A & Anor v E, C & D

APPROVED NO REDACTION NEEDED THE COURT OF APPEAL Appeal Number: 2025 247 Neutral Citation Number [2026] IECA 56 Whelan J. Allen J. McDonald J. BETWEEN/ A. AND B. PLAINTIFFS - AND – E., C. AND D. DEFENDANTS JUDGMENT of Mr. Justice Allen delivered on the 17th day of April, 2026 Introduction 1. This is an appeal by Mediahuis Ireland Limited, which is the publisher of the Sunday Independent newspaper (“Mediahuis”) against the judgment of the High Court (Nolan J.) delivered on 17th July, 2025 ([2025] IEHC 453) and consequent order made on 31st July, 2025 refusing an application by Mediahuis to be heard in relation to an order of the High Court (Ferriter J.) on 22nd May, 2023 imposing reporting restrictions in respect of a civil action. 2. The submissions of counsel on both sides touched upon the jurisdiction of the High Court – inherent and statutory – to administer justice otherwise than in public and to impose reporting restrictions but the core legal issue on the appeal was narrow. Mediahuis, as an organisation affected by a High Court order made on an application to which it was not party, asked the High Court that it be heard in relation to the making of the order. Stepping back from the detail of the arguments, the effect of the order of 22nd May, 2023 on Mediahuis is – as the object of the plaintiffs in seeking it was – to prevent any media organisation, including Mediahuis, from reporting a story which otherwise it would have been entitled to report. The issue on the appeal is not whether the order should be revisited, but whether Mediahuis is entitled to ask that it should be. Background 3. On 19th May, 2023 Mr. Mark Tighe, a senior news reporter with the Sunday Independent, came across a listing in a public High Court list which indicated – he thought – that proceedings had been issued by two named individuals against a named institution and two named individuals. The institution was in the news at the time and Mr. Tighe thought that there might be a story in the litigation. Mr. Tighe – as he put it – thought that a report of the subject matter of the litigation might be of news interest, and also in the public interest. 4. The court listing included the name of the solicitors for the plaintiffs. On 19th May, 2023, one of Mr. Tighe’s colleagues telephoned the solicitors to enquire about the nature of the proceedings. The solicitors responded on the same day, by letter, to say that a High Court order had been made that morning preventing the publication of any information that might identify the second plaintiff until an application then pending before the High Court was determined. 5. Mr. Tighe was strictly speaking not quite correct in his belief that High Court proceedings had been issued. Rather papers had been lodged for the purposes of an ex parte application to be made to the High Court in the matter of an intended action for an order granting the then intended plaintiffs leave to issue proceedings on an anonymised basis; and thereafter an order prohibiting or restricting the publication or broadcast of any information that might identify the second plaintiff who – it was said – suffers from a medical condition. What might be described as the substantive ex parte application had been given a date on 22nd May, 2023 and the order sought and made on 19th May, 2023 – on a separate ex parte application – was an interim order pending the hearing of the substantive application. 6. The order of 19th May, 2023 prohibited the publication or broadcast of any matter which would or would be likely to identify the second plaintiff who suffers from a medical condition; directed that the names of both the intended plaintiffs and intended defendants be anonymised; directed that the matter be hidden from public viewing on the Courts Service website up to and including Monday 22nd May, 2023; and gave liberty to the plaintiffs to notify any necessary media outlets of the making of the order. 7. The wording of the order – and the ex parte docket by which it had been sought – was clearly based on, but did not precisely mirror, s. 27 of the Civil Law (Miscellaneous Provisions) Act, 2008. So much of the order as prohibited the publication or broadcast of any matter which would or would be likely to identify the second plaintiff who suffers from a medical condition was expressed to have been made pursuant to the inherent jurisdiction of the court and s. 27 of the Civil Law (Miscellaneous Provisions) Act, 2008; and so much of the order as directed that the matter be hidden from public viewing on the Courts Service website up to and including Monday 22nd May, 2023 was expressed to have been made pursuant to the inherent jurisdiction of the court. 