ER Travel Ltd v Dublin Airport Authority AKA DAA Plc
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 04 December 2020 |
| Neutral Citation | [2020] IEHC 629 |
| Docket Number | [2019 No. 2944 P] |
| Court | High Court |
| Date | 04 December 2020 |
[2020] IEHC 629
Max Barrett
[2019 No. 2944 P]
THE HIGH COURT
Security of costs – Want of prosecution – Adjournment – Defendant seeking an order dismissing the plaintiff’s claim for want of prosecution on account of the failure by the plaintiff to provide security for costs – Whether the proceedings ought to be adjourned
Facts: The plaintiff, ER Travel Ltd (ER), issued proceedings in April 2019 seeking, inter alia, declarations that: (1) the defendant, Dublin Airport Authority (the DAA) has acted ultra vires and in breach of the airport bye-laws; (2) the DAA has acted ultra vires and/or deliberately and consciously in its own self-interest, contrary to law and/or disproportionately in making bye-laws which prohibit the use of Dublin Airport for, inter alia, business purposes; (3) the DAA is seeking to prevent, restrict or distort competition contrary to the Competition Act 2002, through its agreement/s with such car rental companies as are licensed to operate from Dublin Airport’s premises; (4) the DAA, in restricting or otherwise interfering with ER in seeking to enter, park on, and collect members of the public from Dublin Airport, is unlawfully abusing a dominant position in breach of the 2002 Act; and (5) the DAA is infringing the rights of passengers by restricting their use of Dublin Airport facilities, including the facility of being collected by third parties with whom such passengers wish to transact business other than on Dublin Airport lands. The DAA applied for security for costs pursuant to s. 52 of the Companies Act 2014 seeking that ER provide security for the costs of the DAA in relation to its defence of the proceedings. The High Court, in its judgment of 18th February 2020 ([2020] IEHC 62), ordered that ER pay security for costs of €170,000. However, the security for costs were not paid. The DAA therefore brought an application seeking, inter alia, the following reliefs: (a) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim for want of prosecution on account of the failure by the plaintiff to provide security for costs; (b) an order providing for the costs of and incidental to this application and, as necessary, the costs of these proceedings; and (c) such further or other orders, reliefs or directions as the Court deems fit.
Held by Barrett J that the Court would adjourn this application and these proceedings to a date in mid-to-late July 2021 that was amenable to the parties. Barrett J held that by that time, the 2021 trading performance of ER should be clear and the uncertainty about how 2021’s summer season would proceed should largely have been set to rest. The Court expected to be provided, by ER, at that next hearing, with: (a) a comprehensive “realistic programme” of the type contemplated by Keane C.J. in Superwood Holdings plc v Sun Alliance (No. 3) [2004] 2 I.R. 407; (b) ER’s annual accounts for 2020; (c) ER’s management accounts for 2021 (whether prepared monthly or otherwise); (d) if available by July 2021, ER’s half-yearly accounts for 2021.
Barrett J held that both parties have liberty to apply generally and, without prejudice to the generality of the foregoing, to have any motion heard on the adjournment date that they duly issue in advance of same.
Matter adjourned.
In its judgment of 18th February 2020 ( ER Travel Ltd. v. Dublin Airport Authority aka DAA plc [2020] IEHC 62), this Court ordered that ER pay security for costs of €170,000. The background to that judgment is captured in paras. 1-3 of same, which state, inter alia, as follows:
“1. ER Travel Ltd. (“ER”), an Irish-registered company, provides car rental services in Ireland. Car rental services at Dublin Airport typically operate as an on-Airport concession which is allocated by way of a competitive tendering process that is run by the DAA. ER's business model is different: it offers internet booking facilities to customers who are transferred, following their arrival at Dublin Airport, to an off-Airport parking area, culminating, ER claims, in a better-value car rental service.
