Ryanair DAC v SC Vola.RO SRL

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 22 June 2020
• Neutral Citation: [2020] IEHC 308
• Docket Number: [No. 2017/8782 P.]
• Court: High Court
• Date: 22 June 2020

BETWEEN

RYANAIR DAC

PLAINTIFF

AND

SC VOLA.RO SRL

AND

BY ORDER OF THE COURT

YPSILON.NET AG

DEFENDANTS

[2020] IEHC 308

Mark Sanfey J.

[No. 2017/8782 P.]

THE HIGH COURT

Injunctive relief – Declaratory relief – Damages – Plaintiff seeking injunctive relief – Whether the defendant’s counterclaim disclosed a reasonable or sustainable cause of action

Facts: The plaintiff, Ryanair, alleged that the defendants, Vola and Ypsilon, their servants and/or agents, engaged in a process known as ‘screen scraping’ whereby data (and flight data in particular), the property of Ryanair, was taken and/or re-utilised and/or extracted from the Ryanair website through the use of an automated system of software, without Ryanair’s consent and/or lawful authority. It was alleged that the defendants were not permitted to use the Ryanair website in this manner, and in doing so were in breach of contract, had unlawfully infringed on Ryanair’s intellectual property rights, and were guilty of conversion, trespass to goods or property, and passing off. The plaintiff sought a wide range of reliefs against the defendants, primarily injunctive in nature, seeking to prevent or restrain the defendants from perpetrating the alleged interference with the plaintiff’s rights. There were claims for damages, including aggravated or exemplary damages. Vola’s counterclaim sought a declaration that certain acts of Ryanair constituted an abuse of what Vola contended was Ryanair’s “dominant position”; it sought an injunction “restraining such further acts by Ryanair” and a licence “to use of such monopoly rights of Ryanair and on such terms as to this Honourable Court shall seem fit.” Damages “including exemplary damages” were also sought. The plaintiff applied to the High Court to strike out Vola’s counterclaim pursuant to O.19, r.27 or r.28 of the Rules of the Superior Courts for “failing to disclose a reasonable or sustainable cause of action and/or being bound to fail and/or being frivolous and vexatious and/or constituting an abuse of process”. There were two alternative reliefs sought without prejudice to the foregoing reliefs. The plaintiff sought an order pursuant to the inherent jurisdiction of the court staying the prosecution of the counterclaim pending determination of the plaintiff’s claim. Alternatively, the plaintiff sought a modular trial whereby the plaintiff’s claim is prosecuted and determined firstly, with Vola’s claim being tried and determined thereafter as a second module. Vola applied to the court seeking equivalent relief to the two alternatives sought in the plaintiff’s notice of motion. The position of the plaintiff was that the counterclaim was so lacking in particulars essential to establishing its case that it did not disclose a reasonable or sustainable cause of action, and should be struck out.

Held by Sanfey J that he was not disposed to strike out the counterclaim on the basis of what in his view was a lack of clarity and precision. However, he considered that Ryanair, in order to understand the parameters of the market contended for, and the way in which its actions or proposed actions were alleged to harm consumers, required answers to the following queries: Who are the other online travel agents (OTAs) which it is alleged compete with Ryanair and Vola in respect of the retailing of flights and other ancillary services such as insurance, care hire and accommodation? What percentage of the alleged downstream market is alleged these other OTA’s comprise? What does Vola contend will be the effect on these other OTAs if the plaintiff is successful in its claim and what is the basis of this contention? What percentage of the specific downstream market contended for by Vola does Vola say that it holds? If Ryanair succeeds in its claim, and prevents Vola and other OTAs from selling Ryanair tickets, how does this distort competition in the downstream market and affect consumers, given that Ryanair tickets and ancillary services will still be available from Ryanair? Sanfey J ordered that, as a condition of being allowed to proceed with the counterclaim, Vola proffer substantive replies to these queries.

Sanfey J held that there should be a modular trial of the issues of liability in Ryanair’s claim against both defendants. He believed that proceeding with Ryanair’s claim would focus the minds of the parties and ensure that this part of the litigation would proceed expeditiously to trial.

Modular trial ordered.

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 22nd day of June 2020.

