Defamation defence struck out for not being reasonably capable of bearing a defamatory meaning.

THE HIGH COURT

[2026] IEHC 376

[Record No. 2023/3579P]

BETWEEN

PAUL TWEED

PLAINTIFF

AND

GEORGETOWN UNIVERSITY TRADING AS GEORGETOWN

UNIVERSITY PRESS

DEFENDANT

JUDGMENT delivered by Mr. Justice Micheál O’Higgins on the 11th day of June 2026

Introduction

1. In view of the central role of the jury in defamation cases, how should a judge go about determining whether a statement is defamatory, or at least capable of bearing a defamatory meaning? Should allowance be made for the possibility that jurors may read in imputations more readily than a lawyer? Or that they may indulge in a certain amount of loose thinking? What level of knowledge should notional jurors be credited with? These are some of the questions raised in the present case in which the parties to a defamation action dispute whether a particular statement is capable of being viewed as defamatory.

2. The matter comes before the court on foot of the plaintiff’s application for an order pursuant to Order 19, rule 27 of the Rules of the Superior Courts (RSC) and/or the inherent jurisdiction of the court striking out the defence of truth pleaded by the defendant under s. 16 of the Defamation Act 2009 (the “2009 Act”) and/or striking out such meanings pleaded by the defendant in para. 8(b) of its defence on the ground that they are not reasonably capable of bearing a defamatory meaning. In the alternative, the plaintiff seeks an order requiring the defendant to amend its defence so that the meanings it seeks to prove pursuant to its defence of truth are meanings that are defamatory of the plaintiff.

3. The strike-out application is resisted by the defendant, which contends that the alternative meaning pleaded at para. 8(b) of its defence is reasonably capable of bearing a defamatory meaning and should therefore be allowed to stand for the jury’s consideration at the trial of these proceedings.

The substantive proceedings

4. In his statement of claim of 25th July 2023, the plaintiff seeks damages for defamation arising from the publication of a book entitled “Subversion: The Strategic Weaponization of Narratives” by Dr. Andreas Krieg (“the Book”).

5. It is pleaded that p. 164 of the Book contains the following passage: “Beyond helping to disseminate narratives and building networks between like-minded academics, journalists and policy makers, public relations and lobbying companies help Abu Dhabi silence critical voices in the West. A London-based consultancy, Cornerstone Global Associates – according to the New York Times a part of the UAE’s information network in Europe – closely works with a British libel lawyer to send aggressive cease-and-desist letters to academic publishers, universities, and social media companies in an effort to target individuals critical of the UAE and its regional policy. The libel lawyer thereby targets not just references to Cornerstone and its director but also mentions of other individuals closely aligned with Abu Dhabi’s information nexus – most notably Mohammed Dahlan allegedly a key interlocutor for Abu Dhabi’s Crown Prince MbZ. This type of lawfare is meant to intimidate critics and provides the UAE’s information network with ammunition to attack such critics.”

6. The statement of claim pleads that footnotes contained within the above passage refer to a New York Times article dated 1st February 2019 which identify “a prominent libel lawyer, Paul Tweed” and an Irish News article dated 26th September 2017 which refers to “Prominent Co. Down libel lawyer Paul Tweed”.

7. The plaintiff’s statement of claim pleads that the words complained of meant, and were understood to mean, that: “(i) The Plaintiff is a subversive, covert agent of the United Arab Emirates who improperly writes warning letters and/or institute [sic] legal proceedings for the purpose of silencing voices in the west who are critical of the United Arab Emirates;

(ii) The Plaintiff writes warning letters and/or institutes legal proceedings, not in the interests of his clients, but for the improper purpose of intimidating critics of the United Arab Emirates;

(iii) The Plaintiff uses his legal practice to unfairly and improperly target academic publishers, universities and social media companies in order to protect or advance the interests of the political regime in the United Arab Emirates; and

(iv) The Plaintiff is an unethical solicitor who abuses his position as an officer of the court to use litigation for purposes that are ulterior to the administration of justice.”

8. The defendant delivered a full defence to the plaintiff’s claim on 2nd February 2024. At para. 8 of the defence the following is pleaded: “(a) The words complained of by the Plaintiff, when taken in their proper context and circumstances and/or having regard to the book in which they were published, when construed having regard to their ordinary and/or natural meaning, do not bear the meanings sought to be attributed to them by the Plaintiff.

(b) Further or in the alternative, the words complained of mean that the Plaintiff, in his capacity as a lawyer, has sent correspondence including cease and desist letters, on behalf of clients, to publishers, universities and social media companies, addressed to persons critical of the United Arab Emirates and/or its regional policy, of Cornerstone and persons associated with it, and of other individuals closely aligned with Abu Dhabi including Mohamed Dahlan, and that the Plaintiff’s activities in that regard have helped Abu Dhabi silence critics in the West.

(c) If the words in respect of which this action are brought bear the meanings pleaded at paragraph 8(b) above, they are true in those meanings and the Defendant relies on the defence of truth for which Section 16 of the Defamation Act, 2009 provides. Insofar as necessary and appropriate, the Defendant relies upon Section 16(2) of the Defamation Act, 2009.”

9. The defendant pleaded the following particulars of fact in support of its defence as follows: “(i) The Defendant relies on the facts set out in the words of which complaint is made, and in the Book of which they form part.

(ii) The Plaintiff, in his capacity as a lawyer, has sent correspondence, including cease and desist letters, on behalf of clients, to publishers, universities and social media companies, addressed to persons critical of the United Arab Emirates and/or its regional policy, of Cornerstone and persons associated with it, and of other individuals closely aligned with Abu Dhabi including Mohamed Dahlan.

(iii) By way of example, the Plaintiff has sent such correspondence to King’s College, to booksellers and to Dr Krieg in connection with the Book.

