Ganley & Anor -V- Cable News Network Incorporated & Ors; Ganley & Anor -V- Cable News Network Incorporated & Ors

APPROVED NO REDACTIONS NEEDED THE COURT OF APPEAL Court of Appeal Record Numbers: 2025/101 & 2025/99 High Court Record Number: 2021/1110P Neutral Citation Number: [2026] IECA 33 Faherty J. Butler J. McDonald J. BETWEEN/ DECLAN GANLEY AND RIVADA NETWORKS LIMITED PLAINTIFFS/RESPONDENTS -AND- CABLE NEWS NETWORK INC., CABLE NEWS INTERNATIONAL LIMITED AND TURNER BROADCASTING SYSTEM EUROPE LIMITED DEFENDANTS/APPELLANTS JUDGMENT of Mr. Justice Denis McDonald delivered on 13th March 2026 Introduction -2- 1. There are two appeals before the Court in respect of orders made by the High Court (Simons J.) on 25th February 2025. In the first appeal, all of the defendants are appellants. In the second appeal, the second and third defendants are the sole appellants. The first appeal relates to the refusal by the High Court of the defendants’ application for an order pursuant to O. 12, r. 26 of the Rules of the Superior Courts (“RSC”) setting aside service of notice of the plenary summons on the defendants out of the jurisdiction. That application was made on the ground that Ireland is not the appropriate forum for the hearing of this litigation and that, in fact, the more appropriate jurisdiction for the hearing of the plaintiffs’ case is the United States of America. While the defendants argue that the litigation could be heard in a number of U.S. States, they have identified Washington D.C. as the most appropriate forum. A challenge to jurisdiction on such grounds is often characterised by reference to the Latin tag, forum non conveniens. For the reasons discussed in some detail below, I have concluded that the appeal should be dismissed on the basis that Ireland is the most appropriate forum for the hearing of the plaintiffs’ claim. 2. The second appeal relates to the refusal by the High Court of the application brought by the second and third named defendants under O. 19, r. 28, RSC, and under the inherent jurisdiction of the High Court seeking to dismiss these proceedings either as disclosing no reasonable cause of action or on the grounds that the claims made against the second and third defendants are bound to fail. For the reasons discussed below, I have concluded that this appeal should also be dismissed. It is not clear at this stage of the proceedings that the claims against the second and third defendants are bound to fail. The parties 3. In order to understand the issues which arise on this appeal, it is necessary to briefly describe the parties and the nature of the claim made by the plaintiffs/respondents in these -3- proceedings. The first plaintiff (“Mr. Ganley”) is a well-known businessperson but he is also widely known outside the business community in Ireland as a result of his prominent role in a number of Irish referendum campaigns including the campaign in relation to the Treaty of Lisbon. The second plaintiff (“Rivada Ireland”) was established in 2005 by Mr. Ganley. It is an Irish subsidiary of Rivada Networks Inc., a company incorporated in the United States which I will refer to as “the US parent company”. Mr. Ganley says that the US parent company trades under the name “Rivada Networks” in that jurisdiction. Mr. Ganley is the Chief Executive Officer (“CEO”) of both entities. According to Mr. Ganley, Rivada Ireland functions as the Irish office of the US parent company. Mr. Ganley also says that the US parent company, Rivada Ireland, and a second subsidiary of the US parent, Rivada Networks LLC (which is also incorporated in the United States) provide communication services and operate under the direction of Mr. Ganley and their respective boards of directors. Mr. Ganley further says that these Rivada entities all operate as “Rivada Networks” in the various jurisdictions in which they carry on business. 4. The first defendant (“CNN”) is incorporated in the United States and has its registered office and headquarters in Atlanta, Georgia. It is an international cable news network and media company. It owns and operates numerous news platforms and services including the CNN and CNN International news channels. The second defendant (“CNIL”) is a company incorporated in the United Kingdom with its registered office in London. It is an indirect subsidiary of CNN. The third defendant (“Turner”) is a private limited company which is also incorporated in the United Kingdom with its registered office in London. According to the evidence before the court, Turner is an affiliate, but not a subsidiary of CNN and both companies have the same ultimate owner (Warner Bros. Discovery, Inc.). The plaintiffs’ claim -4- 5. The plaintiffs complain that on 20th October 2020 the defendants defamed the plaintiffs in the course of two publications, the first comprising a broadcast on the CNN International news channel on that date and the second in an article published on the CNN.com website on the same day. The defendants accept that the article was published in Ireland for the purposes of the Defamation Act 2009 (“the 2009 Act”) because it appeared on the website which is available in Ireland and because it was published on the CNN International television channel which is also available in Ireland. For the purposes of this judgment, it is unnecessary to set out the full terms of either the broadcast in question or the article in question. It is sufficient to note that it is the plaintiffs’ case that the broadcast and article suggest that the plaintiffs have initiated a corrupt process to obtain a contract to lease the US Department of Defence’s mid-band spectrum in circumstances which are designed to preclude a competitive bidding process for this opportunity. The plaintiffs claim that the publications directly identified the trading name of Rivada Ireland namely, “Rivada Networks” and that they also indirectly identified Mr. Ganley who the plaintiffs maintain is clearly identifiable by any reasonable reader or viewer in Ireland who either observed the broadcast or read the on-line article. In para. 11 of their statement of claim, they contend that Mr. Ganley has a high profile in this jurisdiction and that his identity is synonymous with that of Rivada Ireland. The plaintiffs also claim that, subsequent to the original publications on 20th October 2020, there were a number of re-publications by third parties which served to exacerbate the damage caused to the plaintiffs and which the plaintiffs allege were foreseeable to the defendants. These include a number of social media posts but also re-publication in online reports by Irish based print media including in the Irish Times on 21st October 2020 under the headline “Declan Ganley denies Donald Trump trying to swing lucrative 5G contract for Rivada”, a further report in the Irish Times on 22nd October 2020, a report in the Irish Independent on 21st October 2020 under the headline “Businessman -5- Declan Ganley denies US report of ‘no bid contract’ push”, a further report in the Irish Independent on 22nd October 2020 “Trump is not giving me special help, insists Ganley” and a publication in the London Times (Irish edition) on 22nd October 2020 “Declan Ganley denies claim White House officials are trying to fast-track 5G deal”. The correspondence between the parties prior to commencement of the proceedings 6. Very soon after the publications in question, the plaintiffs’ solicitors wrote to CNN on 30th October 2020 complaining that they had been defamed. CNN responded on 9th November 2020 in which they stated (among other things) that, if the plaintiffs insisted on bringing an action against CNN in Ireland “where you would not have jurisdiction over CNN”, their claims would fail for two reasons: – (a) in the first place, CNN would rely on section 26 of the 2009 Act on the basis that the material in issue was published in good faith concerning a subject of public interest and that it was fair and reasonable to publish the material; (b) second, in the event that the plaintiffs prevailed in a defamation claim in Ireland, CNN maintained that the resulting judgment would be unenforceable in the United States as a consequence of the Federal Speech Act enacted in 2010 under which foreign judgments for defamation are not recognised in the United States unless the US courts determined that the law applied by the foreign jurisdiction is at least as “speech-protective” as the First Amendment to the US Constitution and the law of the relevant State. 7. At that point, CNN was the only addressee of the correspondence issued by the plaintiffs’ solicitors. However, following a further exchange of correspondence between the parties later in November 2020, in which CNN had again emphasised the impact of the -6- Speech Act, the plaintiffs’ solicitors sent a further letter dated 18th January 2021 to CNIL in similar terms to its original letter of complaint addressed to CNN. A letter was also sent to Turner on the same day. This correspondence was met with a response on 29th January 2021 from Mr. David C. Vigilante, the Executive Vice President and General Counsel of CNN Worldwide, in which he stated that CNN is the entity that broadcast the reports about which the plaintiffs complain and that CNN is the entity that owns and operates CNN.com and holds the relevant licences. In the same letter, Mr. Vigilante stated that, to the extent that the plaintiffs wished to bring a claim, they must do so against CNN. The application to the High Court under Order 11 8. Subsequently, the plaintiffs applied to the High Court (O’Connor J.) on 15th February 2021 under Order 11 seeking leave to serve notice of a proposed plenary summons not only on CNN but also CNIL and Turner. That application was grounded on an affidavit of Mr. Paul Tweed, solicitor, sworn on 10th February 2021. 