Background
This judgment addresses the timing and execution of costs awards in the Court of Appeal, not the merits of the underlying defamation case. The plaintiffs, Declan Ganley and Rivada Networks, sued CNN entities for defamation. The defendants filed two interlocutory appeals in the High Court: first, to set aside service of the summons on forum non conveniens grounds (arguing the U.S., where CNN is based, is the appropriate jurisdiction), and second, by CNN International and Turner Broadcasting to dismiss the case for failure to state a cause of action. The High Court refused both applications.
On 13 March 2026, the Court of Appeal upheld the High Court’s decisions and dismissed both appeals ([2026] IECA 33). The Court found the plaintiffs presumptively entitled to their costs of both appeals. The defendants did not resist this entitlement but sought a stay (delay) on execution of the costs orders pending conclusion of the substantive proceedings, arguing that future interlocutory applications might result in costs awards favouring the defendants, which could then be netted against amounts owed to the plaintiffs.
The Court’s Holding
Justice McDonald, for the Court (with Justices Faherty and Butler concurring), refused the stay. The Court held that the burden rests on the party seeking a stay to establish, on the balance of probabilities, that it is in the interests of justice to grant one. Following the precedent in Keena v. Promontoria [2023] IECA 319, the Court distinguished between High Court practice—where stays on interlocutory costs are often granted to allow set-off at trial—and Court of Appeal practice, where a stricter standard applies. The mere possibility of future cost awards in the defendants’ favour is insufficient to justify a stay in the appellate context.
The Court found no material risk of injustice to the defendants. Both parties are financially solvent and of considerable means; there is no risk of insolvency preventing recovery if the defendants ultimately succeed on costs. The defendants identified no concrete impediment to recovery, only “routine inconvenience” of having to pay a costs order that may later be offset. The Court emphasised that impecuniosity of the successful party or some other substantial risk of injustice must be demonstrated; procedural uncertainty alone does not suffice. The Court made clear this principle is confined to appellate costs and does not affect High Court practice on interlocutory costs.
Key Takeaways
- Unsuccessful appellants must pay costs immediately in the Court of Appeal; the possibility of future set-offs does not justify a stay unless there is material risk of injustice (e.g., impecuniosity of the successful party).
- A fundamental distinction exists between High Court and Court of Appeal practice: the High Court may stay interlocutory costs to enable set-off, but the Court of Appeal applies a more stringent test requiring concrete grounds beyond procedural uncertainty.
- Financial strength and solvency of the successful party negate the argument for a stay, as there is no risk of non-recovery in the event the unsuccessful party later obtains costs awards in their favour.
- The burden of proof rests squarely on the party seeking a stay to establish that justice requires it.
Why It Matters
This judgment reinforces that cost awards in the Court of Appeal are enforceable promptly and are not routinely suspended pending the outcome of proceedings below. While the underlying defamation case between Ganley and CNN remains ongoing in the High Court, the appellate costs must be paid now. The decision prevents well-resourced parties from using procedural uncertainty to defer payment of validly awarded costs and protects successful appellants from bearing the financial burden of delayed reimbursement.
The ruling clarifies the respective roles of High Court judges (who retain discretion to stay interlocutory costs for set-off purposes) and the Court of Appeal (which applies a higher threshold requiring demonstrated injustice). This is significant for Irish civil litigation practice, particularly in commercial and defamation disputes where multiple interlocutory applications are foreseeable and where parties seek to manage cash flow through cost orders across the litigation lifecycle.