(iv) The Plaintiff has also sent such correspondence in connection with previous commentary by Dr Krieg referring to Ghanem Nuseibeh, co-founder and director of Cornerstone, and referring to Senator Nathalie Goulet.

(v) By way of further example, the Plaintiff sent correspondence to Hurst Publishers and/or OUP on behalf of Cornerstone and/or Mr. Nuseibeh, complaining of material that was intended to be published and/or had been published, in books written by Kristian Coates Ulrichsen and Marc Owen James.

(vi) The Plaintiff has acted as solicitor in numerous claims initiated by Mohamed Dahlan and Ghanem Nuseibeh.

(vii) The Plaintiff’s activities as a lawyer help Abu Dhabi silence critics in the West.”

10. For completeness, the plaintiff expressly denied the pleas made in the defence in his reply to the defence delivered on 22nd February 2024. Moreover, on 24th April 2024 the plaintiff served a notice of trial on the solicitors for the defendant. At this point, no issue had been raised regarding the manner in which the defendant had pleaded its defence or the alternative meaning the defendant relied upon in support of its defence of truth. The defendant contends that it was not until 29th April 2024 that the plaintiff, when writing to the solicitors for the defendant declining to make discovery, asserted for the first time that the defendant’s plea of truth was unsustainable on the basis that the meanings pleaded at para. 8(b) of the defence were not capable of bearing a defamatory meaning.

11. In what was a lively and at times entertaining hearing, the parties agreed that the sole issue for the court to determine is whether the alternative meaning advanced by the defendant at para. 8(b) of its defence is reasonably capable of bearing a defamatory meaning. It was also agreed between the parties that, while as a matter of law a defendant is entitled to assert alternative meanings when relying on the defence of truth under s. 16 of the 2009 Act, the law requires that any such alternative meaning must be defamatory of the plaintiff or reasonably capable of bearing a defamatory meaning.

Summary of submissions on behalf of the plaintiff

12. The plaintiff solicitor’s grounding affidavit contends that the alternative meaning pleaded by the defendant at para. 8(b) of its defence is not defamatory of the plaintiff or reasonably capable of a defamatory meaning and is therefore unnecessary for the purpose of

O. 19, r. 27 RSC and should be struck out. The plaintiff says the defendant’s alternative meaning can be broken down into three distinct parts:

(i) The plaintiff, in his capacity as a lawyer, sent correspondence, including ceaseand-desist letters, on behalf of clients to publishers, universities and social media companies;

(ii) The correspondence sent by the plaintiff was addressed to persons critical of the United Arab Emirates and/or its regional policy, of Cornerstone and persons associated with it, and of other individuals closely aligned with Abu Dhabi, including Mohammed Dahlan; and

(iii) The plaintiff’s activities (i.e. in sending the aforesaid correspondence) have helped Abu Dhabi silence critics in the West.

13. In relation to part (i) of the defendant’s alternative meaning, the plaintiff says it is not defamatory to say that the lawyer has sent correspondence, including cease-and-desist letters, on behalf of clients to publishers, universities and social media companies. Like any litigation lawyer, the plaintiff has sent such correspondence and, unless there is an imputation that the correspondence was sent for an improper purpose or with an improper motive - which there is not - that fact is innocuous, inconsequential, and incapable of lowering his reputation in the eyes of reasonable members of society.

14. In relation to part (ii) of the alternative meaning, the plaintiff says it is also not defamatory to say that correspondence sent by the plaintiff was addressed to persons critical of the UAE and/or its regional policy. Litigation lawyers often send correspondence to persons who are critical of all manner of things, and the second part of the alternative meaning cannot be defamatory unless it is suggested that the correspondence was sent to these individuals for some improper motive or purpose. It is significant, says the plaintiff, that the defendant’s meaning does not assert, as the defamatory publication does, that correspondence was sent “in an effort to target individuals critical of the UAE and its regional policy.”

15. The plaintiff submits that a byproduct of a lawyer’s legitimate activities on behalf of a client is not something which is capable of reflecting well or ill on the lawyer. If a lawyer is conducting a case for a client, and there is no suggestion in the defence that he/she has behaved improperly, a statement of the lawyer’s activities is not capable of being defamatory. The plaintiff says it is inconceivable that a jury would not be told that they must take into account the fact that lawyers are obliged to defend both allegedly good and allegedly bad individuals, and that this cannot reflect negatively on the lawyer’s character or reputation.

16. With respect to part (iii) of the defendant’s alternative meaning, the plaintiff submits that whether the plaintiff’s activities have helped Abu Dhabi silence critics in the West is irrelevant. The fact that the effect of a lawyer’s correspondence is to help the lawyer’s client or interested groups is not uncommon, and is certainly not defamatory, where there is no suggestion that this was the purpose (as opposed to the byproduct) of the lawyer’s actions.

17. In oral submissions, the plaintiff emphasised the point that para. 8(b) of the defence decouples the sending of the letters from any targeting or any intention to intimidate for a particular purpose. If the impugned publication does not mean what the plaintiff says, and means what the defence says, then the defence wins the case without having to prove truth at all. In reality therefore, says the plaintiff, the defendant’s argument that granting the motion to strike out this part of the defence would involve placing an inappropriate restriction on the defendant is misplaced and artificial. The primary defence set out at para. 3 is that the impugned words do not bear any defamatory meaning. The defendant is seeking, in the same breath, to introduce into the case a defence that the impugned words do bear a defamatory meaning, namely that set out at para. 8(b) of the defence. The plaintiff argues that if this defence is permitted to go to the jury, it will cause confusion and uncertainty.

