Aer Rianta cpt v Ryanair Ltd (No 1)

• Jurisdiction: Ireland
• Judgment Date: 13 November 2001
• Date: 13 November 2001
• Docket Number: [S.C.
• Court: Supreme Court

Aer Rianta c.p.t. v. Ryanair Ltd

Aer Rianta c.p.t.

Plaintiff

and

Ryanair Ltd.

Defendant

[S.C. No. 6 of 2001]

Supreme Court

Practice and procedure - Summary judgment - Leave to defend - Bona fide defence - Test applicable - Credibility of defendant's evidence in issue - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 37, r. 7.

The plaintiff brought a motion for summary judgment against the defendant for monies due in respect of landing charges and other fees at Dublin Airport. The plaintiff claimed that the monies were due under a discount scheme operated by the plaintiff. The defendant contended that the scheme had been varied as a result of oral discussions between the parties, or alternatively that the said discussions gave rise to an estoppel against the plaintiff.

The High Court (Kelly J.) held that the defendant had not demonstrated that there was a fair or reasonable probability of it having a real orbona fide defence, and therefore granted the plaintiff liberty to enter summary judgment. The defendant appealed to the Supreme Court.

Held by the Supreme Court (Denham, McGuinness and Hardiman JJ.), in allowing the appeal and remitting the matter to plenary hearing, 1, that the defendant's hurdle on a motion such as this was a low one and the jurisdiction to grant summary judgment was one to be used with great care.

2. That it was for the court to decide whether the defence set out in the affidavits together with the documents exhibited therewith, was credible, or in other words, whether there was a fair or reasonable probability of the defendant having a real or bona fide defence. In deciding whether the defendant had a credible defence, the court had to concentrate its attention on the matters put forward in the defence itself.

National Westminister Bank plc. v. Daniel [1993] 1 W.L.R. 1453 followed.

3. That the fair and reasonable probability of the defendant having a real or bona fide defence, was not the same thing as a defence which would probably succeed, or even a defence whose success was not improbable.

First National Commercial Bank plc. v. Anglin [1996] 1 I.R. 75 considered.

4. That the fundamental questions to be posed on an application such as this remained: Was it very clear that the defendant had no case? Was there either no issue to be tried or only issues which were simple and easily determined? Did the defendant's affidavits fail to disclose even an arguable defence?

Crawford v. Gillmor (1891) 30 L.R. Ir. 238 followed.

Cases mentioned in this report:-

A.C.C. Bank plc. v. Malocco [2000] 3 I.R. 191.

Bank of Ireland v. Educational Building Society [1999] 1 I.R. 220.

Banque de Paris v. de Naray [1984] 1 Lloyd's Rep. 21.

Crawford v. Gillmor (1891) 30 L.R. Ir. 238.

First National Commercial Bank plc. v. Anglin [1996] 1 I.R. 75.

Irish Dunlop Co. Ltd. v. Ralph (1958) 95 I.L.T.R. 70.

National Westminister Bank plc. v. Daniel [1993] 1 W.L.R. 1453; [1994] 1 All E.R. 156.

Prendergast v. Biddle (Unreported, Supreme Court, 31st July, 1957).

Sheppards & Co. v. Wilkinson & Jarvis (1889) 6 T.L.R. 13.

Standard Chartered Bank v. Yaacoub (Unreported, Court of Criminal Appeal (Civil Division), 3rd August, 1990).

Appeal from the High Court.

The facts have been summarised in the headnote and are more fully set out in the judgments of McGuinness and Hardiman JJ., infra.

By notice of appeal dated the 8th January, 1999, the defendant appealed against the judgment and order of the High Court (Kelly J.) delivered on the 5th December, 2000, whereby the High Court granted the plaintiff liberty to enter final judgment.

The appeal was heard by the Supreme Court (Denham, McGuinness and Hardiman JJ.) on the 18th October, 2001.

Cur. adv. vult.

Denham J. 13th November, 2001

I agree with the judgments to be delivered by McGuinness and Hardiman JJ.

McGuinness J.

This is an appeal against the order of Kelly J. made in the High Court on the 5th December, 2000, whereby he granted summary judgment in favour of the plaintiff. The proceedings arose out of a disputed claim for the balance allegedly due by the defendant to the plaintiff in respect of landing charges and passenger load charges at Dublin Airport. The proceedings were heard by way of notice of motion grounded on the affidavits of the parties on the 28th and 29th November, 2000. The learned judge, having reserved his judgment, gave judgment on the 5th December, 2000 and made an order that the plaintiff should recover from the defendant the sum of £356,777.00 together with interest in the sum of £76,963.00, making in total the sum of £433,740.00. The plaintiff was also granted the costs of the proceedings.

