Ryanair DAC v SC VOLA.RO SRL

JurisdictionIreland
JudgeMr. Justice Cregan
Judgment Date15 December 2022
Neutral Citation[2022] IEHC 741
CourtHigh Court
Docket Number[2017 8782 P]
Between
Ryanair DAC
Plaintiff
and
SC Vola.Ro SRL

and

(By Order of Court of 8th March, 2019)
Ypsilon.net AG
Defendants

[2022] IEHC 741

[2017 8782 P]

THE HIGH COURT

Statement of claim – Strike out – Amended defence – Second defendant seeking to strike out parts of the plaintiff’s statement of claim – Whether the second defendant should be granted leave to file an amended defence

Facts: The second defendant, Ypsilon.net AG, by a notice of motion dated 22nd March, 2022, applied to the High Court seeking an order striking out parts of the amended statement of claim of the plaintiff, Ryanair DAC, dated 15th March, 2019, against the second defendant on the basis that the plaintiff was precluded from advancing such pleadings as against the second defendant and/or that the court lacked jurisdiction to hear the proceedings insofar as they related to those pleadings as against the second defendant on the basis of O. 15 r. 13 of the Rules of the Superior Courts and/or Article 8.1 of EU Regulation No. 1215/2012. The second defendant sought a declaration that the plaintiff was precluded from advancing any allegation as against the second defendant which went beyond the specific allegations advanced against the first defendant, SC Vola.ro SRL, or any allegation relating to services alleged to be provided by the second defendant to anyone other than the first defendant. The second defendant sought to limit the plaintiff’s claim (as against the second defendant) to the provision of the second defendant’s services to the first defendant only rather than, as the plaintiff claimed, to the provision of its services to all its clients. The second application brought by the second defendant was an application pursuant to O. 28 r. 1 and/or pursuant to the inherent jurisdiction of the court granting the second defendant leave to amend its defence and to file an amended defence and counterclaim. The counterclaim alleged that the plaintiff was in a dominant position in the relevant marketplaces, and that it had abused that dominant position. The second defendant sought to bring a counterclaim to allege that even if the second defendant had been engaged or involved in any of the screen scraping activities alleged by the plaintiff (which were denied) the plaintiff would be precluded from maintaining any such cause of action by reason of the abuse of dominance pleaded in the counterclaim.

Held by Cregan J that the joinder order, the joinder affidavit and the amended plenary summons made it clear to the High Court judge and to the second defendant that the true nature of the plaintiff’s case was to seek declaratory orders and injunctive reliefs to restrain the second defendant from its alleged unlawful use of the Ryanair website at all times and in all circumstances and thereby to prevent the second defendant from unlawfully using the plaintiff’s website for provision of its services to any of its customers including the first defendant. It appeared to Cregan J that the second defendant’s argument under Article 8 of Regulation 1215/2012 was misconceived; it not only made the argument under Article 8 but sought to link the Article 8 argument with the O. 15 r. 13 argument to, in effect, mount a collateral attack on the joinder order by seeking to strike out parts of the plaintiff’s claim against the second defendant. In his view the Article 8 issue could not be used to ground any application to strike out part of the plaintiff’s claim. He refused the second defendant’s application to strike out part of the plaintiff’s statement of claim.

Cregan J held that granting leave to the second defendant to file its amended defence and counterclaim would not cause any significant prejudice for the plaintiff whereas by contrast a refusal to grant such leave would cause significant prejudice to the second defendant and would not be in the interests of the administration of justice. He allowed the second defendant’s application to file an amended defence and counterclaim.

Application to strike out parts of the plaintiff’s statement of claim refused. Application to file an amended defence and counterclaim granted.

JUDGMENT of Mr. Justice Cregan delivered on the 15th day of December, 2022

Introduction
1

. This judgment deals with two motions in the above proceedings. These are:

  • (1) the application by the second named defendant for an order striking out certain paragraphs in the amended statement of claim dated 15 th March, 2019 (which paragraphs are set out in the schedule to the notice of motion); and

  • (2) the application by the second named defendant for liberty to file an amended defence and, more substantively, a competition law counter-claim against the plaintiff in these proceedings.

