THE HIGH COURT has heard arguments on why a defamation action taken by Galway-based businessman Declan Ganley and his Rivada telecommunications firm should or should not be heard in the US rather than Ireland.

Ganley and US-based Rivada Networks Ltd are suing international news broadcaster CNN for defamation. Cable News International Ltd and Turner Broadcasting System Europe Ltd are also named defendants in the case.

It is alleged that in a broadcast on 20 October 2020, CNN suggested that the White House had pressured the Pentagon to award a no-bid, multi-million contract to Rivada Networks to build a 5G telecommunications network for the US Department of Defence.

The company made a proposal after the US Department of Defence made a competitive and open request for information relating to the project.

It is alleged that the publication wrongly meant that Ganley and Rivada had initiated a corrupt process to obtain the contract.

Ganley and the company say they are “completely innocent” of such a claim, and say the contents of the publication are “entirely unfounded”, are “grossly defamatory” of them, and have caused them reputational damage and loss.

They also claim that the publication was published with malicious intent, in pursuit of a political and commercial agenda of CNN’s owners AT&T.

Last year, CNN asked the High Court to put a stay on the Irish proceedings and determine that the US is the appropriate forum for hearing the case.

Ganley and Rivada opposed the application and said the case should remain in Ireland, stating that any claim in the US would be statute-barred because the limitation period for taking an action is one year after the publication of the alleged defamatory statement.

At a hearing in March last year, Mr Justice Garrett Simons told both parties that “on the current state of the evidence, it is simply not possible for this court to carry out the requisite assessment of, and comparison with, an alternative forum” where the case might be heard.

He said the principle covering the most appropriate forum to hear a case, known as ‘forum non conveniens’, required this.

‘Forum non conveniens’ allows a court the discretion to decline to exercise jurisdiction because the interests of justice are best served if a trial takes place in another court.

In his judgement, Mr Justice Simons asked both parties to provide evidence in respect of US law to support their respective cases. 

This morning, the High Court heard that two expert reports had been written on US law and how it differs from Irish law.

Eoin McCullough SC, for CNN, told the court that based on the expert reports, it appears likely that there is jurisdiction in the courts in District of Columbia (Washington DC) to hear the case, but that it’s “less clear” that there would be jurisdiction to hear the claims against the other named defendants in the matter.

“In my submission, that doesn’t matter,” he said, suggesting that there be “no tenable case against the other defendants”.

“They just had nothing to do with this broadcast at all,” he added, referring to Cable News International Ltd and Turner Broadcasting System Europe Ltd.

McCullough told the court that the reports suggest that the general outlines of the tort of defamation in the US are very similar to Irish law, but he cited some differences, such as the burden of proof.

He also told the court that one of the reports also makes the point “that litigation is expensive in the United States”, telling the court that the report cites a figure of as much as $6 million in cost to take the case in DC.

McCullough also raised the matter of the limitation period for the case. He said that both experts agreed that there is a limitation period of one year for the action whether it is taken in a federal court or a state court, and that both experts agreed that that can’t be extended.

He told the court that while there are differences in the law, “those differences are simply the sort of differences that one would expect from different jurisdictions”, with some advantages and disadvantages.

Concluding, McCullough referred to the motion papers in the case and read from a number of letters that were exchanged between the solicitors for both parties after the initial claim had been filed.

After reading from a letter from Ganley’s solicitors dated 17 November 2020, McCullough told the court that the point of jurisdiction in the case “is clearly understood by the plaintiff’s solicitors”, who he said “do not accept they do not have jurisdiction to bring the claim in Ireland”.

He also read a letter from CNN’s solicitors dated 24 November 2020, stating that the “jurisdiction issue is now very clearly raised”.

Mr Justice Garrett Simons asked McCullough when DC was first identified as an appropriate forum by his clients. McCullough said he was not sure, but that he believed it was in the motion that was filed in 2022.

Mr Justice Simons said that even then, DC was only named as one of a number of forums that could hear the case. 

McCullough said he did not think his clients identified DC as the specific forum at that point.

