Delany v SAS Sociéte D'Exploitation Et De Détention Hóteliére Vista and Ors, Delany v Maybourne Hotels Limited and Ors

THE HIGH COURT [2026] IEHC 243 Record No. 2022/2005 P Between RONNIE DELANY Plaintiff and SAS SOCIÉTE D’EXPLOITATION ET DE DÉTENTION HÔTELIÈRE VISTA, GILLES DE BOISSIEU AND SHEIKH HAMAD BIN KHALIFA AL THANI Defendants AND THE HIGH COURT Record No. 2022/2500 P Between RONNIE DELANY Plaintiff and MAYBOURNE HOTELS LIMITED, MARC SOCKER, HAMAD BIN KHALIFA AL THANI and HAMAD BIN JASSIM BIN JABER AL THANI Defendants Judgment of Mr. Justice Conor Dignam delivered on the 24th day of April 2026 TABLE OF CONTENTS INTRODUCTION ...................................................................................................... 1 THE THREE APPLICATIONS ...................................................................................... 4 APPLICABLE GENERAL PRINCIPLES ......................................................................... 6 Default jurisdiction .................................................................................................. 7 Departure from default position ................................................................................ 8 Burden of Proof in relation to the jurisdictional gateways ............................................ 10 Standard of proof on the jurisdictional gateway ......................................................... 10 Burden and standard of proof in respect of the Court’s discretion ................................. 14 Forum non conveniens ........................................................................................... 19 MAYBOURNE JURISDICTION APPLICATION ........................................................... 23 Order 11 Grounds ................................................................................................. 24 Defamation .......................................................................................................... 24 Conspiracy ........................................................................................................... 26 Discretion – Rules (2) and (5)................................................................................. 32 Issues re Notice of Summons and service in Maybourne ............................................. 42 Conclusion in relation to the Maybourne proceedings ......................................... 45 SEDH APPLICATIONS ............................................................................................ 45 Want of jurisdiction as against the first and second defendants .................................... 46 Failure to specify jurisdictional basis ........................................................................ 61 Conclusion in relation to the first and second-named defendants .......................... 62 Application in relation to the third-named defendant ............................................ 62 Failure to obtain leave to serve prior to issuing proceedings ........................................ 62 Forum Non Conveniens .......................................................................................... 64 Service of the Summons rather than Notice .............................................................. 65 Conclusion in relation to the third-named defendant ............................................. 65 SUMMARY ............................................................................................................. 65 INTRODUCTION 1. This judgment concerns three applications: an application by the defendants in each of the sets of proceedings concerning the jurisdiction of the courts of Ireland to hear and determine the proceedings; and an application by the plaintiff in the first set of proceedings for an Order amending the endorsement under Regulation (EU) Number 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (“Brussels Recast”) on the Plenary Summons. I return to the detail of these applications in due course. 2. I will refer to the first set of proceedings (Record number 2022/2005P) as “the SEDH proceedings” and to the second set (Record number 2022/2500P) as “the Maybourne proceedings”. 3. The proceedings essentially comprise claims for relief in respect of alleged defamation and conspiracy. A Statement of Claim has been delivered in each case. Defences have not yet been delivered. The following summary of the proceedings and the background should therefore not be taken as constituting findings of fact. 4. The claims arise as follows. The plaintiff is a businessman with interests in the property, construction and hospitality sectors, including project management activities. He has worked closely for a long number of years with another businessman, Mr. Paddy McKillen, and with a company entitled Hume Street Management Consultancy Limited, which is owned by Mr. McKillen. 5. Maybourne Hotels Limited, a company registered in the United Kingdom, owns and manages a hotel group known as the “Maybourne Hotel Group”. SAS Societé D’Exploitation et de Detention Hoteliére Vista (“SEDH”) is a company within that group. At the relevant time, SEDH owned a hotel which was being developed in the south of France, known as the “Maybourne Riviera”. SEDH is a private limited company incorporated in France with its office in Paris. 6. Maybourne Hotels Limited is owned jointly by Sheikh Hamad Bin Khalifa Al Thani and Sheikh Hamad bin Jassim bin Jabber Al Thani. Mr. McKillen had an ongoing business relationship with the Al Thanis and the Maybourne Hotel Group. As I 1 understand it, Mr. McKillen and another associate, Mr. Liam Cunningham, were on the board of Maybourne Hotel Group. Mr. McKillen introduced Mr. Delany to agents of the Al Thanis and he was engaged to act in a lead position on the project team for the Maybourne Hotel Group. At the time, the Maybourne Riviera was being developed and Mr. Delany’s initial focus was on that development. After some time, his focus, along with that of a Mr. Frank Sinton, was shifted to another development, the Emory Hotel in London, which was being developed by a company called Goldrange Properties Limited, another company in the group. 7. In April 2022, Mr. McKillen and Mr. Cunningham were removed as directors of the Maybourne Hotel Group. 8. On the 13th April 2022, a letter was sent to the plaintiff by SEDH in which it was stated, inter alia: “This letter is to notify you that any rights of access you may have to the hotel known as The Maybourne Riviera (the Site) are hereby withdrawn while we look into a number of matters.” The letter was signed by the second-named defendant in the SEDH proceedings, Mr. Gilles de Boissieu. He is described by Mr. Delany as the “legal representative” of SEDH. The letter was also sent to a Mr. Marc Socker who, according to the Statement of Claim in the Maybourne proceedings, is co-chief executive officer of Maybourne Hotels Limited. It was also copied to a Mr. Gianluca Muzzi who, according to the Statements of Claim in both proceedings, is co- chief executive officer of the Maybourne Hotel Group. This letter is the subject of the SEDH proceedings. 9. On the same date, the 13th April 2022, three letters were sent to the plaintiff by Maybourne Hotels Limited or other companies in the group. These were in similar terms to the SEDH letter but, rather than only referring to one site as the letter in the SEDH proceedings had, they referred to the offices of Maybourne Hotels Limited as well as the Maybourne Riviera and the Emory Hotel site and the Berkeley Hotel, another hotel in the group. A fourth letter was addressed to Mr. McKillen and sent to a Ms. Anne Marie Ryan, and Mr. Liam Cunningham. All four letters were also sent to Mr. Gianluca Muzzi. The letters were signed by Mr. Marc Socker. It is worth pausing at this point to note that it is common case that Mr. McKillen can not be contacted directly and that he is contacted through Ms. Ryan who has been his personal assistant for a long number of years. It is also common case that Ms. Ryan forwarded the email to Mr. McKillen and that he was in Japan when he received it. This fourth letter stated: 2 “We are writing to inform you that we (and the relevant owning entities of the relevant hotels) have withdrawn any access rights that Frank Sinton and Ronnie Delany have to Berkely [sic] Hotel, the Emory Hotel site, the Maybourne Riviera and the offices of Maybourne Hotels Limited (the Sites) whilst we look into a number of matters.” 10. Mr. Delany claims that these letters were defamatory of him in the manner pleaded in the Statements of Claim. 11. He also claims that they were published by the defendants for the purpose of the Defamation Act 2009. There is an important difference between the two sets of proceedings in relation to publication. There is no claim in the SEDH proceedings of specific publication of the letter in Ireland. Rather, Mr. Delany relies on his reputation being centred in Ireland and on foreseeable republication. In the Maybourne proceedings, he claims that the letter was published in this jurisdiction to Ms. Ryan. 12. Mr. Delany claims that SEDH, Mr. de Boissieu, Mr. Socker, Goldrange Properties Limited, and Berkeley Limited were acting as servants or agents of the Al Thanis. He also claims that all of the defendants, their servants or agents, were party to a coordinated concert of action amounting to an actionable conspiracy which was effected with the sole or predominant purpose of causing injury or loss to Mr. Delany by way of a combination of lawful and unlawful means. 