9. In his affidavit, Mr. Tweed described the publications in issue, and he made clear that the plaintiffs are making the case that a tort was committed within the jurisdiction such as to bring the plaintiffs’ claim within the ambit of O. 11, r. 1(f). In the affidavit, Mr. Tweed explained why the plaintiffs contended that the publication was defamatory of them and he stressed that the plaintiffs maintain that Rivada Networks engaged openly and legitimately in the bidding process for the relevant US contract. The affidavit also explained why it was contended that the publication occurred in this jurisdiction both in terms of the television broadcast and the report on the CNN.com website. In para.19 of the affidavit, Mr. Tweed highlighted that Mr. Ganley is an Irish citizen who is domiciled and ordinarily resides in this jurisdiction and that he has significant personal, political and business connections with Ireland. He also maintained that Rivada Ireland, similarly, has significant connections with -7- this jurisdiction and, in those circumstances, he made the case that Ireland is the most appropriate forum for the hearing of these proceedings. 10. The affidavit did not, however, go on to address the relative appropriateness (or otherwise) of the courts of the place of residence of the respective defendants notwithstanding that this was, at that time, a specific requirement of O. 11, rr. 2 and 5. In particular, O. 11, r. 2 required, at that time, that, in the affidavit grounding an application under O. 11, the party seeking leave to serve proceedings out of the jurisdiction should provide evidence as to the comparative cost and convenience of proceedings in this jurisdiction as against the cost and convenience of proceedings in the jurisdiction in which the proposed defendants are based. For completeness, it should be noted that, with the effect from 23rd July 2024, the provisions of O. 11, r. 2 have been changed. Under the Rules of the Superior Courts (Order 11) 2024 (S.I. No. 362 2024) the terms of O. 11, r. 2 have been amended. The rule now reads: “Where leave is asked from the court to serve a summons or notice thereof under Rule 1, the court shall have regard to the generally recognised principles of international law (and may for that purpose require the filing of written legal submissions) and whether the applicant has shown prima facie grounds that he or she has a good cause of action on the merits”. 11. With regard to the position of CNIL and Turner, Mr. Tweed, in his affidavit, referred to the letter dated 29th January 2021 from Mr. Vigilante in which he had made the case that CNIL was not a publisher of the broadcasting issue. Mr. Tweed then continued as follows: “This correspondence is only a tentative reply however, and does not clarify which entity was responsible in law for the publication, and in fact, following communication with both the BAI and Ofcom, I say and believe that at all material times hereto it was either the Intended second or third-named Defendants that were -8- the holders of the broadcasting licence for ‘CNN’ and ‘CNN News’ in this jurisdiction, and I say and have been so advised that the broadcasting license would need to be held with an EU entity (as they were then) to allow for broadcast in this jurisdiction.” 12. On foot of Mr. Tweed’s affidavit, O’Connor J. gave liberty to serve notice of the proceedings out of the jurisdiction on each of the defendants. The order of O’Connor J. records that the intended action against the defendants appeared to fall within the class of actions set out in O. 11, r. 1(f). That subrule addresses torts committed within the jurisdiction. The renewed correspondence between the parties subsequent to the commencement of proceedings 13. Subsequent to the making of the order of O’Connor J., Mr. Vigilante wrote again to Mr. Tweed on 9th March 2021. In that letter, Mr. Vigilante reiterated his contention that neither CNIL nor Turner had any role in the publications in issue. The letter concluded with a warning that should the plaintiffs issue proceedings in Ireland against CNN, jurisdiction would be “vigorously contested”. This was followed by correspondence from McCann Fitzgerald, the solicitors then acting on behalf of the defendants in which they reiterated the position that neither CNIL nor Turner had any role in relation to the publications. 14. Notwithstanding the correspondence from McCann Fitzgerald, Mr. Tweed continued to maintain that it was appropriate to name both CNIL and Turner as defendants. In his firm’s letter dated 5th May 2021, Gately Tweed referred to the annual returns delivered by Turner and CNIL. The letter suggested that the returns supported the position that Turner and CNIL could have a role in relation to the publications in issue. In their letter, Gately Tweed set out the following justification for the continued maintenance of the claim against those entities: -9- “Turner Broadcasting System Europe Limited, in its annual return, states that its activities include ‘the operation of 24 hour entertainment television networks throughout the United Kingdom (the UK), Europe, Africa and the middle east’ and ‘the licensing of a 24hr news programme of Turner Broadcasting System Inc.’ The website Media.info states ‘Turner Broadcasting System Europe operates the following brands: CNN International, Boomerang, TCM, TNT Film, Cartoon Network and Boing.’ The annual return for Cable News International Limited states that its ‘principal activity is news production and news gathering which includes the research, collation, verification, creation and storage of content intended for inclusion in Cable News Network’s programming.’ Furthermore, that annual return makes it clear that the risks and uncertainties are fully integrated with the risks of the ‘Cable News Network’ group. Both companies state that their directors and officers occupy key positions within the wider organisation. Although the Ofcom website lists Cable News Network Inc. as the licence holder or ‘CNN International’ in the UK, the address is listed as 160 Old Street, London, EC1V 9BW , the registered address of both Cable News International Limited and Turner Broadcasting System Europe Limited. Further, as appears from the Ofcom website, in the UK, the contact for CNN holds posts in both Turner Broadcasting System Europe and CNN International Limited, amongst others. The responsibility for reporting, as you will of course be aware, includes editorial decisions and re-publication decisions which are made in respect of the broadcast in various jurisdictions and platforms and on the internet. The question of liability does not simply rest with the party responsible for the initial decision to publish in - 10 - one jurisdiction, nor does it rest with a nominated licence holder. It is clear that all these operations involve ongoing collaboration between the defendants, each and/or all of them, and that each is responsible in tort for the acts of the other. In the circumstances it does not appear appropriate to us at this stage for the Plaintiffs to discontinue proceedings against any particular entity. …” 15. The correspondence between Gately Tweed and McCann Fitzgerald continued over the course of the summer of 2021. In a subsequent letter dated 15th June 2021 to McCann Fitzgerald, Gately Tweed indicated that the plaintiffs would be prepared to proceed solely against CNN if certain assurances were given. In the applications before Simons J. and in the course of these appeals, the defendants have sought to characterise the letter as an attempt to “barter away” the claims against CNIL and Turner. The defendants make the case that the letter supports their contention that the plaintiffs’ case against CNIL and Turner is without substance. For that reason, it is necessary to set out the terms of the letter in some detail: “Your letter of 25 May 2021 indicates that the US-based defendant, Cable News Network Inc., (‘CNN Inc.’) has sole responsibility for production and publication of the broadcast and website content. For the avoidance of doubt, this simply does not appear plausible to our client, certainly not in respect of publication within Europe. We reiterate that the question of liability does not simply rest with the party responsible for the initial decision to publish in one jurisdiction, nor does it rest with a nominated licence holder. It is clear that the operations involve ongoing collaboration between the defendants, each and/or all of them, and that each is responsible in tort for the acts of the other. - 11 - However, taking your point for a moment, if it were the case that CNN Inc. is the only appropriate defendant entity (which is denied), it strikes us as most peculiar that you would refuse our proposal to agree to limit the parties to the proceedings and thereby save resources. It remains our client’s view that there is a clearly strong and stateable case in these proceedings. You have stated that only one defendant, CNN Inc., is the appropriate entity for these purposes. Therefore, we reiterate our proposal that the following conditions are agreed upon by all the named defendants: (a) That the said defendant, CNN Inc., is liable for any and all publication by CNN or related entities of the statements the subject matter of the proceedings; (b) That the said defendant, CNN Inc., does not challenge the jurisdiction of the Irish Courts in respect of publication within the European Union and Ireland in particular; and (c) That in the event that an award or other order is made in our clients’ favour, the defendants, each and/or all of them, will honour the said award and abide by any order, and will not seek to have recourse to any jurisdictional law or national protection such as the SPEECH ACT to prevent our client from enforcing said award. The above proposal is a reasonable measure between parties to enable just and expeditious progress of these proceedings and allow us to finalise and deliver our Statement of Claim in this matter.” 