Publication of a Known False Narrative to an Alleged Co‑Conspirator Is Not Defamatory: Strike‑Out Under Amended Order 19 Rule 28

Case: People Centre, INC [D/B/A Rippling] and Anor v O'Brien and Ors [No. 2] (Approved) [2026] IEHC 179
Court: High Court of Ireland (Commercial; Intellectual Property & Technology)
Judge: Sanfey J
Date: 20 March 2026

1. Introduction

This is the second judgment arising from a set of interlinked interlocutory applications in proceedings brought by People Centre, Inc (d/b/a Rippling) and Rippling Ireland Limited (together, “the plaintiffs”) against Keith O’Brien and others, including Deel Inc (“Deel”) and three “individual Deel defendants”.

The plaintiffs’ central narrative (pleaded as “the Scheme”) alleges that, following urgent ex parte orders made on 12 March 2025 aimed at preserving evidence, Mr O’Brien and the Deel defendants agreed to “shift the narrative” by promoting an allegedly false account that the plaintiffs were connected with sanctioned payments to Russia, including by causing statements to be made to the Central Bank of Ireland (“CBI”) framed as a “protected disclosure”.

Deel’s application in this judgment sought (ultimately) to strike out three paragraphs of the plaintiffs’ Amended Statement of Claim (“ASOC”)—paragraphs 30, 54, and 67—under Order 19, rules 27 and/or 28 of the Rules of the Superior Courts (as amended in 2023) and/or the inherent jurisdiction.

2. Summary of the Judgment

• Paragraph 30 (defamation): Struck out under Order 19, r.28(1)(iii) and (iv) as “bound to fail” / having “no reasonable chance of succeeding”. The Court held that where the pleaded case (as illuminated by context and affidavit material) is that the recipient (Mr O’Brien) was told the narrative was false and was participating in the alleged scheme, publication to him could not be defamatory within s.2 of the Defamation Act 2009.
• Paragraph 54 (context / “jus tertii” objection): Not struck out. The plaintiffs clarified it did not ground a standalone claim (e.g., for damage to solicitors’ reputations) but provided context relevant to the pleaded scheme and to the defamatory publication alleged at paragraph 55.
• Paragraph 67 (costs / Civil Liability Act issues): Not struck out. The Court refused to determine, on a strike-out motion, a contested and fact-sensitive question about recovery of pre-joinder costs and the interaction of settlement with alleged concurrent wrongdoers under the Civil Liability Act 1961 (as amended).

The decision therefore both (i) tightens the boundaries of defamation pleading where the only “publication” is to an alleged co-conspirator who knows the allegation is false, and (ii) illustrates the High Court’s caution against using strike-out procedure to decide non-straightforward legal issues, particularly where statutory apportionment/identification provisions may depend on trial findings.

3. Analysis

3.1 Precedents Cited

(a) Conlon v Times Newspapers Limited [1995] 2 ILRM 76

The plaintiffs relied on Conlon for the proposition that, at strike-out stage in defamation, the question is not whether words are in fact capable of the pleaded meaning, but whether it is arguable that they are capable of it; strike-out is appropriate only where the action is “clearly unsustainable”.

Sanfey J accepted the relevance of that threshold, expressly framing the operative inquiry as whether it was arguable that the paragraph 30 publication was defamatory. The judgment, however, demonstrates how Conlon does not immunise defamation pleadings from strike-out where the pleaded case (taken “at its height”) and the wider procedural record render defamation unarguable.

(b) O'Malley v National Standards Authority of Ireland [2024] IEHC 500

The Court used O’Malley in two ways:

• Procedural architecture: Simons J’s observation that the 2023 amendment to Order 19, r.28 “has the practical effect of eroding the previous distinction” between strike-out under the Rules and strike-out under inherent jurisdiction. This underpinned Sanfey J’s approach of locating the application primarily within Order 19, r.28(1), rather than treating inherent jurisdiction as a separate track.
• Limits of interlocutory disposal: O’Malley is later cited (through its adoption of Supreme Court authority) for the principle that only very straightforward legal issues should be resolved on such interlocutory procedures, and only where there is no risk of injustice.

(c) Jeffrey v Minister for Justice, Equality & Defence [2019] IESC 27

Sanfey J relied on Clarke CJ’s warning against deciding anything other than “simple and straightforward” issues of law in the confined setting of a strike-out-type application (here referenced as a “Barry v Buckley application”), unless there is “no risk of injustice”. This authority was central to the refusal to strike out paragraph 67: the Civil Liability Act point could not be characterised as straightforward or safely determinable without findings of fact.

