A High Court judge wants more evidence on why a defamation action by Galway-based businessman Declan Ganley and his US Rivada telecommunications firm should or should not be heard in the US rather than Ireland.
Mr Ganley and Rivada Networks Ltd are suing international news broadcaster CNN for defamation.
CNN last month asked the High Court to determine that the US is the appropriate forum for the hearing of the case because Rivada is American and the case has nothing to do with Ireland.
Mr Ganley opposed the application and said the case should remain in Ireland.
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The application was heard by Mr Justice Garrett Simons who, on Friday, ruled that on the current state of the evidence before him, it was simply not possible for the court to carry out the requisite assessment of, and comparison with, an alternative forum where the case might be heard.
The interests of justice dictated that each party should now be allowed to file such evidence in respect of foreign law as they wished, he said.
Atlanta-registered CNN is being sued over a report suggesting the Trump administration pressured the Department of Defense to award a multimillion contract without a competition for the lease of mid-band spectrum to an entity described in the news story as “Rivada”.
Mr Ganley and Rivada claim they were “maliciously” defamed in the story broadcast and published on the internet on October 20th, 2020.
Along with CNN, two associated companies, Cable News International (CNI) Ltd, and Turner Broadcasting System Europe Ltd, both London registered, are also being sued.
They deny defamation and claim the story is, in substance, true, and relates to a matter of public interest. This is a defence which they say is available in such cases both in Ireland and the US.
Mr Ganley and Rivada say any claim for defamation in the US would now be statute barred. They also say the rules in relation to defamation are less favourable to a plaintiff than those under domestic law.
Mr Justice Simons said the principle covering the most appropriate forum to hear a case – “forum non conveniens” as it is known – required an assessment of, and comparison with, an alternative forum.
He said it was not enough to say, for example, that most of the witnesses relevant to litigation, which has been brought before the Irish courts, resided in the foreign country. It must first be established that the courts of that country would have jurisdiction to entertain the type of claim which Mr Ganley and Rivada were pursuing before the Irish courts, he said.
To date, neither CNN nor Ganley’s side had adduced any direct expert evidence in relation to the jurisdiction of any court or tribunal within the US to entertain a claim, at the suit of an Irish citizen or an Irish-domiciled company, he said.
“This court cannot simply assume that such a claim would be entertained,” he said.
Whereas it might be legitimate to take judicial notice of the fact that a tort of defamation was recognised under the federal law of the US, the Irish court had no direct knowledge of the detail of such a tort, he said.
“It would not be fanciful to anticipate that there might be procedural and jurisdictional niceties which would present difficulties for foreign domiciles maintaining such a claim in respect of publication outside the USA,” he said.
The interests of justice dictated that each side should be given the opportunity to mend their hand so as to ensure that the court could make a fully informed decision on the question of appropriate forum, he said.
He gave directions on when submissions should be made on the matter and adjourned the case to next month.
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