8. By e-mail of 19th May, 2023, Mediahuis, by its solicitors, acknowledged receipt of the plaintiffs’ solicitors’ letter and asked for a copy of the court order. They also asked that the plaintiffs’ solicitors should confirm the legal basis on which it had been sought. 9. The order of 19th May, 2023 was drawn on the same day, but there was an error in it. The error was promptly corrected pursuant to O. 28, r. 11 of the Rules of the Superior Courts and the order was perfected on 25th May, 2023. 10. The substantive ex parte application was heard by Ferriter J. on 22nd May, 2023. An order was then made giving liberty to the intended plaintiffs to issue proceedings on an anonymised basis; directing that the names of both the intended plaintiffs and intended defendants be anonymised; and – until further order – prohibiting the publication or broadcast of any matter which would or would be likely to identify the second plaintiff who suffers from a medical condition; and that the intended proceedings remain hidden from public viewing on the Courts Service website. 11. In the case of the order of 22nd May, 2023, so much of the order as prohibited the publication or broadcast of any matter which would or would be likely to identify the second plaintiff who suffers from a medical condition was expressed to have been made pursuant to the inherent jurisdiction of the court and s. 27 of the Civil Law (Miscellaneous Provisions) Act, 2008; and so much of the order as directed that the names of the parties should be anonymised was expressed to have been made pursuant to the inherent jurisdiction of the court. The order went on to direct that:- “… pursuant to the inherent jurisdiction of this court that the publication of any matter that would identify the parties to the within proceedings and the intended proceedings remain hidden from public viewing on the Courts Service website until further order.” 12. I pause here to note that s. 27(6)(a) of the 2008 Act provides that an application for an order under that section may only be made by a party to the proceedings on notice to the other party or parties to the proceedings. The order of 22nd May, 2023 was made on an ex parte application on behalf of the plaintiffs and was not followed by a motion on notice to the defendants. The defendants, however, appear to have acquiesced in it. 13. In due course, Mediahuis was provided with copies of the orders of 19th and 22nd May, 2023 and there was an exchange of correspondence between its solicitor and the plaintiffs’ solicitors in which Mediahuis demanded an explanation of the basis on which they had been made, sufficient to allow Mediahuis to assess whether they were necessary or justified. In particular, Mediahuis contended that s. 27 of the 2008 Act did not provide for the prohibition of the publication or broadcast of any matter relating to the proceedings “which would or would be likely to identify the second named plaintiff who suffers from a medical condition” . Rather, it contended – quoting the section – that the statutory power was limited to prohibiting the publication or broadcast of any matter relating to the proceedings “which would, or would be likely to, identify [a person who has a relevant medical condition] as a person having that condition.” In other words – so the argument went – the statutory power did not extend to anonymisation of the plaintiff but only the disclosure of the medical condition. 14. The correspondence petered out in July, 2023. 15. In November, 2024 Mediahuis, by its solicitors, wrote to the High Court Registrar seeking a listing at which it could “… in the first instance seek direction from the Court so that [it] can better understand the basis for the Court’s orders and, if necessary, address the Court in relation to the Orders.” The High Court application 16. In the opening paragraph of this judgment I summarised the High Court application as being an application by Mediahuis to be heard in relation to the order of Ferriter J. imposing reporting restrictions. As I will come to, one of the issues on the appeal was whether the case – or at least the arguments – made on its behalf to this Court was a different case to that which had been made below. I am not persuaded that it was. I accept that the position of Mediahuis on the appeal as to the nature of the application it wished to make to the High Court was more nuanced than might have been conveyed to the High Court but it was not, I think, materially different. By the same token, I think that in determining whether Mediahuis had a right to be heard, the High Court judge may have been distracted by what he understood Mediahuis would say, if it had locus standi. 