16. That proposal was rejected by McCann Fitzgerald in a letter dated 16th September 2021. In the same letter, McCann FitzGerald indicated that the defendants intended to bring - 12 - both an application to challenge the jurisdiction of the Irish courts to hear the proceedings and an application to strike out the proceedings against CNIL and Turner on the basis that they are not proper defendants to the proceedings. In the letter, McCann Fitzgerald also sought confirmation that the plaintiffs would be prepared to accept that CNIL and Turner are entitled to issue the application without entering an unconditional appearance and on the understanding that the application would not involve a waiver of jurisdiction. That confirmation was given by Gately Tweed on 30th September 2021 The defendants’ applications to the High Court 17. Applications seeking the relief described in paras. 1 and 2 above were subsequently brought by the defendants on 21st December 2022 and were given a first return date of 20th February 2023. The motions initially came on for hearing before Simons J. in early 2024. In a judgment delivered on 22nd March 2024 ([2024] IEHC 140) Simons J. highlighted that neither side had adduced any direct expert evidence in respect of the jurisdiction of any court within the United States to entertain a claim, at the suit of an Irish citizen or an Irish domiciled company, arising out of the publication, within this jurisdiction, of an allegedly defamatory statement. On that basis, Simons J. came to the conclusion that, on the current state of the evidence, it was not possible for him to carry out the requisite assessment of, and comparison with, an alternative forum in the United States. He therefore directed the parties to exchange expert reports in relation to the position in the United States. 18. Subsequently, an expert report of Mr. Paul Smith was put in evidence by the defendants on 30th May 2024. The replying report of Ms. Megan L. Meier was delivered on behalf of the plaintiffs on 14th November 2024. To the extent that they are relevant to the issues which arise on this appeal, those reports will be addressed in more detail at a later point in this judgment. At this point, it is sufficient to note that, in his report, Mr. Smith - 13 - identified that the plaintiffs would be able to bring proceedings before the courts of the District of Columbia but he also identified that actions for defamation in that jurisdiction are subject to a one-year limitation period. Given that the publications had been made in October 2020, that limitation period had already expired prior to the bringing of the current motions. In her report, Ms. Meier agreed with Mr. Smith’s view in relation to the limitation period. After this exchange of expert evidence, no additional factual evidence was provided by either side. The High Court judgment of 11th February 2025 19. Following the exchange of expert evidence, the matter came on for hearing again before Simons J. in early 2025. Simons J. delivered judgment on 11th February 2025. In that judgment, he identified that the criteria governing the defendants’ application under O. 12, r. 26 were outlined by the Supreme Court in Irish Bank Resolution Corporation v Quinn [2016] 3 I.R. 197 (“the IBRC case”) at paras. 68 to 70. It will be necessary to consider those paragraphs in due course. At this point, it is sufficient to note that, in the IBRC case, Clarke J. (as he then was) expressed the view that there are two basic principles to bear in mind in considering a forum non conveniens challenge: (a) In determining whether Ireland is the appropriate forum, the Court must look at practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties in order to decide whether the applicant has established that there is an alternative forum which is clearly or more distinctly appropriate than Ireland such that it could be said to be “the natural forum” for the conduct of the proceedings; and (b) In the event that the applicant surmounts that hurdle, the Court is then required to consider whether the respondent to the application has put forward any sufficient - 14 - basis for suggesting that justice nonetheless requires that the proceedings should be tried in Ireland. 20. Simons J. also referred to the decision of the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd. [1987] A.C. 460 which Clarke J., in the IBRC case, described as being “at least broadly indicative of the law in this jurisdiction”. In Spiliada, Lord Goff dealt (among other things) with the position where proceedings have become time barred in the jurisdiction which the court concludes is the more appropriate forum for the trial of the action. At pp. 483-484, Lord Goff suggested that a “ strong theoretical argument” could be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay of the English proceedings should generally be granted even though the plaintiff’s action would be time barred in the jurisdiction which has been held to be the appropriate forum. However, he added that practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in England within the relevant limitation period applicable in England and did not act unreasonably in failing to commence proceedings in the competing jurisdiction within the applicable limitation period there, it would not be just to deprive the plaintiff of the ability to pursue the claim in England. At the same time, Lord Goff warned that, when the applicable principles became “more clearly established and better known”, it was likely to become increasingly difficult for plaintiffs to prove “lack of negligence in this respect.” 21. Simons J. came to the conclusion that it would not be in the interests of justice to grant a stay of the proceedings in circumstances where it is now too late for the plaintiffs to institute proceedings in the United States and where the defendants are not prepared to waive the limitation period. Notwithstanding that no additional evidence was presented by the plaintiffs addressing the reasons why the plaintiffs had not pursued a claim in the United - 15 - States, Simons J. held that the plaintiffs had acted reasonably in instituting proceedings before the Irish courts and in not issuing proceedings, on a protective basis, in the courts of the District of Columbia. In reaching that view, Simons J. observed, at para. 34 of his judgment, that it is “telling” that the defendants did not suggest Washington D.C. as an appropriate forum until after they filed their motion seeking to stay the proceedings. He highlighted that the motion was not filed until December 2022 which was more than two years after the date of publication and more than one year after the limitation period had already expired in Washington DC. 22. Simons J. highlighted that the plaintiffs confined their claim to publication in Ireland. He emphasised that this is not a case where a defamed party has sought to pursue, in a single jurisdiction, an omnibus claim for worldwide damages. In such a scenario, there might well be an argument that the more appropriate forum would be the place where the defamatory statement was most widely published. He also held that three factors showed that the proceedings have a strong connection with Ireland. First, he noted that the plaintiffs comprise an Irish citizen and an Irish registered company. Second, he said that the plaintiffs’ claim is restricted to loss and damage caused by the publication within Ireland. Third, he said that the CNN Group broadcast to consumers within the State. He also concluded that it could not be said that either the federal courts or the local courts in Washington, D.C. represented “such an obvious alternative forum” that the plaintiffs acted unreasonably in failing to issue a protective writ there. 23. With regard to the motion to strike out the proceedings against CNIL and Turner, Simons J. came to the conclusion that there was no basis to dismiss the proceedings under O. 19, r. 28. He also decided that there was no basis to dismiss the proceedings under the inherent jurisdiction of the court in circumstances where this would involve the court making - 16 - findings of fact and deciding issues of statutory interpretation on a motion. Simons J. came to the conclusion that it would not be appropriate to determine the issues that arise in relation to CNIL and Turner in a such a “peremptory manner”. The appeal in respect of the refusal to strike out the claims against CNIL and Turner 24. As it can be disposed of more briefly, I turn first to the appeal in respect of the High Court’s refusal to strike out the claims as against CNIL and Turner. As noted earlier, this application was brought on two bases. First, it was contended that the claims should be struck out under O. 19, r. 28 on the basis that the pleadings disclose no reasonable cause of action against CNIL and Turner and that the claims are frivolous or vexatious. As the relevant motion was issued prior to 22nd September 2023, that aspect of the application falls to be assessed under the version of O. 19, r. 28 which existed prior to the enactment of the Rules of the Superior Courts (Order 19) 2023 (S.I. No. 456/2023). It is well settled that, under that version of the rule, the Court proceeds on the basis that the allegations made in the pleadings are true and no regard is had to additional evidence on affidavit. In the course of the hearing of the appeal, no attempt was made, either in the defendants’ oral or written submissions, to argue that the pleadings failed to disclose a cause of action against CNIL and Turner. In the statement of claim, the case is made that publication of the material in issue was done by all three defendants. In those circumstances, I can see no basis on which it could be said, solely by reference to the pleadings, that the statement of claim does not disclose a cause of action against CNIL and Turner. It plainly does disclose a cause of action. It follows that Simons J. was entirely correct to reject this aspect of the defendants’ application. 