13. In essence, the plaintiff claims that a dispute arose between Mr. McKillen and the Al Thanis and, as part of that dispute, the defendants set out to and/or conspired to damage Mr. Delany (and Mr. Sinton) who, it is claimed, were perceived as being in Mr. McKillen’s camp. 14. The SEDH proceedings were issued on the 24th May 2022. The Maybourne proceedings were issued on the 23rd June 2022. Conditional appearances were entered on behalf of the various defendants and ultimately the current motions were issued. 15. Before setting out the details of the motions, it is worth noting the following agreed facts as they are relevant to the questions which have to be addressed: (i) SEDH and Mr. de Boissieu are domiciled in the French Republic; (ii) The Al Thanis are domiciled in the State of Qatar; 3 (iii) Maybourne Hotels Limited is domiciled in the United Kingdom; (iv) Mr. Socker is domiciled in the United Kingdom; (v) The letter in the SEDH proceedings and the letters in the Maybourne proceedings were sent in the context of a dispute concerning the ownership and control of a hotel in France and various hotels in the United Kingdom, and communicated the fact that rights of access to a hotel in France and premises in the United Kingdom respectively were being withdrawn; (vi) Other than the plaintiff himself, the recipients of the SEDH letter were Mr. Socker and Mr. Muzzi; the recipient of the first three Maybourne letters was Mr. Muzzi; and the recipients of the fourth Maybourne letter were Mr. Paddy McKillen, Mr. Liam Cunningham, Ms. Anne-Marie Ryan, and Mr. Muzzi; (vii) Mr. Socker was in the United Kingdom when he first read the SEDH letter; (viii) Mr. Muzzi was in the United Kingdom when he read the SEDH and the Maybourne letters; (ix) Mr. McKillen was in Japan when he read the Maybourne letter; (x) Mr. Cunningham was in the United Kingdom when he read the Maybourne letter; (xi) Ms. Ryan was in Ireland when she first accessed the Maybourne letter (it was initially not agreed that she was in Ireland when she first read it but matters evolved during the course of the hearing and the defendants accepted that she read it in Ireland). THE THREE APPLICATIONS 16. The defendants in the SEDH proceedings issued a Notice of Motion in those proceedings on the 26th January 2023 in which the following relief is sought: 4 (a) An Order pursuant to Order 12 Rule 26 and/or Order 124 Rule 1 of the Rules of the Superior Courts and/or the court’s inherent jurisdiction setting aside service of the Plenary Summons on the basis that the defendants must be sued in France in accordance with article 4(1) of Regulation (EU) Number 1215/2012 (“Brussels Recast”); (b) An Order pursuant to Order 124 Rule 1 and/or Order 11A Rule 2 and/or the court’s inherent jurisdiction dismissing, striking out or placing a permanent stay on the proceedings on the same basis; (c) An Order pursuant to Order 124 Rule 1 and/or Order 4 Rule 1A and/or the court’s inherent jurisdiction dismissing, striking out or placing a permanent stay on the proceedings on the basis that the Plenary Summons does not specify the basis upon which jurisdiction is claimed by Mr. Delany; (d) An Order pursuant to Order 124 Rule 1 and/or the inherent jurisdiction of the court dismissing, striking out or placing a permanent stay on the proceedings against Mr. Hamad Bin Khalifa Al Thani on the basis that the plaintiff did not obtain the leave of the High Court to issue and serve the proceedings outside of the jurisdiction; (e) An Order pursuant to Order 12 Rule 26 and Order 124 Rule 1 and/or the court’s inherent jurisdiction setting aside service of the Plenary Summons and placing a permanent stay on the proceedings against Mr. Hamad Bin Khalifa Al Thani on the basis of the doctrine of forum non conveniens. 17. Part of the basis of the SEDH defendants’ application was that the indorsement on the Plenary Summons under Brussels Recast did not disclose jurisdiction. The indorsement claimed jurisdiction under article 4 and/or article 8 and/or article 25 of Brussels Recast. It was stated on behalf of Mr. Delany in replies to the defendants’ “Notice for Particulars Relating to the Basis Upon Which Jurisdiction is Claimed” that this was the incorrect indorsement and the defendants’ consent to an amendment was sought. It was stated that “Reliance will be placed on Article 7 of Brussels Recast and not Article 4, 8 or 25. Without trespassing into the domain of legal submission, this 5 jurisdiction is based on the locus of commission of the relevant torts.” The defendants did not consent to the amendment and Mr. Delany issued a motion seeking the amendment of the indorsement on the basis that “the jurisdiction of this Honourable Court was...based on the situs of the wrongs committed, pursuant to Article 7, rather than domicile or the prorogation of jurisdiction.”. This is the second application in the SEDH proceedings. 18. The defendants in the Maybourne proceedings have also brought a jurisdiction motion. The reliefs they seek are as follows: (a) An Order pursuant to Order 12 Rule 26 and/or Order 124 Rule 1 and/or the court’s inherent jurisdiction (i) setting aside service of the Plenary Summons on each of the defendants and (ii) discharging the Order of Reynolds J dated 30th May 2022 (granting liberty to issue the proceedings) on the basis that the proceedings do not fall within the scope of Order 11 Rule 1(f). (b) An Order pursuant to the same rules and/or the court’s inherent jurisdiction setting aside service and discharging Reynolds J’s Order on the basis of the doctrine of forums non conveniens. (c) An Order pursuant to the court’s inherent jurisdiction dismissing, striking out or placing a permanent stay on the proceedings on the basis of the doctrine of forum non conveniens. 19. While the SEDH applications were the first to be issued, I propose to deal with the Maybourne proceedings first. Before doing so I will set out some of the applicable general principles that are relevant to both cases i.e. principles applying to Order 11 of the Rules of the Superior Courts and to forum non conveniens. Some separate issues arise in the SEDH case. I consider these later in the judgment. APPLICABLE GENERAL PRINCIPLES 20. There was a significant level of agreement between the parties as to the applicable principles. Following the conclusion of the hearing, the parties very helpfully prepared a document identifying any issues upon which there was agreement. I am 6 very grateful for the work that was put into this exercise. After the delivery of that document but before I delivered judgment, the Court of Appeal gave its judgment in Trafalgar Developments Ltd & Ors v Mazepin & ors [2025] IECA 280 (from a decision of Barniville J) and I invited the parties to make submissions in light of this judgment (as Barniville J’s judgment in the High Court was referred to extensively before me). The parties made supplemental written and oral submissions. They were agreed that the Court of Appeal judgment did not cause either party to resile from the points that were agreed in the shared document. Default jurisdiction 21. The parties were agreed that the default position in respect of jurisdiction is that a defendant should ordinarily be sued in the jurisdiction in which they are domiciled. In Ryanair Limited v Fleming [2016] 2 IR 254 Hogan J said at paragraph 19: “Before considering the particular issues of jurisdiction and forum conveniens, it should be noted that a fundamental principle of our conflict of laws rules is that, absent special circumstances, a defendant should normally be sued in the place where he or she is domiciled. The basis for this principle is obvious, since a defendant should not be forced to defend in a foreign jurisdiction – and be thereby deprived of the legal system with which he or she is most familiar, not to speak of the attendant costs and expense of defending proceedings in a foreign jurisdiction – unless there are some special circumstances which justify the attribution of jurisdiction to the courts of the forum selected by the plaintiff. This general principle must, accordingly, inform any consideration of whether the plaintiff can satisfy the court that the High Court had jurisdiction in the matter and, even if it had, whether it would be appropriate to exercise that jurisdiction on forum conveniens grounds.” 22. He went on at paragraph 20 to say: “It would, of course, be manifestly unfair if a defendant were forced to defend in a foreign jurisdiction in circumstances where he could not reasonably have foreseen that his conduct would expose him to the real risk that he might properly be sued in that foreign jurisdiction. An underlying purpose, therefore, of our conflict of laws rules should, therefore, be to promote the orderly administration of international justice so that potential defendants can arrange their affairs in such a manner as 7 will enable them to predict where such conduct will or (as the case may be) will not render them liable to suit.” Departure from default position 23. Order 11 of the Rules of the Superior Courts provides for departure from that normal rule in certain circumstances. 24. Order 11 was amended after I had reserved judgment. The applicable version is the one that was in force at the time the application for leave to issue and serve out of the jurisdiction was made and at the time the applications were heard by me. 25. The applicable version of Order 11 provides, inter alia: “(1) Provided that an originating summons is not a summons to which Order 11A applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the court whenever (a) ... ... (f) the action is founded on a tort committed within the jurisdiction... (2) Where leave is asked from the court to serve a summons or notice thereof under rule 1, the court to whom such application shall be made shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience of proceedings in Ireland, or in the place of the defendant’s residence... ... (5) Every application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a citizen of Ireland or not, and where leave is asked to serve a summons or notice thereof under rule 1, stating the particulars necessary for enabling the court to exercise a due discretion in the manner in rule 2 specified; and no leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order.” 