18. The plaintiff submits that the defendant is engaging in an inappropriate tactic by making a plea of a non-defamatory kind, the purpose of which is to widen the proceedings so that they become unduly complicated. He also contends that the plea is a vehicle for obtaining a discovery order to which neither the plaintiff nor the defendant would otherwise be entitled.

19. The plaintiff argues that everything which is capable of making a lawyer subject to proper criticism in the eyes of reasonable people has been eviscerated from the article in the alternative meanings pleaded by the defendant. While alternative meanings can be urged in a defence, only defamatory meanings can be proved to be true because they meet and damage the case made by the plaintiff. The alternative meaning advanced by the plaintiff here fails to do this.

Summary of submissions on behalf of the defendant

20. In the first instance, the defendant says it is necessary to consider the legal framework surrounding the plaintiff’s application. It is clear from case law that a high threshold must be met in order for a party to succeed in an application to strike out a defendant’s defence. This is clear from the leading case of Ganley v. RTE [2019] IECA 18. The impugned pleading may only be struck out in circumstances where it would be entirely unreasonable or perverse for the jury to uphold the alternative meaning pleaded by the defendant.

21. It is well established that a defendant in defamation proceedings may plead the truth of meanings other than those pleaded by the plaintiff (per Polly Peck Plc v. Trelford [1986] QB 1000, which was recognised by the Court of Appeal as representing the law in this jurisdiction in Mackin v. O’Brien and Morrissey [2024] IECA 43).

22. The case law makes clear that an alternative meaning contended for by a defendant must be capable of arising from the impugned publication, and that the defendant must provide proper particulars of fact that are capable of supporting the defence. In the present case, no issue has been raised by the plaintiff in respect of either of these requirements. The only criticism raised of the defence is the contention that the alternative meaning asserted by the defendant is incapable of being viewed as defamatory.

23. The analysis of the Court of Appeal in Mackin is indicative of the strict standard of review to be adopted in a strike-out application of this kind. A court, in considering whether the pleaded meaning is capable of being interpreted as defamatory, should strike out the pleading only where its meaning is not “even arguably defamatory” of the plaintiff.

24. The defendant is not required to accept and prove the truth of the contested meanings of the impugned words as advanced by the plaintiff. Relying on Mackin, the defendant submits that to allow the plaintiff’s application would permit the plaintiff to impose their contested meanings of the words at issue on the defendant. The defendant says that the alternative meaning advanced, when considered cumulatively and in context, is clearly capable of bearing a defamatory meaning and may constitute an imputation on the integrity of the plaintiff. A reasonable reader can understand that the suppression of dissent and fair criticism of any state is a matter which is undesirable. This can be clearly distinguished from the alternative meaning struck out in Mackin, which was solely directed towards Sinn Féin, rather than the plaintiffs themselves, and which the Court of Appeal found not to be even arguably defamatory of the plaintiffs.

25. The alternative meaning pleaded at para. 8(b) of the defence specifically relates to the consequence of the plaintiff’s activities as a lawyer and is relevant to the facts of the case. The defendant’s plea is neither pointless nor a diversion of the jury from the relevant issues in the proceedings.

26. As emphasised in leading cases such as Quigley v. Creation Limited [1971] IR 269, the position of the jury in defamation proceedings is uniquely important. A judge should not withhold a matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of. There is no basis for any finding that it would be perverse for the jury to uphold the alternative meaning contended for by the defendant. Thus, the high threshold for judicial intervention under O. 19, r. 27 RSC has not been reached.

27. The plaintiff’s submission can be reduced to the single proposition that it is never defamatory to say that a lawyer acted for someone, unless the lawyer acted unethically or improperly. That is an unsustainable proposition. The alternative meaning pleaded at para. 8(b) asserts that the plaintiff acts for agents of the UAE and, in doing so, helps them silence critics in the West. It is, at the very least, possible that the jury might find that that damages his reputation, particularly when regard is had to the wording of the alternative meaning, namely that it is an effect of the lawyer acting in these cases that critics of the UAE are silenced.

28. The court should take into account the context of the impugned publication. The thesis of the Book is that there are dangers posed to society by individuals engaging in “information warfare” and the example that is given by the author in the impugned paragraph is an example of such “lawfare”.

29. The defendant submits that the plaintiff’s citing of the cab rank rule is a poor analogy, particularly outside the context of criminal cases. Not everybody knows or thinks that every lawyer is entitled to take every type of civil case or act in every type of capacity for clients.

30. As to the question of intent versus effect, that is a debate that should be had before the jury; it is not, however, a proper basis on which to exclude the defendant from at least putting its defence before the jury. Even if a lawyer was acting ethically, individuals may still think less of him if his legal practice involves acting in repeated actions on behalf of state actors who are trying to suppress dissent or critics of its regional policy.

Relevant legal principles in a strike-out application

31. I will start with a consideration of the relevant rules of court. With regard to the standard of review, O. 19, r. 27 RSC as amended by S.I. No. 456/2003, provides as follows: “The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or which amounts to an abuse of the process of the Court, or which may unreasonably prejudice or delay the fair trial of the action; and may in any such case, if it thinks fit, order the costs of the application to be paid as between solicitor and client.”

32. Both parties identified the decision of the Court of Appeal in Ganley as correctly stating the relevant principles to be applied in a strike-out application. In Ganley, the Court of Appeal refused the plaintiff’s application to strike out certain paragraphs of the defendant’s defence on the basis that the alternative meanings pleaded by the defendant were based on different facts from those contained in the Prime Time broadcast, did not meet the ‘sting’ of the publication, and were therefore unnecessary and prejudicial.