25. Second, as noted in para. 2 above, CNIL and Turner also invoke the inherent jurisdiction of the Court. This aspect of their application was pursued both in written and oral submissions. They contend that it is very clear that the plaintiffs’ claim against them is - 17 - bound to fail. In so far as that aspect of the application is concerned, the Court is not confined to an examination of the pleadings. Affidavit evidence is admissible. 26. In the defendants’ written submissions, it is contended that the plaintiffs have provided no evidence to support their contention that CNIL and Turner are liable for defamation. CNIL and Turner submit that this is because no evidence exists to substantiate such a case. In para. 50 of their submissions, they maintain that the naming of CNIL and Turner as defendants in the case relates solely to the television broadcast of 20th October 2020 on the CNN International News channel. They suggest that the plaintiffs have not disputed the defendants’ case that CNIL and Turner had no participation in or any responsibility for the article published on the CNN website. In para. 51, they suggest that the furthest which the plaintiffs have gone is to speculate that CNIL may have participated in the publication. 27. The defendants have also referred to the letter of 15th June 2021 from the plaintiffs’ solicitors which, as previously noted, they characterise as “an attempt to barter away” the joinder of CNIL and Turner as defendants in exchange for the defendants’ dropping their challenge to Ireland as the appropriate forum. They submit that this demonstrates that the plaintiffs do not truly believe that they have any serious cause of action against CNIL or Turner and that it lends support for the view that they have been named solely for the purposes of attempting to “shore up the very obvious jurisdictional problems” with the plaintiffs’ case. The defendants also submit that the High Court judge took an unduly cautious approach which was excessively generous to the plaintiffs and that “the uncontroverted evidence” before the High Court was that neither CNIL nor Turner had any role in relation to the impugned publications and that “whatever minimal involvement Turner had in the broadcast on CNN International would very obviously benefit from the defence of - 18 - innocent publication”. On that basis, it was submitted this this was very obviously an appropriate case in which to grant the relief sought. 28. There was no dispute between the parties in relation to the applicable legal principles that govern an application of this kind. Both parties referred to the decisions of the Supreme Court in Keohane v. Hynes [2014] IESC 66 and Lopes v. Min. for Justice [2014] 2 I.R. 301. In the latter decision, Clarke J. (as he then was) highlighted the distinction between the approach taken on an application under the court’s inherent jurisdiction and that taken on an application that is pursued on the basis that the pleadings do not disclose a cause of action. As I have previously explained, in the latter case, the court looks solely at the pleadings. If, on the basis of the facts as pleaded, it is clear that the case is bound to fail, the claim will be dismissed. Conversely, where the facts pleaded disclose a cause of action, that is the end of the enquiry. At p. 309, Clarke J. in Lopes explained that, when the inherent jurisdiction of the court is invoked, a more expansive approach can be taken: “[17] … If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail on the merits, then the inherent jurisdiction of the court to prevent abuse can be invoked.” 29. That is essentially what is alleged by CNIL and Turner here. In substance, they maintain that there is no credible basis for the plaintiffs’ case that those parties had a role in the offending publications. For that reason, it is necessary to review the evidence placed by both sides before the High Court. However, in doing so, there are a number of matters that must be kept in mind. First, as Clarke J. emphasised in Lopes, at p. 309, the courts have many times restated the proposition that this aspect of the court’s jurisdiction “should be - 19 - sparingly exercised”. Similarly, in Barry v. Buckley [1981] I.R. 306, at p. 308, Costello J. (as he then was) stressed that a court would only exercise this jurisdiction in “clear cases”. 30. Second, it is necessary to understand why the courts take such a cautious approach. This was explained in clear terms by Clarke J. in Lopes at pp. 309-310, as follows: “[19] … a plaintiff does not necessarily have to prove by evidence all of the facts asserted in resisting an application to dismiss as being bound to fail. It must be recalled that a plaintiff, like any other party, has available the range of procedures provided for in the RSC to assist in establishing the facts at trial. Documents can be discovered both from opposing parties and, indeed, third parties. Interrogatories can be delivered. Witnesses can be subpoenaed and can, if appropriate, be required to bring their documents with them. Other devices may be available in particular types of cases. In order to defeat a suggestion that a claim is bound to fail on the facts, all that a plaintiff needs to do is to put forward a credible basis for suggesting that it may, at trial, be possible to establish the facts which are asserted and which are necessary for success in the proceedings. Any assessment of the credibility of such an assertion has to be made in the context of the undoubted fact, as pointed out by McCarthy J. in Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425, at p. 428, that experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance.” 31. Clarke J. also explained that the jurisdiction to strike out proceedings on this ground may be more readily invoked in document dependent cases than in cases which turn on oral testimony. At p. 310, he said: “At the same time, it is clear that certain types of cases are more amenable to an assessment of the facts at an early stage than others. Where the case is wholly, or significantly, dependent on documents, then it may be much easier for a court to - 20 - reach an assessment as to whether the proceedings are bound to fail within the confines of a motion to dismiss …” 32. Bearing those principles in mind, I now turn to consider the relevant evidence. I do so against the backdrop that, on an application of this kind, the defendants bear the burden of demonstrating that it is clear that the plaintiffs cannot succeed in their case against CNIL and Turner. 33. In support of the application to strike out the proceedings as against CNIL and Turner, an affidavit was sworn by Ms. Karyn Harty, Solicitor, on 21st December 2022 in which she addressed the position of Turner and CNIL. Ms. Harty stated that CNIL is the UK bureau of CNN and employs CNN's UK team. According to Ms. Harty, it had no role in the creation or distribution of the publications in issue. She also stated in paragraph 13 of her affidavit that, although employees of CNIL create content for publication “on occasion”, that was not the case in respect of the impugned publication of 20th October 2020. 34. Plainly, Ms. Harty has no personal knowledge of any of these matters or the further material described below. However, Mr. Vigilante has since sworn an affidavit in which he has asserted that, through his role as executive vice president and general counsel of CNN Worldwide and in the performance of his duties as an employee, he has “familiarised [himself] with the structure, responsibilities and functions of the relevant entities.” On that basis, he has said that the relevant averments made by Ms. Harty are correct. 35. With regard to Turner, Ms. Harty said, in para. 14 of her affidavit, that Turner is the licensed distributor of the “CNN International” channel to affiliates in Europe under an agreement with CNN and that Turner is a “sub-licensor of the channel as compiled by CNN and so a distributor in technical terms only, and does not have a role in the content published”. - 21 - 36. With regard to the website publication, Ms. Harty stated in para. 15 of her affidavit that CNN owns and operates that website and is the only one of the three defendants responsible at law for any publications on the website. She further stated that neither CNIL nor Turner had “any hand, act or part in the authorship or publication of the article” and that responsibility for the content of both the US edition of the website and the international edition of the website lies solely with CNN. 37. Turning to the television broadcast publication, Ms. Harty said in para. 16, that CNN Inc. owns and operates both the CNN Television News channel in the United States and the CNN International Television News channel, internationally. She further asserted that neither CNIL nor Turner had any role or function in the creation of the impugned publications which she acknowledged had appeared on the CNN International television channel. 38. In paras. 17 and 18 of affidavit, Ms. Harty noted that CNN is the licence-holder for both the United Kingdom and Europe in respect of broadcasting and she exhibited a number of licences namely: (a) A licence granted to Turner dated 17th July 1995 by the Independent Television Commission of the United Kingdom under the Broadcasting Act 1990 (UK) to provide a non-domestic satellite service for the service known as CNN International; (b) A transfer of the said licence on 13th December 2012, transferring it from Turner to CNN; and (c) A confirmation dated 3rd December 2020 from authorities in Luxembourg addressed to CNN to the effect that, following the withdrawal by the United - 22 - Kingdom from the European Union, Luxembourg would be the jurisdiction for regulating CNN International from 1st January 2021. 