment in Trafalgar. He referred to Spiliada Maritime Corporation v Consulex Limited [1987] AC 460, which I return to when considering forum non conveniens (though the principles stated therein also apply to the exercise of the court’s discretion under Order 11). He then set out the following principles in relation to the discretionary element:

(i) the burden is on the applicant to establish that Ireland is “clearly or distinctly” the appropriate forum for the trial of its claims and that, in all the circumstances, the court ought to exercise its discretion to permit service out;

(ii) as part of that assessment, the court should consider whether “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 parties and the ends of justice” (per Lord Goff in Spiliada);

(iii) a “broad overall view” should be taken;

(iv) the issue is not whether the alternative forum is advantageous or disadvantageous to any particular party, but the suitability of that forum having regard to the interests of all of the parties and its ability to decide the issues in a manner consistent with the interests of justice;

(v) in order to apply this test, it is necessary first to identify the substantial cause of action between the parties and second to establish that the remedy available in the alternate jurisdiction is one capable of providing substantive justice.

43. Collins J then said at paragraph 340 and 341:

“340. Drawing these strands together, the exercise of discretion under Order 11 in accordance with the Spiliada test is a two-phase exercise. The first phase seeks to establish whether there is a forum, alternative to the Irish courts, which is the more natural forum for the trial of the action between the parties. In cases where this issue is examined in the context of forum non conveniens the courts have held that the availability of the alternative forum must be clearly and positively demonstrated by the parties seeking a stay. Here, the Plaintiffs bear the onus of proof as the party seeking service out of the jurisdiction. Consequently, once an alternative forum has been identified, in this case Russia, then the onus lies on the plaintiffs to establish that Ireland, and not Russia, is clearly the appropriate forum for the trial of the action as against the Russian UCCU Defendants. This will entail an examination and a weighing of the factors which connect the proceedings to Ireland on the one hand and to Russia on the other.”

341. The second phase looks at where the interests of justice lie and particularly in cases where, at the end of the first phase, it is apparent that the natural home of the litigation lies in a foreign jurisdiction, asks whether substantive justice will be available to the parties seeking service out in that foreign jurisdiction. The issue is no longer which of the two jurisdictions is the more suitable – or even which is more likely to achieve a just result. It is only if the foreign jurisdiction is unable to deliver substantive justice to all of the parties that the Irish courts should accept jurisdiction over the case. The range of matters to be considered is both broad and open ended. It will include the potential for fragmentation of the proceedings with the risk of multiple proceedings producing conflicting judgments; the ability of the parties to access the courts in the foreign jurisdiction, which is particularly important if not all defendants could be sued there; the ability of those courts to deliver impartial substantive justice and the burden that could be imposed on the Irish courts by accepting jurisdiction over proceedings that, more naturally, should be tried in a foreign jurisdiction.”

44. Collins J then went on to consider some of the specific factors that might be considered in the first phase, i.e. in seeking to establish whether Ireland or the alternative jurisdiction is the more natural forum for the trial of the action. He said at paragraphs 342-347:

“342. The connecting factors to be considered in the first phase may usefully be grouped under a number of headings. Again, the categories are open ended and case specific, so the following examples are intended to be merely illustrative rather than exhaustive. First, there are factors connected to the events that have led to the litigation. Where did the incident giving rise to the proceedings occur? Where was any contract made? Where did the alleged breach or other wrongful act occur? If the proceedings concern land or property, where is that property located? Where was the damage allegedly sustained? In this case, “Russia” is the answer to all of those questions.

343. Second, there are factors connected to the parties themselves. Where are the parties domiciled or resident? Where do they carry on their business? Do they speak a common language and is this the language of the foreign jurisdiction? Are there personal factors relating to any of the parties which would make it inappropriate for them to be required to litigate in the foreign jurisdiction? For example, it might be inappropriate to expect a recognised refugee to litigate in the courts of the country from which they have sought refuge...

344. Third, there are factors connected with the running of the proceedings which will likely impact on issues of comparative cost and convenience relevant under Order 11(2). For example, where are the witnesses of fact based? Will large numbers of witnesses be required to travel to Ireland to give evidence? Do the witnesses speak English (or less likely, Irish) or will interpretation be required in order for their evidence to be heard by an Irish court? Where are the relevant documents located? Are they amenable to compulsory production before the Irish courts? Will they require translation into English? Some of these factors may be less important than they previously were given the availability of digital platforms through which witnesses can give evidence without travelling to the location of the trial court and the possibility of scanning documents and transmitting them electronically. Nonetheless, cumulatively they have the potential to add significantly to the cost and convenience of a trial in a jurisdiction that is not the natural home of the litigation...

345. Fourth, there are legal factors to consider. Would a judgment of an Irish court be enforceable against the parties in the jurisdiction where they are based or against assets available to them? Alternatively, would a judgment of the foreign court be enforceable in Ireland against the assets of the Irish defendant? What is the governing law which an Irish court would have to apply to the proceedings? This is a point of some significance as the conduct of lengthy litigation under the law of a foreign jurisdiction is no easy task...

346. Differences between the legal procedures available in the two jurisdictions might also be relevant. These differences have to be approached not simply on the basis that their availability in one jurisdiction confers a benefit on one or other party and their absence in the other jurisdiction a consequent detriment. The procedures available in each jurisdiction will necessarily vary and the question is not whether the procedures in the foreign jurisdiction are particularly advantageous or disadvantageous to either party, but whether on an overall basis, the procedures are such that they enable parties appearing before the foreign court to achieve substantial justice...

347. The Judge looked at these issues under the heading “Proper Forum”

commencing at §251 of his Judgment. He acknowledged that the relevant test is that set out by Lord Goff in Spiliada as adopted and applied in multiple Irish cases in the context of Order 11(2) and (5) including Intermetal, Analog Devices and Yukos...”

45. Clarke J had referred to similar factors in Irish Bank Resolution Corporation v Quinn [2016] 3 IR 197 at paragraph 68. He referred to “practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties to determine whether the applicant has established that there is an alternative forum which is clearly or distinctly more appropriate than Ireland and, thus, the natural forum for the conduct of the proceedings.”). The parties were agreed that the issues to which the High Court can have regard in determining the appropriate forum include the location of the parties, the location of the witnesses, the adequacy of any alternative court system, the applicable law, the possibility of inconsistent judgments, and any evidence tendered regarding the comparative hardship of litigating in an alternative jurisdiction (see IBRC v Quinn [2016] 3 IR 197 and Ryanair v Fleming [2016] 2 IR 254). This is not an exhaustive list.

46. A number of English cases have held that part of the consideration of what jurisdiction is the natural forum is an examination of the “substance of the breach”. In Johnson v Taylor Bros & Co Ltd [1920] A.C. 144 it was stated “...the Court may refuse to give such leave in an instance in which the proceeding, though for a breach within the jurisdiction and in the letter within the term of the rule, is in substance not so.” Similarly, in Kroch v Rossell [1937] 1 All ER 725, Slesser LJ said “...the fact that the case might be tried in this country, and might be within the jurisdiction, is not necessarily a sufficient reason for allowing leave to be given serve out of the jurisdiction.” He also referred to the quote above from Johnson v Taylor Bros & Co Ltd and held that the case falls within that observation.

47. Collins J, on behalf of the Court of Appeal, did not expressly refer to this approach but it seems to me to follow from the first category of “connecting factors” that it must be part of the court’s consideration.

48. The parties were also agreed that even if the court is satisfied that there is a more appropriate jurisdiction, the court may retain jurisdiction if the balance of justice favours the proceedings being determined in Ireland. This involves a consideration of whether justice can be obtained in the alternative jurisdiction.

Forum non conveniens

49. A consideration of a stay on the grounds of the doctrine of forum non conveniens only arises if the Court has jurisdiction or has accepted jurisdiction, but, in reality, where an application is brought to have leave to serve outside the jurisdiction set aside and to have a stay placed on the proceedings on the basis of forum non conveniens, both matters are considered together.

50. The parties were agreed that there is broad overlap between the consideration of ‘conveniens’ under Order 11 and the doctrine of forum non conveniens and that the

Court must consider the same factors as it considers when deciding whether to exercise its discretion to permit service out when considering the application for a stay on the grounds of forum non conveniens.

51. There are, however, some key differences. The first of these is that, contrary to the position under Order 11, the burden of establishing that a court should stay proceedings on the grounds of forum non conveniens falls on the defendant (Analog Devices and Collins J in Trafalgar). It follows that the defendant must identify the jurisdiction that it claims to be more suitable or appropriate and must establish that it is in fact the more appropriate forum. The standard of proof is that the other jurisdiction must be shown to be “clearly and distinctly a more appropriate forum”. In Trafalgar, Collins J captured the overlapping nature of the considerations, the difference in respect of the burden of proof, and the applicable standard of proof at paragraphs 164 – 165:

“164. An application to stay the Irish proceedings in such circumstances is made on the grounds of forum non conveniens. As frequently observed, “conveniens” in these circumstances does not translate simply as “convenient” but rather reflects the suitability and appropriateness of a jurisdiction to try the case (see for example Fennelly J in Analog Devices, page 287). Thus, a stay is applied for on the basis that Ireland is not the appropriate jurisdiction for the determination of a particular claim or that it is a less appropriate jurisdiction for the determination of that claim than an alternate jurisdiction already seized of related proceedings between the same parties. For the most part, consideration of forum non conveniens will only arise if the court is satisfied that there was a basis for service out of the jurisdiction and for the assumption of jurisdiction under Order 11(1). If not, service will be set aside in any event and the defendant will not be required to appear in this jurisdiction to defend the proceedings. The discretionary aspects of what the court must consider under Order 11 have been characterised as placing an onus on the applicant to establish that Ireland is the forum conveniens for the trial of an action. In Albaniabeg (above), Hogan J noted that “the jurisdictional bases upon which Irish courts may assume jurisdiction may be exorbitant and are mitigated by considerations of forum conveniens”.

165. It goes without saying that forum conveniens and forum non conveniens are two sides of the same coin – one addressing the suitability and the other the lack of suitability of Ireland as the appropriate jurisdiction to hear a particular action. The principal distinction between them – and it may be an important one to bear in mind when reading the case law – is that under Order 11 the onus is on the applicant for service out to establish affirmatively that Ireland is the appropriate forum (forum conveniens) whereas, where an application to stay Irish proceedings is brought on the basis of forum non conveniens, the onus is on the party seeking the stay to establish that Ireland is not the appropriate forum (forum non conveniens) (see Fennelly J in Analog Devices). Also, in purely practical terms, since the issues of forum conveniens and forum non conveniens are mirror images of each other, a court faced with applications both to set aside service and to stay the Irish proceedings will quite often merge consideration of the discretionary aspects of Order 11 with consideration of whether the stay should be granted.”

52. In Spiliada Maritime Corporation v Consulex Limited [1987] AC 460, Templeman LJ also stated the difference concisely:

“...Where the plaintiff is entitled to commence his action in this country, the court, applying the doctrine of forum non conveniens will only stay the action if the defendant satisfies the court that some other forum is more appropriate. Where the plaintiff can only commence his action with leave, the court, applying the doctrine of forum conveniens will only grant leave if the plaintiff satisfies the court that England is the most appropriate forum to try the action...”

53. The lead judgment in Spiliada was given by Goff LJ. Many of the judgments already referred to reflect some of the statements made by Goff LJ. At page 480, he noted the similarities between the principles applying to forum non conveniens and those applying to the discretionary element under the equivalent of our Order 11. He described the exercise in both groups of cases as being “to identify the forum in which the case can be suitably tried for interests of all the parties and for the ends of justice”. He also identified the differences between the cases including:

“... in the Order 11 cases the burden of proof rests on the plaintiff, whereas in the forum non conveniens cases that burden rests on the defendant. A second, and more fundamental, point of distinction (from which the first point of distinction in fact flows) is that in the Order 11 cases the plaintiff is seeking to persuade the court to exercise its discretionary power to permit service on the defendant outside the jurisdiction. Statutory authority has specified the particular circumstances in which that power may be exercised, but leaves it to the court to decide whether to exercise its discretionary power in a particular case, while providing that leave shall not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction:" see R.S.C., Ord. 11, r.4(2).”