17. According to the letter written by Mediahuis’s solicitor to the High Court Registrar, the object of the listing then sought was to allow Mediahuis to understand or to better understand the basis for the orders. The application was ultimately made by motion on notice to the plaintiffs and the defendants, grounded on an affidavit of Mr. Tighe. I do not think that it is unfair to describe the form of the orders sought as clunky. The reliefs sought were:- “(a) A direction that the plaintiffs disclose to the applicant the pleadings and proceedings had herein sufficient to establish the evidential basis for the plaintiffs’ application pursuant to section 27 of the Civil Law (Miscellaneous Provisions) Act, 2008 on or about 19 May 2023 and/or 22 May 2023; (b) Alternatively, any necessary directions to enable the applicant to have sufficient information to show cause in relation to the plaintiffs’ application to section 27 of the Civil Law (Miscellaneous Provisions) Act, 2008 on or about 19 May 2023 and/or 22 May 2023; (c) For the applicant to show cause in relation to the plaintiff’s application pursuant to section 27 of the Civil Law (Miscellaneous Provisions) Act, 2008 on or about 19 May 2023 and/or 22 May 2023; (d) If necessary, to discharge or vary the Order of this Honourable Court of 22 May 2023 (Mr. Justice Ferriter); (e) To speak to the Order of this Honourable Court of 22 May 2023 (Mr. Justice Ferriter); (f) Further or other Order; (g) Costs.” 18. The order of 19th May, 2023, of course, was spent. The reference to Mediahuis “showing cause” tended to suggest that it regarded the orders as conditional orders; and the reference to “speaking to the order” tended to suggest that the orders as drawn did not correctly reflect the orders as pronounced. I can see that the draftsman was endeavouring to contemplate how his client’s understanding as to the basis on which the orders were made could be progressed, but, in form, the notice of motion rather tended to suggest that the applicant was demanding material to which it was entitled as of right, in order to decide whether it would or would not make an application in relation to it. This impression was compounded by Mr. Tighe’s averment that “… Mediahuis Ireland does not have sufficient information to enable it to determine whether the Court Orders are proportionate in the circumstances of these proceedings.” This rather tended to suggest that Mediahuis regarded itself as the arbiter of the justification for the restrictions. 19. A further difficulty with the form of the notice of motion is that it focussed exclusively on s. 27 of the Civil Law (Miscellaneous Provisions) Act, 2008, while the orders – copies of which had long ago been provided to Mediahuis’s solicitor – were expressed to have been made both pursuant to the statutory jurisdiction and the inherent jurisdiction of the court. 20. Having described the form of the notice of motion as clunky, I think that it is only fair to acknowledge that it was not altogether straightforward to set out what precisely it was that the High Court was being asked to do. If the ultimate object or hope of the application was that the reporting restrictions would be lifted, the draftsman did not know the basis on which the order had been made and so, perhaps, not being in a position to spell out the grounds on which this might be done, was circumspect about bluntly asking that the order should be set aside. As refined on the appeal, the application which Mediahuis intended to make to the High Court was that it should revisit the order imposing the reporting restrictions, upon such directions as the court might make as to sufficient access to the evidence on which the order was based, to allow Mediahuis a meaningful opportunity to be heard as to the making of an order which affected it. 21. The motion ultimately came into the list before Nolan J. on 25th June, 2025 but in the meantime, on the application of the plaintiffs, Nolan J. had directed a hearing in the first instance as to whether Mediahuis had standing to be heard in relation to the reporting restrictions and, if so, the nature of any hearing: and had directed the parties to file written legal submissions directed to those issues. 22. In compliance with that direction, written submissions were filed on behalf of Mediahuis citing a wide range of authority including Re: R. Limited [1989] I.R. 126; Gilchrist v. Sunday Newspapers Ltd. [2017] 2 I.R. 284; Independent Newspapers (Ireland) Ltd. v. Anderson [2006] 3 I.R. 341; Irish Times v. Ireland [1998] 1 I.R. 359; Cornec v. Morrice [2012] 1 I.R. 804, Mahon v. Post Publications Ltd. [2007] 3 I.R. 338, Independent Newspapers (Ireland)Ltd. v. IA [2020] IECA 19 and Director of Public Prosecutions v. H [2020] IECA 321. It was submitted that there was clear Supreme Court authority which establishes that representatives of the media are entitled to be heard in relation to the making of orders under the court’s inherent jurisdiction which would restrict the entitlement of the media generally to report on the administration of justice in court. This – it was said – was confirmed as a fundamental principle in cases relating both to orders made under the inherent jurisdiction of the court and pursuant to statutory provisions such as s. 27 of the 2008 Act. If – as it was submitted it was – Mediahuis was entitled to be heard, there should be a fresh consideration of the restrictions in which Mediahuis could participate on an informed basis. 