39. In para. 61 of this affidavit, Ms. Harty addressed the proposal made by Gately Tweed in their letter of 15th June 2021 quoted in para. 15 above and which subtends the submission made by the defendants (summarised in para. 27 above) that the plaintiffs were prepared to “barter away” the joinder of CNIL and Turner. She said: – “61. It is worth observing that, at that juncture, Gateley Tweed appeared willing to ‘barter away’ the joinder of Cable News International and Turner, in exchange for the Defendants dropping their jurisdictional challenge, indicating that the Plaintiffs do not truly believe that they have any cause of action against Cable News International or Turner. Conditions (ii) and (iii) bear virtually no relationship whatsoever to the stated basis for Cable News International and Turner being included in the litigation. Either the Plaintiffs believe that Cable News International and Turner were publishers, or they do not; I believe it is improper for the Plaintiffs to include those parties in the proceedings as a mere bargaining chip.” 40. A replying affidavit was sworn on behalf of the plaintiffs on 11th May 2023 by Mr. Tweed in which he maintained that the defendants are seeking to engineer a situation where the only remaining defendant is domiciled in the United States and thus protected by US law regarding the enforcement of foreign judgments in defamation actions. In para. 11 of his affidavit, he stated that, while CNN may have held the relevant broadcasting licence at the relevant times, there is no “conclusive evidence” that CNIL and Turner had no role or function in the creation or dissemination of the publications in issue. 41. In para. 13 of his affidavit, Mr. Tweed referred to the annual return for Turner for the year ending 31st December 2021 in which it described its activities as including: - - 23 - “‘The operation of 24-hour entertainment television networks throughout the United Kingdom (the UK), Europe, Africa and the middle east’ and ‘the licensing of a 24hr news programme of Turner Broadcasting System Inc.’” 42. Mr. Tweed also referred to the media.info website which states: “Turner Broadcasting System Europe operates the following brands: CNN International, Boomerang, TCM, TNT Film, Cartoon Network and Boing.” While I understand that the website in question is not one with which the defendants have any connection, it seems clear that this material was cited with a view to suggesting that evidence may exist which contradicts that put forward on behalf of CNIL and Turner by their solicitor, Ms. Harty. 43. Mr. Tweed next turned to the position of CNIL. He referred to the annual return of CNIL for the year ending 31st December 2021 which describes its principal activity as “news production and news gathering which includes the research, collation, verification, creation and storage of content intended for inclusion in cable news network’s programming”. This chimes with what Ms. Harty said in para. 13 of her affidavit to the effect that CNIL employees create content for publication on occasion albeit that she contends that this was not the case in respect of the publications in issue. 44. Mr. Tweed noted that the annual return for CNIL also made it clear that the risks and uncertainties facing that entity are fully integrated with the risks of the “Cable News Network” group and that both CNIL and Turner state in their respective returns that their directors and officers occupy key positions within the wider organisation. Mr. Tweed further noted that the address of CNN in the United Kingdom is also the registered office of both CNIL and Turner. In para. 16 of his affidavit, he added: – “I say and am advised that the responsibility for reporting and liability for the offending publications includes editorial, distribution and republication decisions - 24 - which are made in respect of the broadcast in various jurisdictions and platforms and on the internet. The question of liability cannot simply rest with the party responsible for the initial decision to publish in one jurisdiction, nor does it rest with a nominated licence holder. Or if it does, this is certainly not a matter that can be determined summarily. It is clear that all operations and publications by CNN involve ongoing collaboration between the Defendants, each and/or all of them, and that each is responsible in tort for the acts of the other. Therefore, the question of whether all or one or other of the Defendants is liable for the offending publications is not a question that can be determined by this Honourable Court at this stage.” 45. In para. 17 of his affidavit, Mr. Tweed also noted that it had been accepted by the defendants in Ms. Harty’s affidavit that the offending publications were published in this jurisdiction for the purposes of the 2009 Act on a TV channel and Mr. Tweed stated that this channel is accessible in millions of homes throughout Ireland via a number of different platforms. On that basis, he maintained that, even if it is the case that the claim as against CNIL and Turner is limited to the live television broadcast, they are “still proper parties to these proceedings”. 46. Furthermore, in para. 21 of his affidavit, Mr. Tweed stated that: – “It is clear that as with any international broadcaster, all operations, distributions, and publications by CNN in Europe involve ongoing collaboration between the Defendants, each and/or all of them, and that each is responsible in tort for the acts of the other. Therefore, the question of whether all, or one or other of the Defendants is liable for the offending publications, is not a question that can be determined summarily by this Honourable Court at this stage.” - 25 - 47. In reply, Mr. Vigilante swore an affidavit on behalf of the defendants on 6th July 2023. In paras. 18 to 25, Mr. Vigilante addressed the material contained in Mr. Tweed’s affidavit. In para. 18, he said that, “in addition to the averments made by Ms. Harty in her grounding affidavit”, Turner is “in essence” an agent in Europe whose function it is to negotiate commercial terms for the distribution of various television channels in Europe. In para. 19, he stated that Turner previously held a licence from Ofcom (the relevant regulatory body in the United Kingdom) to distribute the CNN television channel in the United Kingdom. However, in 2008, that licence was transferred to CNN Inc. “because Ofcom required that the entity holding the licence should have editorial control over the content.” He added that, because Turner does not have such editorial control over content, it could not hold the licence. 48. With regard to Turner’s Annual Return, Mr. Vigilante contended that, in the Return, Turner distinguished and highlighted the difference between the networks it operates (which include Cartoon Network and Boomerang) versus the network it licences namely CNN International. With regard to the media.info website, Mr. Vigilante suggested that the averment made by Mr. Tweed “is hearsay and factually incorrect”. It is true that Mr. Tweed’s averment is hearsay but it is clear from Lopes that, on an application of this kind, a plaintiff does not have to prove all of the material on which the plaintiff relies to defeat the application. As Clarke J. explained, at pp. 309-310, it is sufficient if the plaintiff can put forward a credible basis for suggesting that it may, at trial, be possible to establish the facts which are asserted and which are necessary for success in the proceedings. 49. Mr. Vigilante addressed the position of CNIL in paras. 23 and 24 of his affidavit. In para. 23, Mr. Vigilante acknowledged that it is true that CNIL engages in news production and news-gathering activities through its London bureau but he maintained that none of its - 26 - personnel had been involved in the reporting of the publications in issue. He added in para. 24 of his affidavit that there is no individual who holds the position of director or officer of all three defendants simultaneously. He then concluded his affidavit in the following terms in para. 25: “Mr. Tweed avers at paragraph 19 of his affidavit that there is no admissible evidence that CNN, Inc. alone is responsible for the impugned publications. I hereby confirm that that is the position and that I know this because I am familiar with the operations of CNN, Inc. and related companies (including Turner and Cable News International).” 50. It is clear from Mr. Vigilante’s affidavit that the defendants strongly reject the case made by the plaintiffs that CNIL and Turner had some role in the website and broadcast publications in issue. However, unlike Barry v. Buckley, this is not a case which is wholly or significantly dependent on documents. None of the evidence advanced on behalf of CNIL and Turner (including the broadbrush assertion made by Mr. Vigilante in para. 25 of his affidavit) has yet been tested by cross-examination. It would plainly have been inappropriate to have sought to do so on an application of this kind. 51. The observations of Clarke J. in Lopes must be borne in mind. As outlined in para. 30 above, Clarke J. emphasised that there are a range of procedures available to assist in establishing the facts at trial. Documents can be obtained through the discovery process both from opposing parties and, where appropriate, from non-parties. Interrogatories can be delivered. Witnesses can be subpoenaed and can be required to bring their documents with them. It is also the case that evidence can also be sought from abroad through requests made to foreign courts by means of letters rogatory. Thus, in a case such as this which is not document dependent (unlike an action for specific performance of a contract for the sale of - 27 - land), the picture presented by the moving party on affidavit may, on enquiry, be shown at trial to have been inaccurate, incomplete or even misleading. 