8 26. In Trafalgar Developments Ltd v Mazepin, Collins J, on behalf of the Court of Appeal (at paragraph 149) said in relation to Order 11: “On its face, Order 11 RSC simply provides for service of proceedings out of the jurisdiction. However, it in fact provides a regulatory framework which sets out the circumstances in which the Irish Courts will assume jurisdiction over persons, arrangements, or events which are not located within this jurisdiction: Delany & McGrath, §§1–15&1–16. The questions of service and jurisdiction are inextricably combined not merely because valid service is necessary to ground the court's jurisdiction to hear an action but also because in making an order to permit service out under Order 11, an Irish court is deciding both whether it is entitled to and whether it should assume jurisdiction over a foreign defendant.” 27. As intimated in the final sentence of that passage, there are two elements to the court’s function under Order 11. The first is to determine whether the court is entitled to assume jurisdiction and the second is to determine whether, even if it is entitled to do so, it should do so. The first of these is a question of whether the claim falls within one (or more) of the categories of claims set out in Order 11 Rule 1(a) – (s) (“the jurisdictional gateways”). The second involves an assessment of whether the case is a proper one for service out of the jurisdiction in all the circumstances, including the matters specified in Order 11 Rules 2 and 5, and involves the exercise of a discretion by the court. 28. That there are these two separate elements to Order 11 is clear and was accepted by the parties. The parties were also agreed that this means that even if the court is satisfied the jurisdictional gateway has been met, the Court retains a discretion to decline to permit service out. In Analog Devices BV v Zurich Insurance Company [2022] 1 IR 272, Fennelly J explicitly stated at page 287 that an Order granting leave to effect service out of the jurisdiction is a matter of discretion. He stated that this is clear from Order 11, Rules 2 and 5. Rule 5 provides that “no leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this order.” The Court of Appeal in Trafalgar also emphasised the necessity to distinguish between the decision as to whether a case comes within one of the jurisdictional gateways in Order 11 Rule 1 and the decision as to whether the court should exercise its discretion to allow service out, i.e. whether jurisdiction should be accepted. At paragraph 156, Collins J said: 9 “At the outset, it should be noted that Order 11(1), which at the material time contained 19 subparagraphs, lists the grounds upon which the Irish courts can assume jurisdiction over a foreign defendant on an exhaustive basis. If a case does not come within at least one of the categories defined in the 19 subparagraphs, the Irish courts simply do not have jurisdiction at all to compel the appearance of a foreign defendant to answer it. However, even where it is established that the case does fall within one of the subparagraphs of Order 11(1), the court is not obliged to assume jurisdiction in respect of it. In contrast to the position under the Brussels Recast Regulation and/or the Lugano Convention, under Order 11 no plaintiff is entitled as of right to sue a foreign defendant here: rather, the court at all times has a discretion to allow or to decline the application to serve the summons out of the jurisdiction. The exercise of that discretion is governed by other provisions of Order 11, most particularly Order 11(2) and (5) to which we shall return.” Burden of Proof in relation to the jurisdictional gateways 29. The original application pursuant to Order 11 is initially made ex parte. The burden of proving that the matter is an appropriate one for an Order permitting service out of the jurisdiction is, of course, on the plaintiff at that stage. An application to set aside an Order made pursuant to Order 11 may be made under Order 12 Rule 26 (see also Order 124 Rule 1). While it was suggested in the plaintiff’s written submissions that the defendant bears the evidential burden to demonstrate that the original decision to grant leave was incorrect, ultimately it was agreed by the parties that the plaintiff retains the burden of proof where an application is made by the defendant to set aside the Order permitting service out. This is clear from the authorities. Hogan J at paragraph 19 of his judgment in Albaniabeg Ambient Sh.p.k v Enel S.p.A [2018] IECA 46 said “Accordingly, therefore, it is the party who obtained the ex parte order for service out of the jurisdiction under Ord 11 (in this instance, Albaniabeg) who must carry the burden of demonstrating that the order in question had been properly granted. It is only fair to add that both sides accepted that this was so.” (see also Barniville J’s judgment in Trafalgar Developments Limited & Ors v Mazepin & Ors [2022] IEHC 167, in particular paras 134-139) Standard of proof on the jurisdictional gateway 10 30. In order to establish that a case is one in which the court may assume jurisdiction the plaintiff must establish to the required standard both that there is merit to the underlying case and that it falls within one of the categories set out in Order 11 Rule 1. 31. The standard of proof applicable to these matters is that of a ‘good arguable case’. The plaintiff emphasised in his written submissions that the test is a low bar. The parties were agreed that the ‘good arguable case’ is the applicable standard and that it applies to both limbs of the first element. 32. Fennelly J in the Supreme Court in Analog Devices identified this as the applicable standard. He noted at pages 281 and 282 of his judgment that an Order permitting service out of the jurisdiction involved requiring a person to appear before what is for him a foreign court and that the international comity of the courts requires the court to examine such applications with care and circumspection. He also noted that an Order permitting service out is unlike other interlocutory applications as an Order for service out irrevocably affects the position of the other party (subject to his entitlement to seek to have the Order set aside). In those circumstances, Fennelly J rejected a lower test and, having referred to a number of cases, concluded that the ‘good arguable test’ is the appropriate standard. The importance of the need for “care and circumspection” was also emphasised by Hogan J in Albaniabeg and by Barniville J in Trafalgar (paragraphs 142 and 143). 33. In IBRC v Quinn [2016] 3 IR 197, Clarke J appeared to formulate a different standard of proof. He referred at paragraph 38 to a test of whether the case was one “which was reasonably capable of being proven”. At paragraph 43 of his judgment, he stated: “…The court is not engaged in some assessment of the relative strengths of IBRC's and Mecon's case. Rather the court has to determine whether there is a sufficient basis for the proposition that IBRC may have a claim under one of the qualifying categories in O.11 which could justify bringing Mecon to this jurisdiction to answer the claim concerned. The bar is a low bar. It is simply designed to prevent a defendant being brought to this jurisdiction to answer an unstateable claim which has no reasonable prospect of being capable of proof...Except in quite extraordinary circumstances it is difficult to envisage on what basis it could be contended that there should be a testing of evidence purely designed to meet a very low threshold of demonstrating that the plaintiff has a claim which is reasonably capable of proof.” 11 34. At paragraph 53, Clarke J again referred to the Court having to come to a view as to whether whatever is alleged “may be reasonably capable of being proven in evidence”. 35. In Trafalgar, Barniville J held that the applicable standard is that of ‘a good arguable case’ and that this gave effect to the principles set out by the Supreme Court in Analog Devices and in IBRC v Quinn. He considered whether there was a difference in the standards set out in Analog Devices and IBRC v Quinn. He concluded at paragraph 168 that the Supreme Court (Clarke J) did not intend to disagree with Analog Devices. Barniville J stated at paragraph 170: “…Clarke J. in IBRC v. Quinn was setting out in a practical way how a court should deal with an application for leave to serve out of the jurisdiction under O. 11, r. 1(h) in terms of the evidence to be adduced, the weight to be attached to that evidence (including evidence adduced by the defendant), and the approach to be taken by the court to the assessment of the evidence and submissions with a view to determining whether a plaintiff has satisfied the two relevant limbs of the test, which, for present purposes, are, whether it has a good arguable case in terms of its claim against the proposed foreign defendant and whether it has a good arguable case that its claim falls within one of the paragraphs of O. 11, r. 1. I must, therefore, approach the evidence and submissions relied on by both sides in this application by reference to the test in Analog as described and as applied in IBRC v. Quinn.” 