23. Written submissions were also filed on behalf of the plaintiffs. The application, they argued, was in part misconceived and in part premature. Mediahuis – it was said – had no entitlement to know anything about proceedings which had been commenced in the High Court and which might never come to hearing. The object of the application – it was suggested – was to allow Mediahuis to obtain sufficient information to enable it to write a newspaper article about a case of which it knew little or nothing. The authorities relied on by Mediahuis – it was said – concerned restrictions on the entitlement of the media to report on the administration of justice in court: which, it was said, was clearly a reference to open court. The plaintiffs’ core argument, citing D.F. v. The Commissioner of An Garda Síochána [2015] 2 I.R. 487, was that s. 27 was an express legislative exception to the general rule of a full open court hearing as contemplated by Article 34.1 of the Constitution, in that it provided for a limited departure from a full open hearing, provided that the particular terms of the section were judicially adjudicated to have been met. 24. The defendants declared themselves neutral as to the application and made no submissions, written or oral. 25. The focus of Mediahuis’s written submissions was very much on the fact that it was a media organisation. The substance of the plaintiffs’ submissions was that the details of the litigation were private unless and until the case came to court, and, until then, none of Mediahuis’s business. It was, however, clear from the submissions on behalf of Mediahuis that it was relying on a line of authority rooted in a judgment of McCracken J. in Voluntary Purchasing Groups Inc. v. Insurco International Ltd. [1995] 2 I.L.R.M. 145 for the proposition that it is essential that any ex parte order may be reviewed and an opportunity given to the parties – more correctly, perhaps, the persons – affected by it to present their side of the case. The High Court judgment 26. On 17th July, 2025 the High Court delivered a written judgment. 27. The structure of the High Court judgment was to look at the reliefs claimed; the affidavits; the orders; s. 27 of the 2008 Act; the correspondence; the applicant’s submissions; and the plaintiff’ submissions; before moving on to a discussion and decision. However, along the way, the judge made a number of significant observations. 28. At para. 14, having looked at the orders, the judge observed that it was clear that they had been made on the basis of two separate jurisdictions, the first being the inherent jurisdiction and the second – “far more importantly” – the jurisdiction conferred by s. 27 of the 2008 Act. I will come back to this. 29. At para. 16, having looked at the text of s. 27, the judge noted that none of the parties to the litigation had appealed, and he identified as the first issue to be addressed as being whether the order could be challenged without being appealed by Mediahuis. He said that he was satisfied that a correct reading of the statute meant that it was “only the parties to the order who have the right of appeal, per se.” However, having regard to the direction previously given, the means by which the order might be challenged was not an issue which immediately needed to be addressed. Moreover, Mediahuis was not contending that it had a right of appeal; and it was no part of the plaintiffs’ case that the order could or should have been appealed. 30. In accordance with the direction previously given, the written submissions filed on behalf of Mediahuis in the High Court – and presumably the oral submissions – were focused on its entitlement to be heard, as opposed to what it would say if it had a right to be heard. It is true that the written submissions touched on the dicta of Clarke J. in Independent Newspapers (Ireland) Ltd. v. Anderson [2006] 3 I.R. 341 and of Murray J. in Independent Newspapers (Ireland) Ltd. v. IA [2020] IECA 19, to the effect that the position of a media organisation which is affected by reporting restrictions is analogous with that of a party to litigation who is affected by an ex parte order. However, as I have said, the issue before the High Court was Mediahuis’s standing. 