54. Lord Goff addressed the doctrine of forum non conveniens at page 476 and identified the basic principle as “that a stay will only be granted on the ground of forum non conveniens 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.”

55. He went on to say that the court is engaged in identifying the “natural forum” for the proceedings, which is the jurisdiction “with which the action had the most real and substantial connection”. To do so, the court must look for connecting factors and these will include factors affecting convenience or expense (such as the availability of witnesses), other factors such as the law governing the action, and the places where the parties reside or carry on business. He also pointed out that if the court is satisfied at that stage that the alternate jurisdiction is the more natural forum, it will normally grant a stay unless there are circumstances by reason of which justice requires that a stay not be granted. There may indeed be circumstances which go beyond those taken into account when considering the connecting factors. One such factor is whether there is cogent objective evidence that the plaintiff will not obtain justice in the other jurisdiction.

56. These were reflected in IBRC v Quinn. Clarke J approved of the following passage from The Conflict of Laws as being “broadly indicative of the law in this jurisdiction” in relation to the doctrine of forum non conveniens:

“First, in general the legal burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay, although the evidential burden will rest on a party who seeks to establish the existence of matters which will assist him in persuading the court to exercise its discretion in his favour. Secondly, if the court is satisfied by the defendant that there is another available forum which is clearly a more appropriate forum for the trial of the action, the burden will shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England. Thirdly, the burden on the defendant is not just to show that England is not the natural or appropriate forum, but to establish that there is another forum which is clearly or distinctly more appropriate than the English forum; accordingly, where (as in some commercial disputes) there is no particular forum which can be described as the natural forum, there will be no reason to grant a stay. Fourthly, the court will look to see what factors there are which point in the direction of another forum as being the “natural forum”, i.e. that with which the action has the most real and substantial connection. These will include factors affecting convenience or expense (such as availability of witnesses) and such other factors as the law governing the transaction and the places where the parties reside or carry on business, and also whether the claim is part of a larger overall dispute which would be damaged by being fragmented. Fifthly, if the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay. Sixthly, if, however, the court concludes that there is some other available forum which prima facie is clearly more appropriate; it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted. In that enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions.

Seventhly, a stay will not be refused simply because the claimant will thereby be deprived of a “legitimate personal or juridical advantage”, provided that the court is satisfied that substantial justice will be done in the available appropriate forum.”

57. These are the general principles which are applicable to an application to set aside leave to serve out of the jurisdiction and to an application for a stay on the basis of forum non conveniens. They are therefore applicable to both the Maybourne and SEDH proceedings. I will have to consider the principles applicable to specific points, such as, for example, the test for determining whether a tort was committed in the jurisdiction, and the principles applicable to Brussels Recast. I will do so as these points arise.

MAYBOURNE JURISDICTION APPLICATION

58. On the 30th May 2022, Reynolds J made an Order in the Maybourne case granting liberty to serve the proceedings out of the jurisdiction on the basis of Order

11 Rule 1(f). This is, therefore, the rule with which we are concerned.

59. The defendants submit that the Order of Reynolds J and the service upon them should be set aside on a number of grounds relating to Order 11 and on the basis that Ireland is forum non conveniens. They also seek a stay on the basis of the latter. The grounds relating to Order 11 are:

(i) the proceedings do not fall within the terms of Order 11 Rule 1(f)

because they are not founded on an alleged tort committed in Ireland or, more properly, that the plaintiff has not established a good arguable case that the proceedings are founded on a tort committed in Ireland.

(ii) The case is not a proper one for service out of the jurisdiction having regard to Order 11 Rule 2 and 5. This, in fact, became the main focus of the defendants’ application;

(iii) The defendants further submit that the plaintiff does not depose to the question of “the comparative cost and convenience of proceedings in Ireland”

and that this is fatal to the application for leave to serve outside the jurisdiction;

(iv) Finally, the defendants submit that the proceedings were not validly served because Notice of Plenary Summons was not served and the Al Thanis were served in London rather than Qatar.

60. As just discussed, the exercise of the court’s discretion under Order 11 and the operation of the doctrine of forum non conveniens are separate but there is considerable overlap. It will only be necessary to consider the application to set aside service or to stay the proceedings on the grounds of forum non conveniens if I refuse to set aside Reynolds J’s Order granting leave to serve outside the jurisdiction.

Order 11 Grounds

61. In respect of some of these grounds it is necessary to consider the claims in defamation and conspiracy separately.

Defamation

62. The defendants’ original first point in relation to the claim in defamation was that the plaintiff had not established a good arguable case that the tort of defamation was committed at all or that it was committed in Ireland and therefore the plaintiff had not satisfied the first requirement of Order 11, Rule 1(f) (which applies where “the action is founded on a tort committed within the jurisdiction”).

63. Initially, the defendants’ case that the plaintiff had not established a good arguable case that the tort of defamation was not committed within the jurisdiction had two limbs.

64. The first limb was that there was no publication in Ireland or at least no plea or evidence of such publication. However, matters evolved over the course of the hearing before me and it was ultimately accepted by the defendants that Ms. Ryan accessed and read the letter which had been sent to Mr. McKillen via Ms. Ryan while she was in Ireland and, therefore, publication occurred in this jurisdiction. The parties initially made submissions as to the meaning of “a tort committed within the jurisdiction” but, in circumstances where it is now accepted that there was publication in the jurisdiction, it is not necessary to consider those submissions at this stage, though I have to return to them in relation to the claim of conspiracy.

65. The second limb related to the merits of the claim of defamation itself and there were in turn two aspects to this.

66. It was submitted that there was no merit to the claim because English law applies even if the letter was published to Ms. Ryan in Ireland and that the uncontroverted evidence is that under English law an actionable defamation has not occurred. This limb was based on the exclusion of defamation claims from Regulation (EC) 864/2007 (“Rome II”), the rule set out at paragraph 35R-098 of The Conflict of Laws (Dicey, Morris and Collins, 16th Edition, Sweet and Maxwell, 2022), that England & Wales is the jurisdiction with the “most significant relationship with the occurrence” underlying the claim, and an Opinion of an English barrister. However, at the hearing, Senior Counsel for the defendants did not push this point, acknowledging (in my view correctly) that it was open to the Court to reach the view that there was a good arguable case that Irish law applied and that the question of the applicable law could be argued at the trial. In those circumstances I am satisfied for the purpose of this application that there is a good arguable case that Irish law applies.

67. I am, therefore, satisfied that there is a good arguable case that the tort of defamation has been committed in Ireland. The plaintiff has therefore satisfied the jurisdictional gateway in respect of defamation.

Conspiracy

68. In circumstances where I am satisfied that the jurisdictional gateway under Order 11 Rule 1(f) has been satisfied in respect of the claim of defamation and where the case that is made by the plaintiff is that the defamation was the means by which the defendants gave effect to their alleged conspiracy to cause damage to the plaintiff, it is not strictly necessary to consider the claim of conspiracy, at least from the jurisdictional gateway point of view. However, as the question of whether or not the tort was committed here may be relevant to the balancing of factors when considering the Court’s discretion, I propose to deal with it.

69. The defendants submit that there is no basis for concluding that the tort of conspiracy was committed in Ireland. They do so on a number of bases.

70. Firstly, they emphasise that the location of control is central to the tort of conspiracy and that there is no evidence that any decision-making element of the alleged conspiracy occurred in this jurisdiction.

71. Secondly, they submit that Ireland is not the place “where the harmful event directly had its effect on the immediate victim and where the original damage manifested...”

72. Thirdly, they rely on the principle in Salomon v Salomon.

73. The first and second of these can be conveniently dealt with together. Essentially, the defendants argue that the tort of conspiracy was not committed in Ireland because essential elements in the tort, i.e., an agreement with an intention to injure another, and the occurrence of direct damage, did not occur in Ireland. These are, of course, central elements of the tort.

74. In Iarnród Éireann v Holbrooke [2000] IEHC 47, O’Neill J described the features of the tort of conspiracy and referred to both an agreement or combination and that the object must be to injure another. He also referred to “the act done to the party”. He said:

“1. The agreement or combination of two or more people, the primary or predominant object of which was to injure another, is actionable even though the act done to the party injured would be lawful if done by an individual.

2. An agreement or combination of two or more persons to carry out a purpose lawful in itself but by using unlawful means is actionable, in circumstances where the act in question might not be actionable against the individual members of the combination, as individuals.”

75. The Law of Torts (McMahon & Binchy, 4th Edition, Bloomsbury, 2013), and Barrett J in Camiveo Limited v Dunnes Stores [2017] IEHC 147 emphasised the importance of intention in the tort of conspiracy. In IBRC v Quinn [2013] IEHC 1, Charleton J held that a conspiracy is all about the location of control.

76. In relation to the locus of damage, the defendants also referred to the Rome Convention. While defamation actions are excluded from the Convention (see article 1(1)(g)), article 4 provides in respect of “Torts/Delicts”, inter alia:

“1. Unless otherwise provided for in this Regulation, the law applicable to a noncontractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.”

77. The defendants also relied upon Actial Farmaceutica LDA v De Simone [2016]

2 CLC 1020. In that case, the plaintiff claimed that there was a conspiracy to harm its business interests by the cutting off of supplies which should have been delivered in Italy or the Netherlands. The plaintiff sought to sue in the United Kingdom on the basis that it had suffered damage in the United Kingdom and therefore this was where the “harmful event” occurred. The Court of Appeal of England & Wales rejected this, saying:

“In the present case, the harmful event was the alleged conspiracy by which the Professor and Mendes Italy sought to prevent Actial from trading by cutting off supplies to it…In my judgment, the damage which is closest in causal proximity to that harmful event is the non-delivery… in bulk to Actial’s packaging agents in Italy and the Netherlands. That is the jurisdictionally significant harm. The subsequent damage suffered because, as a consequence, Actial was unable to supply its distributors, whether Ferring UK in the UK or another distributor in whatever territories were supplied with the Product is just that, consequential or indirect damage. The judge’s analysis…cannot be faulted.”

78. In short, the defendants submit that the parties who allegedly engaged in the conspiracy were outside Ireland and, therefore, the element of agreement and intention did not occur in this jurisdiction. They submit that the direct consequences of the alleged conspiracy (if any) were felt in the United Kingdom, and the alleged impact, if any, on the plaintiff’s reputation and business interests in Ireland was “consequential or indirect damage”. On those bases it was submitted that no element of the tort was committed in this jurisdiction.

79. In Grehan v Medical Incorporated [1986] IR 528, the Supreme Court considered the appropriate test for determining whether a tort was committed within the jurisdiction. Walsh J reviewed a significant number of different cases in which various approaches were considered. Ultimately he held that if it appears that any significant element in the commission of the tort occurred within this jurisdiction then the plaintiff will have at least fulfilled the threshold requirements set out in Order 11 Rule 1(f). He said:

“...In my view, so far as choice of law in torts cases is concerned, the Irish Courts should be sufficiently flexible to be capable of responding to the individual issues presented in each case and to the social and economic dimensions of applying any particular choice of law rule in the proceedings in question. As to jurisdiction, if it appears that any significant element in the commission of the tort occurs within this jurisdiction then the plaintiff will have at least fulfilled the threshold requirements set out in order 11, rule 1 (f). But that is not sufficient to raise a presumption or an inference that the court should exercise discretion in favour of making an order for service out of the jurisdiction. Any approach which insists on any one constituent element of the commission of the tort occurring within the jurisdiction can only give rise to difficulty. Any case before the court which clearly calls for the hearing of the proceedings in Ireland and for the application of Irish law to the case an order for service outside the jurisdiction should not be denied merely because of the fact that some significant element or elements in its commission occurred outside the jurisdiction. For example, in many cases it would be quite inappropriate that the invocation either of "the place of injury" or "the last event rule" should deny to a plaintiff the right of service out of the jurisdiction. It seems to me sufficient if any significant element has occurred within the jurisdiction. To require that the element should be the most significant one could render a plaintiff's task more uncertain and the outcome more arbitrary.