36. The Court of Appeal in Trafalgar also considered whether Analog Devices and IBRC v Quinn were prescribing different standards of proof. The Court noted the difficulties in reconciling the two judgments (see paragraphs 192-194) and went on to say at paragraphs 251-253: “251. In our view the overarching standard to be applied by the court to the determination of these issues is that identified by Fennelly J in Analog Devices, namely that of a “good arguable case”... 252. The fact that the question of jurisdiction was being determined irrevocably, albeit at an interlocutory stage, led Fennelly J to the view that the standard to be met was a higher one than mere stateability or arguability. This is evident from the manner in which he explained the good arguable case standard in the context of Order 11(1)(h). There had to be a “sound basis” for the contention that the party to be served was a proper party: there had to be “reality in fact and law” to the 12 case made against the party in the jurisdiction: the inclusion of the anchor defendant could not be a “mere device” and there had to be a “substantial element” to the claim against both the anchor and foreign defendants. 253. While on one level the emphasis placed by Clarke J in IBRC v Quinn on the threshold test under Order 11(1) representing a “low bar” might seem inconsistent with Fennelly J's formulation of that test in Analog, the requirement that the plaintiff's claim against both the foreign defendant and the anchor defendant be reasonably capable of being proved is perhaps closer to the requirement that the claim have a “sound basis”, a “substantial element” and “reality in fact and law” than might initially appear. It is reasonable that a simple denial of the plaintiffs' claim without more should not disturb a court's view that that claim is otherwise sound, substantial or realistic. Where the defendant's evidence goes further than simple denial, it is also reasonable to expect that the court will not decide the substantive issues in the proceedings in order to determine jurisdiction. The court is required to assess the evidence adduced by both parties, but that assessment remains one for the purposes of ascertaining whether the good arguable case test is met and not for the purposes of embarking upon any greater determination of the issues between the parties.” 37. Collins J went on to consider developments in English jurisprudence (“the Canada Trust gloss”, which entails an assessment of the relative merits of the parties’ claims), and at paragraph 294 rejected that approach and restated the court’s acceptance of the “good arguable case” standard in Analog Devices. 38. Barniville J made clear in Trafalgar that this standard applies to both aspects of the first element of Order 11 Rule 1, i.e. to the assessment of both the underlying claim and whether the case falls within one of the categories in Order 11 Rule 1. He said at paragraph 146: “146. Leaving aside for a moment the requirements imposed on a plaintiff under O. 11, rr. 2 and 5, the end result of the exchanges between the parties, which continued throughout the hearing and in post-hearing written submissions, was that in order to establish primary jurisdiction under the Rules of the Superior Courts, an applicant for leave to serve proceedings out of the jurisdiction under one of the paragraphs of Order 11 r. 1 must provide evidence and submissions to demonstrate: 13 a) that it has a good arguable case on the merits of its claim against the foreign defendant in respect of which leave is sought; and b) that there is a good arguable case that the cause or causes of action relied upon by the applicant as against the foreign defendant falls or fall within one or more the jurisdictional gateways in O. 11, r. 1.” Burden and standard of proof in respect of the Court’s discretion 39. The burden of showing that the case is a proper one for service out of the jurisdiction and that the Court should exercise its discretion in favour of permitting service out also rests on the plaintiff (see Barniville J in Trafalgar). This burden must, of course, be discharged in the context of the general rule that a person should ordinarily be sued in the jurisdiction in which they are domiciled, that the jurisdiction to permit service out is “exorbitant” (Fennelly J in Analog Devices), and of the care and circumspection that the comity of courts require. 40. The Court of Appeal rejected the application of the ‘good arguable case’ standard to this discretionary element, i.e. the question of whether the case is a proper one for service out of the jurisdiction. At paragraphs 329 – 331 of Trafalgar, Collins J noted that the logic of applying that test to the jurisdictional gateways is readily apparent but went on to say: “330. The same considerations do not necessarily apply to the exercise of the court's discretion. Of course, it remains the case that the onus of establishing that the court's discretion should be exercised in favour of granting leave to serve out remains on the plaintiffs even after they have established the applicability of the relevant jurisdictional gateway. In exercising its discretion, the court is required to consider and balance a range of factors, which will vary from case to case. There is no specific proposition and certainly no factual proposition that must be proved or disproved in order for the court to exercise its discretion in favour of granting leave to serve out of the jurisdiction, save that to do so is, in general terms, consistent with the interests of justice. There is certainly no factual proposition which, if established, mandates the exercise of the court's discretion in a particular manner. 331. It is open to both parties to seek to rely on particular matters and, in so far as they do so, the onus lies on the party seeking to advance an argument relevant 14 to the exercise of discretion to adduce sufficient evidence to establish the factual basis for any argument they wish to make. It is important to appreciate that even if such underlying facts are established, precisely because the court is exercising a discretion it does not follow that the discretion must be exercised in favour of that party. For this reason, it is not, in our view, accurate to speak in terms of the exercise of the court's discretion under Order 11 as being subject to the good arguable case test. In weighing up the various factors that go to the exercise of the court's discretion, it does not follow from the fact that the plaintiffs might have adduced sufficient evidence to ground their argument, that the court is obliged to accept that argument even in the absence of evidence on the point from the other side.” 41. The exercise under this element of Order 11 is focused on identifying whether Ireland is the forum conveniens having regard to all of the circumstances, or “a range of factors, which will vary from case to case” (per Collins J in Trafalgar). Fennelly J said in Analog Devices: “…the applicant must satisfy the court, i.e. has the burden of proving, at the ex parte stage, that Ireland is the forum conveniens.” Fennelly J also explained that “The court should grant leave only after careful consideration, not only of the existence of grounds upon which the court is empowered to grant leave, but of the appropriateness of the courts of this jurisdiction to try the case. The latinism, "conveniens" may, as has been pointed out in some of the cases, mislead; the proper translation is not "convenient," but suitable or appropriate.” In Trafalgar, the Court of Appeal said that “…under Order 11 the onus is on the applicant for service out to establish affirmatively that Ireland is the appropriate forum (forum conveniens)…” 42. Collins J addressed the general principles in relation to the exercise of the discretion at paragraphs 327-328 of his judgment in Trafalgar. He referred to Spiliada Maritime Corporation v Consulex Limited [1987] AC 460, which I return to when considering forum non conveniens (though the principles stated therein also apply to the exercise of the court’s discretion under Order 11). He then set out the following principles in relation to the discretionary element: (i) the burden is on the applicant to establish that Ireland is “clearly or distinctly” the appropriate forum for the trial of its claims and that, in all the circumstances, the court ought to exercise its discretion to permit service out; 15 (ii) as part of that assessment, the court should consider whether “there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action – i.e. in which the case may be tried more suitably for the interests of all parties and the ends of justice” (per Lord Goff in Spiliada); (iii) a “broad overall view” should be taken; (iv) the issue is not whether the alternative forum is advantageous or disadvantageous to any particular party, but the suitability of that forum having regard to the interests of all of the parties and its ability to decide the issues in a manner consistent with the interests of justice; (v) in order to apply this test, it is necessary first to identify the substantial cause of action between the parties and second to establish that the remedy available in the alternate jurisdiction is one capable of providing substantive justice. 