33. Giving the judgment of the court, Irvine J. made clear that a high threshold must be met in order for a party to succeed in a strike-out application. Irvine J. addressed these themes at paras. 50 and 51 of her judgment in Ganley as follows: “50. Some guidance as to the threshold at which the court will intervene and strike out a pleading in a defamation action is to be found in the decision of Eady J.

in Hamilton v. Clifford [2004] EWHC 1542 where he stated that the bar for judicial intervention was set relatively high and that a judge should intervene only if satisfied that it would be perverse for the jury to uphold the canvassed meaning. Further helpful direction is provided by Simon Brown L.J. in Jameel v. Wall Street Journal Europe [2003] EWCA Civ 1694 when he said in this regard that ‘The Judge’s function is no more and no less than to pre-empt perversity’.

51. It is not disputed that a defendant is entitled to plead so as to justify any reasonable meaning of the words published which a jury, properly directed, might find to be the real meaning and that the full range of potentially permissible meanings must be allowed to stand for the jury’s consideration. Walsh J. in Quigley v. Creation Press Ltd. [1971] IR 269 made clear that a judge should not withhold a matter from the jury unless satisfied that it would be wholly unreasonable for the jury to attribute a libellous meaning to the words complained of. Accordingly, on hearing an application to strike out some aspect of a defence in a defamation action, a judge must be careful not to transgress upon that entitlement by supplanting his or her own judgement for that of the jury. The importance of the role of the jury and the somewhat lesser and more limited role of the trial judge concerning meanings is made clear in a description of their respective roles in Mapp v. News Group Newspapers Ltd. [1998] QB 520, wherein at p. 523 Hirst L.J. stated that: ‘It is for the judge to rule, when asked to do so, whether the words are capable of bearing a particular meaning or meanings alleged in the statement of claim; in other words, to lay down the limits of the range of the possible defamatory meanings of which the words are capable. It is for the jury to determine the actual meaning of the words within that permissible range.’”

34. Irvine J. emphasised at paras. 52 and 53 that the jurisdiction to strike out an aspect of a defence is a jurisdiction to be “sparingly invoked”: “52. … The remedy of striking out some aspect of a defence proposing an alternative meaning was, in my view, aptly described in Polly Peck Plc v. Trelford [1986] QB 1000 … as a drastic remedy which should only be available in cases where it was clear that the particulars to which the plaintiff objected could not reasonably disclose an answer to his claim.

53. More recently, however, it was Sedley L.J. in Berezovsky v. Forbes [2001] EWCA Civ 1251 who notably stated, concerning the exercise of the court’s discretion on such an application, that the court was engaged with ‘an exercise in generosity not in parsimony’ which, once fairly performed, would ‘not be second-guessed on appeal by this court: the longstop is the jury.’”

35. The principles applicable to a strike-out application as stated in Ganley were cited with approval by Collins J. in a more recent decision of the Court of Appeal in Mackin.

36. As I have already mentioned, the parties in the present case are also agreed that the alternative meaning asserted by a defendant must be a meaning which is defamatory of the plaintiff, or at least capable of such an interpretation. This is clear from the decision of the Court of Appeal in New Zealand in Broadcasting Corporation of New Zealand v. Crush [1998]

2 NZLR 234 where Cooke P. stated as follows: “We were referred to no statement in any of [the case law] going to the length of saying that a defendant may plead a plainly non-defamatory meaning and then prove its truth. Such a course would seem a pointless exercise or to forecast an attempt to divert the jury from the true issues”.

37. In Mackin, Collins J. emphasised that in a strike-out application, the meaning of the words does not need to be determined. Rather, the only issue arising is “whether the words are capable of bearing the pleaded meanings… or whether a finding that that is what the words meant would be “perverse””.

38. The next point to consider is what the Oireachtas has said about the meaning of a “defamatory statement”. Section 2 of the 2009 Act defines it as “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society”, and provides that “defamatory” should be construed accordingly.

39. In Gilchrist v. Sunday Newspapers Limited [2017] 2 IR 714 the Court of Appeal (Irvine J.) stated that the judge’s role in a strike-out application is to “delimit the outside boundaries of the possible range of meanings that might be ascribed thereto by the notional reasonable reader”. Moreover, the court observed that the words complained of must be construed in the context in which they appear. I will return to Gilchrist in a little while.

Application of legal principles to paragraph 8(b) of the defence

40. In my view, it is significant that the defendant appears to accept that para. 8(b) of the defence makes no case that the plaintiff, in his capacity as a solicitor, acted improperly or unethically. This acknowledgement strikes me as important because it necessarily reduces the capacity for the statement to bear a defamatory meaning. It may also be relevant to the question of identifying the “sting” of the passage in the Book over which the plaintiff is suing. If it is accepted that there is no suggestion being made that Mr. Tweed acted improperly or unethically, the question for the court then becomes: what defamatory meaning is left for the passage to bear? Pressed on this point during the hearing, counsel for the defendant submitted that the cumulative effect of the passage, coupled with the last few words indicating that the plaintiff’s activities “have helped Abu Dhabi silence critics in the West”, gives rise to the possibility that some members of the public might regard this as undesirable and/or worthy of criticism. Therefore, says the defendant, it cannot be excluded that a reasonable person would regard these words as defamatory or at least capable of being defamatory.

41. The plaintiff counters this argument by submitting that, in the absence of any suggestion that the plaintiff is acting unethically or improperly, a by-product of the lawyer’s legitimate activities on behalf of a client is not capable of reflecting ill on him. Moreover, says the plaintiff, nothing in para. 8(b) attributes intention to the plaintiff, malign or otherwise. This stands in stark contrast to the passage in the Book which proclaims that the lawyer’s ceaseand-desist letters were sent “in an effort to target individuals critical of the UAE”.