52. While the defendants have suggested that there is no evidence at all to support the plaintiffs’ case as to involvement by CNIL and Turner in the publications in issue, the position, even on their own evidence is, by no means, clear cut. In so far as CNIL is concerned, Ms. Harty has acknowledged in para. 13 of her affidavit that employees of CNIL, on occasion, create content. Similarly, Mr. Vigilante has conceded that CNIL is engaged in news production and news-gathering activities. In my view, these are significant concessions. While Ms. Harty and Mr. Vigilante have both contended that CNIL was not so engaged on the occasion of these publications, these assertions are plainly capable of being tested and interrogated by means of some or all of the mechanisms identified by Clarke J. in Lopes. 53. Moreover, as Simons J. observed in para. 51 of his judgment, liability for the publication or republication of a defamatory statement is not confined to the entity which created the statement. Thus, even if it ultimately found to be the case that CNIL had no role in the initial creation of the statements in issue, that would not necessarily be the end of the enquiry. I believe that the judge was correct in his conclusion that it will be necessary for a court, in due course, to reach a view on the precise interaction between the three defendants. At this point in the proceedings, there is insufficient evidence before the Court to allow such a view to be formed. 54. In these circumstances, I do not believe that the defendants have shown that this is a sufficiently clear case to allow a court to form the view, at an interlocutory stage of the proceedings, that the plaintiffs’ claim against CNIL is bound to fail. - 28 - 55. It seems to me that similar considerations apply in so far as the case against Turner is concerned. In this context, Ms. Harty has acknowledged that Turner is a distributor albeit that she has suggested this is so “in technical terms only”. It is true that Mr. Vigilante has sought to further diminish its distribution role and has exhibited some documents in support of that contention. But there is no averment that these are the only relevant documents that may exist and, even if there were, any such averment would also be capable of being tested in due course at an appropriate stage of the proceedings. It is also noteworthy that, as set out in para. 27 above, the defendants go so far, in their written submissions, as to suggest that whatever “minimal involvement Turner had in the broadcast on CNN International”, the broadcast should benefit from the defence of innocent publication. That submission implicitly acknowledges that Turner may have had a role. If it did have such a role, it would not be appropriate, on the basis of the very limited evidence currently available, to determine whether such a defence is – or is not – open to it. Whether Turner would be entitled to benefit from such a defence would depend on the facts and circumstances established at trial. 56. In addition, notwithstanding the transfer of the licence from Turner to CNN in December 2008, as described by Ms. Harty, the Strategic Report contained in Turner’s annual return for 2021 continues to speak (as Mr. Tweed has highlighted) of the company “operating” 24-hour entertainment television networks throughout Europe and to describe Turner as being engaged in the “licensing” of 24-hour news programming of CNN Inc. Both are identified on p. 2 of the report as “principal activities” of Turner. On the following page, it is expressly stated that: “The company licenses and creates programmes for sale to its customers” (emphasis added). As noted above, Mr. Vigilante has suggested, in his replying affidavit, that Turner, in its annual report, highlights the difference between the networks operated by it (such as the Cartoon Network) and those which it licenses (such as CNN International). However, I do not believe that the return suggests such a bright line division - 29 - between the licensing aspects of Turner’s business, on the one hand, and the programme creation aspects of its business, on the other. Accordingly, it cannot be said, on the basis of the limited material currently before the Court, that the evidence clearly establishes that Turner is not engaged in any content creation in so far as news programming is concerned. In turn, it cannot be said, at this stage of the proceedings, to be sufficiently clear that Turner had no role in the creation of any element of the publications in issue. 57. For completeness, I should record that in reaching the conclusions outlined above, I have not had any regard to the proposal made in the Gately Tweed letter of 15th June 2021 described in para. 15 above. The defendants have suggested that the letter shows that the plaintiffs were prepared to “barter away” the joinder of CNIL and Turner, in exchange for the defendants dropping their jurisdictional challenge and that this was, in some way, an indication of the plaintiffs’ non-belief in their cause of action against CNIL and Turner. However, I do not believe that the letter necessarily suggests that the plaintiffs do not truly believe that they have any cause of action against CNIL or Turner. It seems to me that the letter is equally capable of being interpreted as a perfectly rational litigation offer in circumstances where the Speech Act was being relied on by CNN. If CNN did not seek to rely on the Speech Act and if it agreed to submit to the jurisdiction, the need to pursue the additional defendants would not arise. The plaintiffs would have, in CNN alone, a “mark” against whom any award of damages could be enforced. 58. For all of these reasons, I am satisfied that the High Court judge was correct to refuse the application by CNIL and Turner to strike out the proceedings as against them. It follows that the appeal in relation to his decision to that effect must be dismissed. - 30 - The appeal in relation to the appropriate forum 59. In so far as the appeal on forum is concerned, it is necessary to keep in mind the nature of the defendants’ challenge to the jurisdiction of the Irish courts. It is expressly accepted in Ms. Harty’s grounding affidavit that there was publication in Ireland for the purposes of the 2009 Act. In para. 24 of that affidavit, she said: “It is accepted that the article was published in Ireland for the purpose of the Defamation Act 2009 because it appeared on the ‘CNN.com’ website which is available in this jurisdiction. It is also accepted that the broadcast was published in Ireland for the purpose of the Defamation Act 2009 because it was published on the ‘CNN International’ television channel, which is available in Ireland through Sky Vodafone Ireland Limited, Virgin Media Ireland, and Eircom Limited. The ‘CNN’ channel is not broadcast in Ireland.” 60. This means that there is no contest that the case falls within O. 11, r. 1(f) on the basis that the alleged tort occurred within the jurisdiction. The defendants’ challenge is based on the contention that the courts of the United States and, in particular, the courts of the District of Columbia, are a more appropriate forum than the courts of Ireland. The basis on which they put forward their case to that effect is well summarised in para. 6 of Ms. Harty’s grounding affidavit sworn on 21st December 2022. In that paragraph, Ms. Harty described her clients’ position as follows: “that, having regard to the contents of the impugned publications in these proceedings and the surrounding facts, the appropriate jurisdiction for the hearing of the Plaintiffs' case is the United States of America. The events and personalities referred to in the impugned publication are all based in the United States. The impugned publications make no reference whatsoever, either express or implied, to - 31 - Mr Ganley, Rivada Networks Limited, or any person or thing connected with Ireland” 61. As I have previously mentioned, no complaint is made in Ms. Harty’s affidavit that there was a failure on the part of the plaintiffs to address the requirements of O. 11 rr. 2 and 5. Under the terms of those rules in force at the time the application was made to O’Connor J., a party seeking an order authorising service of proceedings out of the jurisdiction was required to address the comparative cost and convenience of proceedings in Ireland as against the cost and convenience of the jurisdiction in which the proposed defendants reside. In paras. 17 and 19 of his affidavit sworn on 5th February 2021 grounding the plaintiffs’ application under O. 11, Mr. Tweed addressed the basis on which it is contended that Ireland is the appropriate forum in which the plaintiffs’ claim should be heard and determined. However, his affidavit is silent on the issue as to why the plaintiffs contend that it provides a more appropriate forum than the United States or England & Wales which are the jurisdictions in which all of the defendants reside. As the decision in Merck KGaA v. Merck Sharp & Dohme LLC [2025] IECA 192 illustrates, a failure to address the comparative position as between Ireland and the defendant’s jurisdiction may result in the setting aside of an order for service out of the jurisdiction under O. 11. However, that is not the approach that was taken in Ms. Harty’s affidavit grounding the application to set aside service of the proceedings in this case. Instead, the case made in Ms. Harty’s affidavit is that, as a matter of fact, the U.S. courts are a more appropriate forum than Ireland for the purposes of determining the plaintiffs’ claim. In essence, the defendants’ application is based on forum non conveniens grounds. 