Ryanair Holdings PLC -v- Irish Financial Services Regulatory Authority, [2008] IEHC 231 (2008)

Docket Number:2008 49 JR
Party Name:Ryanair Holdings PLC, Irish Financial Services Regulatory Authority
Judge:Kelly J.
 
FREE EXCERPT

THE HIGH COURT

COMMERCIAL 2008 No. 49 J.R.BETWEENRYANAIR HOLDINGS PLCAPPLICANTAND

IRISH FINANCIAL SERVICES REGULATORY AUTHORITY RESPONDENTAND

BY ORDER OF THE COURT

AER LINGUS PLCNOTICE PARTYJUDGMENT of Mr. Justice Kelly delivered the 10th day of July, 2008

Introduction

The applicant (Ryanair) is seeking an order of mandamus to compel the respondent to investigate a complaint made to it by Ryanair on the 21st August, 2007. It also seeks to compel the making public of the findings of that investigation. Alternatively, mandamus is sought to compel the respondent to decide whether it is going to investigate the matter or not and to give reasons for its decision.

This is my judgment on certain preliminary issues of law which Ryanair accepts, if answered in a manner adverse to it, must result in these proceedings being dismissed in limine.

Background

Ryanair is the largest shareholder in the notice party (Aer Lingus). It holds approximately 29% of the issued share capital of Aer Lingus. The Minister for Transport on behalf of the Irish Government holds 25% of the issued share capital in Aer Lingus. The Minister is the second largest shareholder.

On the 7th August, 2007 Aer Lingus announced that it was setting up a new base at Belfast International Airport and that it would begin services between that airport and London Heathrow. In order to operate that new route, Aer Lingus announced its decision to transfer its Heathrow slots from Shannon to Belfast, thereby closing the Shannon-Heathrow route.

That decision gave rise to a good deal of controversy. One of the issues in that controversy concerned the date when the government first became aware that the slots were going to be transferred from Shannon.

Ryanair contends that in an interview which was given by the Chief Executive of Aer Lingus to RTE on the 12th August, 2007 he said that the Minister had been informed of the Aer Lingus decision to close its Shannon Heathrow route on the 3rd August, 2007.

Ryanair takes the view that if Aer Lingus informed one large shareholder of such a matter ahead of other shareholders and indeed the public, it did so in breach of the Market Abuse (Directive 2003/6/EC) Regulations 2005 (the Regulations) and the Market Abuse Rules (the Rules).

On the 21st August, 2007 Ryanair (through its solicitors) wrote to the respondent calling on it to conduct an investigation into the matter.

After that initial letter was written Ryanair says that it became aware that Aer Lingus had in fact informed the Minister of its decision as far back as the 13th June, 2007. Thus, it wrote again to the respondent on the 19th October, 2007 calling upon it to investigate the matter.

On the 22nd October, 2007 the respondent replied in the following terms:-"The Financial Regulator investigates possible breaches of Market Abuse law uncovered by us or brought to our attention, subject only to the efficient and effective use of our resources. In the event that a company investigated is found by an Administrative Sanctions Inquiry to have committed a breach of a regulatory requirement a public statement is made of the outcome of the process. You should note, however, that it is not our policy to brief those who bring matters to our attention of the outcome of investigations directly. Notwithstanding that, I would like to thank you for drawing these matters to our attention and for the supporting documentation, which you have forwarded to us." On the 30th October, 2007, Ryanair's solicitors replied to the respondent's letter and asked for confirmation that it was conducting an investigation into the complaint.

Ryanair's solicitors wrote a further letter on the 8th November, 2007 which again asked the respondent to make a decision as to whether it was going to investigate Ryanair's complaint.

This was responded to on the 9th November, 2007 when the respondent indicated that its position was as stated in its letter of the 22nd October, 2007.

On the 13th November, 2007 the respondent again wrote to Ryanair's solicitors. That letter reiterated the contents of the two previous letters of the 22nd October and 9th November, 2007 respectively. The letter went on:-"For the avoidance of doubt and as previously indicated to you, the Financial Regulator is statutorily prohibited from disclosing confidential information to you or your client pursuant to Section 33AK of the Central Bank Act 1942 (other than provided for in part 5 of the Market Abuse Regulations 2005). Breach of the Financial Regulator's obligations in this regard would constitute a criminal offence.

Should your client choose to initiate legal proceedings against the Financial Regulator, the Financial Regulator shall draw the courts attention to this correspondence and to previous correspondence in relation to the issue of costs." On the 21st November, 2007, Ryanair's solicitors wrote to the respondent pointing out that it had not asked it to disclose confidential information. Rather, it had asked the respondent to make a decision on whether or not to investigate the complaint and to communicate the basis for such decision to Ryanair. This letter threatened judicial review proceedings without further notice.

The following day the respondent replied reiterating its position as set out in its letters of the 13th November, 2007 and its two previous letters of the 9th November, 2007 and 22nd October, 2007.

A further letter was sent by the respondent reiterating its earlier stance but indicating that if there was a desire to discuss the matter, personnel of the respondent would be happy to do so. In the event no such meeting took place.

On the 21st January, 2008, Peart J. granted leave ex parte to Ryanair to judicially review the respondent.

The Reliefs Claimed

The following are the reliefs in respect of which Peart J. gave leave to apply:-"1. An order of mandamus requiring the respondent to investigate the complaint made by Ryanair initially on the 21st August, 2007.

  1. An order of mandamus requiring the respondent to make public the findings of its investigation.

  2. Further and in the alternative an order of mandamus requiring the respondent to make a decision as to whether it is going to investigate the complaint made by Ryanair on 21 August, 2007.

  3. Further and in the alternative an order of mandamus requiring the respondent to give reasons for its decision not to investigate the complaint made by Ryanair on 21 August, 2007.

  4. A declaration that the respondent is in breach of its obligations under section 10(1) of the Market Abuse (Directive 2003/06/EC) Regulations.

  5. Further or other reliefs"Procedural History

    On the 18th February, 2008 on the application of the respondent, I made an order transferring the case to the Commercial List. On that occasion Aer Lingus applied to be joined as a notice party to the proceedings. That application was opposed by Ryanair but not by the respondent. Aer Lingus was joined to the proceedings as a notice party on that date. I also gave leave to the respondent to make an application for an order directing the trial of preliminary...

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