42. I think it might be a useful exercise at this point to remind ourselves of the wording in the Book which is being sued upon, and underline the wording which has been omitted from the alternative meaning pleaded at para. 8(b) of the defence. That exercise yields the following: “Beyond helping to disseminate narratives and building networks between like-minded academics, journalists and policy makers, public relations and lobbying companies help Abu Dhabi silence critical voices in the West. A London-based consultancy, Cornerstone Global Associates – according to the New York Times a part of the UAE’s information network in Europe – closely works with a British libel lawyer to send aggressive cease-and-desist letters to academic publishers, universities, and social media companies in an effort to target individuals critical of the UAE and its regional policy. The libel lawyer thereby targets not just references to Cornerstone and its director but also mentions of other individuals closely aligned with Abu Dhabi’s information nexus – most notably Mohammed Dahlan allegedly a key interlocutor for Abu Dhabi’s Crown Prince MbZ. This type of lawfare is meant to intimidate critics and provides the UAE’s information network with ammunition to attack such critics.” (my emphasis)

43. The plaintiff contends that para. 8(b) is an anodyne and watered-down version of the passage in the Book over which the plaintiff is taking defamation proceedings. I pass no view on this, nor am I commenting on whether the passage in the Book is defamatory or capable of being viewed as such. It is not controversial to say, however, that the wording in the Book involves additional elements to the defendant’s alternative meaning pleaded at para. 8(b) of the defence. But that is not the issue the court is being asked to determine in this motion. The question as to the true meaning of the passage in the Book is a matter to be determined by the jury at trial. The sole issue for determination before me is whether the statement at para. 8(b) is reasonably capable of bearing a defamatory meaning.

44. In some defamation cases, the dispute concerns whether the words in question are capable of bearing a particular meaning; in such cases, there is agreement that the particular meaning is defamatory, but disagreement on whether the words are capable of bearing that meaning. In the present case, the position is somewhat different. The parties appear to agree that the wording of para. 8(b) is capable of meaning that the plaintiff acts for a variety of actors associated with the UAE by sending cease-and-desist letters to persons critical of the regime and, in so doing, helps silence critics of the UAE. The dispute therefore is not whether para. 8(b) could bear that particular meaning, but rather whether that meaning is capable of being defamatory of the plaintiff.

45. The parties agree on the high threshold that must be reached by a moving party in an application such as this. As already stated, Ganley makes clear that the bar for judicial intervention is high, and a judge should only intervene if satisfied that it would be perverse for a jury to uphold the alternative meaning pleaded by the defendant as defamatory. Further, a judge must be careful not to transgress upon the role of the jury by supplanting his/her own judgment for that of the jury. It is also agreed that the strike-out jurisdiction should be “sparingly invoked” as it constitutes a drastic remedy which should only be availed of in clearcut cases.

46. In considering the net question before the court, it is necessary to bear in mind that the Oireachtas has defined what is meant by a “defamatory statement”, as already outlined at para.

38 of this judgment. Accordingly, a statement that lowers a person’s reputation in the eyes of unreasonable members of society would not meet the definition.

47. The plaintiff says it is inconceivable that a jury would not be told that they must take into account that the average person has some notion that lawyers operate under the cab rank rule and are obliged to defend both the allegedly good and the allegedly bad, without casting any imputation on the lawyer’s character. I can see the force in that submission, but I would put the matter slightly differently. While it is possible that some readers may have a negative view of lawyers and may regard the cab rank rule as anomalous or artificial (the rule does not in any event apply to solicitors), in my view, a reasonable reader will have some understanding of the representative role played by solicitors in the litigation process and of the important principle that lawyers should not generally be identified with their client, or their client’s cause, as a result of discharging their professional functions.

48. This general proposition appears as principle 18 in the United Nations Basic Principles on the Role of Lawyers which were adopted by the Eighth United Nations Congress in 1990. The reasonable reader may not, of course, be aware of this precise instrument, but in my view would be aware or at least advised as to the general principle. The UN Basic Principles form the baseline standards for the independence of lawyers and of litigants’ right of access to justice.

49. In any event, is this enough to exclude the possibility that reasonable members of society might find para. 8(b) capable of bearing a defamatory meaning? After all, it is the defendant’s argument that not all members of society will subscribe to this view. It seems to me that the defendant does have a point in emphasising that we are dealing here with the “real world” not a “lawyer’s world”, and that the question as to the meaning of words is impression based.

High watermark of the defendant’s case

50. I think the high watermark of the defendant’s case is the argument that, while the cab rank rule and the principle that lawyers should not be identified with the causes of their clients are admirable notions, not everyone subscribes to them in the real world. It is perfectly possible, says the defendant, that some members of society may think less of a lawyer for repeatedly choosing to act for persons associated with the UAE, and thereby helping such actors to silence critics of the UAE in the West.

51. Bearing the defendant’s submission in mind, it seems to me that the key question for the court to determine is whether the statement in para. 8(b) of the defence, when viewed objectively by a reasonable reader, is capable of giving rise to a defamatory meaning. In broad terms, this assessment requires consideration of three different things:

(1) The statutory definition of a “defamatory statement”;

(2) The legal principles relevant to ‘meaning’ generally; and

(3) The legal principles relevant to the level of knowledge which should be credited to a reasonable reader.

52. I will examine each of these in turn.

(1) The statutory definition of a “defamatory statement”

53. The first of these is straightforward. As we have seen, the Oireachtas has defined a defamatory statement in s. 2 of the 2009 Act as meaning “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society”.

(2) The legal principles as to the meaning of words

54. Turning to the second factor, the focus that the Oireachtas places on viewing a statement through the eyes of reasonable members of society is a statutory embodiment of longestablished common law principles. The legal principles relevant to ascertaining the meaning of a statement are set out in the leading English case of Jeynes v. News Magazines Ltd. [2008] EWCA Civ 130 where Clarke MR summarised the principles as follows: “(1) The governing principle is reasonableness.