62. As noted in para. 19 above, the judgment of the Supreme Court in the IBRC case makes clear that, in the context of a forum non conveniens challenge, the Court should first seek to - 32 - determine whether there is another more appropriate forum than Ireland for the resolution of the underlying dispute. If the Court is satisfied that there is another more appropriate forum, the Court is then required to consider whether the respondent to the application has put forward any sufficient basis for suggesting that justice nonetheless requires that the proceedings should be tried in Ireland. In the event that the Court determines that Ireland is the more appropriate forum, the second issue falls away. 63. In determining the first issue (i.e. whether a foreign forum is the appropriate forum), a court will look at practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties in order to decide whether it has been established that there is an alternative forum which is clearly or more distinctly appropriate than Ireland such that it could be said to be “the natural forum” for the conduct of the proceedings. Who bears the burden of proof? 64. At the hearing of the appeal, there was a dispute between the parties as to which side bears the burden of proof in respect of the first issue. Although the defendants had accepted in their written submissions that they bear the burden of establishing that the courts of Washington D.C. represent a clearly or more distinctly appropriate forum than the courts of Ireland, their counsel, in oral submissions, took a different position. Counsel argued that Clarke J. was in error in expressing the view in the IBRC case that the relevant burden lay on the defendants in an application of this kind. In this context, it may, at first sight, seem audacious that a suggestion could be made in the Court of Appeal that the Supreme Court was in error. However, counsel for the defendants stressed that, in the IBRC case, it was conceded by the relevant foreign defendant in that case that it bore the burden of proof. This is expressly recorded at p. 214 where Clarke J. observed that “…it was common case that - 33 - the burden of proof rests on the moving party, Mecon in this case, to establish the basis for the stay sought” A similar statement can be found on p. 216 of the report. Given the agreement of the parties on that issue, it was obviously unnecessary for the Supreme Court to interrogate the issue. Without examining the issues, the Court proceeded on the assumption that the burden lay on the defendant and the Court did not have to reach any decision of its own on the issue. In those very particular circumstances, it seems to me that, on the basis of the approach taken in the IBRC case, it was open to counsel to make this submission to this Court in relation to that case. However, as discussed below, there is earlier Supreme Court authority which is to the same effect namely Analog Devices v. Zurich Insurance [2002] 1 I.R. 272. In both cases, the Supreme Court took that approach while, at the same time endorsing the views expressed by Lord Goff in Spiliada (which, as noted in para. 20 above was also cited by the High Court judge in this case). 65. Counsel for the defendants argued at the hearing of the appeal that it is clear from the speech of Lord Goff in Spiliada and the commentary by the authors of Dicey, Morris & Collins “The Conflict of Laws” (16th Ed., 2025) that the burden of proof on the appropriate forum issue lies, at all times, on the plaintiff save in those cases where the defendant has been served as of right (i.e. without the necessity of an order under O. 11). In so far as English case law is concerned, I believe that counsel for the defendants was entirely correct in his submission to that effect. It is clear that the observations of Lord Goff in Spiliada, at p. 476, in relation to the burden of proof is contained in a section of the decision dealing with cases where jurisdiction has been founded as of right. That section commences on p. 474 where Lord Goff said: “In cases where jurisdiction has been found at as of right, i.e. where in this country the defendant has been served with proceedings within the jurisdiction, the defendant - 34 - may now apply to the court to exercise its discretion to stay the proceedings on the ground, which is usually called forum non conveniens.”. 66. Thus, the observation made by him on p. 476 that “in general the burden of proof rests on the defendant” must be seen in that context. It was not until p. 478 of the report that Lord Goff commenced his consideration of the position in cases where the court exercises its discretionary power under O. 11. Having reviewed relevant case law, he concluded, at p. 481, that in such cases the burden lies on the plaintiff. He said: “The fact is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words, the burden is, quite simply, the obverse of that applicable where a stay is sought of proceeding started in this country as of right.” 67. A similar approach is suggested in Dicey, Morris & Collins at para. 12-059 but it is unnecessary, in my view, to address what the authors say or the many cases cited by them in that paragraph. It is sufficient to record that their views chime with the approach taken by Lord Goff in Spiliada. 68. However, although Spiliada has been expressly endorsed by the Supreme Court both in the IBRC case and in Analog Devices, those decisions suggest that, in cases where a defendant asserts that Ireland is not the appropriate jurisdiction, the defendant bears the burden of proof on that issue. While I fully accept that the issue was conceded in the IBRC case, there is nothing to suggest that a similar concession was made in Analog Devices. In the latter case, the second defendant was a U.S. insurer which had been served with Irish proceedings pursuant to an O. 11 order. Thus, the U.S. insurer had not been served as of right. The insurer was in a similar position to the defendants in these proceedings. It brought - 35 - an application under O. 12, r. 26 on two bases. First, it argued that the Irish courts lacked jurisdiction against it under O. 11. It also argued in the alternative that Ireland was not the appropriate forum in which to litigate the dispute. At p. 288, Fennelly J. held that although the plaintiff bore the burden of proof in relation to the O. 11 aspect, the burden of proof lay on the second defendant in so far as the forum non conveniens application under O. 12, r. 26 was concerned. He said: “The principal difference between this rule which concerns the original grant of leave and the application by the second defendant is that, in the latter instance, the burden of proof rests on the moving party. The applicable legal principles have been fully reviewed quite recently by this court in Intermetal Group Ltd. v. Worslade Trading Ltd. [1998] 2 I.R. 1.” (emphasis added). 69. It is clear from the context that the words “this rule” in that passage are intended to refer to O. 11. The words “in the latter instance” plainly refer to the application under O. 12, r. 26. That decision is, of course, binding on this Court. In light of the approach taken by the Supreme Court in that case, I believe that, under the current state of the law in Ireland, the defendants must be taken to bear the burden of proof on an application of this kind. This Court is not in a position to proceed on the basis that the Supreme Court erred in its approach. That said, this is an issue that I respectfully suggest would merit further examination by the Supreme Court in a case where the burden of proof may have a decisive impact on the outcome. In this context, it should be noted that the decision in Intermetal Group Ltd. v. Worslade Trading Ltd. cited by Fennelly J. in the Analog Devices case was a challenge on forum non conveniens grounds by an Irish registered defendant company. In other words, it was a case where the defendant had been served as of right. In addition, it is clear from the terms of O. 11, rr. 2 and 5 that, where a plaintiff seeks leave of the court to serve proceedings out of the jurisdiction, the plaintiff is required to demonstrate in the grounding affidavit that - 36 - Ireland is a more appropriate forum for the resolution of the dispute than the place of the defendant’s residence. As the decision of this Court in Albaniabeg Ambient Sh.p.k. v. Enel S.p.A. [2018] IECA 46 suggests, there are strong grounds for the view that this obligation should not be confined solely to the moment when the plaintiff applies, without notice to the defendant, for leave to serve the proceedings out of the jurisdiction and that it should apply equally where such a defendant brings an application to set aside the ex parte order. In his judgment in that case, Hogan J. explained the rationale as follows at pp. 7-8: “18. It is true that as this is an application under Ord. [12], r. 26, the moving party should normally carry the burden of proof. As I explained, however, in … Cornec v. Morrice … [2012] 1 LR. 804, 812-813 (in the context of the not dissimilar procedure which was obtained under s. l of the Foreign Tribunals Evidence Act 1856), this is necessarily true of all orders obtained ex parte: ‘The first issue which arises was already the subject of a ruling by me in the course of the proceedings, namely, the status of the original ex parte order. The present application comes before me formally as a motion on the part of Mr. Garde and Ms. Tallant to set aside an order made by me ex parte pursuant to s. 1 of the Act of 1856. The application is made ex parte precisely because that is the procedure contemplated by the Act of 1856 and Ord. 39, rr. 39-44 RSC. While I duly made the orders sought, I duly made it clear at the time that the order simply had a provisional status and that the moving party (Ms. Morrice) would carry the burden of making the application afresh in the event that the addressees of the order (Mr. Garde and Ms. Tallant) sought to have it set aside. The Act of 1856 is, of course, a pre-Constitution statute which must, where necessary be read in a fashion which would make it conformable to the - 37 - modern understanding of the requirements of fair procedures as prescribed by Article 40.3. It is absolutely clear that the courts cannot constitutionally make an order ex parte finally affecting the rights of the parties. An abundance of contemporary authority attests to this point: see, e.g., the judgment of Keane CJ. in DK v. Crowley [2002] 2 I.R. 744, that of Finlay Geoghegan J. in Chambers v. Keneflick … [2007] 3 LR. 526 and my own judgments in Doyle v. Gibney [2012] 1 I.L.R.M. 314 and Re Custom House Capital Ltd. (No.I) [2011] IEHC 399. It was for this reason that I indicated that the ex parte procedure did not and could not finally affect the rights of Mr. Garde and Ms. Tallant and the fact that an initial order was made in favour of Ms. Morrice created no presumption in her favour.’ 