43. Collins J then said at paragraph 340 and 341: “340. Drawing these strands together, the exercise of discretion under Order 11 in accordance with the Spiliada test is a two-phase exercise. The first phase seeks to establish whether there is a forum, alternative to the Irish courts, which is the more natural forum for the trial of the action between the parties. In cases where this issue is examined in the context of forum non conveniens the courts have held that the availability of the alternative forum must be clearly and positively demonstrated by the parties seeking a stay. Here, the Plaintiffs bear the onus of proof as the party seeking service out of the jurisdiction. Consequently, once an alternative forum has been identified, in this case Russia, then the onus lies on the plaintiffs to establish that Ireland, and not Russia, is clearly the appropriate forum for the trial of the action as against the Russian UCCU Defendants. This will entail an examination and a weighing of the factors which connect the proceedings to Ireland on the one hand and to Russia on the other.” 341. The second phase looks at where the interests of justice lie and particularly in cases where, at the end of the first phase, it is apparent that the natural home of the litigation lies in a foreign jurisdiction, asks whether substantive justice will be available to the parties seeking service out in that foreign jurisdiction. The issue is no longer which of the two jurisdictions is the more suitable – or even which is 16 more likely to achieve a just result. It is only if the foreign jurisdiction is unable to deliver substantive justice to all of the parties that the Irish courts should accept jurisdiction over the case. The range of matters to be considered is both broad and open ended. It will include the potential for fragmentation of the proceedings with the risk of multiple proceedings producing conflicting judgments; the ability of the parties to access the courts in the foreign jurisdiction, which is particularly important if not all defendants could be sued there; the ability of those courts to deliver impartial substantive justice and the burden that could be imposed on the Irish courts by accepting jurisdiction over proceedings that, more naturally, should be tried in a foreign jurisdiction.” 44. Collins J then went on to consider some of the specific factors that might be considered in the first phase, i.e. in seeking to establish whether Ireland or the alternative jurisdiction is the more natural forum for the trial of the action. He said at paragraphs 342-347: “342. The connecting factors to be considered in the first phase may usefully be grouped under a number of headings. Again, the categories are open ended and case specific, so the following examples are intended to be merely illustrative rather than exhaustive. First, there are factors connected to the events that have led to the litigation. Where did the incident giving rise to the proceedings occur? Where was any contract made? Where did the alleged breach or other wrongful act occur? If the proceedings concern land or property, where is that property located? Where was the damage allegedly sustained? In this case, “Russia” is the answer to all of those questions. 343. Second, there are factors connected to the parties themselves. Where are the parties domiciled or resident? Where do they carry on their business? Do they speak a common language and is this the language of the foreign jurisdiction? Are there personal factors relating to any of the parties which would make it inappropriate for them to be required to litigate in the foreign jurisdiction? For example, it might be inappropriate to expect a recognised refugee to litigate in the courts of the country from which they have sought refuge... 344. Third, there are factors connected with the running of the proceedings which will likely impact on issues of comparative cost and convenience relevant under Order 11(2). For example, where are the witnesses of fact based? Will large numbers of witnesses be required to travel to Ireland to give evidence? Do the witnesses speak English (or less likely, Irish) or will interpretation be required in order for their evidence to be heard by an Irish court? Where are the relevant 17 documents located? Are they amenable to compulsory production before the Irish courts? Will they require translation into English? Some of these factors may be less important than they previously were given the availability of digital platforms through which witnesses can give evidence without travelling to the location of the trial court and the possibility of scanning documents and transmitting them electronically. Nonetheless, cumulatively they have the potential to add significantly to the cost and convenience of a trial in a jurisdiction that is not the natural home of the litigation... 345. Fourth, there are legal factors to consider. Would a judgment of an Irish court be enforceable against the parties in the jurisdiction where they are based or against assets available to them? Alternatively, would a judgment of the foreign court be enforceable in Ireland against the assets of the Irish defendant? What is the governing law which an Irish court would have to apply to the proceedings? This is a point of some significance as the conduct of lengthy litigation under the law of a foreign jurisdiction is no easy task... 346. Differences between the legal procedures available in the two jurisdictions might also be relevant. These differences have to be approached not simply on the basis that their availability in one jurisdiction confers a benefit on one or other party and their absence in the other jurisdiction a consequent detriment. The procedures available in each jurisdiction will necessarily vary and the question is not whether the procedures in the foreign jurisdiction are particularly advantageous or disadvantageous to either party, but whether on an overall basis, the procedures are such that they enable parties appearing before the foreign court to achieve substantial justice... 347. The Judge looked at these issues under the heading “Proper Forum” commencing at §251 of his Judgment. He acknowledged that the relevant test is that set out by Lord Goff in Spiliada as adopted and applied in multiple Irish cases in the context of Order 11(2) and (5) including Intermetal, Analog Devices and Yukos...” 45. Clarke J had referred to similar factors in Irish Bank Resolution Corporation v Quinn [2016] 3 IR 197 at paragraph 68. He referred to “practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties to determine whether the applicant has established that there is an alternative forum which is clearly or distinctly more appropriate than Ireland and, thus, the natural forum for the conduct of the proceedings.”). The parties were agreed that the issues to which the High Court can have regard in determining the appropriate 18 forum include the location of the parties, the location of the witnesses, the adequacy of any alternative court system, the applicable law, the possibility of inconsistent judgments, and any evidence tendered regarding the comparative hardship of litigating in an alternative jurisdiction (see IBRC v Quinn [2016] 3 IR 197 and Ryanair v Fleming [2016] 2 IR 254). This is not an exhaustive list. 46. A number of English cases have held that part of the consideration of what jurisdiction is the natural forum is an examination of the “substance of the breach”. In Johnson v Taylor Bros & Co Ltd [1920] A.C. 144 it was stated “...the Court may refuse to give such leave in an instance in which the proceeding, though for a breach within the jurisdiction and in the letter within the term of the rule, is in substance not so.” Similarly, in Kroch v Rossell [1937] 1 All ER 725, Slesser LJ said “...the fact that the case might be tried in this country, and might be within the jurisdiction, is not necessarily a sufficient reason for allowing leave to be given serve out of the jurisdiction.” He also referred to the quote above from Johnson v Taylor Bros & Co Ltd and held that the case falls within that observation. 47. Collins J, on behalf of the Court of Appeal, did not expressly refer to this approach but it seems to me to follow from the first category of “connecting factors” that it must be part of the court’s consideration. 48. The parties were also agreed that even if the court is satisfied that there is a more appropriate jurisdiction, the court may retain jurisdiction if the balance of justice favours the proceedings being determined in Ireland. This involves a consideration of whether justice can be obtained in the alternative jurisdiction. Forum non conveniens 49. A consideration of a stay on the grounds of the doctrine of forum non conveniens only arises if the Court has jurisdiction or has accepted jurisdiction, but, in reality, where an application is brought to have leave to serve outside the jurisdiction set aside and to have a stay placed on the proceedings on the basis of forum non conveniens, both matters are considered together. 50. The parties were agreed that there is broad overlap between the consideration of ‘conveniens’ under Order 11 and the doctrine of forum non conveniens and that the 19 Court must consider the same factors as it considers when deciding whether to exercise its discretion to permit service out when considering the application for a stay on the grounds of forum non conveniens. 