Landing charges and passenger load fees are payable by airlines using the facilities of airports, including Dublin Airport, operated by the plaintiff. Pursuant to the provisions of s. 39 of the Air Navigation and Transport (Amendment) Act, 1998, the plaintiff is entitled to recover these charges as a simple contract debt.

The factual background to the proceedings is set out in summary by the trial judge in his judgment as follows:-

"For some years now the plaintiff has operated a discount scheme in respect of these charges. These are given under traffic growth incentives and the discounts allowable are very large, sometimes as much as 90% or even 100%. These schemes were first introduced in 1994. The terms of the scheme involved in this action were set forth in a letter dated the 16th January, 1997, and sent to all relevant airlines. The scheme has a term of five years and was notified to all of the plaintiff's scheduled airline customers.

A dispute arose between the plaintiff and the defendant as to the operation of the scheme in question. In accordance with the terms of that scheme the dispute was referred to the Department of Public Enterprise. Whilst the scheme provides that the decision of that Department is final and binding it does not exclude the right of either party to have recourse to the courts. Indeed, even though the plaintiff contends that it was successful before the Department it does not seek in any way to argue that the view of the Department is binding on this court and still less summarily enforceable by it. I will ignore the views of the Department for the purposes of this motion.

It is accepted by counsel for the defendant that in essence this is a single issue case. The defence which is proffered through the mouth of the defendant's chief executive Mr. Michael O'Leary on affidavit is that there were discussions between him and a Mr. Brian J. Byrne of the plaintiff which resulted in either (a) a variation to the scheme for the benefit of the defendant or (b) a collateral contract which gave the defendant additional advantages under the scheme. It is said that in bringing this action account has not been taken of either of these matters. A third proposition is also made. It is said that the plaintiff is estopped from pursuing this action successfully by reason of a promissory estoppel arising from representations made by Mr. Byrne.

The plaintiff denies in categoric terms that there was or indeed ever could have been such a variation as is alleged without specific board approval on the part of the plaintiff which was never given. The plaintiff contends that this line of defence is, on the evidence adduced, not credible and/or that there is no fair or reasonable probability of the defendant having a real or bona fide defence."

The proceedings were commenced by the plaintiff in July, 1999, to recover sums which it claimed were due by the defendant in respect of landing charges and passenger load fees in respect of three routes operated by the defendant during 1997 and 1998, namely:-

• (a) Dublin-Paris-London;

• (b) Dublin-Brussels-London;

• (c) Dublin-Bristol-London.

In November, 1999, the defendant paid an agreed sum in respect of the landing charges and passenger load fees for the Dublin-Bristol-London route, with the result that in the proceedings before the High Court and in the present appeal only the charges for the Paris and Brussels routes were in question.

In his judgment the trial judge referred to the matters set out in the affidavits of the defendant's chief executive Mr. O'Leary. He then analysed a number of items of correspondence between Mr. O'Leary and Mr. Byrne of the plaintiff, exchanged during the period February to March, 1997. I shall refer to this correspondence later. The learned trial judge concluded, in the main on the basis of the exhibited documents, that the defendant had not satisfied him that there was a fair or reasonable probability of it having a real or bona fide defence and he therefore held that the plaintiff was entitled to summary judgment.

The defendant has appealed against this decision. In the defendant's notice of appeal it seeks that in lieu of the judgment and order of the High Court, this court should make an order granting to the defendant leave to defend the plaintiff's summary proceedings and that those proceedings should be remitted for plenary hearing before the High Court as if the proceedings had been originated by plenary summons.

Ten grounds of appeal are set out in the notice. Of these, the most relevant to the written and oral submissions made by counsel to this court are as follows:-

"(d) The learned trial judge erred in law and in fact in failing to look at the whole situation, as disclosed by the entirety of the affidavits and exhibits, to determine whether the defendant had satisfied the court that there was a fair or reasonable probability of the defendant having a real or bona fide defence.

(e) The learned trial judge erred in law and in fact in failing to give appropriate evidential weight to the existence of written documents consistent with the defendant's defence to the plaintiff's proceedings, and the failure of the plaintiff to deny that certain specified oral variations operated in the past.

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