19. Accordingly, therefore, it is the party who obtained the ex parte order for service out of the jurisdiction under Ord. 11 (in this instance, Albaniabeg) who must carry the burden of demonstrating that the order in question had been properly granted. It is only fair to add that both sides accepted that this was so.” 70. In turn, this aspect of the decision in Albaniabeg was cited with approval by this Court in Donnelly v. Vivier & Co. Ltd. [2022] IECA 104 although it should be noted that, in that case, the Court did not have to go so far as to consider any issue of forum conveniens. In Donnelly v. Vivier & Co. Ltd the plaintiff’s case foundered on her inability to bring her claim within the ambit of O.11, r. 1 and, as the judgment of Fennelly J. in Analog Devices shows, the burden of proof of that issue always falls on the plaintiff. More recently, the Supreme Court in MD (a Minor) v. Board of Management of a Secondary School [2024] IESC 11, held that, in the case of an application to set aside an interim order made on foot of an ex parte application in judicial review proceedings, the burden of proof remained on the party - 38 - who sought the order in the first place. While that case was concerned with a different type of proceedings, Collins J. in para. 25 of his judgment expressly cited Albaniabeg as an illustration of a case where a court had held that, in the case of a challenge to an order made on an ex parte application, the burden of proof remained on the party who sought the relevant order. This suggests that the Supreme Court may well be minded to take a similar approach to that adopted by this Court in Albaniabeg. 71. However, it is manifestly not for this Court to assume that the Supreme Court will take that course. In light of the approach taken in Analog Devices, I believe that, until the Supreme Court expressly decides otherwise, this Court must proceed on the basis that the current position in Irish law is that, on an application of this kind under O. 12, r. 26, where the defendant has been served as a consequence of an order made under O. 11, the defendant must be taken to bear the burden of establishing that the courts of its jurisdiction provide a more appropriate forum in which to litigate the dispute than the courts of Ireland. 72. That said, it is important to keep in mind Lord Goff’s perceptive observation at p. 476 in Spiliada to the effect that, irrespective of where the legal burden lies, both sides will, inevitably, bear the evidential burden of proof in relation to the existence of factors on which they rely in support of the appropriateness of the forum for which they respectively canvass. He said: “It is, however, of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter, the evidential burden will rest on the party who asserts its existence.” 73. For that reason, counsel for the defendants was right to recognise, in the course of oral submissions, that the issue as to where the legal burden lies is not “central to the resolution” - 39 - of the appeal. I entirely agree. There may be cases where the burden of proof will play a more significant role but this is not one of them. Ultimately, as the case law shows, the issue as to appropriate jurisdiction is usually resolved by means of a balancing exercise in which the pointers in favour of both jurisdictions are weighed and assessed, one against the other. The approach to be taken by an appellate court on an application of this kind 74. A further issue arises in this case as to the approach to be taken by an appellate court in respect of a High Court decision on an issue of this kind. In VTB Capital plc v. Nutritek International Corporation [2013] 2 AC 337, the U.K. Supreme Court took the view that, where a High Court judge had made an evaluative judgment as to whether England was the appropriate forum, an appellate court should refrain from interfering with the decision unless satisfied that a significant error had been made. In that case, Lord Neuberger, at p. 377, referred with approval to the following observation made by Lord Bingham in Lubbe v. Cape plc [2000] 1 WLR 1545 at p. 1556: “This is a field in which differing conclusions can be reached by different tribunals without either being susceptible to legal challenge. The jurisdiction to stay is liable to be perverted if parties litigate the issue at different levels of the judicial hierarchy in the hope of persuading a higher court to strike a different balance in the factors pointing for and against a foreign forum.” 75. Lord Neuberger added that precisely the same principle applies in cases involving permission to serve proceedings out of the jurisdiction. However, the position in Ireland is somewhat different. In the recent decision of this Court, Trafalgar Developments Ltd. v. Mazepin [2025] IECA 280 (delivered after the appeal in this case was heard) the Court took the view, at paras. 144 to 148, that the approach in Stafford v. Rice [2022] IECA 47 should apply to an appeal which involved a consideration of O. 11, rr. 2 and 5. Those rules address - 40 - the issue of appropriate forum and, for that reason, it seems to me that a similar approach should be taken here. In summary, the Court, in Trafalgar Developments Ltd. v. Mazepin, took the view that, while this Court has full appellate jurisdiction in respect of discretionary orders made by the High Court, the Court proceeds on the basis that the High Court is entitled to some margin of appreciation. Some material error of assessment on the part of the High Court will normally have to be demonstrated before this Court will intervene. The burden is on the defendant to establish some error of assessment on the part of the High Court judge and the Court should not likely substitute its view for the view taken by the High Court judge. 76. In this case, it is clear that there was, uncharacteristically, an error on the part of the High Court judge. He elided the two stage approach mandated by the IBRC case. It is clear from paras. 26 to 37 of his judgment that his decision to refuse the defendants’ motion was based on his conclusion that it would be unjust, in his view of the particular circumstances of the case, to stay the proceedings. He took that approach in circumstances where he was of the view that a stay would have the practical effect of depriving an Irish citizen, who is habitually resident here, of the right to pursue an action for defamation in respect of statements published within the jurisdiction of the Irish courts, and where it would now be too late for the plaintiffs to institute proceedings in the United States. Notwithstanding the fact that the plaintiffs had not placed any evidence before the High Court addressing why they had not issued proceedings on a protective basis in the United States, Simons J. also concluded that the plaintiffs had acted reasonably in confining themselves to instituting proceedings before the Irish courts. Crucially, he did not separately address the anterior question as to whether the courts of Ireland or the relevant courts of the United States are the more appropriate forum in which to hear and determine the claim. As the judgment of Clarke J. in the IBRC case makes clear, that is the first question that falls to be considered - 41 - on an application of this kind. It is only where the court decides that question against a plaintiff that the second issue arises as to whether, notwithstanding a finding that a foreign court is the more appropriate forum, the justice of the case nonetheless requires that the case should proceed in this jurisdiction. 77. In these particular circumstances, it seems to me to be necessary, for the purposes of this appeal, that this Court should consider de novo the issue as to appropriate forum. It follows that it is necessary to consider the evidence placed by both sides before the High Court in relation to the issue raised by the defendants as to whether Ireland or some U.S. jurisdiction is the more appropriate jurisdiction in which to try the plaintiffs’ claim. The evidence on both sides is confined to that issue. As I have previously mentioned, neither side placed any additional evidence before the High Court following exchange of expert evidence on U.S. law. Such evidence could potentially be of importance in relation to the second element of the two-stage test laid down by the Supreme Court in the IBRC case as to whether, even if the courts of Washington D.C. are a more appropriate forum than the courts of Ireland, justice nonetheless requires that the proceedings be tried in this jurisdiction. The test to be applied in assessing the evidence 78. In the IBRC case, Clarke J. at p. 220 of the report, provided some very helpful guidance