31. I will come back to the reasoning of the High Court judge but his conclusion was that s. 27 either applied or it did not. Ferriter J., he said, was satisfied that the order should be made based on the evidence put before him and it was not – said Nolan J. – for him to double guess the decision of Ferriter J. Nolan J. did not in terms determine that Mediahuis had no standing but that was implicit in his refusal to revisit the order of Ferriter J. The appeal 32. By notice of appeal filed on 18th September, 2025 Mediahuis appealed against the judgment and order of the High Court on five grounds. Three of the grounds were directed to the costs orders and two to the substance of the judgment. The High Court order for the defendants’ costs of the motion was set aside by consent in the directions list. The correctness of the order for the plaintiffs’ costs will depend on the outcome of the appeal. And the appeal against the judge’s refusal to stay the order for the payment of the plaintiffs’ costs pending the determination of the appeal has been overtaken by the hearing, and shortly the determination, of the appeal. 33. As to the substance, it was said firstly, that the judge erred in finding that Mediahuis did not have standing to challenge, or to be heard in relation to, the order of 22nd May, 2023 imposing reporting restrictions; and secondly, that the judge erred in refusing to direct that the appellant be furnished with the pleadings and evidence – subject, if necessary, to appropriate redactions – and in determining that Mediahuis was not entitled to adduce evidence. 34. There were two pillars to the appellant’s argument. The first was that the judge decided – or that the effect of his decision was – that a media organisation had no right to apply to set aside the reporting restrictions. This, it was said, was contrary to a long and well-established line of authority. The second was that the judge decided – or that the effect of his decision was – that there was no onus on the plaintiffs to justify the imposition of the reporting restrictions or to allow a person affected by the orders to understand the basis on which they had been made or to go beyond the fact that the order was made. 35. In the written and oral submissions on the appeal, the argument was broken down into seven propositions, the first of which was that the reporting restrictions engaged Mediahuis’s rights and interests. This can hardly be gainsaid. The effect of the order is to prevent Mediahuis from using the limited information as to the existence of the proceedings and the identity of the parties which it gleaned from the published court list, and to prevent it from tracking and reporting on the progress of the litigation as it could any other litigation. Not only was this the effect of the order of 22nd May, 2023, it was clearly the plaintiffs’ object in applying for it. While it is not clear that the plaintiffs apprehended that Mediahuis in particular might be tracking the case, the object and effect of the order was to prevent any and all media outlets from doing what they otherwise would have been entitled to do. 36. Mediahuis’s second proposition is that – as far as it is concerned – the restrictions have a provisional character as an order made ex parte. This proposition can be traced back to a judgment of McCracken J. in Voluntary Purchasing v. Insurco Ltd. [1995] 2 I.L.R.M. 145 and forward from there to the judgment of Murray J. in Independent Newspapers (Ireland) Ltd. v I.A. [2020] IECA 19. 37. Voluntary Purchasing was a case in which, on an ex parte application on behalf of a Texas court, Flood J. had made an order pursuant to the Foreign Tribunals Evidence Act, 1856 that a representative or representatives of KPMG Stokes Kennedy Crowley attend before an Examiner to give evidence in a civil matter. Section 1 of the 1856 Act provided for the making of the order, but there was no provision either in the Act or in the Rules of the Superior Courts for any further court applications in relation to it. The legal issue before McCracken J. was whether the defendant and KPMG Stokes Kennedy Crowley had locus standi to apply to set aside the ex parte order. McCracken J. found that they had. He said:- “In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the Courts in the absence of an express statutory provision to the contrary, to set aside an Order made ex parte on the application of any party affected by that Order. An ex parte Order is made by a judge who has only heard one party to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that is not suggested in the present case. However, in the interests of justice it is essential that an ex parte Order may be reviewed and an opportunity given to the parties affected by it to present their side of the case or to correct errors in the original evidence or submissions before the Court. It would be quite unjust that an Order could be made against a party in its absence and without notice to it which could not be reviewed on the application of the party affected.” 