51. There are, however, some key differences. The first of these is that, contrary to the position under Order 11, the burden of establishing that a court should stay proceedings on the grounds of forum non conveniens falls on the defendant (Analog Devices and Collins J in Trafalgar). It follows that the defendant must identify the jurisdiction that it claims to be more suitable or appropriate and must establish that it is in fact the more appropriate forum. The standard of proof is that the other jurisdiction must be shown to be “clearly and distinctly a more appropriate forum”. In Trafalgar, Collins J captured the overlapping nature of the considerations, the difference in respect of the burden of proof, and the applicable standard of proof at paragraphs 164 – 165: “164. An application to stay the Irish proceedings in such circumstances is made on the grounds of forum non conveniens. As frequently observed, “conveniens” in these circumstances does not translate simply as “convenient” but rather reflects the suitability and appropriateness of a jurisdiction to try the case (see for example Fennelly J in Analog Devices, page 287). Thus, a stay is applied for on the basis that Ireland is not the appropriate jurisdiction for the determination of a particular claim or that it is a less appropriate jurisdiction for the determination of that claim than an alternate jurisdiction already seized of related proceedings between the same parties. For the most part, consideration of forum non conveniens will only arise if the court is satisfied that there was a basis for service out of the jurisdiction and for the assumption of jurisdiction under Order 11(1). If not, service will be set aside in any event and the defendant will not be required to appear in this jurisdiction to defend the proceedings. The discretionary aspects of what the court must consider under Order 11 have been characterised as placing an onus on the applicant to establish that Ireland is the forum conveniens for the trial of an action. In Albaniabeg (above), Hogan J noted that “the jurisdictional bases upon which Irish courts may assume jurisdiction may be exorbitant and are mitigated by considerations of forum conveniens”. 165. It goes without saying that forum conveniens and forum non conveniens are two sides of the same coin – one addressing the suitability and the other the lack of suitability of Ireland as the appropriate jurisdiction to hear a particular action. The principal distinction between them – and it may be an important one to bear in mind when reading the case law – is that under Order 11 the onus is on the 20 applicant for service out to establish affirmatively that Ireland is the appropriate forum (forum conveniens) whereas, where an application to stay Irish proceedings is brought on the basis of forum non conveniens, the onus is on the party seeking the stay to establish that Ireland is not the appropriate forum (forum non conveniens) (see Fennelly J in Analog Devices). Also, in purely practical terms, since the issues of forum conveniens and forum non conveniens are mirror images of each other, a court faced with applications both to set aside service and to stay the Irish proceedings will quite often merge consideration of the discretionary aspects of Order 11 with consideration of whether the stay should be granted.” 52. In Spiliada Maritime Corporation v Consulex Limited [1987] AC 460, Templeman LJ also stated the difference concisely: “...Where the plaintiff is entitled to commence his action in this country, the court, applying the doctrine of forum non conveniens will only stay the action if the defendant satisfies the court that some other forum is more appropriate. Where the plaintiff can only commence his action with leave, the court, applying the doctrine of forum conveniens will only grant leave if the plaintiff satisfies the court that England is the most appropriate forum to try the action...” 53. The lead judgment in Spiliada was given by Goff LJ. Many of the judgments already referred to reflect some of the statements made by Goff LJ. At page 480, he noted the similarities between the principles applying to forum non conveniens and those applying to the discretionary element under the equivalent of our Order 11. He described the exercise in both groups of cases as being “to identify the forum in which the case can be suitably tried for interests of all the parties and for the ends of justice”. He also identified the differences between the cases including: “... in the Order 11 cases the burden of proof rests on the plaintiff, whereas in the forum non conveniens cases that burden rests on the defendant. A second, and more fundamental, point of distinction (from which the first point of distinction in fact flows) is that in the Order 11 cases the plaintiff is seeking to persuade the court to exercise its discretionary power to permit service on the defendant outside the jurisdiction. Statutory authority has specified the particular circumstances in which that power may be exercised, but leaves it to the court to decide whether to exercise its discretionary power in a particular case, while providing that leave shall not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction:" see R.S.C., Ord. 11, r.4(2).” 21 54. Lord Goff addressed the doctrine of forum non conveniens at page 476 and identified the basic principle as “that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.” 55. He went on to say that the court is engaged in identifying the “natural forum” for the proceedings, which is the jurisdiction “with which the action had the most real and substantial connection”. To do so, the court must look for connecting factors and these will include factors affecting convenience or expense (such as the availability of witnesses), other factors such as the law governing the action, and the places where the parties reside or carry on business. He also pointed out that if the court is satisfied at that stage that the alternate jurisdiction is the more natural forum, it will normally grant a stay unless there are circumstances by reason of which justice requires that a stay not be granted. There may indeed be circumstances which go beyond those taken into account when considering the connecting factors. One such factor is whether there is cogent objective evidence that the plaintiff will not obtain justice in the other jurisdiction. 56. These were reflected in IBRC v Quinn. Clarke J approved of the following passage from The Conflict of Laws as being “broadly indicative of the law in this jurisdiction” in relation to the doctrine of forum non conveniens: “First, in general the legal burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay, although the evidential burden will rest on a party who seeks to establish the existence of matters which will assist him in persuading the court to exercise its discretion in his favour. Secondly, if the court is satisfied by the defendant that there is another available forum which is clearly a more appropriate forum for the trial of the action, the burden will shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England. Thirdly, the burden on the defendant is not just to show that England is not the natural or appropriate forum, but to establish that there is another forum which is clearly or distinctly more appropriate than the English forum; accordingly, where (as in some commercial disputes) there is no particular forum which can be described as the natural forum, there will be no reason to grant a stay. Fourthly, the court will look to see what factors there are which point in the direction of another forum as being 22 the “natural forum”, i.e. that with which the action has the most real and substantial connection. These will include factors affecting convenience or expense (such as availability of witnesses) and such other factors as the law governing the transaction and the places where the parties reside or carry on business, and also whether the claim is part of a larger overall dispute which would be damaged by being fragmented. Fifthly, if the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay. Sixthly, if, however, the court concludes that there is some other available forum which prima facie is clearly more appropriate; it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted. In that enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. Seventhly, a stay will not be refused simply because the claimant will thereby be deprived of a “legitimate personal or juridical advantage”, provided that the court is satisfied that substantial justice will be done in the available appropriate forum.” 57. These are the general principles which are applicable to an application to set aside leave to serve out of the jurisdiction and to an application for a stay on the basis of forum non conveniens. They are therefore applicable to both the Maybourne and SEDH proceedings. I will have to consider the principles applicable to specific points, such as, for example, the test for determining whether a tort was committed in the jurisdiction, and the principles applicable to Brussels Recast. I will do so as these points arise. MAYBOURNE JURISDICTION APPLICATION 58. On the 30th May 2022, Reynolds J made an Order in the Maybourne case granting liberty to serve the proceedings out of the jurisdiction on the basis of Order 11 Rule 1(f). This is, therefore, the rule with which we are concerned. 59. The defendants submit that the Order of Reynolds J and the service upon them should be set aside on a number of grounds relating to Order 11 and on the basis that Ireland is forum non conveniens. They also seek a stay on the basis of the latter. The grounds relating to Order 11 are: 23 (i) the proceedings do not fall within the terms of Order 11 Rule 1(f) because they are not founded on an alleged tort committed in Ireland or, more properly, that the plaintiff has not established a good arguable case that the proceedings are founded on a tort committed in Ireland. (ii) The case is not a proper one for service out of the jurisdiction having regard to Order 11 Rule 2 and 5. This, in fact, became the main focus of the defendants’ application; (iii) The defendants further submit that the plaintiff does not depose to the question of “the comparative cost and convenience of proceedings in Ireland” and that this is fatal to the application for leave to serve outside the jurisdiction; (iv) Finally, the defendants submit that the proceedings were not validly served because Notice of Plenary Summons was not served and the Al Thanis were served in London rather than Qatar. 