There is of course a heavy burden on the court to examine the circumstances of each case before exercising its discretion to make an order for service out of the jurisdiction. It would be clearly wrong to refuse it on the application of any technical rule which insists on one element occurring in the jurisdiction as it would be equally inappropriate if the court were to permit service out of the jurisdiction where the case only had a tenuous connection with the country on its facts and in terms of the law likely to govern questions of liability and related matters.” [emphasis added]

80. That is the test which must be applied. In my view, on the application of this test, there is a good arguable case that the tort of conspiracy was committed in this jurisdiction. One of the central elements of the tort is the agreement to do harm. Another is the commission of an act (on foot of that agreement) which has as its object the infliction of harm on another. An agreement to harm someone is not in itself a tort. That agreement must be implemented. In this case, the act(s) which is alleged to have been taken by the alleged conspirators was the exclusion of the plaintiff from various sites while certain matters were being investigated and the publication of those facts to certain individuals. One instance of such publication was to Ms. Ryan in Ireland and, thus, the implementation of the alleged conspiracy, i.e. one of the significant elements of the tort, occurred in Ireland.

81. Furthermore, in my view, if the contents of the letter sent to Ms. Ryan are ultimately found to be defamatory and to have caused damage to the plaintiff’s reputation in Ireland, then the damage can not be said to have been indirect or secondary. That damage will be in causal proximity to the harmful event.

82. In my view, there is a good arguable case that two significant elements of the tort of conspiracy occurred in Ireland, i.e. the act by which harm was to be done, and direct damage.

83. It is important to note that the defendants submitted that this is the tort of defamation by a different name and that it would lead to the nonsensical result that any agreement to publish something which defames another person could be said to be a conspiracy. I do not believe that automatically follows. First, insofar as conspiracy is concerned, intention and objective are central. The agreement must have as its objective the harming of the plaintiff. Thus, an agreement by a journalist and his or her editor to publish an article which is subsequently found to be defamatory can not in itself give rise to the tort of conspiracy because the publication did not have as its objective the doing of harm. Second, there is no bar on an act being an element in two separate torts. Third, the burden of proof on a plaintiff is different in respect of the two torts; for example, it is quite possible that a plaintiff could succeed in establishing defamation but not conspiracy.

84. The third basis upon which the defendants submit that the plaintiff does not have a good arguable case in conspiracy is that the claim it is fundamentally inconsistent with long-established principles of company law and the law of agency. They rely on the long line of authorities since Salomon v Salomon. The basis on which the plaintiff alleges conspiracy is not entirely clear. It is pleaded on behalf of the plaintiff that “The Maybourne Entities, Goldrange and Berkeley were, at all material times, acting as servants or agents of the Al Thanis and/or either of them, as well as on their own behalf” (paragraph 9 of the Statement of Claim). A similar plea is made in the SEDH proceedings. In the Replies to Particulars in the Maybourne proceedings, the plaintiff states in response to the defendants’ demand for “the precise elements of the alleged concert of action”:

“...the First Named Defendant and the Maybourne Hotel Group more generally are indirectly owned and/or controlled by the Third and Fourth Named Defendants (together the “Al Thanis”), personally and are run for the personal benefit of those individuals, who exercise a high level of control over the actions of their servants and/or agents. The precise nature of the actions of the Third and Fourth Named Defendants in directing, organising and/or participating in the concert of action are known but it is pleaded, that through some mechanism of communication, whether oral or written, implicit or explicit and direct or indirect, the Al Thanis directed and/or consented to the performance of the acts constituting the concert of action, for and/or on their behalf and in furtherance of their own objectives. Further and/or in the alternative, the acts were committed by the First and/or Second Named Defendants in their capacities as servants and/or agents of the Al Thanis. The precise times and places in which the Al Thanis engaged in the acts aforementioned is a matter of their own peculiar knowledge. The ultimate question in relation to the jurisdiction in which the wrongs of the Defendants were committed is ultimately a matter for legal submission.”

85. Insofar as the basis for the claim can be made out it seems to be as follows:

(i) Various companies in the group were acting as servants or agents of the Al Thanis;

(ii) The Al Thanis exercise a high level of control over those agents as they indirectly own the companies;

(iii) The Al Thanis directed or consented to the acts constituting the conspiracy;

(iv) The acts were committed by the first and second-named defendants in their capacities as servants and/or agents of the Al Thanis.

86. I am not satisfied that the plaintiff has established a good arguable case on any of these bases that the tort of conspiracy was committed.

87. The defendants relied on Allied Irish Coal Supplies Ltd v Powel Duffryn Intl Fuels Ltd [1998] 2 IR 519 and McAteer v Fried [2019] IECA 216. In my view, these are not on point or are of very limited assistance. There can be no doubt that a company has a separate legal personality from its members. The plaintiff does not dispute this. Indeed, it is difficult to see how he could dispute this because, if he sought to do so, he could not also argue that they had entered into an agreement with each other. Powel Duffryn was concerned with whether the company and its membership should be treated as a single economic entity. That is the reverse of the case sought to be made by the plaintiff. McAteer v Fried is of little assistance other than it made clear that a company is not automatically the agent of its members (or vice versa). However, it was concerned with whether, in the particular circumstances, the evidence supported a finding that the bank was agent for an undisclosed principal or that the bank was the principal.

88. The case that the plaintiff makes is that the Al Thanis controlled the other defendants and that they were acting as their agents. The plaintiff did not refer to any authorities to support the proposition that a relationship of principal and agent can in itself form the basis of the tort of conspiracy. I see no reason why an agreement between two people that one person will act as agent for another to do harm to a third party could not be a conspiracy. That agreement is one between two parties to do harm to another. However, that is not the case that is made by the plaintiff. He claims that the relationship of principal and agent exists between the Al Thanis and the other defendants, largely by virtue of their ownership and control of the various companies, and that within that relationship the Al Thanis directed or consented to acts which had as their object injury to the plaintiff. No authorities were opened to me to support the proposition that acts taken by an agent on foot of the direction of the principal opens the parties up to liability in conspiracy. It must, of course, be emphasised that what is being considered is the question of conspiracy rather than simple vicarious liability. I can therefore not conclude that the plaintiff has established that the tort of conspiracy has been committed.

89. In circumstances where I have found that the plaintiff has satisfied the jurisdictional gateway in respect of defamation my finding in relation to conspiracy does not preclude me from assuming jurisdiction, particularly when the two causes of action are so closely related in the circumstances of the case.

Discretion – Rules (2) and (5)

90. However, as is clear from the authorities discussed above, the establishment of a good arguable case on the jurisdictional gateway in itself is not sufficient. The Court must also be satisfied that the case is a proper one for service out of the jurisdiction, particularly having regard to Order 11 Rules 2 and 5. In truth, this is the real basis upon which it was argued on behalf of the defendants that the Order and service should be set aside.

91. As is clear from Barniville J and Collins J’s judgments in Trafalgar, the burden of establishing that the case is a proper one for service out rests on the plaintiff. I am not satisfied that he has discharged that burden.

92. The burden involves the plaintiff establishing that Ireland is clearly the more appropriate forum, and if not, that the interests of justice nonetheless require the courts of Ireland to retain jurisdiction

93. As discussed above, the Court must take a broad overall view (Court of Appeal in Trafalgar) in order to determine whether the Court should assume jurisdiction by giving leave to serve the proceedings out of the jurisdiction. As set out in Trafalgar, the first step is an assessment of whether Ireland is clearly and distinctly the forum conveniens, in circumstances where the defendants have identified England & Wales as the appropriate forum. Part of this analysis is to identify the natural home of the litigation or with which jurisdiction the claim is most closely connected.

94. Part of this assessment is to identify “the substance of the breach”. There are a number of factors which indicate that “the substance of the breach” rests in England & Wales. On the plaintiff’s own case, the alleged torts arise from a dispute between the Al Thanis and Mr. McKillen in relation to English and French companies; there is no evidence that the Al Thanis have any connection with Ireland; the hotels or sites involved are all in England or France; the work performed by the plaintiff which led to the letters was performed in England or France; the letter in relation to Maybourne that was published in Ireland was one of four similar letters and the only evidence is that the other three were only published in England; the fourth letter was only sent to Ms. Ryan and read by her as a conduit to Mr. McKillen as that is the only way to communicate with him. It is also important to note that Mr. McKillen is the owner of Hume Street Management Consultancy, so effectively the plaintiff’s employer. The defendants submitted that this underlined the minor, incidental or tenuous nature of the connection with Ireland and that the substance of the breach was not in Ireland.

95. As against those factors, it is important to take account of the fact that there are certainly features which connect the matter to Ireland: the plaintiff is Irish; he conducts business in Ireland; has a reputation here; the works that he performed were connected with his role in a business in Ireland; the letter was sent to a person in Ireland; Mr. Cunningham resides in Ireland and he just happened to be in London rather than Ireland when he received the letter; and Mr. McKillen is an Irish citizen.

96. The plaintiff submitted that I could also take account of the fact that it was inevitable or at least very likely that the letter to Mr. McKillen through Ms. Ryan would be republished in Ireland. In essence, I am being asked to infer that the letter was republished to personnel in HSMC Limited because it was the natural and foreseeable consequence of publication to Ms. Ryan/Mr. McKillen and to Mr. Cunningham. The plaintiff relies on Ewins v Carlton [1997] 2 ILRM 223 and Hunter v Gerald Duckworth & Co [2000] 1 IR 510. I deal with these later. There are circumstances in which publication (or republication) can be inferred. I am not satisfied that I can proceed on that basis in this case. The plaintiff simply says in his replying affidavit that “the relevant publications have been extensively republished, including to individuals and entities with an Irish base”. No evidence of such republication has been adduced. There is no evidence from Mr. McKillen or Mr. Cunningham. Furthermore Ms. Ryan does not say at any stage, including in her affidavit which was sworn during the hearing, that she republished the contents of the letter (other than by sending it to Mr. McKillen). Ms. Ryan was clearly available to the plaintiff and there is no evidence that

Mr. McKillen or Mr. Cunningham, or, indeed, other personnel in HSMC Ltd were not available. The plaintiff does not, of course, have to prove his case at this stage but there must be some evidential basis laid for the claim that there was further publication within the jurisdiction.

97. Notwithstanding that there are factors which connect the torts with Ireland, the weight of factors clearly connect them more closely with England & Wales than with Ireland; as Clarke J put it in IBRC v Quinn, “the centre of gravity” of the alleged breach is in England.

98. That is just one of the factors to be taken into account in the exercise of the court’s discretion under Order 11. Regard must also be had to other factors.

99. The plaintiff does not expressly address the question of the comparative cost of proceedings in this jurisdiction and England & Wales. He does address the comparative convenience to a certain degree but only by addressing in a very general way the question of witnesses and where most damage was caused to him.

100. The defendants submitted that the failure to expressly address comparative cost is in itself fatal to the application. The same point was made in relation to convenience, but I am satisfied that the plaintiff has addressed this to some extent.