Mr Justice Simons asked: “Am I given an explanation as to why the motion wasn’t brought earlier?”.

Mark Harty SC, for Ganley and Rivada, said: “No.”

“You’ll have plenty of time, Mr Harty,” the judge responded.

McCullough told the court that he did not think the correspondence contained an explanation.

The judge asked if it was a further seven months after the memorandum of appearance was entered in May 2022 that the motion was issued. McCullough said that was correct.

He said that within the limitation period, “it was clear to the plaintiff at all stages that jurisdiction was being disputed”.

“But without a rival forum being identified?” Mr Justice Simons asked.

“Correct,” McCullough said, adding that he thought it was clear it was being said that the US was the appropriate jurisdiction. “If the court is saying there is no specific district identified, I accept that.”

The judge asked if there was an obligation on the defendants to identify a forum where the case might be heard, saying it might “seem harsh” to say that the plaintiff shouldn’t have issued proceedings in one place without identifying an alternative.

McCullough told the court that it was clear the plaintiff was being told “from the very beginning” that CNN operates in the US and that they were being told that Ireland was not the appropriate jurisdiction.

Mr Justice Simons said that if the defendants succeeded on the motion to have the case heard in the US, Ganley would not be able to continue with the case anywhere.

He told McCullough that he would have had “a stronger argument” had the solicitors written during the limitation period “that the strongest forum is DC and you need to issue proceedings there. That’s not done.”

Mark Harty SC, for Ganley and Rivada, told the court that McCullough “knows full well” that there is a “big difference” between jurisdiction and forum non conveniens.

“Mr McCullough is suggesting that jurisdiction was an issue and the forum non conveniens issue had been raised is simply not correct. Not once is it suggested that there are two jurisdictions and the most appropriate is America,” Harty said.

He said the other action in the case was that no “tort” – or civil wrong – had been committed in Ireland. “That is not the case, as he well knows,” he said.

He said the publication had occurred in this jurisdiction, and that the Irish court has jurisdiction to hear the matter. “Despite many letters suggesting otherwise, never once was it suggested that the US was the more appropriate jurisdiction.”

Harty said the defendants did not make a suggestion as to which US state was the most appropriate jurisdiction. He said there are 50 US States and “I did not know and could not be expected to know what the statute of limitations might be” in every state.

He said McCullough was now suggesting that that should have been put in the original affidavit, “which is somewhat preposterous”.

“The motion I came here to face on day one was to set aside service that the Irish courts had no jurisdiction. It became a motion for forum non conveniens,” he said.

Harty said the motion was issued in December 2021, “outside the limitation period”, saying that the affidavits were not exchanged until then.

“It’s simply not correct to ask this court to find that there had been discussion of jurisdiction prior to delivering affidavits. The court would be in serious error.”

“In this case, my client has said they’re suing for damage to reputation within Ireland on the basis of publication in Ireland. Jurisdiction is not an issue and threat of jurisdiction cannot be used to suggest argument as a forum non conveniens,” Harty said.

He said he accepts that there is an “evidential burden” on his client to establish there is an alternative forum which is more appropriate than Ireland and thus the natural forum for proceedings.

He said that Ganley is seeking to show that there was damage to his reputation in Ireland, and that McCullough “is saying that that can be done in a courtroom in Washington DC”.

“Mr McCullough hasn’t even met the first test, which is for publication in Ireland by CNN and damage to my client’s reputation in Ireland by CNN. He has to establish that DC is distinctly more appropriate than Ireland and that onus must rest with him.”

Harty said the $6 million figure contained in one of the expert reports that was cited by McCullough is only the costs for one party. “So the costs, in fact, are greatly in excess of that,” he said, adding that the court should have regard that this jurisdiction is “considerably cheaper”.

“Is there a more appropriate forum? I say no,” he said, adding that the “sheer expense” of running proceedings in the US makes it not an appropriate forum.

Mr Justice Simons said he would issue a judgement on the matter in February.

Contains reporting by Aodhan O Faolain