Er Travel Ltd v Dublin Airport Authority AKA DAA Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Max Barrett
• Judgment Date: 18 February 2020
• Neutral Citation: [2020] IEHC 62
• Docket Number: [2019 No. 2944 P]
• Court: High Court
• Date: 18 February 2020

BETWEEN

ER TRAVEL LIMITED

PLAINTIFF

– AND –

DUBLIN AIRPORT AUTHORITY AKA DAA PLC

DEFENDANT

[2020] IEHC 62

Max Barrett J.

[2019 No. 2944 P]

THE HIGH COURT

Security for costs – Declaratory relief – Breach of bye-laws – Defendant seeking security for costs – Whether there were specific circumstances which ought to cause the court to exercise its discretion not to make the order sought

Facts: Issues arose between the plaintiff, ER Travel Ltd, and the defendant, Dublin Airport Authority (DAA), in 2015/2016, after it came to the attention of the DAA that ER was sending shuttle buses to Dublin Airport to collect ER’s customers and transfer them to ER’s off-Airport car park. The DAA considered that this constituted a breach of its bye-laws which provide that permission is required from the DAA to conduct business activities at Dublin Airport. There was a dispute between the parties between March 2016 and April 2019. In April 2019, ER issued proceedings seeking declaratory relief. The DAA applied to the High Court for security for costs pursuant to s. 52 of the Companies Act 2014 in relation to its defence of the proceedings. ER claimed that there were specific circumstances which ought to cause the court to exercise its discretion not to make the order sought. ER maintained that, if it was successful in these proceedings, this would rebound to the benefit of consumers who would then be able to avail freely of cheaper online/off-Airport car rental facilities. A second specific circumstance raised by ER concerned the conduct of the DAA: (A) the DAA initially sought, and could continue to seek, to prosecute ER for breach of its bye-laws and its ‘failure’ to pursue this prosecution meant that issues which ER had sought to agitate in the proceedings could have been agitated at a much lower cost in the District Court; (B) a third-party licensed bus provider had been found to transfer ER customers from the airport, ER had sought confirmation from the DAA that the DAA considered this to be compliant with Dublin Airport bye-laws and no confirmation had been forthcoming.

Held by Barrett J that (a) these were proceedings brought by ER at its election and for its private benefit, (b) many cases brought out of self-interest can yield a more general benefit depending on how they are decided but not all (in truth, few) such cases thereby come within the categories of case contemplated by Charleton J in Oltech (Systems) Ltd v Olivetti UK Ltd [2012] 3 1R 396, and (c) the court did not see that the potential provision of cheaper car rental facilities to those travelling to Dublin Airport could be described properly as involving a point of fact of national importance or a concern of great public moment. Barrett J held that, as to (A), this was a novel contention and presents with numerous difficulties, viz. (a) ER had freely elected to bring these proceedings and to make what were serious allegations, (b) there was no sense in which ER had been ‘forced’ to bring the proceedings, e.g., the imposition of any fixed penalty notices could be challenged in the District Court, actions of the airport police are open to judicial review, (c) the District Court had no power to decide whether the impugned bye-laws are ultra vires or not, and (d) the competition law dimension of these proceedings (which was being assiduously pursued by ER) could not be determined by the District Court. Barrett J held that, as to (B), whether ER considered that its arrangement with the licensed bus provider worked for ER and was compliant with applicable law was a matter for ER to decide for itself in the first instance and the making of such decision was not something that could be outsourced to, or offloaded upon, a State or semi-State body; whether any illegality arose could be tested in a suitable forum when and if alleged.

As to the quantum of security to be ordered, the court noted the binding judgment of Costello J for the Court of Appeal in Hedgecroft Ltd t/a Beary Capital Partners v Htremfta Ltd [2018] IECA 364 and was mindful of the need touched upon, by reference to earlier case-law, in Thalle v Soares [1957] IR 182, that an order for security for costs should not be an indemnity against all costs nor an encouragement to luxurious litigation. The court had been furnished with unchallenged affidavit evidence from a legal costs accountant that sought to estimate the DAA’s costs if the proceedings went to full hearing, which estimate came to the sum...