Motion to strike out parts of the plaintiff's statement of claim
2

. The second named defendant's application seeking to strike out parts of the plaintiff's amended statement of claim against the second defendant was brought by a notice of motion dated 22 nd March, 2022. The matter was heard before me over two days on 6 th and 7 th October, 2022.

3

. The notice of motion, at paragraph 1, sought an order in the following terms:

1. An order striking out the pleadings in the amended statement of claim dated 15 th March, 2019 (the “amended statement of claim”) set out in the schedule to this notice of motion on the basis that the plaintiff is precluded from advancing such pleadings as against the second named defendant and/or that the court lacks jurisdiction to hear these proceedings insofar as they relate to those pleadings as against the second named defendant on the basis of O.15 r.13 of the Rules of the Superior Courts and/or Article 8.1 of Regulation 12/15/2012. (Emphasis added)

4

. At paragraph 3 of the notice of motion, the second defendant seeks a declaration that the plaintiff is precluded from advancing, in these proceedings, any allegation as against the second named defendant which goes beyond the specific allegations being advanced against the first named defendant or any allegation relating to services alleged to be provided by the second defendant to anyone other than the first defendant.

5

. In essence, the second named defendant is seeking to limit the plaintiff's claim (as against the second defendant) to the provision of the second defendant's services to the first named defendant only rather than, as the plaintiff claims, to the provision of its services to all its clients.

6

. The application was grounded upon an affidavit of Mr. Klenz the CEO of the second defendant. He states that Ypsilon is a German company with its registered office in Germany and that it is the provider of information technology and payment solutions for the travel industry.

7

. However before embarking on an analysis of the affidavits, it is necessary to set out the background to this application as the proceedings are complex.

The plaintiff's case against the first defendant
8

. The plaintiff initiated proceedings against the first defendant on 29 th September, 2017 by means of a plenary summons.

9

. Ryanair DAC (“Ryanair”) is a company incorporated in Ireland with its registered office in Dublin. Ryanair carries on an international business as a low fares airline. It is also a provider through its website (“the Ryanair website”) of services in respect of its own flights as well as ancillary services such as accommodation, car hire and insurance services which may be accessed and booked by Ryanair's customers.” Ryanair pleads that it earns “significant revenue by allowing other service providers advertise on its website”.

10

. The first named defendant is a company incorporated in Romania with a registered address in Bucharest, Romania. The first named defendant carries on business as an online travel agent (“OTA”) providing an internet search and booking facility in respect of airline flights and other services (such as hotel reservation, car hire). Its business is conducted through a website that it operates.

11

. Ryanair pleads in its statement of claim that it has built up very considerable goodwill in its business from its establishment in 1985 as Europe's first low fares airline. It also pleads that it has become one of Europe's leading airlines currently carrying in excess of 130 million passengers per annum on approximately 2,000 daily flights across 34 countries. It pleads that:

“Ryanair's sales marketing and business model is based on offering low fares to its customers and the Ryanair website is at the centre of that model and fundamental thereto. The Ryanair 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”.

12

. It pleads that the Ryanair website is a key part of its business and constitutes property owned by Ryanair, that over 99% of Ryanair bookings are made through the Ryanair website and that, owing to the importance of its website, Ryanair has spent significant sums of money in the design, operation and maintenance of the Ryanair website so as to ensure that it operates in an efficient and user-friendly manner.

13

. Ryanair also pleads that it maintains exclusive online distribution rights to the general public in respect of the offering for sale of Ryanair flights so as to ensure that Ryanair flights are offered for sale and sold to consumers at the lowest price thereby preserving Ryanair's identity and reputation including its reputation on the internet as a premier low fares airline.

14

. Ryanair also pleads that, as part of its business model, it presents third party products to internet users such as car hire, accommodation, etc which generate substantial revenue for Ryanair.

15

. Ryanair also...

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