Ryanair DAC v SC Vola.Ro Srl

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 08 March 2019
• Neutral Citation: [2021] IEHC 788
• Court: High Court
• Docket Number: [Record No. 2017/8782 P]

Between

Ryanair DAC

Plaintiff

and

SC Vola.Ro Srl

and

(By Order of Court of 8 ^th March 2019)

Ypsilon.Net AG

Defendant(s)

[2021] IEHC 788

[Record No. 2017/8782 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 15 ^th day of December 2021 .

Introduction

1 . This judgment relates to four discovery applications – two prosecuted by the plaintiff (‘Ryanair’) against each of the defendants (‘Vola’ and ‘Ypsilon’ respectively), and one by each of the defendants against Ryanair – which were heard together by me over three days in early June 2021. There have been several applications to court in the course of the proceedings and the following written judgments have been delivered:-

• (i) Judgment of 14 ^th January, 2019, Ní Raifeartaigh J, reported at [2019] IEHC 239 (‘the jurisdiction judgment’): this judgment concerned an application by Vola contesting the jurisdiction of the Irish courts to hear the case;

• (ii) judgment of 22 ^nd June, 2020, Sanfey J, reported at [2020] IEHC 308 (‘the abuse of process judgment’): this judgment primarily concerned an application by Ryanair to strike out Vola's counterclaim as an abuse of process, and an application by Vola for a stay on the plaintiff's claim pending determination of Vola's counterclaim. Each side sought in the alternative an order that its own claim be tried and determined first in a modular trial;

• (iii) judgment of 24 ^th July, 2020, Sanfey J, reported at [2020] IEHC 367 (‘the consequential orders judgment’): This judgment dealt with the orders to be made on foot of the foregoing judgment;

• (iv) judgment of 1 ^st June, 2021, Sanfey J, reported at [2021] IEHC 379 (‘the particulars judgment’): In this application, Ryanair sought to have Vola's counterclaim struck out for failure to deliver appropriate replies to queries raised by the court in the abuse of process judgment.

2 . As is apparent from the consequential orders judgment, this Court directed a modular trial whereby the issues of liability in the plaintiff's claim were to be heard and determined first, with Vola's counterclaim being tried and determined thereafter as a second module. An order was made on 30 ^th July, 2020 to give effect to these directions.

3 . The applications for discovery in the present matter each relate to the first module, i.e. the liabilities issues in Ryanair's claim. Those applications are as follows:

• (i) Ryanair's motion against Vola filed on 5 ^th February, 2021;

• (ii) Ryanair's motion against Ypsilon filed on 5 ^th February, 2021;

• (iii) Vola's Motion against Ryanair filed on 3 ^rd February, 2021;

• (iv) Ypsilon's motion against Ryanair filed on 9 ^th February, 2021.

4 . Each of these four motions involved an exchange of extensive correspondence and affidavits setting out the reasons for and against discovery of the chosen categories of documents. Detailed written submissions were furnished in support of the parties' respective positions on each of the motions. The parties also helpfully set out on spread sheets, for ease of reference, the categories of documents sought in each motion and a summary of the argument, cross-referenced to the affidavits, made by the parties in relation to each issue.

5 . This judgment sets out the court's conclusions in relation to each of the categories in the four motions.

The proceedings

6 . I do not propose to set out in any detail in this judgment the background to the disputes between the parties. However, a brief synopsis of the issues as defined by the pleadings is necessary in order to explain the context in which these applications are brought.

7 . Ryanair carries on an international business as a low-fares airline. In its statement of claim, it contends that it also, through its website at www.ryanair.com (‘the Ryanair website’), is a provider “…of flight advertisement, search, information, reservation and purchase services in respect of its own flights, as well as additional facilities whereby complementary and ancillary services such as accommodation – reservation, car hire and insurance services may be booked by Ryanair's customers”.

8 . Vola is a limited liability company incorporated in Romania and carries on 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’).

9 . Ypsilon is a limited liability company incorporated in Germany and accepts in its defence that it is a “provider of integrated 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.

10 . The plaintiff issued a plenary summons on 29 ^th September, 2017, and a statement of claim on 17 ^th November, 2017. This statement of claim was subsequently amended to accommodate the addition of Ypsilon as a defendant, and references in this judgment to the statement of claim are to the amended version which includes Ypsilon as a defendant.