(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) Over-elaborate analysis is best avoided.

(4) The intention of the publisher is irrelevant.

(5) The article must be read as a whole, and any “bane and antidote” taken together.

(6) The hypothetical reader is taken to be representative of those who would read the publication in question.

(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…” (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at paragraph 7 and Gatley on Libel and Slander (10th edition), paragraph 30.6)

(8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.” Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73”.

55. It is important to note that the Court of Appeal in this jurisdiction cited these legal principles with approval in Gilchrist at para. 37. I will return to Gilchrist presently, but I should also mention that, for reasons that remain unclear to me, when citing Clarke MR’s list of principles at para. 37 of the Irish Report, the 8th and final principle listed at para. 14 of that judgment is omitted. It may be that the judgment in Gilchrist omitted principle no. 8 unintentionally.

56. It is worthwhile considering the facts of Jeynes in a little detail. The appellant sued a magazine called ‘Love It!’, and a newspaper called the ‘News of the World’ (which advertised the impugned magazine cover/statement) over a front page of the magazine which contained the following words: “BB’s LISA ‘THE GEEZER’ My fake boobs fell out on a date with James Hewitt!” The words appeared alongside a photograph of the appellant with the words “Reality” across her chest. The appellant appeared as a housemate on the television programme Big Brother in May 2003, some three years before the publication complained of. The issue for the trial judge was whether the words were capable of bearing the pleaded meaning, namely that the appellant (who is and was born a woman) was in truth a man posing as a woman, or alternatively was a transgender or transsexual person who was born a man but has become a woman.

57. The appellant’s case was that “BB” was a plain reference to Big Brother; that “BB’s Lisa” was a reference to the appellant having been a housemate in the Big Brother house; and that “The Geezer” was a reference to the appellant either being or posing as a man. Counsel submitted that, in giving that name to Lisa, the appellant was simply giving the word its dictionary meaning, and the question of whether it would be so understood by a reasonable reader should be left to the jury.

58. The motion judge rejected this submission and the case was dismissed. The appellant appealed to the Court of Appeal. The Court of Appeal upheld the motion judge’s ruling that no reasonable reader of the magazine or of the News of the World advertisement could reasonably come to the conclusion that the words “BB’s Lisa” and “The Geezer” meant that the woman portrayed in the photograph was deceiving people, or intending to deceive people, into believing that she was a woman when she was in fact a man or was transgender or transsexual. That would be to read far too much into the words complained of. The Court of Appeal found that it would be perverse for a reader to derive from the words that element of deception or the suggestion that she was merely posing as a woman.

59. In my view, the analysis of Clarke MR in Jeynes, and in particular the actual outcome of the case, bears out in practical terms the wisdom of principle number 8 in Clarke MR’s list in that judgment, namely that it is not enough to say that by some person or another the words might be understood in a defamatory sense. The critical assessment to be carried out is whether a reasonable reader would come to this view.

(3) The legal principles as to the level of knowledge to be credited to a reasonable reader

60. Turning then to the question as to the level of knowledge and information to be credited to a notional reasonable reader, practical guidance on how the court should approach this issue is available from the decision of the Court of Appeal in Gilchrist. This case concerned an application by the defendant under s. 14 of the 2009 Act for an order that the statement in respect of which the defamation action was brought was not reasonably capable of bearing the imputation pleaded by the plaintiff and therefore should be dismissed. The first plaintiff, Mr. Gilchrist, was a former detective inspector in An Garda Síochána with responsibility for the State’s Witness Protection Programme (WPP). The second plaintiff, Ms. Rogers, was a psychotherapist and was retained by the Gardaí to provide professional services for the WPP. The plaintiffs brought proceedings arising from two articles published by the defendant newspaper, each a week apart. The plaintiffs claimed that the published words meant that the plaintiffs were responsible for improperly passing off the second plaintiff as a “doctor” to examine a witness on the WPP, that the plaintiffs had misappropriated State funds and that they had acted inappropriately in their roles as officers within the WPP.

61. The plaintiffs pleaded that the imputations arising from the second article published by the newspaper meant that the allegations against them were true and that they were guilty of the misconduct alleged, as distinct from merely being suspects or under investigation for the alleged wrongdoing. The defendants applied pursuant to s. 14 of the 2009 Act to have the plaintiffs’ imputations withdrawn from the jury. The trial judge found in favour of the plaintiffs and refused the newspaper’s application. The defendants appealed this decision to the Court of Appeal, and Irvine J., with whom Peart and Finlay Geoghegan J.J. agreed, held that the trial judge was incorrect and that the appeal should be allowed. Insofar as is relevant to the present case, the Court of Appeal held as follows:

(1) The test to be applied by the court in a s. 14 application is whether the article, when viewed objectively by the reasonable reader, is capable of giving rise to the pleaded meaning. The role of the judge in an application pursuant to s. 14 of the 2009 Act is not to determine the meaning of the words or article published but “to delimit the outside boundaries of the possible range of meanings that might be ascribed thereto by the notional reasonable reader”.

(2) The applicable legal principles for determining the meaning of words are those identified by Clarke MR in Jeynes.

(3) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which can only emerge as the produce of some strained, forced, or utterly unreasonable interpretation.

(4) In defamation proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied it would be wholly unreasonable to attribute a libellous meaning to the words complained of.

(5) The words complained of must be construed in the context in which they appear. Whether a particular publication is capable of bearing the meanings pleaded by a plaintiff is a question of impression, and the court has to consider the whole of the publication, which includes the “get up”, such as headlines, pictures and captions.

(6) A reasonable reader should be credited with knowing the difference between an article reporting that a person was suspected of wrongdoing from an article that implied that they actually committed that wrong.