101. The defendants submit that it is mandatory that the comparative cost is addressed by a plaintiff due to the interaction between Order 11 Rules 2 and 5. Rule

2 requires the court to have regard to “...the comparative cost of proceedings in Ireland, or in the place of the defendant’s residence...” Rule 5 provides that “Every application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating ... and where leave is asked to serve a summons or notice thereof under rule 1 stating the particulars necessary for enabling the court to exercise a due discretion in the manner in rule 2 specified...” It was submitted on behalf of the defendants that the court could only exercise “a due discretion in the manner in rule 2 specified” if there was evidence in relation to the matters set out in rule 2, including comparative cost and convenience and, therefore, the failure to address that matter renders the application fundamentally flawed and is fatal to the application.

102. In light of my conclusion, which I return to shortly, that the plaintiff has not established that it is a proper case for service out, I do not need to determine the question of whether this provision is mandatory.

103. I am, in any event, not satisfied that it is, in the sense that a failure to address the comparative cost in the affidavit is in itself automatically fatal to an application for leave to serve out of the jurisdiction. Rule 5 states that where an application for leave is being made it must be stated in the affidavit “that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such a defendant is a citizen of Ireland or not.” The absence of any of those matters would clearly be fatal in itself to an application for leave to serve out (perhaps subject to a residual discretion in the court), but if Rule 5 had been intended to make it mandatory for the affidavit to expressly deal with “comparative cost and convenience”, it could have been simply included as one of the matters required to be stated in the affidavit. There is, of course, an argument that this is the effect of the cross-referencing to Rule 2, but, on balance, the different treatment leads me to conclude that the mere omission to address comparative cost in the grounding affidavit is not automatically fatal.

104. However, this may be of little significance in reality because the Court must have regard to comparative cost and convenience in the exercise of its discretion and the burden of establishing all matters is on the plaintiff. Therefore, if the plaintiff does not address those matters and there is no other evidence dealing with them, then this must weigh very heavily in the exercise of discretion. It is difficult to see how a court could be satisfied that the comparative cost and convenience favours Ireland if there is no evidence on those matters.

I think it is important to emphasise that, in my view, Rule 2 does not require the court to engage in a detailed or forensic assessment of the comparative cost and convenience between two jurisdictions. That would put an impossible burden on parties and, indeed, on the courts, and would significantly increase the costs of applications for leave to serve out. It seems to me that this follows from Barrett J’s statement in Vodafone GmbH v IV International Licensing and Intellectual Ventures II LLC [2016] IEHC 321 (paragraph 29) that there will be some cases where it is possible, and some cases where it is not possible, to establish on affidavit as accurately as reasonably possible the comparative cost of bringing the proceedings in one jurisdiction or another.

What is required, it seems to me, is for the court to have regard to, in a general sense, the comparative cost and convenience of proceeding in one jurisdiction or the other, including, for example, such factors as whether proceeding in one jurisdiction rather than another would increase the cost of assembling witnesses and whether translation services would increase the costs both having to engage such services and in prolonging the trial of the action. This is obviously not an exhaustive list and is merely meant as an illustration of the types of factors which might be relevant.

This type of general assessment is consistent with the approach in McCarthy v Pillay [2003] IESC 21. The New York third party sought to have the leave to serve a third party notice outside the jurisdiction set aside partly on the ground that the affidavit did not comply with Order 11 Rule 2 because it did not deal with the question of “comparative cost and convenience.” Hardiman J did not really consider whether or not it is mandatory that they be dealt with in express terms. Instead, Hardiman J was satisfied that he could conclude, it seems partly on the basis of the evidence of the Third Party who was applying to have the leave set aside, that it would be more appropriate or convenient that all issues be tried together and that as the Irish proceedings were much further along than any proposed New York proceedings, he could make a general judgment on comparative cost and convenience.

The plaintiff also referred to O’Flynn & ors v Carbon Finance Limited & ors [2014] IEHC

439. I do not accept that this is of any real assistance. The defendant in that case complained that the plaintiffs had not produced the evidence required to entitle them to an order for service out of the jurisdiction. Clarke J referred to his earlier judgment in National Educational Welfare Board v Ryan [2008] 2 IR 816 in which he cautioned against requiring too much detail at an early stage of proceedings. However, Clarke J was referring to detail in relation to the substance of the case rather than in relation to the questions of comparative cost and convenience.

105. As I say, it is not necessary to determine whether or not it is mandatory that the affidavit expressly deals with these matters or, indeed, whether the plaintiff has complied with any such obligation because I am of the view, from what is known about comparative cost and convenience between the proceedings being dealt with in this jurisdiction or England and Wales, that the plaintiff has not established that Ireland is the appropriate jurisdiction.

106. The majority of the parties are resident and domiciled outside of Ireland. The first-named defendant is a company incorporated in the United Kingdom. The secondnamed defendant is a citizen of and resident and domiciled in the United Kingdom. The third and fourth-named defendants are citizens of and domiciled in Qatar. It is unclear where they are resident but there is no evidence that they are resident in Ireland. There is no evidence of any of the defendants having any connection with this jurisdiction other than through the letter being sent to Ms. Ryan in Ireland and their business dealings with Irish people. These business dealings are not in Ireland. The plaintiff is, of course, Irish and is domiciled here.

107. The position in relation to who might have to be a witness is, at this early stage of the proceedings, unclear. It seems inevitable on the basis of the case as currently pleaded and constituted that the second, third and fourth-named defendants will have to give evidence. It is also likely that Mr. Muzzi will be among the witnesses. There may have to be other witnesses relating to the sites but neither party has made any averment in that respect so I can not have any real regard to this in weighing the balance. On the other side, the witnesses appear likely to include the plaintiff himself, Ms. Ryan, Mr. Liam Cunningham, Mr. Sinton and perhaps Mr. McKillen. These are all Irish citizens. As far as I understand it, the plaintiff, Ms. Ryan, and Mr. Cunningham are all domiciled and reside in Ireland. It was agreed that Mr. McKillen is not domiciled in Ireland, though is an Irish citizen. I do not have any information in relation to Mr. Sinton other than that he is an Irish citizen.

108. The plaintiff also relies on republication, claiming that it was naturally foreseeable that by sending the letter to Mr. McKillen, Mr. Cunningham, and Ms. Ryan, the contents of the letter would be republished to others in Ireland. In particular, it is claimed that it was foreseeable that it would be republished to the entirety of “HSMC Limited” which is the Irish company through which services were provided by the plaintiff and Mr. Sinton for the Maybourne Riviera. However, no evidence has been adduced at this stage of any such republication. I therefore can not base my assessment on any other witnesses from Ireland. It is also claimed that the contents or substance of the letters must have been published to other persons involved on the relevant sites. If so, they are likely to be witnesses. They, of course, are witnesses from sites in London and France. I can presume, in the absence of evidence from the plaintiff to the contrary, that for the most part they are resident outside Ireland.

109. Thus, of the witnesses who seem inevitable there is a slight majority of Irish witnesses. Declining jurisdiction would therefore mean that those witnesses would have to travel for any trial. However, in the circumstances of this case, that is of little weight. The plaintiff is involved in projects outside of Ireland and his involvement in the Maybourne Riviera required him to relocate temporarily to Roquebrune in France. In his Replies to Particulars he states that he is “heavily involved in the ownership, direction, management and operations of a large number of business both in Ireland and other jurisdictions...” and goes on to list some of his interests including “Briarbright Limited, which provides project management and management consultancy services internationally but primarily in Ireland and the UK...” Of course, having to travel to another jurisdiction would be inconvenient but, in circumstances where he works internationally, no significant weight can be attached to this. The plaintiff avers that as an Irish businessman “who has the majority of his business interests in Ireland, I would be severely prejudiced if this matter were to be heard in any other jurisdiction.” No further details are given of the prejudice referred to but it is difficult to reconcile a claim of such severe prejudice with the fact that the plaintiff was working abroad.

110. Similarly, Mr. Cunningham appears to sometimes work abroad and, indeed, was in London when he received the letter.

111. Mr. McKillen has international business interests (as evidenced by his business dealings with the Al Thanis in respect of an international hotel group). It is therefore difficult to see how having to give evidence in a trial outside of Ireland would create any real difficulty.

112. Mr. Sinton has instituted his own proceedings in England and therefore little weight can be given to any inconvenience which might be caused to him in having to give evidence in a trial in the United Kingdom.

113. Ms. Ryan would have to travel to the United Kingdom. That in itself does involve some inconvenience and cost, but I can not conclude that it is very onerous given its proximity to Ireland.

114. Of course, similarly, there would be no great inconvenience to the defendants in having to come to Ireland for a trial of the proceedings. Mr. Socker and Mr. Muzzi are co-CEOs of an international group of hotels. I think I can safely assume that they travel for their work. They are, in any event, based in the United Kingdom and, even if they do not travel for their work, having to come to the neighbouring jurisdiction would not be onerous. The Al Thanis also have an international business portfolio and, therefore, as in the case of Mr. Delany, Mr. Cunningham and Mr. McKillen, little weight can therefore be put on them having to come to Ireland.

115. The language and legal system of the countries in which the proceedings may be held are also relevant to the question of the parties and the witnesses. In the

Maybourne proceedings, the debate is between Ireland and England & Wales. On that basis, while laws will differ in some respects, overall the systems are not alien to each other and therefore any differences are not significant enough to be of any great weight. The two jurisdictions also share a common language. There is no suggestion that the parties or the likely witnesses do not speak English or would be prejudiced by the case having to be determined in English. There is no suggestion that if the proceedings are heard in Ireland that any of the parties or witnesses will exercise their right to speak Irish.

116. Thus, the impact of witnesses having to travel is largely neutral.

117. Similarly, the question of the governing law is also relevant because having to run a trial on the basis of foreign law adds to the cost, inconvenience and difficulty of the hearing. However, given that the discussion is about this jurisdiction of England & Wales again this factor is not particularly weighty in the circumstances of this case.

118. Subsequent to the hearing, the plaintiff delivered an affidavit exhibiting a judgment in proceedings issued by Mr. Frank Sinton in England and Wales against a number of the same defendants (Sinton v Maybourne Hotels Limited, Socker, Muzzi, Bakhos and Faissola Case Number KB-2023-000257) (“the Sinton proceedings”). Similar claims were made in those proceedings as in the current proceedings.

119. The Sinton proceedings are relied upon by both sides for different reasons.

120. The defendants point out that Mr. Sinton chose England as the appropriate jurisdiction and that the plaintiff adopts a number of paragraphs in Mr. Sinton’s pleadings in those proceedings. The defendants submit that this points to England & Wales being the most appropriate jurisdiction. I do not accept this. It seems to me that the plaintiff’s reference to the paragraphs in Mr. Sinton’s pleadings is simply a convenient way of adopting certain factual statements.

121. The plaintiff, on the other hand, relies on a statement by the solicitors for defendants in the Sinton proceedings in pre-litigation correspondence to submit that the defendants believed Ireland was the appropriate jurisdiction. I do not believe that this is supported by the actual terms of the correspondence. The solicitors in the Sinton proceedings stated:

“21. Our client is aware that your client has written to other parties asserting an intention to pursue claims against them arising from the First and Second Publications before the Irish Courts. It is therefore to be inferred that your client accepts that England is not the natural or appropriate forum for their claim to be determined and that the Courts of Ireland are clearly more appropriate to hear your client’s purported claim.

22. On this basis, the Courts of England and Wales will not have jurisdiction to hear your client’s purported claim and, to the extent that it should be brought at all, it should properly be brought before the Irish Courts.”

122. It is clear that the defendants’ solicitors’ position that the proceedings should be brought in Ireland was on the basis of the plaintiff’s apparent position that Ireland was the appropriate jurisdiction and not necessarily because the defendants believed that England was not the appropriate jurisdiction. The defendants in the Sinton proceedings did not contest the jurisdiction of the English courts.