11 . Ryanair seeks a wide range of reliefs against the defendants, alleging that they are engaged in a process of “screen-scraping”, whereby data the property of Ryanair is taken or extracted from the Ryanair website without Ryanair's authority, and used for the defendants' purposes. It is alleged that the defendants' activities “…are critically affecting Ryanair, the Ryanair website and the Ryanair Business Model (including the direction the company is heading and/or intends to head, in accordance with the Ryanair Business Model), thereby causing damage, inconvenience and expense to Ryanair” [para. 10 statement of claim]. Ryanair alleges that the defendants are in breach of contract, have unlawfully infringed on Ryanair's intellectual property rights, and are guilty of conversion, trespass to goods or property, and passing off.

12 . Of particular concern to Ryanair is its allegation that Vola offers for sale and sells Ryanair flights through its call centre without the permission of Ryanair. As Ryanair puts it at para. 14 of the statement of claim:-

“The First Named Defendant uses and/or authorises and/or procures and/or directs and/or controls an automated system or software that enables it to enter into and use the Ryanair Website and underlying computer programmes and database(s), for the purposes of searching and/or booking the Ryanair flights that are ultimately sold by the First Named Defendant to the customer that uses the Vola Website. The First Named Defendant, its servants and/or agents enters into and uses the Ryanair Website by engaging in an activity commonly referred to as ‘screen scraping’, ‘crawling’, or the use of a ‘robot’ or ‘spider’. This automated system/software enables the First Named Defendant, its servants and/or agents to enter into and use the Ryanair Website by mimicking an actual customer” [para. 14 statement of claim].

13 . The allegations of Ryanair against Ypsilon are summarised at para. 16 of the statement of claim as follows:-

“16. The Second Named Defendant offers for sale and sells, inter alia, services that engage in and/or facilitate and/or enable screen-scraping of the Ryanair Website and/or the selling of the Ryanair flights and/or flight data. The Second Named Defendant creates, and/or produces, and/or designs, and/or maintains, and/or develops, and/or uses, and/or authorises, and/or procures, and/or controls, and/or benefits from, and/or owns and offers for sale and sells to its customers (including the First Named Defendant) automated systems and/or software and/or computer program(s) and or API [application programming interface] and/or services, and/or applications designed to screen scrape the Ryanair Website and/or search and book flights from the Ryanair Website (‘Screen-Scraping Services’). The Second Named Defendant does so without the permission of Ryanair.”

14 . The statement of claim deals at some length with the manner in which Ryanair alleges the defendants enter into and use the Ryanair website in order to conduct a search for flight information on behalf of its own customers. It is alleged that the defendants, when inputting the parameters of a search, are required to click a button entitled “Let's Go!” under which it is expressly stated “By Clicking Let's Go I agree to Website Terms of Use”, which statement contains an emphasised hyperlink enabling the user to view the Ryanair website terms of use. A tick-box is located to the left of the hyperlink, and upon the user clicking the “Let's Go!” button, the tick-box is caused to be “ticked” confirming the defendants' acceptance of and agreement with the Ryanair website terms of use. Ryanair contends in the statement of claim that this process involves the conclusion of a contract between the user – in this case, the defendants – and Ryanair, a process referred to as “click wrapping”. It is specifically alleged by Ryanair that, by accessing the Ryanair website, the defendants are bound by the terms of use thereof. Ryanair argues that this applies whether the defendants access the search facility on the front-end webpage, or access the back-end of the Ryanair website directly.

15 . Ryanair alleges that, by entering and/or using the Ryanair website, the defendants or either of them through their conduct have accepted the terms of use and are bound by them. Ryanair summarises what it alleges is the wrongdoing of the defendants in the statement of claim as follows:-

“26. The First Named Defendant offers for sale, and sells, Ryanair flights through the Vola website. The Second Named Defendant through the Ypsilon Website, offers for Sale Screen Scraping services which enable online travel agents, such as the First Named Defendant, to offer for sale and sell Ryanair flights. Ryanair does not permit the sale of its flights and/or data by the...