62. In Gilchrist, the key issue centred on the distinction to be drawn between an article stating that somebody is guilty of fraudulent conduct, and an article saying they are suspected of or under investigation for such conduct. That discrete issue does not arise in the present case. Nonetheless, the approach adopted by Irvine J. in assessing the meaning of words is instructive. Irvine J. approved of the following observations of Reid L.J. in Lewis v. Daily Telegraph Ltd. [1964] AC 234 where he said the following at pgs. 259-260: “In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. So let me suppose a number of ordinary people discussing one of these paragraphs which they had read in the newspaper. No doubt one of them might say – “Oh, if the fraud squad are after these people you can take it they are guilty”. But I would expect the others to turn on him, if he did say that, with such remarks as – “Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions. The police are fair and know their job and we shall know soon enough if there is anything in it. Wait till we see if they charge him. I wouldn’t trust him until this is cleared up, but it is another thing to condemn him unheard.” What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt of fraud merely because an inquiry is on foot. And, if that is so, then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter of law the paragraph is not capable of having that meaning. So there was here, in my opinion, misdirection of the two juries sufficiently serious to require that there must be new trials.”

63. Interestingly for present purposes, the plaintiffs in Gilchrist argued that the question of whether what was written about them implied guilt on their behalf was a matter that ought to be left to the jury. The plaintiffs argued that a statement of suspicion may in fact be interpreted by a jury as imputing guilt, and relied on the possibility that some jurors may be influenced by “no smoke without fire” considerations. In that regard, the plaintiffs cited the warning of Devlin L.J. in Lewis at p. 285 that:

“A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire… One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that…loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.”

64. Counsel for the plaintiffs in Gilchrist also relied upon the passage to the effect that a layman may ‘read in’ an implication or meaning to a publication much more freely than a lawyer will.

65. Reversing the High Court and rejecting the plaintiffs’ overall case, Irvine J. expressly approved of the approach taken by Reid and Morris L.J.J. in Lewis and observed that it is “indeed a grave thing to say that someone is fraudulent and that it is quite a different thing to say that they are suspected of fraudulent conduct”. Irvine J. held that a reasonable reader would discern the difference. The judge accepted that the court must assume that such a reader may occasionally engage in loose thinking, but they should nonetheless be credited with knowing the difference between an article which reports that a person is suspected of wrongdoing from the article that implies that they actually committed that wrong. Furthermore, while a reasonable reader may be suspicious as to whether the plaintiffs were guilty of the conduct alleged, “only an unduly suspicious reader would conclude that they were actually engaged in the activities which were stated to be under investigation”. On that basis, the Court of Appeal held that the article in question was not reasonably capable of bearing the imputations and meanings pleaded by the plaintiffs.

66. Again, while all cases must be viewed in the context of their individual facts, the analysis carried out by the Court of Appeal as to the level of information and knowledge that should be credited to a notional reasonable reader is instructive, particularly in circumstances where Irvine J. expressly endorsed the guidance of Lord Reid that the focus should be on an ordinary reader who is “not avid for scandal”, and not on the impressions of the “unusually suspicious” or the “unusually naïve”.

67. Coming back to the wording of the statement in para. 8(b) of the defence, and also, importantly, factoring in the defendant’s acknowledgement as to what the statement does not say, it seems to me that a whole series of imputations can be safely ruled out of the equation. These include any suggestion that the plaintiff was acting improperly or unethically; was engaged in an effort to intimidate individuals or was involved in an abuse of process; was pursuing a baseless claim which he knew to be unsustainable; or was using litigation for ulterior purposes unconnected to the administration of justice. It is in my view significant that nowhere in the statement under discussion are any of these allegations set out or implied.

68. Absent any such imputations, it seems to me that no reasonable person would think less of a lawyer, or regard the lawyer’s reputation as besmirched, merely because, for instance, he acts for a bank or receiver in a house possession case, for an accused person with previous convictions in a rape case, for a terrorist in a defamation case or for a dislikable foreign state in a commercial case. The position would be different, however, if there were additional elements in the mix, such as the lawyer engaging in an abuse of process, intimidation of litigants, a breach of ethical standards, an ulterior purpose or a baseless claim.

69. In my view, a reasonable reader would understand that society proceeds on the premise that differences are resolved through the agreed processes of the justice system. This necessarily involves litigants either themselves, or through their lawyer, sending correspondence to the party with whom they are in dispute. A reasonable reader will expect and understand that a lawyer’s correspondence will be directed at advancing the interests of his client. In my view, no reasonable jury in possession of this basic understanding would consider it to reflect poorly on a lawyer that he accepts instructions from a client and, as part of his brief, sends out letters that turn out to be effective.

70. I find that the defendant’s analogy with SLAPP litigation (Strategic Lawsuit Against Public Participation) is inapt and, if anything, illuminates a flaw in the defendant’s argument. SLAPP litigation, as I understand it, involves an element of intimidation or abuse of process, neither of which is alleged in the statement under discussion. Nor does the defendant’s example of a lawyer acting for a sanctioned entity arise on the facts here. In any event, the analogy of acting for a sanctioned entity breaks down in circumstances where it is not alleged that the plaintiff was in any way constrained from acting for the clients concerned, or that he breached standards or professional guidance relating to such matters.

71. Drawing together the themes discussed in the case law above, it seems to me that the following points have particular relevance to the exercise I have to undertake in this case:

(1) First and foremost, the governing principle is reasonableness (principle no. 1 in Clarke MR’s list);

(2) While the hypothetical reasonable reader may read in an imputation more easily than a lawyer, and may indulge in a certain amount of loose thinking, he must be treated as a person who does not, and should not, select one bad meaning where other non-defamatory meanings are available (principle no. 2);

(3) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation (principle no. 7);

(4) Importantly, it is not enough to say that by some person or another the words might be understood in a defamatory sense (principle no. 8); and

(5) While a court must assume that the notional reader may occasionally engage in loose thinking, there are limits to this. The notional reader should be credited with certain reasonable understandings relevant to the content under discussion (para. 68 of Gilchrist).