123. The plaintiff also relies on the Sinton proceedings to submit that the interests of justice favour the Maybourne case proceeding in this jurisdiction. This was based on the fact that the defendants in those proceedings successfully sought summary judgment on Mr. Sinton’s libel and malicious falsehood claims pursuant to CPR 24.2 and 24.3, or, alternatively, an Order striking out the claims as disclosing no reasonable grounds for bringing the claims and as an abuse of process. It was pointed out on behalf of the plaintiff that in the “agreed issues” document the parties agreed that the court can have regard to evidence regarding the comparative hardship of litigating in an alternative jurisdiction. It was submitted that the type of application that was brought in the Sinton case is not one that can be brought in Ireland on quite the same basis and that the bar for granting summary judgment in England & Wales is lower than in Ireland. This is properly a matter for expert evidence, but it is not disputed by the defendants. The other reason that the Sinton proceedings were relied upon by the plaintiff is that discovery has been obtained in those proceedings, and it disclosed relevant WhatsApp messages which suggest that the defendants in those proceedings were aware that the letter sent in relation to Mr. Sinton would have serious implications for his reputation. Mr. Socker sent a message on WhatsApp saying “Wait for the fireworks”. Furthermore, Chamberlain J identified a number of issues which could only be decided at trial. It was submitted on behalf of the plaintiff in the current

proceedings that the interests of justice lie in having this evidence tested under oath on cross-examination.

124. I understand the point being made is that if this Court does not assume jurisdiction and the matter proceeds in England, there is a serious risk that the proceedings will be struck out because of the lower bar and therefore these matters will not be properly tested. However, I do not understand the plaintiff to be going so far as to say that he will not obtain justice in the other jurisdiction. The plaintiff’s argument is that he will be at a relative disadvantage if the case goes ahead in England & Wales rather than here. The authorities are clear that in deciding on forum conveniens or forum non conveniens, legal or juridical advantage to one or other party is not determinative (though it is a factor). What the Court must be concerned with is which forum is more appropriate for the interests of all the parties and for the ends of justice (see Spiliada). Bingham LJ said in Re Harrods (Buenos Aires) Ltd [1992] Ch 72 (indorsed in Intermetal Group v Worslade Trading Ltd [1998] 2 IR 1 and McCarthy v Pillay [2003] IESC 21) “A broad overall view must be taken: the primary task is not to decide which forum is advantageous or disadvantageous to any particular party. The court should look first to see what factors there are, taking this broad overall view, which point in the direction of another forum: at that stage it is connecting factors (including convenience, expense, availability of witnesses, governing law, place of residence and place of business) which must be considered.”

125. I am, on the basis of all of those factors, satisfied that the plaintiff has not established that Ireland is clearly and distinctly the appropriate forum. Indeed, it seems to me, on balance, that if I had to determine the issue, the defendants have established that this jurisdiction is forum non conveniens.

126. One consideration remains. Even where another jurisdiction is the more appropriate forum, the court may assume jurisdiction where there is cogent evidence that the plaintiff will not obtain justice in that jurisdiction. It has not been asserted on behalf of the plaintiff that he would not obtain justice. The mere fact that there is a lower bar for an application to dismiss proceedings in England and Wales than in this jurisdiction is not sufficient.

Issues re Notice of Summons and service in Maybourne

127. The defendants rely on two alleged procedural errors in respect of the third and fourth-named defendants which they submit require the setting aside of service in the Maybourne proceedings.

128. Relief was not sought on the basis of these alleged errors and they were first raised in the defendants’ written submissions. However, no issue was taken with this by the plaintiff and he engaged with these points in his written and oral submissions. Furthermore, it is not strictly necessary for me to determine them in light of my conclusions above, but I propose to do so for the purpose of completeness.

129. The first in fact comprises of two parts, both relating to Order 11 Rule 5. The first part is that the address specified in the Plenary Summons for each of the four defendants, including the third and fourth defendants was “27 Knightsbridge, London, United Kingdom, SW1X”. The defendants submit that “it is inconceivable that after even the most basic of enquiries the Plaintiff honestly believed that the former Emir of the State of Qatar and former Prime Minister of the State of Qatar were domiciled in the United Kingdom.” However, this confuses two separate issues. What Order 11 Rule 5 requires to be shown is not domicile but “in what place or country such defendant is or probably may be found.” 27 Knightsbridge is the address of Maybourne Hotels Limited. Therefore, in my view, even if the plaintiff knew that the third and fourth-named defendants were not domiciled in the United Kingdom, it was not unreasonable for him to believe that they were to be found in the United Kingdom.

130. The second part is that Order 11 Rule 5 requires that the grounding affidavit show “in what place or country such defendant is or probably may be found.” The defendants made the point in their written submissions that they had not seen the grounding affidavit, i.e. that they did not know whether the affidavit contained the required averment and that they reserved their position on this. Notwithstanding this, the plaintiff did not produce the grounding affidavit. I therefore proceed on the basis that the grounding affidavit did not contain the required averment.

131. Nonetheless, I am not satisfied that I should set aside service on this basis. The court retains a discretion even where there is a procedural defect. This is clear from the case relied upon by the defendants, Short v Ireland [1996] 2 IR 188. It is also clear from Philip Smyth v SAS Sogimalp Tarentaise [2019] IEHC 568 where Keane J said:

“On the facts of this case, in the exercise of the Court's inherent jurisdiction and of the power conferred by O. 124, r. 1 of the RSC, I do not propose to set aside the service of the summons because it is clear that the applicant was effectively put on notice of the proceedings, although the proceedings were not properly served on it as a matter of law, and because the applicant has suffered no prejudice in seeking to challenge jurisdiction.”

132. I am satisfied that the third and fourth defendants were effectively put on notice of the proceedings. There is no dispute that the third and fourth named defendants are the beneficial owners of the Maybourne Hotel Group. SEDH has its office at the address in Paris to which the pre-litigation letter in the SEDH proceedings was sent. Maybourne Hotels Limited has its registered office at 27 Knightsbridge. It is stated in the submissions delivered on behalf of the plaintiff that the Maybourne proceedings were personally served on Maybourne Hotels Limited’s Chief Financial Officer. This was not disputed by the defendants. Thus, I am satisfied that the third and fourth-named defendants were effectively put on notice of the Maybourne proceedings.

133. The following is also relevant to this point. The solicitors for the plaintiff wrote to the third-named defendant prior to issuing the SEDH proceedings. That letter was addressed to him at SEDH’s registered office in Paris. SEDH is owned by a company of which the third-named defendant is owner. I will return to the inconsistency between the plaintiff writing to the third-named defendant at an address in Paris in one set of proceedings and maintaining that he was to be found in London in the other set. However, what is significant for the present discussion is that there was no response from the third-named defendant or anyone on his behalf at that time clarifying his address or where he was to be found. Nor was there any reply to say that he was domiciled in Qatar.

134. In the instant proceedings, Mr. Socker in his grounding affidavit, simply says that the “address provided for all of the Defendants was the Knightsbridge Address” and “The Third and Fourth Defendants are both citizens of the State of Qatar and are domiciled in Qatar.” He does not clearly say that the address given for the third and fourth-named defendants in the Plenary Summons is wrong or that they may not be found in the United Kingdom. He says nothing about where the third and fourth named defendants live or may be found. He does not even state in the negative that they may not be found in the United Kingdom. This coyness continues in correspondence from the defendants’ solicitors of the 15th December 2022, where it is stated, inter alia “By way of preliminary observation, we emphasise that it has been obvious since the initiation of the Delany Proceedings that the question of jurisdiction would be a live issue. Your client has elected to sue our clients who, on his own case, are based in the United Kingdom or the French Republic.” The defendants did not even take this opportunity to say that the plaintiff was wrong in that regard. Furthermore, it is not disputed that the third and fourth-named defendants are involved in a business which includes a number of hotels in London.

135. On the assumption that the service was defective on the grounds that the third and fourth-named defendants do not reside in or were not to be found in the United Kingdom, I am nonetheless satisfied that they were effectively put on notice of the proceedings.

136. The second procedural error raised by the defendants is that the plaintiff served the Plenary Summons rather than a Notice of Plenary Summons on the defendants. The defendants rely on O’Connor v Commercial General and Marine Limited [1996] 2 ILRM 291 to argue that this is in itself fatal to the application for leave to serve outside the jurisdiction. Morris J said:

“The requirement for the service of notice of the proceedings, rather than the summons itself, to be given to a non-national in another country was put by Lord Westbury in Cookney v Anderson (1863) 1 De GJ & S 365 as follows:

“The right of administering justice is the attribute of sovereignty; and all persons within the dominions of a sovereign or within his allegiance and under his protection. If therefore one sovereign causes process to be served in the territory of another and summons a foreign subject to his court of justice, it is in fact an invasion of sovereignty, and would be unjustifiable, unless done with consent; which it is assumed to be the fact, if it be done where a foreign judgment would, by international law, be accepted as binding.”

It follows, in my view, that the service of a summons on a limited liability company incorporated in Belgium at its place of business in Brussels is not a service effected in accordance with the Rules of the Superior Courts and is bad and should be set aside.”

137. The plaintiff says that it is factually incorrect to state that the plaintiff served the Summons when he was required to serve Notice of Summons. It is stated in the plaintiff’s affidavits that Notice of Plenary Summons was served on the first-named defendant (through its Chief Financial Officer). This does not appear to be disputed. In relation to the other defendants, it is clear from correspondence exhibited to the grounding affidavit in the SEDH proceedings that the Irish solicitors for the defendants in the Maybourne proceedings confirmed that they had authority to accept service on their behalf.

Conclusion in relation to the Maybourne proceedings

138. I am satisfied that the courts of Ireland are entitled to assume jurisdiction in the Maybourne proceedings and to permit service out of the jurisdiction pursuant to Order 11 Rule 1(f) on the basis that the plaintiff has established a good arguable case in respect of his defamation claim and that it was committed in Ireland. I am not satisfied that he has established a good arguable case in relation to the claim in conspiracy in itself but, it seems to me that where the act by which the conspiracy is alleged to have been implemented is the alleged defamation, the court is entitled to assume jurisdiction in respect of this claim also.

139. However, I am not satisfied that the plaintiff has established that the case is a proper one for service out of the jurisdiction as he has not established that Ireland is the forum conveniens.

140. In relation to the procedural issues raised by the defendants, if I were otherwise satisfied that the court should assume jurisdiction, I would not be satisfied that these are sufficient to set aside service.

SEDH APPLICATIONS

141. There are two motions in the SEDH proceedings: (i) the defendants’ application in respect of jurisdiction dated the 26th January 2023 (“the jurisdiction motion”); and

(ii) the plaintiff’s application dated the 3rd February 2023 to amend the indorsement on the Plenary Summons under Brussels Recast. The second is only relevant to the first and second-named defendants.

142. The plaintiff accepted that if the defendants’ jurisdiction motion succeeds, then the plaintiff’s own application to amend the indorsement will be moot.

143. The first and second named defendants in these proceedings are domiciled in France, so Brussels Recast is applicable to them. Order 11 of the Rules applies to the claim against the third-named defendant. There are in essence two separate applications in the defendants’ jurisdiction motion. The first is an application for an Order setting aside service and/or staying, dismissing or striking out the proceedings against the first and second-named defendants for want of jurisdiction on the basis that they must be sued in France in accordance with article 4(1) of Brussels Recast, and/or on the ground that the Plenary Summons does not specify the basis upon which jurisdiction is claimed by the plaintiff under Brussels Recast. The second application by the defendants in their jurisdiction motion is in respect of the third-named defendant to have the proceedings dismissed, struck out or stayed on the basis that the plaintiff did not obtain the leave of the High Court to issue and serve the proceedings outside the jurisdiction and on the basis of the doctrine of forum non conveniens. The defendants did not seek to stay or dismiss the proceedings against the first or second defendants on the basis of forum non conveniens.

Want of jurisdiction as against the first and second defendants

144. Recital 16 of Brussels Recast sets out the rationale for the jurisdiction rules contained in the Regulation:

“In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.”

