In Ganley & Rivada Networks Ltd v Cable News Network & Ors [2024] IEHC 140, Mr Justice Simons considered the principle of forum non conveniens in the context of an application to stay defamation proceedings.
The proceedings
The plaintiffs instituted proceedings before the Irish High Court (Court) for defamation arising out of a news story published by CNN in October 2020. The news story alleged that the US Department of Defence came under pressure from the Trump White House to award a lease of mid-band spectrum to an entity called 'Rivada'. The defendants maintain that Rivada refers to a US registered company known as Rivada Networks Inc. The plaintiffs, however, contend that the description refers to a wider group of companies including the second plaintiff which is an Irish-registered company. The plaintiffs also allege that the companies are identified with Mr Ganley, the first plaintiff, who is an Irish citizen and habitually resident in Ireland. The plaintiffs allege that the news story suggested they had engaged in corrupt or improper processes and sought to improperly influence the US government.
Forum Non Conveniens Application
The defendants brought an application before the Court to stay the defamation proceedings on the grounds of forum non conveniens. They argued that the events are connected to the USA, and therefore the defamation proceedings should have been instituted before the US courts. The plaintiffs resisted the application. They submitted that the claim for defamation in the USA would be statute-barred and the US defamation rules are less favourable to a plaintiff than those under Irish law.
Simons J noted that the Irish courts have an inherent jurisdiction to stay proceedings on the grounds of forum non conveniens. A court must assess whether there is an alternative forum, which is clearly or distinctly more appropriate than Ireland, before which the claim should be pursued. This assessment requires consideration of practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties.
Simons J emphasised however, that it is a condition precedent to such an assessment that the moving party nominate an alternative forum. The assessment cannot be carried out in the abstract. In this case, neither side had adduced any direct expert evidence in respect of the jurisdiction of the US courts to hear a defamation claim brought by an Irish citizen or Irish-domiciled company arising out of a publication within the Irish State.
Simons J also noted shortcomings in the evidence adduced by both sides concerning US law. While the plaintiffs contended that any proceedings in the USA would be statute-barred, it adduced no direct expert evidence in relation to this. Nor was the Court, in the absence of expert evidence, able to judge the plaintiffs' claims as to the supposed limitations in the remedies for defamation under US law.
Whilst it would be open to a court to refuse the application outright for lack of evidence, Simons J found that this would be unfair and disproportionate. Instead, he found that the interests of justice in the case demanded that both sides be allowed to "mend their hand" and file additional evidence in respect of US law.
Conclusion
The decision reflects the discretionary nature of forum non conveniens applications. For a court to properly adjudicate on such applications there must be evidence before it that another court has jurisdiction to hear the claim, and that it is the proper forum to hear the claim.
The parties were given six weeks to file their additional evidence, and it is due to return before Simons J in late April 2024.
Contributed by Aoife Garvey.
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