(d) St Brigid's RFC v St Laurence O'Toole Diocesan Trust [2026] IEHC 103

This recent decision (Kennedy J) is cited as further confirmation—alongside O’Malley—that the Court should be slow to dispose of claims in limine where the legal issue is not clear-cut and where there is a risk of injustice. Its inclusion shows the consolidation of a consistent High Court approach to the “very straightforward/no injustice” standard when defendants attempt early termination by legal argument.

3.2 Legal Reasoning

(A) Paragraph 30: Defamation, “publication”, and knowledge of falsity by the recipient

Paragraph 30 attempted to treat an instruction to Mr O’Brien to “promote a false narrative” (about sanctioned Russian payments) as a separate defamatory publication to him bearing specified meanings. Deel argued that if Mr O’Brien was being told to push a narrative known to be false, the publication to him could not “tend to injure” the plaintiffs’ reputation “in the eyes of reasonable members of society” (s.2 Defamation Act 2009), because the recipient would not understand it as a true imputation about the plaintiffs but as a tactical falsehood.

Sanfey J accepted this proposition “in principle”: if the pleaded case is that the recipient was apprised the narrative was false, then, on that occasion of publication, the defendants were not communicating a defamatory imputation about the plaintiffs to the recipient; they were communicating a plan to deploy a false narrative elsewhere.

The plaintiffs attempted to keep paragraph 30 alive by arguing ambiguity—i.e., that “promote a false narrative” might mean the narrative was objectively false, not that its falsity was disclosed to Mr O’Brien. The Court’s key move was to interpret paragraph 30 in its pleaded and procedural context, not in isolation.

Although Order 19, r.28(3) expressly mentions affidavits filed “in support of, or in opposition to” the strike-out application, Sanfey J held the rule was not “exclusionary” and that ignoring plainly relevant affidavit material already before the Court in the closely connected applications would be “perverse and unjust”. This supported the conclusion that, on the plaintiffs’ own case, Mr O’Brien and the Deel defendants were alleged co-conspirators knowingly using falsehoods; therefore publication to him could not satisfy the s.2 reputational harm requirement.

The resulting order is narrowly framed: striking out paragraph 30 removes only that internal-to-conspirator defamation claim; it does not affect other defamation claims (e.g., alleged publications to third parties such as Bloomberg).

(B) Paragraph 54: Pleading discipline, “jus tertii”, and contextual allegations

Deel attacked paragraph 54 as (i) unclear (“these statements” not identified), and (ii) an impermissible jus tertii—invoking alleged damage to the professional reputations of Fenecas and A&L Goodbody, who were not parties.

The plaintiffs clarified that paragraph 54 did not ground a separate head of relief; it was pleaded as context for the alleged “scheme” and for the Bloomberg publication pleaded in the immediately following paragraphs.

Sanfey J accepted that, while Order 19, r.3 requires pleadings to contain only material facts (not evidence), Commercial Court practice often permits “proactive and informative pleadings” to reduce the need for extensive particulars. The Court treated paragraph 54 as contextual and potentially relevant to issues likely to be explored at trial; it was not “unnecessary” in the sense of being gratuitous or irrelevant. Any relevance objections could be dealt with by the trial judge.

(C) Paragraph 67: Costs, settlement with one defendant, and the Civil Liability Act 1961 (as amended)

Paragraph 67 pleaded an entitlement to have Deel pay “all the costs” on a “legal practitioner and client” basis, including (as later clarified by affidavit) costs incurred prior to Deel’s joinder, and notwithstanding a settlement/cooperation agreement with Mr O’Brien.

Deel’s strike-out submission was essentially a legal one: settlement with Mr O’Brien as a concurrent wrongdoer should, by operation of s.17(2) of the Civil Liability Act 1961 (as amended) (and related provisions), preclude recovery of those pre-joinder costs from Deel (or require reduction/identification in a way fatal to the pleaded claim).

Applying Jeffrey v Minister for Justice, Equality & Defence [2019] IESC 27 (as echoed in O'Malley v National Standards Authority of Ireland [2024] IEHC 500 and St Brigid's RFC v St Laurence O'Toole Diocesan Trust [2026] IEHC 103), Sanfey J refused to determine this at strike-out stage:

• the statutory interaction of s.17(2) and s.35(1)(h), and the relevance of s.34(1) (“just and equitable” reduction having regard to degrees of fault), was not “very straightforward”;
• the point could be fact-sensitive, depending on findings about the parties’ respective wrongdoing;
• the issue might not arise at all;
• there was a risk of injustice in striking out the plea now.

