2026 IECA 74

COURT OF APPEAL CIVIL [approved] [no redaction needed] [2019 No.7009 P] [2025 No. 159] Neutral Citation Number: [2026] IECA 74 The President Binchy J O’Moore J BETWEEN JAMES GUERIN PLAINTIFF/RESPONDENT AND GEMMA O’DOHERTY DEFENDANT/APPELLANT JUDGMENT of Ms Justice Costello delivered on the 5th day of May 2026

1. The defendant’s appeal against the Order of the High Court refusing to dismiss the proceedings pursuant to O.19 r.28 of the Rules of the Superior Courts or, in the alternative, the inherent jurisdiction of the court was rejected by the Court in its judgment of 26 March
2. The Court indicated that its preliminary view was that the plaintiff had been entirely successful in the appeal and so should be entitled to the costs of the appeal. The defendant was given liberty to deliver submissions to argue for a different order as to costs.
3. The defendant delivered her submissions on 8 April 2026 and the plaintiff delivered his responding submissions on 20 April
4. The Court has reviewed the submissions and is in a position to deliver its decision without convening a further oral hearing.
5. The defendant’s submissions essentially repeat her arguments on the appeal. These arguments are not relevant to the question of the award of the costs of the appeal. The award of costs of a proceeding is based on the judgment delivered by the Court: it is not an occasion to revisit the substance of the argument decided by the judgment. The decision on the costs of a matter cannot be based on a contention that the Court erred in its judgment. Neither is it appropriate to engage in ad hominem attacks on counsel or the Court.
6. The defendant does not ask the Court to make an order for costs different to the indicative order set out in the Court’s judgment but, having indicated her intention to appeal the decision to the Supreme Court “and Europe”, merely asks “that a stay be put on all costs orders until the conclusion of the Appeal process and any future trial”. It is thus to be inferred that she does not contend that the Court should not award the plaintiff his costs.
7. I am satisfied that the plaintiff is entitled to the costs of the appeal to be adjudicated in default of agreement. He was “entirely successful” in the appeal, within the meaning of s.169 of the Legal Services Regulation Act 2015 and no reason why he should not be awarded his costs has been advanced.
8. The question then is whether there should be a stay on the order for costs. The appeal process has come to an end unless the Supreme Court grants the defendant leave to appeal, assuming that she brings an application for leave to appeal within time. It is to be borne in mind that the unsuccessful application was to dismiss defamation proceedings before a full trial, on grounds which fall to be decide by the jury. Issues of fact- in this case identification and whether the report at the heart of the proceedings was “fair and accurate” – will be determined by the jury. At the trial the defendant will be able to advance her arguments in full, and the issues of fact will be decided by the jury. Any questions of law will then be determined by the judge based upon the findings of the jury. In that context, I believe that any appeal which the defendant wishes to make against the decision of this Court on this appeal is unlikely to meet the threshold required under the constitution for leave to appeal to the Supreme Court to be granted.
9. Therefore this appeal is effectively the end of the appeal process in respect of this motion. It is not in my judgement an appropriate case in which to stay the order for costs pending a possible appeal to the Supreme Court.
10. The remaining question then is whether it is appropriate to stay the order for costs pending the determination of the proceedings so that, in the event that the defendant is successful, she may set off these costs against any future award of costs in her favour. In that regard it is important to note that the plaintiff has been endeavouring to expedite the retrial of these proceedings and it is the actions of the defendant which have prevented that retrial from occurring before now. It is to be hoped that the matter can soon be listed for trial in the jury list of the High Court. The risk to the defendant that the plaintiff may actually recover the costs of this appeal before the trial takes place will be slight if the defendant cooperates in the listing of the trial. This is especially so given the time adjudication of costs can take. I am therefore not satisfied that there is reality to the theoretical risk that the plaintiff might actually recover these costs from the defendant and that the defendant subsequently would not be able to recover in full any future award of costs in her favour and would be unable to set off these costs against those possible future costs.
11. For this reason, I would not stay the order for costs in favour of the plaintiff.
12. O’Moore and Binchy JJ. have authorised me to indicate their agreement with this judgment.