38. The formulation of the second proposition is based on the dictum of Hardiman J. in Adam v. Minister for Justice [2001] 3 I.R. 53, 77 – which he recalled in his judgment in Goold v. Judge Collins (Unreported, Supreme Court, 12th July, 2004) – in which he said that any order made ex parte must be regarded as an order of a provisional nature only. 39. Mediahuis’s third proposition – that as a person affected by an ex parte order made in its absence is entitled to be heard in relation to the restrictions – follows from the second. It seems to me that Mediahuis’s fourth proposition - that as a media organisation it was entitled to be heard in relation to the reporting restrictions – is no more than a particular application to this case of the general principled proposition. 40. Independent Newspapers (Ireland) Ltd. v I.A. directly concerned the entitlement of a media organisation to be heard on reporting restrictions. Mediahuis relies in particular on para. 55 of the judgment, where Murray J. said:- “The decision of Clarke J. in Independent Newspapers (Ireland) Limited v. Anderson [2006] 3 IR 341 describes the procedure to be adopted where orders are made by a trial Court imposing reporting restrictions. As explained there, where a Judge makes an initial order imposing restrictions without hearing representatives of the media (as will frequently be necessary in order to prevent publication) those representatives must be given the opportunity to be heard thereafter (see [2006] 3 IR at 350). As also explained by Clarke J. in Anderson, the media organisations in this situation are in a position analogous to a party against whom an ex parte order has been made ([2006] 3 IR at 350). The general rule is that ‘any order made ex parte must be regarded as an order of a provisional nature only’ (Adam v. Minister for Justice [2001] 3 IR 53, 77, per Hardiman J.), and in consequence there is an entitlement to apply to set aside such order enjoyed by the person against whom it was thus made (Adams v. DPP [2001] 2 ILRM 401).” 41. It is worth emphasising at this point that while the order in this case was in fact made ex parte, in the sense that it was made by the plaintiffs without notice to the defendants, that is not material to the position of Mediahuis. The point is that the order imposing reporting restrictions was made without hearing representatives of the media. Mediahuis’s position would have been no different if the order had been made on notice to the defendants. 42. Mediahuis’s fifth proposition is best expressed – as it is formulated – as a series of questions. It asks whether it – presumably the High Court – was correct to distinguish binding authority establishing the media’s right to be heard on the basis that:- i. The proceedings are civil rather than criminal; ii. The proceedings are “of a very different character”; or iii. There is no imminent trial scheduled in the proceedings. 43. These questions all arise from what I hope the judge will forgive me for describing as the rather puzzling finding at para. 30 that:- “30. However, it must be noted that these cases all related to reporting restrictions of a trial of a criminal nature. While clearly the same rules apply to civil cases, what we are dealing with in this case is of a very different character. There is no trial scheduled to be heard in this case any time soon, and indeed it is worth noting that the appellant has waited two years to bring this application before the court. Further, it has been emphasised by counsel for the plaintiffs, and indeed in the correspondence, that this case will be heard in public.” 44. The cases which the judge had previously referred to were those relied on by Mediahuis in support of its argument that it was entitled to be heard in relation to the imposition of reporting restrictions. Many of those cases were concerned with reporting restrictions put in place for criminal trials but one of the most important of them – Gilchrist v. Sunday Newspapers Ltd. [2017] 2 I.R. 284 – concerned a civil action. So also did the judgment in Medical Council v. Bikhari [2022] IEHC 723, which the judge addressed in para. 31. The judge’s finding in para. 30 – which it was and is common case – that the same rules apply to civil and criminal cases, disposes of the suggestion that the judge might have distinguished the case at hand on the basis that the proceedings are civil rather than criminal. 45. The judge’s comment, in para. 30, that the case in hand was “of a very different character” appears to have anticipated his acceptance of the submission of counsel for the plaintiffs that the Oireachtas, by s. 27 of the 2008 Act, created “a whole new ball game”. 