Importantly, the Court articulated a general cautionary statement: strike-out based on a legal error should be confined to “the clearest of cases” where the error is “patent, unarguable, and fatally undermines” the impugned claim.

3.3 Impact

(1) Defamation: internal “publication” to a knowing participant

The striking out of paragraph 30 underscores a practical limit on defamation claims: where the claimant’s own case is that the recipient was instructed to deploy a narrative known by both speaker and recipient to be false as part of a scheme, that internal communication is unlikely to meet the s.2 Defamation Act 2009 reputational harm test. This clarifies that “publication” in defamation is not merely a formalistic sending of words to another person; the reputational dimension turns on what is conveyed to that recipient “in the eyes of reasonable members of society”.

(2) Order 19 (as amended): consolidation and evidential pragmatism

The judgment reinforces the post-2023 procedural landscape: Order 19, r.28 is the principal vehicle for striking out claims/parts of claims on “bound to fail/no reasonable chance” grounds, with diminished need to invoke inherent jurisdiction separately (consistent with O'Malley v National Standards Authority of Ireland [2024] IEHC 500).

It also has practical significance for Commercial Court case management: the Court signalled that it may consider highly relevant affidavit material already properly before it in connected applications, even if not filed specifically for the motion at hand, where refusing to do so would be unjust. Parties should therefore assume that positions taken on affidavits in related interlocutory matters may shape the Court’s understanding of pleaded meaning and arguability.

(3) Pleadings: tolerance for contextual allegations, but with limits

The refusal to strike out paragraph 54 reflects a pragmatic Commercial Court approach: contextual pleading may be permitted where it clarifies the narrative and reduces the need for particulars, even if it does not itself ground a separate cause of action—provided it is not gratuitous, irrelevant, or unfairly prejudicial.

(4) Civil Liability Act issues: strike-out restraint where apportionment and “identification” may be fact-sensitive

The refusal to strike out paragraph 67 indicates that disputes about the consequences of settlement with one alleged wrongdoer—especially where questions of “just and equitable” reduction and statutory “identification” arise—will rarely be suitable for disposal on a strike-out motion unless the legal point is truly clear and dispositive on any view of the facts.

4. Complex Concepts Simplified

• Order 19, r.28 strike-out (“bound to fail/no reasonable chance”): A procedure allowing the Court to remove claims (or parts of claims) that cannot succeed even if the pleaded facts are assumed true, or that are legally untenable.
• “Arguability” in defamation strike-out: Following Conlon v Times Newspapers Limited [1995] 2 ILRM 76, the plaintiff need only show an arguable case that the words bear the defamatory meaning—unless the claim is clearly unsustainable.
• Defamation Act 2009, s.2 (“tends to injure reputation”): Defamation requires a reputational sting as perceived by reasonable members of society. If the recipient is told the allegation is false and understands it as such, reputational harm in that recipient’s eyes may be absent.
• Jus tertii: An attempt to rely on or vindicate the rights/reputations of a third party who is not a litigant. The Court treated paragraph 54 as context rather than a third-party claim.
• “Legal practitioner and client” costs: A costs basis more generous than party-and-party costs (akin to enhanced indemnity). The dispute here was not whether that basis exists, but whether “all” costs (including pre-joinder) could be recovered from Deel in light of settlement with another defendant.
• Concurrent wrongdoers / Civil Liability Act 1961 (as amended): Statutory rules govern how settlements with one wrongdoer affect claims against others (s.17), and how plaintiffs may be “identified” with settled wrongdoers for contributory negligence/apportionment purposes (s.35(1)(h)), in a framework where reductions may depend on what is “just and equitable” (s.34).

5. Conclusion

Sanfey J’s Judgment No. 2 delivers three practical messages. First, a defamation claim premised on a “publication” to an alleged co-conspirator who is said to know the allegation is false is vulnerable to strike-out: such a communication may lack the reputational harm required by s.2 of the Defamation Act 2009. Second, under the amended Order 19, r.28, the Court will assess arguability with a realistic appreciation of the overall record and may treat the rule on affidavit evidence as non-exclusionary where justice requires. Third, strike-out is not a surrogate trial of complex statutory questions—particularly under the Civil Liability Act 1961 (as amended)—unless the legal defect is patent and dispositive without factual findings.