72. Applying these principles to the defendant’s statement at para. 8(b) of the defence, it seems to me that it would be appropriate to credit the notional reasonable reader with a basic understanding and knowledge of the representational role played by lawyers in the litigation process and of what lawyers do when engaged in a case, including the sending of letters in furtherance of their clients’ instructions.

73. By analogy with the approach taken in Gilchrist and Lewis, and bearing in mind that it is acknowledged that nowhere in the statement pleaded at para. 8(b) is there any suggestion that:

• the plaintiff acted inappropriately;

• acted unethically;

• was engaged in an abuse of process;

• was engaged in an effort to target individuals;

• was pursuing a baseless or unjustified claim;

• was engaged in litigation for ulterior purposes, unconnected to the administration of justice; or

• took any steps in the legal cases mentioned beyond the normal run of litigation, I find that it would be wholly unreasonable to conclude that the defendant’s alternative meaning at para. 8(b) of the defence is defamatory or reasonably capable of being viewed as such.

74. Returning to the list of principles identified by Clarke MR for determining the meaning of words, it is instructive that the first and governing principle is that of reasonableness. It seems to me that that is the primary guardrail the court should follow. Principle no. 7 in Clarke MR’s list states that the court should rule out any meaning which “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation”. I find on the facts here that the defamatory meaning contended for by the defendant, when viewed in light of the knowledge to be credited to the reasonable reader, is strained, artificial and wholly unreasonable.

75. As noted at principle no. 8 in Clarke MR’s list, it is not enough for the moving party to say that by some person or another the words might be understood in a defamatory sense. What matters is whether a reasonable reader, credited with a reasonable understanding of the issues presented by the publication, could reasonably consider the statement to be capable of bearing a defamatory meaning.

76. In line with the principles of restraint identified by the Court of Appeal in Ganley, I accept that the strike-out remedy should be sparingly invoked, only to be exercised in clear-cut cases. Case law also emphasises that a judge hearing a strike-out application should be careful not to encroach on the role of the jury by supplanting his or her judgment on any issue with that of the jury. The judge’s task is to “delimit the outside boundaries” of the possible range of meanings that might be ascribed to the statement by the notional reasonable reader. The statement should only be excluded if it is not “even arguably defamatory” of the plaintiff.

77. Applying these principles, I must conclude that the statement pleaded at para. 8(b) of the defence, when viewed objectively by a reasonable reader as described by Clarke MR in Jeynes and by Irvine J. in Gilchrist, is not capable of giving rise to a defamatory meaning. In my view, nobody would sensibly bring, or be advised to bring, defamation proceedings over this statement. While I appreciate that that is not strictly speaking the governing test, it does help to illustrate the artificial nature of the defendant’s interpretation. The statement in question is simply too anodyne to be regarded by a reasonable reader as being capable of bearing a defamatory meaning. Applying the test in Mackin, the statement is not “even arguably defamatory.”

78. Finally, there are two other arguments of the defendant that I want to briefly address. Firstly, the defendant argued that, since the case took more than a day to be heard, it must follow that the defendant’s argument was, at the very least, arguable, and that the strike-out application should therefore be dismissed. I do not accept this argument. Merely because an issue is worthy of being explored and teased out at hearing does not mean that the argument is stateable. Were it otherwise, a party could prolong a hearing in an attempt to rely on its length as precluding a finding that the meaning contended for was unstatable.

79. A judicial review analogy helps to make the point. An applicant seeking leave to issue judicial review proceedings may well take half a day to argue his case in a contested leave hearing; however, that does not mean that the only outcome open to the judge is to grant leave. If the defendant’s argument were correct, the very exercise of testing an argument could automatically lead to its acceptance, and any contested leave application taking longer than a few minutes would only ever result in leave being granted.

80. Secondly, the defendant argued that the timing of the plaintiff’s motion should have a bearing on the outcome of the case or at the very least should be borne in mind. The defendant argued that it was not until the defendant sought discovery from the plaintiff that the plaintiff asserted for the first time that the defendant’s defence was unsustainable and liable to be struck out. In my view, this was more of a debating point, rather than a reason in principle as to why the motion should be refused. Since the court has found that the plaintiff’s objection to the defence is validly made out, and that the relevant pleading is unnecessary for O. 19, r. 27 purposes, it ultimately does not matter that the objection was made somewhat late in the day.

Conclusion

81. In the circumstances, I hold that, since the alternative meaning pleaded by the defendant at para. 8(b) of its defence is not defamatory of the plaintiff or reasonably capable of being viewed as such, the pleading in question is unnecessary within the meaning of O. 19, r. 27 RSC and should therefore be struck out.

82. I did not understand the defendant as taking issue with the procedural correctness of the plaintiff’s motion. In other words, it appeared to be accepted by the defendant that, if the court’s ruling was that the statement was not capable of bearing a defamatory meaning, the plaintiff was entitled to an order under O. 19, r. 27 striking out the relevant part of the defendant’s defence.

83. Finally, for the avoidance of doubt, nothing in this judgment should be taken as commenting on the question whether the impugned passage in the Book is defamatory, or capable of being viewed as defamatory. As I have already stated, those are issues for trial.

84. I will hear the parties on the terms of the court’s final order.

Signed:

Micheál O’Higgins

Appearances: Paul O’Higgins SC and John Kerr BL instructed by WP Tweed & Co. for the plaintiff. Marcus Dowling SC, Shelley Horan BL and Rachael O’Byrne BL instructed by McCann FitzGerald LLP for the defendant.