60. As just discussed, the exercise of the court’s discretion under Order 11 and the operation of the doctrine of forum non conveniens are separate but there is considerable overlap. It will only be necessary to consider the application to set aside service or to stay the proceedings on the grounds of forum non conveniens if I refuse to set aside Reynolds J’s Order granting leave to serve outside the jurisdiction. Order 11 Grounds 61. In respect of some of these grounds it is necessary to consider the claims in defamation and conspiracy separately. Defamation 62. The defendants’ original first point in relation to the claim in defamation was that the plaintiff had not established a good arguable case that the tort of defamation was committed at all or that it was committed in Ireland and therefore the plaintiff had not satisfied the first requirement of Order 11, Rule 1(f) (which applies where “the action is founded on a tort committed within the jurisdiction”). 24 63. Initially, the defendants’ case that the plaintiff had not established a good arguable case that the tort of defamation was not committed within the jurisdiction had two limbs. 64. The first limb was that there was no publication in Ireland or at least no plea or evidence of such publication. However, matters evolved over the course of the hearing before me and it was ultimately accepted by the defendants that Ms. Ryan accessed and read the letter which had been sent to Mr. McKillen via Ms. Ryan while she was in Ireland and, therefore, publication occurred in this jurisdiction. The parties initially made submissions as to the meaning of “a tort committed within the jurisdiction” but, in circumstances where it is now accepted that there was publication in the jurisdiction, it is not necessary to consider those submissions at this stage, though I have to return to them in relation to the claim of conspiracy. 65. The second limb related to the merits of the claim of defamation itself and there were in turn two aspects to this. 66. It was submitted that there was no merit to the claim because English law applies even if the letter was published to Ms. Ryan in Ireland and that the uncontroverted evidence is that under English law an actionable defamation has not occurred. This limb was based on the exclusion of defamation claims from Regulation (EC) 864/2007 (“Rome II”), the rule set out at paragraph 35R-098 of The Conflict of Laws (Dicey, Morris and Collins, 16th Edition, Sweet and Maxwell, 2022), that England & Wales is the jurisdiction with the “most significant relationship with the occurrence” underlying the claim, and an Opinion of an English barrister. However, at the hearing, Senior Counsel for the defendants did not push this point, acknowledging (in my view correctly) that it was open to the Court to reach the view that there was a good arguable case that Irish law applied and that the question of the applicable law could be argued at the trial. In those circumstances I am satisfied for the purpose of this application that there is a good arguable case that Irish law applies. 67. I am, therefore, satisfied that there is a good arguable case that the tort of defamation has been committed in Ireland. The plaintiff has therefore satisfied the jurisdictional gateway in respect of defamation. 25 Conspiracy 68. In circumstances where I am satisfied that the jurisdictional gateway under Order 11 Rule 1(f) has been satisfied in respect of the claim of defamation and where the case that is made by the plaintiff is that the defamation was the means by which the defendants gave effect to their alleged conspiracy to cause damage to the plaintiff, it is not strictly necessary to consider the claim of conspiracy, at least from the jurisdictional gateway point of view. However, as the question of whether or not the tort was committed here may be relevant to the balancing of factors when considering the Court’s discretion, I propose to deal with it. 69. The defendants submit that there is no basis for concluding that the tort of conspiracy was committed in Ireland. They do so on a number of bases. 70. Firstly, they emphasise that the location of control is central to the tort of conspiracy and that there is no evidence that any decision-making element of the alleged conspiracy occurred in this jurisdiction. 71. Secondly, they submit that Ireland is not the place “where the harmful event directly had its effect on the immediate victim and where the original damage manifested...” 72. Thirdly, they rely on the principle in Salomon v Salomon. 73. The first and second of these can be conveniently dealt with together. Essentially, the defendants argue that the tort of conspiracy was not committed in Ireland because essential elements in the tort, i.e., an agreement with an intention to injure another, and the occurrence of direct damage, did not occur in Ireland. These are, of course, central elements of the tort. 74. In Iarnród Éireann v Holbrooke [2000] IEHC 47, O’Neill J described the features of the tort of conspiracy and referred to both an agreement or combination and that the object must be to injure another. He also referred to “the act done to the party”. He said: “1. The agreement or combination of two or more people, the primary or predominant object of which was to injure another, is actionable even though the act done to the party injured would be lawful if done by an individual. 26 2. An agreement or combination of two or more persons to carry out a purpose lawful in itself but by using unlawful means is actionable, in circumstances where the act in question might not be actionable against the individual members of the combination, as individuals.” 75. The Law of Torts (McMahon & Binchy, 4th Edition, Bloomsbury, 2013), and Barrett J in Camiveo Limited v Dunnes Stores [2017] IEHC 147 emphasised the importance of intention in the tort of conspiracy. In IBRC v Quinn [2013] IEHC 1, Charleton J held that a conspiracy is all about the location of control. 76. In relation to the locus of damage, the defendants also referred to the Rome Convention. While defamation actions are excluded from the Convention (see article 1(1)(g)), article 4 provides in respect of “Torts/Delicts”, inter alia: “1. Unless otherwise provided for in this Regulation, the law applicable to a non- contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.” 77. The defendants also relied upon Actial Farmaceutica LDA v De Simone [2016] 2 CLC 1020. In that case, the plaintiff claimed that there was a conspiracy to harm its business interests by the cutting off of supplies which should have been delivered in Italy or the Netherlands. The plaintiff sought to sue in the United Kingdom on the basis that it had suffered damage in the United Kingdom and therefore this was where the “harmful event” occurred. The Court of Appeal of England & Wales rejected this, saying: “In the present case, the harmful event was the alleged conspiracy by which the Professor and Mendes Italy sought to prevent Actial from trading by cutting off supplies to it…In my judgment, the damage which is closest in causal proximity to that harmful event is the non-delivery… in bulk to Actial’s packaging agents in Italy and the Netherlands. That is the jurisdictionally significant harm. The subsequent damage suffered because, as a consequence, Actial was unable to supply its distributors, whether Ferring UK in the UK or another distributor in whatever territories were supplied with the Product is just that, consequential or indirect damage. The judge’s analysis…cannot be faulted.” 27 78. In short, the defendants submit that the parties who allegedly engaged in the conspiracy were outside Ireland and, therefore, the element of agreement and intention did not occur in this jurisdiction. They submit that the direct consequences of the alleged conspiracy (if any) were felt in the United Kingdom, and the alleged impact, if any, on the plaintiff’s reputation and business interests in Ireland was “consequential or indirect damage”. On those bases it was submitted that no element of the tort was committed in this jurisdiction. 79. In Grehan v Medical Incorporated [1986] IR 528, the Supreme Court considered the appropriate test for determining whether a tort was committed within the jurisdiction. Walsh J reviewed a significant number of different cases in which various approaches were considered. Ultimately he held that if it appears that any significant element in the commission of the tort occurred within this jurisdiction then the plaintiff will have at least fulfilled the threshold requirements set out in Order 11 Rule 1(f). He said: “...In my view, so far as choice of law in torts cases is concerned, the Irish Courts should be sufficiently flexible to be capable of responding to the individual issues presented in each case and to the social and economic dimensions of applying any particular choice of law rule in the proceedings in question. As to jurisdiction, if it appears that any significant element in the commission of the tort occurs within this jurisdiction then the plaintiff will have at least fulfilled the threshold requirements set out in order 11, rule 1 (f). But that is not sufficient to raise a presumption or an inference that the court should exercise discretion in favour of making an order for service out of the jurisdiction. Any approach which insists on any one constituent element of the commission of the tort occurring within the jurisdiction can only give rise to difficulty. Any case before the court which clearly calls for the hearing of the proceedings in Ireland and for the application of Irish law to the case an order for service outside the jurisdiction should not be denied merely because of the fact that some significant element or elements in its commission occurred outside the jurisdiction. For example, in many cases it would be quite inappropriate that the invocation either of "the place of injury" or "the last event rule" should deny to a plaintiff the right of service out of the jurisdiction. It seems to me sufficient if any significant element has occurred within the jurisdiction. To require that the element should be the most significant one could render a plaintiff's task more uncertain and the outcome more arbitrary. 