46. I will come immediately to the submissions on behalf of the plaintiffs that s. 27 created “a whole new ball game” but just before doing so, it is worth recalling that the wording of the order sought and obtained in respect of the second plaintiff was based on but did not precisely mirror the wording of s. 27; that the order recited that it had been made both pursuant to the inherent jurisdiction of the court and s. 27; and that the correspondence showed that Mediahuis – if it was heard – wished to argue inter alia that the order which had been made 22nd May, 2023 was not one which the High Court was empowered to make by section 27. At the risk of repeating myself, because of the direction given by Nolan J. as to the progress of the motion, the issue before the High Court was not whether Mediahuis was correct in what it would say if it was entitled to be heard, but whether it had standing to say anything at all. 47. The focus of the plaintiffs’ argument in opposition to the appeal was on the form of the notice of motion. Mediahuis – it was said – was seeking to insert itself in what was – unless and until it came to hearing – a private dispute. The application – it was said – was not an application to set aside the order of 22nd May, 2023 but an information gathering exercise to allow Mediahuis to decide whether it would apply to set the order aside. Counsel emphasised that the second plaintiff was a vulnerable person. 48. I see the argument that Mr. Tighe was chasing a story but that, it seems to me, is what news reporters do. I also see the argument that the application as framed does not specifically ask for an order setting aside the reporting restrictions. However, Mediahuis was aware from the court list that was publicly available until 19th May, 2023 who the parties were and it is clear that the object of the exercise was to establish what the case was all about in the hope that there might be a story in it. That object could not be achieved unless the reporting restrictions were lifted or varied. 49. In the affidavit grounding the application, Mr. Tighe deposed that a report of the litigation might be of news interest and also in the public interest. I accept the submission of counsel for Mediahuis that its entitlement, as a person affected by the order, to be heard in relation to the order was not dependent on its establishing either proposition. That said, it can confidently be inferred from the fact that the reporting restrictions were sought that the plaintiffs anticipated that the media might think that the case was newsworthy. 50. As to the vulnerability of the second plaintiff, I can easily understand that the family or the lawyers acting on behalf of a vulnerable person might be concerned by the possible impact on the person of media coverage but that is a risk or prospect faced to a greater or lesser extent by all litigants. More to the point, the fact that the second plaintiff may be a vulnerable person is no bar to Mediahuis’s right to be heard. 51. The lynchpin of the plaintiffs’ submission in the High Court and on the appeal was the decision of the Supreme Court in D.F. v. The Commissioner of An Garda Síochána in which – as Nolan J. said – the Supreme Court found that s. 27 of the 2008 Act was an express legislative exception to the general rule of a full open hearing as contemplated by Article 34.1 of the Constitution, in that it provided for a limited departure from a full open hearing, provided that the particular terms of the section were judicially adjudicated to have been met. 52. The High Court judge, as he was invited to do by counsel for the plaintiffs, picked up the ball and ran with it. He had – he said – no idea what the medical condition was, but it was clear from the correspondence that the second plaintiff was a vulnerable person. Neither – said the judge – did he know what the litigation was about. He was obviously underwhelmed by the form of the notice of motion, rejecting – quite rightly, as is now accepted by Mediahuis – the proposition however unwittingly conveyed by the notice of motion that Mediahuis had a role in determining whether the reporting restrictions were proportionate. 53. In the High Court, as on the appeal, counsel for the plaintiffs sought to make much of the fact that any trial of the action will be in public; that the continuation of the reporting restrictions can be revisited at that stage; and that in the meantime the order does not restrict any reporting of the administration of justice. These may or may not be important considerations to be taken into account by the High Court in determining whether the existing restrictions should be continued or varied but they do not, in my view, go to the core issue as to whether Mediahuis is entitled to ask the High Court to review its order. As matters stand, Mediahuis is enjoined by a High Court order from knowing what it otherwise would know and from doing what it otherwise might have done and is entitled to ask that the order of 22nd May, 2023 should be revisited. 