Ryanair Ltd -v- Commission for Aviation Regulation, [2008] IEHC 148 (2008)

Docket Number:2007 1246 JR
Party Name:Ryanair Ltd, Commission for Aviation Regulation
Judge:Clarke J.
 
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THE HIGH COURT

COMMERCIAL2007 No. 1246 J.R.

[2007 No. 134 COM]BETWEENRYANAIR LIMITEDAPPLICANTAND

THE COMMISSION FOR AVIATION REGULATIONRESPONDENTAND

DUBLIN AIRPORT AUTHORITY PUBLIC LIMITED COMPANYNOTICE PARTY

JUDGMENT of Mr. Justice Clarke delivered on the 20th day of May, 2008

  1. Introduction

    1.1 This judgment is supplemental to a judgment delivered by me in this case on 11th April last ("the previous judgment"). The parties are described in this judgment in the same fashion as they were in the previous judgment. Similarly, the various technical terms appearing in this judgment are used in the same way as previously. As appears from the previous judgment, the only order which I was prepared to make at that stage was one referring back the "review decision" to the CAR for the purposes of the CAR clarifying the extent to which statements contained within the relevant review decision paper concerning the inclusion of capital expenditure in the RAB formed, in the view of the CAR, part of its determination in the exercise of its statutory function on the one hand ("the statutory determination ") or were simply indications of its current thinking on the other hand. (See para. 10.1 of the previous judgment). As is also clear from the same para., the direction concerned required the CAR to come to a revised decision making those matters clear.

    1.2 On foot of that direction the CAR produced what is described as a clarification to which it will be necessary to refer to in detail in due course. In summary, however, the clarification suggests that, in the view of the CAR, those elements of the review decision concerning the inclusion of capital expenditure into the RAB formed part of its determination in the exercise of its statutory powers. In the light of that document it is necessary to now address the remaining issues which arise in these proceedings. However, I propose firstly setting out the terms of the clarification, together with the issues which now arise for decision.

  2. The Clarification

    2.1 On foot of the direction given as a result of the previous judgment, the CAR issued a document entitled "Ryanair v. Commission for Aviation Regulation; clarification of review decision". As that document is brief I propose setting it out in full. It is in the following terms:-"As part of the exercise of its statutory function to review its earlier determination and, if it saw fit, to amend that determination, the Commission for Aviation Regulation ("CAR") set out in its Final Decision on its Interim Review of the 2005 determination ("the review decision") the reasoning which led the CAR to the conclusions it reached on such review. The CAR regards such reasoning and the individual decisions which it takes in the course of such reasoning as an integral part of its determination in the exercise of its statutory functions. In particular, in the view of the CAR, statements and decisions contained in the review decision concerning the inclusion of capital expenditure in the Regulatory Asset Base ("RAB") form part of its determination in the exercise of its statutory functions. Decisions such as decisions on the inclusion of capital expenditure in the RAB have to be taken to enable the CAR to decide on the maximum level of airport charges or whether (on a review) a previous determination should or should not be amended. Thus, such decisions are regarded by the CAR as necessarily part of the formal exercise of its statutory powers.

    The CAR's reference in the review decision to making no change to the existing determination was intended to be and, looking at the document as a whole, is, in the view of the CAR, clearly a reference to the fact that it decided to make no change to the maximum level of airport charges. So understood, there is in the view of the CAR no inconsistency between (a) the fact that some of the factual circumstances, reasoning and individual decision leading to the conclusion differ from the earlier determination and (b) the fact that the conclusion is to leave the maximum level of airport charges unchanged."2.2 As is clear from the previous judgment, and in particular para. 10.1, the obligation on the CAR was to produce a revised decision clarifying the issues specified in that para. On that basis it is clear that the original review decision together with the clarification need to be read as one and represent a new, revised or clarified decision.

    2.3 Subsequent to delivering judgment on 11th April last, the case was adjourned for mention to allow the CAR to consider its position. It was subsequently indicated on behalf of the CAR that the clarification which I have cited in full had been made. On that basis written submissions were exchanged between the parties as to the final orders which should, as a consequence, be made in these proceedings. Oral argument was subsequently conducted on 8th May, and this judgment is directed towards the issues raised together with the costs of the proceedings which were also addressed in argument on that date.

    2.4 It is important to recollect the issues which remain for decision as a result of the previous judgment. For the reasons set out in the previous judgment all of the arguments put forward on behalf of Ryanair which concerned the merits of the decision taken by the CAR were rejected. In the light of the lack of clarity which I identified as to whether those aspects of the review decision concerning the inclusion of capital expenditure in the RAB formed part of the statutory determination, I left over until after the clarification directed had been received, a final consideration both of the proper construction to be placed upon the statutory determination and questions as to whether Ryanair was entitled to pursue the arguments relied on at the hearing within the ambit of the case as currently pleaded. I propose, therefore, to address the issue of the proper construction of the statutory determination and, having done so, to...

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