28 There is of course a heavy burden on the court to examine the circumstances of each case before exercising its discretion to make an order for service out of the jurisdiction. It would be clearly wrong to refuse it on the application of any technical rule which insists on one element occurring in the jurisdiction as it would be equally inappropriate if the court were to permit service out of the jurisdiction where the case only had a tenuous connection with the country on its facts and in terms of the law likely to govern questions of liability and related matters.” [emphasis added] 80. That is the test which must be applied. In my view, on the application of this test, there is a good arguable case that the tort of conspiracy was committed in this jurisdiction. One of the central elements of the tort is the agreement to do harm. Another is the commission of an act (on foot of that agreement) which has as its object the infliction of harm on another. An agreement to harm someone is not in itself a tort. That agreement must be implemented. In this case, the act(s) which is alleged to have been taken by the alleged conspirators was the exclusion of the plaintiff from various sites while certain matters were being investigated and the publication of those facts to certain individuals. One instance of such publication was to Ms. Ryan in Ireland and, thus, the implementation of the alleged conspiracy, i.e. one of the significant elements of the tort, occurred in Ireland. 81. Furthermore, in my view, if the contents of the letter sent to Ms. Ryan are ultimately found to be defamatory and to have caused damage to the plaintiff’s reputation in Ireland, then the damage can not be said to have been indirect or secondary. That damage will be in causal proximity to the harmful event. 82. In my view, there is a good arguable case that two significant elements of the tort of conspiracy occurred in Ireland, i.e. the act by which harm was to be done, and direct damage. 83. It is important to note that the defendants submitted that this is the tort of defamation by a different name and that it would lead to the nonsensical result that any agreement to publish something which defames another person could be said to be a conspiracy. I do not believe that automatically follows. First, insofar as conspiracy is concerned, intention and objective are central. The agreement must have as its objective the harming of the plaintiff. Thus, an agreement by a journalist and his or her editor to publish an article which is subsequently found to be defamatory can not in itself give rise to the tort of conspiracy because the publication did not have as its 29 objective the doing of harm. Second, there is no bar on an act being an element in two separate torts. Third, the burden of proof on a plaintiff is different in respect of the two torts; for example, it is quite possible that a plaintiff could succeed in establishing defamation but not conspiracy. 84. The third basis upon which the defendants submit that the plaintiff does not have a good arguable case in conspiracy is that the claim it is fundamentally inconsistent with long-established principles of company law and the law of agency. They rely on the long line of authorities since Salomon v Salomon. The basis on which the plaintiff alleges conspiracy is not entirely clear. It is pleaded on behalf of the plaintiff that “The Maybourne Entities, Goldrange and Berkeley were, at all material times, acting as servants or agents of the Al Thanis and/or either of them, as well as on their own behalf” (paragraph 9 of the Statement of Claim). A similar plea is made in the SEDH proceedings. In the Replies to Particulars in the Maybourne proceedings, the plaintiff states in response to the defendants’ demand for “the precise elements of the alleged concert of action”: “...the First Named Defendant and the Maybourne Hotel Group more generally are indirectly owned and/or controlled by the Third and Fourth Named Defendants (together the “Al Thanis”), personally and are run for the personal benefit of those individuals, who exercise a high level of control over the actions of their servants and/or agents. The precise nature of the actions of the Third and Fourth Named Defendants in directing, organising and/or participating in the concert of action are known but it is pleaded, that through some mechanism of communication, whether oral or written, implicit or explicit and direct or indirect, the Al Thanis directed and/or consented to the performance of the acts constituting the concert of action, for and/or on their behalf and in furtherance of their own objectives. Further and/or in the alternative, the acts were committed by the First and/or Second Named Defendants in their capacities as servants and/or agents of the Al Thanis. The precise times and places in which the Al Thanis engaged in the acts aforementioned is a matter of their own peculiar knowledge. The ultimate question in relation to the jurisdiction in which the wrongs of the Defendants were committed is ultimately a matter for legal submission.” 85. Insofar as the basis for the claim can be made out it seems to be as follows: (i) Various companies in the group were acting as servants or agents of the Al Thanis; 30 (ii) The Al Thanis exercise a high level of control over those agents as they indirectly own the companies; (iii) The Al Thanis directed or consented to the acts constituting the conspiracy; (iv) The acts were committed by the first and second-named defendants in their capacities as servants and/or agents of the Al Thanis. 86. I am not satisfied that the plaintiff has established a good arguable case on any of these bases that the tort of conspiracy was committed. 87. The defendants relied on Allied Irish Coal Supplies Ltd v Powel Duffryn Intl Fuels Ltd [1998] 2 IR 519 and McAteer v Fried [2019] IECA 216. In my view, these are not on point or are of very limited assistance. There can be no doubt that a company has a separate legal personality from its members. The plaintiff does not dispute this. Indeed, it is difficult to see how he could dispute this because, if he sought to do so, he could not also argue that they had entered into an agreement with each other. Powel Duffryn was concerned with whether the company and its membership should be treated as a single economic entity. That is the reverse of the case sought to be made by the plaintiff. McAteer v Fried is of little assistance other than it made clear that a company is not automatically the agent of its members (or vice versa). However, it was concerned with whether, in the particular circumstances, the evidence supported a finding that the bank was agent for an undisclosed principal or that the bank was the principal. 88. The case that the plaintiff makes is that the Al Thanis controlled the other defendants and that they were acting as their agents. The plaintiff did not refer to any authorities to support the proposition that a relationship of principal and agent can in itself form the basis of the tort of conspiracy. I see no reason why an agreement between two people that one person will act as agent for another to do harm to a third party could not be a conspiracy. That agreement is one between two parties to do harm to another. However, that is not the case that is made by the plaintiff. He claims that the relationship of principal and agent exists between the Al Thanis and the other defendants, largely by virtue of their ownership and control of the various companies, and that within that relationship the Al Thanis directed or consented to acts which had as their object injury to the plaintiff. No authorities were opened to me to support the 31 proposition that acts taken by an agent on foot of the direction of the principal opens the parties up to liability in conspiracy. It must, of course, be emphasised that what is being considered is the question of conspiracy rather than simple vicarious liability. I can therefore not conclude that the plaintiff has established that the tort of conspiracy has been committed. 89. In circumstances where I have found that the plaintiff has satisfied the jurisdictional gateway in respect of defamation my finding in relation to conspiracy does not preclude me from assuming jurisdiction, particularly when the two causes of action are so closely related in the circumstances of the case. Discretion – Rules (2) and (5) 90. However, as is clear from the authorities discussed above, the establishment of a good arguable case on the jurisdictional gateway in itself is not sufficient. The Court must also be satisfied that the case is a proper one for service out of the jurisdiction, particularly having regard to Order 11 Rules 2 and 5. In truth, this is the real basis upon which it was argued on behalf of the defendants that the Order and service should be set aside. 91. As is clear from Barniville J and Collins J’s judgments in Trafalgar, the burden of establishing that the case is a proper one for service out rests on the plaintiff. I am not satisfied t