145. The CJEU identified the rationale of the Regulation (when considering Brussels Recast’s predecessor) as seeking to “strengthen the legal protection of persons established in the Community, by enabling the plaintiff to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued.” (see Color Drack GmbH v Lexx International Vertriebs GmbH (Case C- 386/05) EU:C:2007:262; and also Websense International Technology Limited v ITWAY SpA [2014] 2 IR 485).

146. The starting point in respect of jurisdiction under Brussels Recast is that a person should be sued in the courts of the member state in which they are domiciled. Article 4(1) provides:

“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

147. Article 7 sets out exceptions to that general rule. The operation of Brussels Recast was described by Butler J in Crotty v SAS AB and Swedania AB [2021] IEHC

394 as follows:

“The fundamental principle underlying the Recast Regulation is that persons should be sued before the courts of the Member State in which they are domiciled (Article 4(1)) and jurisdiction is almost always available on this ground (see Recital 15). The special rules, although they provide an independent basis for conferring jurisdiction on the courts of a Member State, are nonetheless derogations from that fundamental principle. Consequently, the special rules must be interpreted restrictively (per Fennelly J. in Leo Laboratories v. Crompton [2002] IR 225 applying Case C-168/02 Kronhofer v. Maier). In addition, the CJEU regards the special rules as exhaustively listing the exceptions to the general principle contained in Article 4(1) (see Réunion Europénne v. Spliethoff's Bevrachtingskantoor BV Case C-51/97 at para. 16). This means, as the CJEU puts it, that the special jurisdictional rules cannot give rise to an interpretation going beyond the cases envisaged by the Recast Regulation itself. This is consistent with the requirement to give a restrictive interpretation to those rules.”

148. The plaintiff relies on article 7(2) (subject to the question of amendment). Article 7(2) provides that a person may be sued in a member state other than where they are domiciled:

“in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.”

149. The burden of establishing that the case comes within one of the exceptions in article 7 (in this case article 7(2)) is on the plaintiff. In Crotty, Butler J stated at paragraphs 22 and 23 that the onus of proof is on the plaintiff to show unequivocally that the claim comes within one of the exceptions. She also said:

“Further, even though these issues have arisen on an application brought by the second defendant, the onus remains on the plaintiff to establish the exception, i.e.

that one of the special rules applies to the proceedings (see Hunter v. Gerald Duckworth & Co. [2000] 1 IR 510 and Ewins v. Carlton [1997] 2 ILRM 223). The second defendant, as a company domiciled in Sweden, had an expectation that any proceedings brought against it would be brought before the Swedish Courts. If this is not to be the case, then the plaintiff must establish unequivocally that the Irish Courts have jurisdiction by showing that her claim comes within one of the exceptions.”

150. In Joe Moroney Coach Hire Limited, Butler identified the standard of proof as the ordinary civil standard.

151. As the plaintiff is relying on article 7(2), he must establish to that standard that the “harmful event” occurred in Ireland.

152. The CJEU has considered in a number of cases what the phrase “place where the harmful event occurred or may occur” means for the purpose of article 7(2). These include Kronhofer v Maier (Case C-168/02), Bier v Mines de potasse d’Alsace SA (C- 21/76), Marinani v Lloyd’s Bank (Case C-364/93). These have been very helpfully reviewed by Butler J in Crotty and Joe Moroney Coach Hire Limited. In Crotty, Butler J said:

“25. The case made under Article 7(2) is somewhat different and focuses on identifying “the place where the harmful event occurred”. The argument made is that although the accident occurred in Sweden, the plaintiff travelled back to Ireland and her claim for personal injuries, which relates to an on-going injury, continues in this jurisdiction. In argument, the plaintiff's counsel relied on the

decision of the CJEU in Case C-21/76 Bier. This case was taken by a horticultural producer based in the Netherlands which was dependent on water from the River Rhine. An upstream pollution event in France in which an industrial installation discharged waste into the river caused damage to the horticultural produce and the producer was required to put expensive treatment in place in order to deal with the consequent pollution. An issue arose as to whether the French or the Dutch Courts had jurisdiction in respect of the subsequent claim. The CJEU held that where the place of the happening of an event and the place where that event results in damage are not identical, then the expression “the place where the harmful event occurred” covers both and the defendant can be sued at the plaintiff's option in either place.

26. However, subsequent case law makes it clear that this does not allow a plaintiff simply to elect to sue in the place of the plaintiff's domicile on the basis that he is suffering an on-going loss or injury as this would be inconsistent with the fundamental principle under Article 4(1) that a defendant should be sued in the place of the defendant's domicile. In Case C-364/93 Marinari, the CJEU held, at para. 14 of the judgment:-

“Whilst it has thus been recognized that the term ‘place where the harmful event occurred’ within the meaning of [Article 8(2)] may cover both the place where the damage occurred and the place of the event giving rise to it, that term cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere.”

153. Following a discussion of Case C-51/97 Réunion Européene, Butler J went on to say:

“28. Thus, it is clear from this line of authority that the ongoing consequences of a harmful event which may be either ascertained or suffered on a continuing basis by a plaintiff in the jurisdiction of his or her domicile do not themselves constitute a harmful event giving the plaintiff an entitlement to sue in that jurisdiction. The damage referred to in the Bier judgment was direct damage sustained by the plaintiff albeit at a location physically removed from the place where the tortious act had taken place. This reasoning is consistent with the legal basis for the tort of negligence in this jurisdiction. The tort comprises a negligent or careless action (or omission) in circumstances where a duty of care is owed and which causes damage. Until damage has been caused, the tort is not complete and no proceedings can be brought: once damage has been caused, the tort is complete and the plaintiff can sue. The tortfeasor is not guilty of a continuing tort merely because the plaintiff continues to suffer the consequences of his tortious action. In this case, assuming the plaintiff's allegations against the second defendant were to be borne out, then the second defendant committed the tort of negligence by allowing ice to be present on its premises which, in turn, caused the plaintiff to fall and injure herself. The tort was complete at that point and did not continue even though the plaintiff continued to suffer its adverse consequences. Limitation periods will, by and large, run from the date of the defendant's actions giving rise to the injury or harm. To suggest, as the plaintiff's solicitor does, that there is a continuing tort or “harmful event” merely because the plaintiff remained under the care of her orthopaedic team until June, 2018 shows the absurdity of the proposition. On this analysis, the defendant would be continuously committing the tort of negligence arising out of the presence of ice at its airport long after the summer sun had melted any ice even as far north as Ostersund. The limitation period would not run from the date of the accident but from whenever the plaintiff's doctors signed her off as being fully recovered, which in the case of a permanent injury would mean the limitation period would run indefinitely.”

154. In Joe Moroney Coach Hire Limited, Butler J considered when a tort, such as negligence, has occurred under domestic law. It is only complete when the plaintiff has suffered damage. She noted that this begged the question as a matter of EU law whether the “harmful event” refers to the defendant’s action or the plaintiff’s injury and noted that the answer from the CJEU is that it may encompass both (as discussed in Crotty). She went on to refer to Bier v Mines de potasse d’Alsace SA and noted that the CJEU considered the special jurisdiction rules under article 7 to be based on a particularly close connecting factor between the dispute and the court called upon to hear it. The CJEU pointed out that “the place of the event giving rise to the damage no less than the place where the damage occurred can, depending on the case, constitute a significant connecting factor from the point of view of jurisdiction.” The Court then concluded that:

19. Thus the meaning of the expression ‘place where the harmful event occurred’ in article 5(3) must be established in such a way as to acknowledge that the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it.”

155. However, Butler J went on to say:

“60. To a certain extent, Bier represents the high point in the jurisdiction as regards a plaintiff's right to rely on the place where damage occurred as the basis for invoking the special jurisdiction rule under Article 7(2). In the subsequent case of Marinaria v. Lloyd's Bank Plc Case C-364/93 the CJEU had to consider a claim taken in Italy by a plaintiff domiciled in Italy against a UK bank. The plaintiff had deposited valuable promissory notes in a UK branch of that bank which its staff regarded as suspicious and reported to the police. This led to the arrest of the plaintiff and the appointment of a receiver over the promissory notes. The plaintiff was subsequently acquitted by the UK courts and then sought damages from the bank, both in respect of the value of the promissory notes, the fact of his detention, and the damage to his reputation. The CJEU did not accept that the damage could correctly be characterised as having occurred in Italy. The court was also concerned that to allow plaintiff to sue in any location at which it claims to have suffered consequential loss would convert a general rule of jurisdiction based on the defendant's domicile into one in which the plaintiff could elect to sue in the place of its domicile. The court stated:-

“13. The option thus open to the plaintiff cannot however be extended beyond the particular circumstances which justify it, otherwise the general principle, enshrined in the first paragraph of Article 2 of the Convention, of the jurisdiction of the courts of the Contracting State in the territory of which the defendant is domiciled and to end up recognising, apart from the cases expressly provided for, the jurisdiction of the courts of the domicile of the plaintiff in respect of which the Convention expressed its disfavour in ruling out, in the second paragraph of Article 3, the application of national provisions providing for such courts of jurisdiction in respect of defendants domiciled in the territory of a Contracting State.

14. While it thus accepted that the concept of “place where the harmful event occurred” within the meaning of Article 5(3) of the Convention, may cover both the place where the damage occurred and that of the causal event, that concept cannot, however, be interpreted so expansively as to encompass any place where the harmful consequences of an event which has already caused damage which has actually occurred in another place may be felt.

15. Consequently, that concept cannot be interpreted as including the place where the victim, as is the case in the main proceedings, claims to have suffered financial damage following initial damage occurring and suffered by him in another Contracting State.”

As Whelan J. observed in Castlelyons Enterprises Ltd v. EUROK [2018] IECA 98, Marinari represents “the current authoritative interpretation of ‘where the harmful event occurred’ in EU law”.

156. Having considered these authorities, Butler J said at paragraph 67 and 68 of Joe Moroney Coach Hire Limited:

“67. Based on the jurisprudence discussed in the preceding paragraphs, the following would appear to be the principles relevant to determining whether a plaintiff has established a basis for relying on the special jurisdiction rule contained in Article 7(2) thus entitling the plaintiff to sue in a place other than that of the defendant's domicile:-

• The basis for the exception is the close connection between the action and the jurisdiction in which the plaintiff seeks to litigate such that it was reasonably foreseeable to the defendant that it might be sued there;

• The plaintiff must establish that the harmful event occurred in Ireland;

• The harmful event may be taken as having occurred either at the place of the event giving rise to the damage or at the place where the damage occurred. If these are different, the plaintiff has the right to choose to sue in either of these locations;

• In the case of defective products, the place of the event giving rise to the damage will always be the place where the product was manufactured;

• The place where damage occurs can encompass the place where initial damage occurred as a result of the normal use of the defective product. This is sometimes described as the manifestation of the damage;

• The place where the damage occurred cannot be interpreted so broadly as to encompass any place where the harmful consequences of an event may be felt. Thus, a plaintiff cannot seek to recover consequential financial loss in the place of its domicile in respect of an event which has already caused initial damage which has occurred and been suffered by him in another Member State;

• However, where a defect in a product causes the product to be worth significantly less than the purchaser paid for it, the resulting loss may constitute direct damage arising from the purchase rather than indirect damage consequent on the initial defect. It is unclear the extent to which this will depend on moral culpability going beyond the normal criteria for the liability of a defendant in tort.”

157. The CJEU considered the question of jurisdiction in relation to alleged libel in Shevill v Presse Alliance SA (Case C-68/93). It reiterated (at paragraphs 19 – 22)

many of the principles set out above and confirmed that they applied to defamation. The court set out the applicable principles at paragraphs 24-32 and summarised at paragraph 33 as follows::

“33. In light of the foregoing, the answer to the first, second, third and sixth questions referred by the House of Lords must be that, on a proper construction of the expression "place where the harmful event occurred" in Article 5(3) of the Convention, the victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised.”