54. Counsel for the plaintiff also sought to dismiss the impact of so much of the order as directed that the proceedings be hidden from public viewing on the Courts Service website by suggesting that any court listings could be seen in anonymised form in the Legal Diary. Whether that part of the order ought to be continued or varied will also be a matter for the High Court, but I am bound to say that I am not immediately convinced that the ability of Mediahuis to trawl through the Legal Diary is any substitute for the availability to it – at the push of a button – of the information which is generally publicly available by using the High Court Search facility on the Courts Service website. 55. Whatever the practical effect of the order on Mediahuis, and irrespective whether it could have tracked the case otherwise that in the way it ordinarily would have been able to do, the order of 22nd May, 2022 was an order which affected Mediahuis which was made on an application to which it was not party. On the well-established authority of Voluntary Purchasing and Independent Newspapers (Ireland) v. IA, Mediahuis was entitled to ask that the making of the order be reviewed. Conclusions and form of order 56. For the reasons given, I would allow the appeal on the first ground: that the High Court erred in law in failing to recognise that Mediahuis, as a person affected by an order made on an ex parte basis, was entitled to question whether it had properly been made. 57. In principle, on an application to set aside an order obtained on an ex parte application, the onus is on the person who obtained the order to justify the making of the order. 58. While, for the reasons given, I have found that Mediahuis did not on the appeal seek to advance a substantially different case to that made below, it did retreat from the position apparently adopted by the notice of motion that it was entitled to an order that the plaintiffs should disclose to it the pleadings and proceedings sufficient to establish the evidential basis for the plaintiffs’ application to the High Court. 59. The relevant orders sought in the event that the appeal were to succeed were an order declaring that Mediahuis has standing to be heard in relation to the restrictions and additional restrictions (the restrictions being those imposed by the order of 22nd May, 2023 and the additional restrictions being the anonymisation of the nature of the organisation by the order of 31st July, 2025); an order directing the High Court to consider the merits of the restrictions and additional restrictions on notice to the plaintiffs; and an order declaring that Mediahuis is entitled to receive sufficient information as to the evidential basis for the restrictions and additional restrictions. The High Court judge, having declined, as he put it, to double guess the order of 22nd May, 2023, did not engage with the question of what information might be required in order to allow Mediahuis to engage meaningfully with the making or continuation or, possibly, variation of the order of Ferriter J. 60. This Court having found that the High Court judge erred in failing to find that Mediahuis had sufficient standing, there is no need for a declaration to that effect. Similarly, there is no need for an order directing the High Court to consider the merits of the restrictions and additional restrictions. The right of Mediahuis to be heard in relation to the restrictions would be illusory unless it is a right to be heard meaningfully with the making and continuation of the restrictions but without any evidence or understanding of the underlying proceedings or – beyond what is recited in the order of 22nd May, 2023 – the basis on which it was made, I am reluctant to trespass upon the discretion of the High Court judge by whom the application is to be decided as to how that is to be achieved. 61. I propose that the appropriate order is to simply allow the appeal and remit the motion to the High Court for re-hearing by such judge as may be assigned by the President, or by the judge in charge of whatever list the proceedings are in. 62. I would encourage the parties to engage within two weeks of the electronic delivery of this judgment as to the final form of order and the costs of the hearing in the High Court and of the appeal. If necessary, the appeal will be listed for mention at a convenient time for submissions as to the final form of order and as to the appropriate order as to the costs of the hearing in the High Court and of the appeal. 63. As this judgment is being delivered electronically, Whelan and McDonald JJ. have authorised me to say that they agree with it and with the order proposed.