2. Issues arose between ER and the DAA in 2015/2016, after it came to the attention of the DAA that ER was sending shuttle buses to the 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 an ongoing dispute between the parties between March 2016 and April 2019. In April 2019, ER issued proceedings seeking, inter alia, declarations that: - (1) the DAA has acted ultra vires and in breach of the airport bye-laws; (2) the DAA has acted ultra vires and/or deliberately and consciously in its own self-interest, contrary to law and/or disproportionately in making bye-laws which prohibit the use of Dublin Airport for, inter alia, business purposes; (3) the DAA is seeking to prevent, restrict or distort competition contrary to the Competition Act 2002, through its agreement/s with such car rental companies as are licensed to operate from Dublin Airport's premises; (4) the DAA, in restricting or otherwise interfering with ER in seeking to enter, park on, and collect members of the public from Dublin Airport, is unlawfully abusing a dominant position in breach of the Competition Act 2002; and (5) the DAA is infringing the rights of passengers by restricting their use of Dublin Airport facilities, including the facility of being collected by third parties with whom such passengers wish to transact business other than on Dublin Airport lands.
3. This judgment is concerned with an application for security for costs brought by the DAA pursuant to s.52 of the Companies Act 2014 seeking that ER provide security for the costs of the DAA in relation to its defence of the within proceedings…”
DAA was successful in the last-mentioned application. However, the security for costs has not yet been paid. DAA has therefore brought the within application seeking, inter alia, the following reliefs:
“(a) an Order pursuant to the inherent jurisdiction of the Court dismissing the Plaintiff's claim for want of prosecution on account of the failure by the Plaintiff to provide security for costs;
(b) an Order providing for the costs of and incidental to this application and, as necessary, the costs of these proceedings; and
(c) such further or other orders, reliefs or directions as this Honourable Court deems fit.”
This application occurs in the context of the Coronavirus pandemic which, as of the date on which this application was heard, has seen over 13 million Coronavirus cases and, tragically, over 325,000 fatal Coronavirus cases reported in the EU/EEA and the UK (https://www.ecdc.europa.eu/en/cases-2019-ncov-eueea; accessed 1 December 2020). In scenes that were unimaginable a year ago, almost all of the western nations have gone into lockdown for one or more periods during this year in a bid to curb the spread of the virus. At the time of writing, the tantalising prospect of imminent mass vaccination offers the hope of a return to some semblance of normality in the, hopefully, not-too-distant future. However, the economic cost of the pandemic will be with us for some time to come.
Almost all sectors of the economy have been adversely affected by the Coronavirus pandemic, perhaps none more than the international travel sector in which ER operates, its managing director averring, inter alia, as follows, in this regard:
“5…. [T]he Plaintiff, together with every other company that relies upon the hospitality and travel industry, is on its collective knees. The Plaintiff is no different and is essentially in deep-freeze in the hope that it can ride out the devastation to its business.
[Court Note: The court notes in passing that ER's business model is geared towards the more budget end of travel, e.g., the kind of traveller who hails from one EU Member State, wishes to spend a weekend in another EU Member State and wants to do so on a ‘shoestring’ budget; the isolation/quarantine periods that currently attach to much Europe-wide travel have essentially brought this form of travel to an end for now.]
6. I say the Plaintiff is desirous to continue to prosecute the action and fully intends to lodge the security for costs. However, the plaintiff seeks the indulgence of this Honourable Court in the context of the current pandemic, the current devastation to the Plaintiff's business and the expected recovery of the plaintiff….
8. I respectfully request this Honourable Court to exercise its discretion to refuse the terms of the motion or, in the alternative, to adjourn the Motion generally with liberty to re-enter at a time when the Plaintiff will have had some opportunity to recover from the blows inflicted upon it by the effective shut-down of the air travel industry.”
Complaint is made by the DAA that the foregoing is very general and involves the making of broad assertions without any supporting exhibits. It is quite general. However, the court accepts the contention made by ER that its trade has essentially ceased at this time and that it cannot identify with specificity how its trade will progress in the next few months,...
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