158. A fundamental difference between these proceedings and the Maybourne proceedings is, of course, that there is no specific claim in these proceedings that the relevant letter was actually read in Ireland. This brings the issue of where the “harmful event” occurred into sharp focus. The basis on which the plaintiff claims that the harmful event occurred in Ireland in those circumstances is not clear from his pleadings or his Replies to Particulars. The plaintiff largely asserts that this is a matter for evidence or submission. For example, at paragraph 6.1 of his Replies to Particulars he states, inter alia, “...The ultimate question in relation to the jurisdiction in which the wrongs of the Defendants were committed is ultimately a matter for legal submission.”

159. It can, however, be deduced that his claim is that the harmful event occurred in Ireland because it was foreseeable that there would be republication of the defamation in Ireland, and because the plaintiff suffered significant reputational harm in Ireland.

160. For example, in relation to the first, the plaintiff avers at paragraph 19 of his affidavit that “the relevant publications have been extensively republished, including to individuals and entities with an Irish base.” At paragraph 14 of his second replying affidavit, he says that “it is trite but necessary to point out that it was eminently foreseeable that publication of a barring or “blackballing” diktat against me and against Mr. Sinton, separately or jointly, would be republished to third parties and essentially the entirety of HSMC Limited [Hume Street Management Consultancy](the Irish registered project management company through which services were provided by me and Mr. Sinton for the Maybourne Riviera hotel). I further say that this republication was a necessary and logical (not to mention, foreseeable) corollary of the original publication if the intent truly was to prevent me accessing the relevant sites.”

161. In relation to the second, it is pleaded that “The wrongs of the Defendants have caused damage to the Plaintiff in Ireland; the United Kingdom and France and elsewhere internationally amongst contractors and sub-contractors; experts; professionals; consultants; suppliers and banks generally and in particular amongst those who have known of his work with the Maybourne Hotel Group and the interests of the Al Thanis.” Furthermore, Senior Counsel for the plaintiff said in submissions that while there is no evidence of publication in Ireland, the plaintiff is nonetheless entitled to say that his reputation is in Ireland and the letter had the effect of damaging his reputation in Ireland, which means that he has the option of suing in this jurisdiction (relying on Ewins v Carlton [1997] IEHC 44, Hunter v Duckworth & anor [2000] 1 IR 510, Crotty, and Joe Moroney Coach Hire Limited.)

162. In his replying affidavit to the defendants’ application, the plaintiff also relies on a letter which was sent to Mr. Frank Sinton and which was cc’d to Mr. Socker, Mr. Cunningham, and another individual, Mr. Jim Byrne. He says that due to the level of interaction between the plaintiff and Mr. Sinton, these three individuals would have “reasonably understood that I was also involved in the same circumstances and developments particularly when coupled with my actual barring/eviction from the various hotel properties.” However, this is a separate claim and it is not the subject of the proceedings.

163. There is considerable overlap between the plaintiff’s reliance on damage being suffered in this jurisdiction and the alleged republication in the plaintiff’s submissions.

164. The plaintiff relied on Hunter v Duckworth to submit that evidence of direct publication in the jurisdiction is not necessary and that it is sufficient if it can be shown that the natural and foreseeable consequence of the original direct publication is republication in the jurisdiction. I do not accept that Hunter is authority for that proposition. In Hunter, there was publication in the United Kingdom and also in this jurisdiction, and what was at issue was whether the original publisher in the United

Kingdom was liable for the republication in Ireland where he had asked that the material not be published in Ireland but where such republication was the natural and foreseeable consequence of the original publication. The case concerned a booklet in relation to the Birmingham Six. The original publication occurred when the author of the booklet handed it to the publisher. The author asked his publisher that the booklet not be published in Ireland (but did not insist on that as part of the contract). The published distributed the booklet in Ireland. That publication in Ireland was held to be the natural and probable consequence of the original publication given the subject matter, and the question for the court was whether the author could be liable for that republication. Thus, the court was concerned with a different issue. Kelly J said:

“Put in a nutshell, it is said that the second defendant published the matter complained of when he handed the manuscript to the first defendant in London.

That was the only publication by him and it did not occur within the jurisdiction of this court. The first defendant then decided to publish in this jurisdiction but did so in circumstances where such publication was not the natural and probable result of the original publication of the material to them by the second defendant. It is contended that the second defendant could only have a liability in this jurisdiction in circumstances where the publication was either approved of by him or was the natural and probable result of the original publication which he made to the first defendant by handing them the manuscript in London. It is therefore said that he neither intended to nor was it the natural and probable result of this publication that the booklet should be published in Ireland. He says that this case is quite different on its facts from Ewins v. Carlton [1997] 2 I.L.R.M. 223, where the natural and probable consequence of providing the television programme to Ulster Television for broadcast on its network was that it would reach a significant number of viewers in this State.

The position at common law

In Speight v. Gosnay (1891) 60 L.J. Q.B. 231, it was held by the Court of Appeal that the original publisher of a defamatory statement is liable for its republication by another person where, inter alia, the repetition or republication of the words to a third party was the natural and probable result of the original publication. That rule has been accepted as part of the law of Northern Ireland and of this State (see Turkington v. Baron St. Oswald (Unreported, High Court, Northern Ireland, 2nd May, 1996) and Ewins v. Carlton [1997] 2 I.L.R.M. 223 at page 231).

Whilst it is accepted that this is the position at common law, it is said that I must look at the issue before me not by reference to this common law concept but rather by reference to the Convention. Looked at in this light, it is submitted that the second defendant has no sufficient nexus with the publication in this State to entitle the plaintiffs to sue him here.

I cannot believe that the Convention seeks to depart from the notion that the original publisher of defamatory matter will be liable for republications which are the natural and probable consequences of such publication. No authorities have been cited to support such a view. Indeed, the very way in which the issue has been formulated as a matter of Convention law by counsel for the second defendant bears a remarkable resemblance to the common law position. The question which I must address is, therefore, whether the publication in Ireland of the booklet is a natural and probable consequence of the second defendant's first publication in all the circumstances. If it is then this application fails.

Natural and probable result

There can be no doubt but that the only act of direct publication which was effected by the second defendant was the handing of the manuscript of the booklet to his publishers in London. However, it is quite clear that the purpose of that publication was to bring about the production of the booklet in question. That was the subject of a written contract entered into between the second defendant and the first defendant. There is no evidence that that contract contained an express term prohibiting the publication or distribution of the work in question in this jurisdiction.

On the contrary, the terms of the written contract expressly authorised the first defendant to publish the work throughout the world and indeed to licence any other publisher so to do. In the written contract, therefore, the second defendant gave the widest possible publication rights to the first defendant. Had he wished to exclude publication in this jurisdiction, he could have insisted on an express term to that effect being inserted into the written contract but did not do so.”

165. Ewins v Carlton, upon which the plaintiff also relied, was also concerned with liability for republication rather than whether the republication had in fact occurred. Carlton published an allegedly defamatory television programme in England. However, it also sold the programme to Ulster Television and it was found as a fact that publication took place in this jurisdiction when Ulster Television aired the programme. The question was whether Carlton could be liable for that republication.

166. The fundamental difference between these cases and the instant case is that the plaintiff has adduced no evidence of publication or republication in Ireland. Part of the plaintiff’s case is that I can infer from the fact that a natural and foreseeable or probable result of the original publication of the letter outside of this jurisdiction is republication in the jurisdiction. I do not believe that I can do so in the circumstances of this case. The plaintiff claims that it was eminently foreseeable that republication would occur to the “entirety of HSMC Ltd”. It seems to me that it would have been straightforward for the plaintiff to adduce some evidence from personnel in HSMC Ltd, but he did not do so, and does not explain why there is no such evidence. Of course, the plaintiff does not have to prove his case at this stage. Nonetheless, where some evidence could be adduced and was not, it is not open to me to make a finding on the basis of an inference. I am not, therefore, satisfied that the plaintiff has established publication in this jurisdiction.

167. The plaintiff also relied on Ewins and Hunter to submit that where a statement is published outside of Ireland but reputational damage occurs within the country, a plaintiff is entitled to advance a claim in the Irish courts on the basis of the damage that has been suffered in Ireland. In my view, Ewins and Hunter did not establish such a principle.

168. In Ewins, Barr J found as a fact that that there was publication in this jurisdiction. He said:

“...The documentary "Confessions" was duly supplied by Carlton to Ulster Television which, simultaneously with Carlton, transmitted the programme on its network to viewers in Northern Ireland and in this State. It was received in the latter Jurisdiction in one of three ways:-

(i) by unavoidable spillage of signal in border areas;

(ii) by extension in other areas by deliberate tuning of aerials to intercept signals broadcast in Northern Ireland or Wales; and

(iii) by lawful distribution by cable companies and deflector systems.

The number of viewers in this jurisdiction who watched the programme is estimated by Radio Teilifís Éireann to have been 111,000 as calculated by its television measurement system. Ulster Television also derive advertising revenue from this State. It is reasonable to assume that the prices charged for such advertising are based upon the total extent of I.T.N. viewing in this jurisdiction whether transmissions are received through regular authorised sources or otherwise. It follows that Ulster Television, as a constituent part of I.T.N., has an interest in broadcasting to as many people as possible in this State whether "official" or "unofficial" viewers.”

169. As already discussed, in Hunter, it was also found that there was publication in this jurisdiction.

170. Thus, Ewins and Hunter are not authority for the proposition that a claim for reputational damage in this jurisdiction may be maintained even where there is no publication in this jurisdiction. The authorities are in fact to the contrary. In Coleman v MGN [2012] IESC 20, Denham J held that the absence of evidence of any “hits on any such site in this jurisdiction” was a “fatal flaw” in the plaintiff’s case. In Grovit v Jan Jansen [2020] IEHC 501, Hyland J (at paragraph 58) said:

“Shevill makes it clear that the test a national court must apply in deciding whether jurisdiction under 5(3) exists is simply whether the publication was distributed in their jurisdiction and whether the victim claims to have suffered injury to his reputation.”

171. In Ryanair v Fleming [2016] 2 IR 254 (it is important to note that this case was not a case under Brussels Recast), Hogan J said at paragraphs 23 – 26:

“[23] These principles may be said to form the basis of the entire Brussels Regulation (and, indeed, the wider Lugano Convention) system which has been the mainstay of the European Union's jurisdiction allocating rules for the best part of

50 years. It is true, of course, that the present jurisdictional dispute falls completely outside the scope of the Brussels/Lugano system and is governed by our own national conflict of law rules. The point, however, is that conflict of laws rules reflecting the principal allocation of jurisdiction as between competing fora must, in general, at least, in order to be fair, reflect these considerations of foreseeability and the orderly administration of international justice.

[24] These considerations apply with particular force in the case of internet defamation where traditional rules in relation to jurisdiction have, to some extent at least, been overtaken by technological developments. As the European Court of Justice observed in eDate Advertising GmbH v. X. (Joined Cases C-509/09 and C- 161/10)[2011] E.C.R. I-10269 at paras. 45 and 46:-

“45 … [T]he placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it in regard to its consultation beyond that person's Member State of establishment and outside of that person's control.

46 It thus appears that the internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to assess the damage caused exclusively within that Member State.”

[25] All of these difficulties identified by the European Court of Justice in eDate Advertising GmbH v. X. (Joined Cases C-509/09 and C-161/10)[2011] E.C.R. I- 10269 apply to the present case. The internet forum itself was hosted in California and, so far as can be ascertained, the participants themselves (all of whom used pseudonyms) came from a variety of (mainly) European jurisdictions. The plaintiff's affidavit evidence indicates that 12 participants identified themselves by reference to an Irish location. This, however, does not in and of itself necessarily mean that any of them actually accessed or downloaded the defendant's post when they were in Ireland. It is, nevertheless, hard to say that a participant posting from Australia on an international website based in California in relation to incidents which took place in Spain could reasonably foresee that he would thereby expose himself to litigation in this jurisdiction simply by reason of comments made about an Irish based airline in the course of that posting where that poster had no other connections with this jurisdiction and where the forum itself was not hosted in Ireland.