Introduction

1 In these proceedings, there are two applications before the court. The first is the plaintiff's application to strike out the first defendant's counterclaim pursuant to 0.19, r.27 or r.28 of the Rules of the Superior Courts for “failing to disclose a reasonable or sustainable cause of action and/or being bound to fail and/or being frivolous and vexatious and/or constituting an abuse of process”.

2 There are two alternative reliefs sought without prejudice to the foregoing reliefs. The plaintiff seeks an order pursuant to the inherent jurisdiction of the court staying the prosecution of the counterclaim pending determination of the plaintiff's claim. Alternatively, the plaintiff seeks a modular trial whereby the plaintiff's claim is prosecuted and determined firstly, with the first named defendant's claim being tried and determined thereafter as a second module.

3 Secondly, the first named defendant applies to this court for an order staying the prosecution of the plaintiff's claim pending the determination of the first named defendant's counterclaim, or alternatively a modular trial in which the counterclaim is tried and determined first, with the plaintiff's claim being tried and determined as a second module. The first named defendant's application therefore seeks equivalent relief to the two alternatives sought in the plaintiff's notice of motion.

4 In order to understand the issues involved in the motions, it is necessary to examine the nature of the proceedings issued by the plaintiff (‘Ryanair’) and the defence and counterclaim of the first named defendant (‘Vola’). The second named defendant (‘Ypsilon’) was added to the proceedings by order of this Court of 8th March 2019 in circumstances which I shall set out, but did not take a substantive part in the applications before me.

5 The position of the plaintiff, as we shall see, is that the counterclaim is so lacking in particulars essential to establishing its case that it does not disclose a reasonable or sustainable cause of action, and should be struck out. The voluminous details set out in the amended statement of claim by the plaintiff concerning its operations, in particular in relation to the Ryanair website, and the position of the first named defendant in relation thereto, will only be considered in as far as is necessary to deal with the applications before the court. It is not appropriate for the court to infringe upon issues which will, in the normal course, be for the trial judge to decide.

The Parties

6 It is not contested that Ryanair carries on an international business as a low-fares airline. In its statement of claim, Ryanair contends that it is also, through its website at www.ryanair.com (‘the Ryanair website’), a provider “…of flight advertisement, search, information, reservation and purchase services in respect of its own flights, as well as additional facilities whereby complimentary and ancillary services such as accommodation - reservation, car hire and insurances services may be accessed and booked by Ryanair's customers”. No admission is made in respect of this assertion by Vola in its defence.

7 Vola is a limited liability company incorporated in Romania and carries on a business as an online travel agent (‘OTA’) providing internet search and booking facilities in respect of airline flights and other services through its website www.vola.ro (‘the Vola website’).

8 Ypsilon is a limited liability company incorporated in Germany and accepts in its defence that it is a “provider of integrated information technology and payment solutions for the travel industry”. Ryanair alleges that Ypsilon provides Vola with flight data pertaining to Ryanair through a process of “screen scraping,” an allegation which Ypsilon denies.

The Plaintiff's Claim

9 The plaintiff issued a plenary summons on 29th September, 2017, and having served notice of the plenary summons, delivered a statement of claim on 17th November, 2017. As we shall see, the statement of claim was amended to accommodate the addition of Ypsilon as a defendant and reference hereafter to the statement of claim is to the amended version. While the amended statement of claim is lengthy and complex, a synopsis of the issues contained in it is necessary to get an understanding of the applications of Ryanair and Vola.

10 Ryanair contends that its website is “Ryanair's chosen primary route to market and is based on the attraction offered by its fares and known reputation as a low-cost carrier to attract internet users and ultimately customers in order to sell not only Ryanair flight tickets, but also complementary and ancillary products and services.” (Para. 6 amended statement of claim). As Mr. Robert Bourke, in-house counsel of Ryanair, in his affidavit of 3rd October, 2019 grounding Ryanair's application puts it, “…Ryanair alleges that the Defendants, their servants and/or agents, engage in a process commonly known as ‘screen scraping’ whereby data (and flight data in particular), the property of Ryanair is taken and/or re-utilised and/or extracted from the Ryanair website through the use of an automated system of software, without Ryanair's consent and/or lawful authority”. Ryanair contends that the terms of use of its website bind the defendants and prohibit them from using the website or its content, “for their own commercial benefit”....