The jurisdiction of the Irish courts

[26] It is against this general background that the question of jurisdiction may now be considered. Quite apart from any other consideration, the plaintiff must, of course, establish publication in this State in order to establish jurisdiction. There is, however, no evidence before the court to establish that this post has been seen, accessed or downloaded by any third party within this jurisdiction. Proof of publication to a third party is, of course, an essential ingredient of the tort: see s.

6(2) of the 2009 Act. There could, of course, be many circumstances where the fact of publication in an online version – such as the website of a major newspaper

– would, as a matter of common sense, lead to the inference that it was so published to a third party. This cannot, however, obscure the fact that the plaintiff is still required to prove that the material was accessed or downloaded by a third party in this jurisdiction.”

172. At paragraphs 30 to 32 he said:

“[30] It is true that the website could have been accessed by anyone with access to the internet anywhere in the world. Nevertheless, the plaintiff has not identified any third party who has come forward to say that they have accessed or downloaded this particular post in this jurisdiction.

[31] The Supreme Court's decision in Coleman v. MGN Limited [2012] IESC 20, [2012] 2 I.L.R.M 81 is also of some importance in this context. Here the question was whether the publication in the online edition of the well-known British newspaper, The Daily Mirror, was sufficient to ground the defamation proceedings in this jurisdiction for the purposes of article 5(3) of the Brussels Regulation.

Denham C.J. held at p. 87 that the fact of such publication had not been made out, as there was no evidence of “any hits on any such site in this jurisdiction”. In the absence of such proof, the Supreme Court held that it had no jurisdiction in the absence of evidence that a tort had been committed here.

[32] It follows, therefore, that independently of any other consideration, the plaintiff has not demonstrated that the Irish courts have jurisdiction in the matter since, to repeat, there is no actual evidence that a third party located in this jurisdiction has accessed or downloaded the offending post.”

173. The plaintiff in fact accepted that the absence of publication in Ireland presented a difficulty in respect of his defamation claim. He submitted, however, that he is entitled to sue for conspiracy in this jurisdiction because the tort of conspiracy was only completed in this jurisdiction when it caused harm to him. I have previously considered the relevant principles in relation to conspiracy.

174. In addition to the difficulties discussed earlier, it seems to me that it is not open to the plaintiff to seek to separate the conspiracy and the defamation in this manner in circumstances where the means by which it is alleged effect was given to the alleged

agreement was to defame the plaintiff and I have found that defamation in Ireland has not been established.

Failure to specify jurisdictional basis

175. The defendants submit that the incorrect indorsement under Brussels Recast is fatal to the proceedings. At the hearing, they also raised the point that the Statement of Claim contains no indorsement at all. However, this point was not originally advanced as a basis for relief. I therefore do not consider it.

176. In relation to the first, it is accepted by the plaintiff that they indorsed the Summons incorrectly. The indorsement asserts that the courts of Ireland have jurisdiction pursuant to article 4, 8 and/or 25 of Brussels Recast whereas in fact, as discussed, jurisdiction is asserted on the basis that the harmful event occurred in this jurisdiction. The indorsement should, therefore, have referred to article 7(2). It seems that the articles referred to were the relevant ones under Brussels Recast’s predecessor. It is to address this that the amendment application has been brought. However, the defendants submit that even if an amendment is permitted in accordance with that application the indorsement will still be defective because the proposed amendment simply reads “The Court has power under Regulation (EU No. 1215/2012 of the European Parliament and the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) to hear and determine the Plaintiffs’ claims and the Court should assume jurisdiction to hear the said claims under the provisions of Article 7 of the said Regulation.” The defendants submit that simply referring to article 7 is not sufficient because Order 4 Rule 1A(1) of the Rules of the Superior Courts requires that where Brussels Recast, the Lugano Convention or the 1968 Convention is being relied upon the indorsement “shall specify the particular provision or provisions of the relevant instrument concerned under which the Court should assume jurisdiction.” Article 7 provides for seven different jurisdictional bases and the defendants submit that it is insufficient in those circumstances to only refer to “article 7”.

177. It is not in fact necessary to determine these issues in circumstances where I have concluded that the Court does not have jurisdiction under the correct article and, as will be seen shortly, I conclude that it should not assume jurisdiction in respect of the claim against the third-named defendant.

Conclusion in relation to the first and second-named defendants

178. I am not satisfied that the plaintiff has established that the “harmful event” occurred in Ireland. In those circumstances, the first and second-named defendants are entitled to be sued in the country of their domicile, France.

179. In those circumstances, it is not necessary to determine whether or not the incorrect indorsement under Brussels Recast is fatal to the proceedings or to determine the plaintiff’s application to amend the indorsement.

Application in relation to the third-named defendant

180. The defendants seek an Order dismissing, striking out or staying the proceedings as against the third-named defendant on the basis that the plaintiff did not obtain the leave of the court to issue and serve the proceedings outside of the jurisdiction. They also claim that the plaintiff served the Plenary Summons on the third-named defendant rather than Notice of the Summons. They also seek Orders setting aside the service of the Plenary Summons and/or dismissing, striking out or staying the proceedings on the basis of the doctrine of forum non conveniens.

Failure to obtain leave to serve prior to issuing proceedings

181. Order 11 Rule 1 of the Rules provides that:

“1. Provided that an originating summons is not a summons to which Order 11A applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the court whenever - ...”

182. Order 11 Rule 6 provides that the application for the permission of the court for service out of the jurisdiction is to be made before the Summons is issued. It states:

“6. Such application shall be made before the issue of the summons, and the affidavit to ground the same shall, when no proceeding is pending, be entitled as between the parties to the intended proceeding...”

183. There does not appear to be any dispute about the timing of the application for leave to serve the proceedings against the third-named defendant out of the jurisdiction and that it was made after the proceedings were issued. Indeed, the plaintiff states in his written submissions that “The Defendants are incorrect in suggesting that the Plaintiff did not obtain leave from the High Court to issue proceedings against HKT. The Plaintiff did so shortly after issuing the within proceedings” [emphasis added].

184. Thus, it is acknowledged by the plaintiff that the leave of the Court was only obtained after the proceedings had already been issued. This is not in compliance with the clear terms of Order 11 Rule 6. The plaintiff does not engage with this at all but rather seemed to proceed on the basis that leave can be sought after the proceedings have been issued. That is not the position. It seems to me that the Court’s discretion under Order 124 is in principle sufficient to excuse such non-compliance in some circumstances, though, in light of the clear terms of Rule 6, they would have to be unusual circumstances. However, there must be some basis for doing so, such as an explanation as to why the application was not made before the proceedings were issued. No such explanation is given in this case. Of concern also is the fact that the Plenary Summons stated the third-named defendant’s address to be in France. This entitled the issuance of the Summons without an application for leave under Order

11. However, when the Statement of Claim was delivered, the third-named defendant’s address was given as the London address. The fact of different addresses being given in the Plenary Summons and the Statement of Claim is not necessarily a fundamental issue because a plaintiff could believe that a defendant resides in a member state and therefore an application under Order 11 is not necessary before a Plenary Summons is issued and could then discover before the Statement of Claim is delivered that the defendant in fact is to be found in a non-member state. However, the significant issue here is that in the same period of time as the delivery of the Plenary Summons in this case bearing the French address the plaintiff also issued the Maybourne proceedings in which the London address was given for the third-named defendant. The plaintiff does not explain this. He does say that he did not realise that the third-named defendant was domiciled in Qatar but that misses the point. The issue is how an address in Paris was given in one set of proceedings (thereby rendering it unnecessary on its face to get an Order under Order 11) and an address in London given in the other. In all of those circumstances, there is no basis upon which I should exercise my discretion and it is appropriate to stay or strike out the proceedings against the third-named defendant. As I go on now to conclude that the proceedings against the third-named defendant should be stayed on the grounds of forum non conveniens, it seems to me, on a preliminary basis, that the appropriate order in relation to the failure to obtain leave before issuing the proceedings is to stay the proceedings on that basis also. As I indicate below, I will hear from the parties as to the appropriate orders.

Forum Non Conveniens

185. The defendants also submit that the court should decline jurisdiction in respect of the third-named defendant on the basis of forum non conveniens. This application is not made in respect of the first and second-named defendants.

186. I have already dealt with the general principles in respect of forum non conveniens.

187. The burden of proof is on the defendants to identify the alternate jurisdiction which is clearly and distinctly more appropriate. This is accepted by the defendants. They say that France is the natural forum, particularly having regard to the fact that the first and second-named defendants are domiciled in France and the default rule is that they should be sued in the jurisdiction of their domicile.

188. In my view, they have discharged their burden. The proceedings are clearly more closely connected with France than with Ireland, particularly in circumstances where there is no evidence of publication or republication in Ireland. This is a very significant element. Of course, the proceedings have a connection to Ireland in that the plaintiff is Irish and the works that were being provided were being provided through an Irish company, HSMC Ltd. The connecting factors with Ireland are more fully set out at paragraphs 95 above.

189. It seems to me that with some differences, the other factors weigh in favour of the proceedings being dealt with in France. The parties are an Irish individual, a French company, a French individual, and a Qatari individual. The issues in relation to travel of witnesses are largely the same as in the Maybourne proceedings. The use of French may be an additional difficulty that does not arise in the Maybourne proceedings. However, I have no evidence about the plaintiff’s competence in French. It is relevant that the plaintiff was able to work in France and temporarily moved to Roquebrune. Nor do I have any evidence about the French competence of any other witnesses the plaintiff might call. The second-named defendant says that he is proficient in English.

190. The likelihood is that the applicable law will be French. This is a relevant factor as it is a system of law with which the Irish plaintiff and some of his witnesses may well not be familiar.

191. Nonetheless, it seems to me when all of the factors, including the connecting factors, the absence of evidence of publication in Ireland, and issues of cost and convenience, the defendants have shown that Ireland is a forum non conveniens.

Service of the Summons rather than Notice

192. In light of my conclusions on these other points, it is not necessary to determine this point.

Conclusion in relation to the third-named defendant

193. I am satisfied that the third-named defendant has established that Ireland is forum non conveniens. I am also satisfied that the fact that the application for leave to serve the proceedings on the third-named defendant outside the jurisdiction was made after the proceedings had already been issued amounts to non-compliance with Order 11 Rule 6 and that there is no basis upon which I can exercise my discretion pursuant to Order 124 Rule.

194. In light of those findings, it is not necessary to determine the question in relation to service of the Summons itself rather than Notice of the Summons.

SUMMARY

195. I have summarised my conclusions in respect of the various aspects of the applications as I have dealt with them. I do not propose to repeat them other than to restate the following.

196. In relation to the SEDH proceedings, I am not satisfied that the Court has jurisdiction in the claim against the first and second-named defendant under article 7(1) of Brussels Recast on the basis that it was not established that the harmful event occurred in Ireland. I am satisfied that the provisions of Order 11 Rule 6 were not complied with in respect of the proceedings against the third-named defendant and that there is no basis upon which the court should exercise its discretion in respect of that non-compliance. However, even if I exercised my discretion in respect of that non-compliance, I am satisfied that Ireland is forum non conveniens in respect of the claim against the third-named defendant.

197. In the Maybourne proceedings, I am satisfied that the court would be entitled to assume jurisdiction in circumstances where the plaintiff has established a good arguable case in respect of the tort of defamation. However, I am not satisfied, having regard to all of the circumstances, that the case is a proper one for service out of the jurisdiction.

198. I will hear from the parties in respect of the form of the Orders which should be made in light of my conclusions.