Ryanair DAC v SC VOLA.RO SRL

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cregan
• Judgment Date: 15 December 2022
• Neutral Citation: [2022] IEHC 741
• 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

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 pleads, at paragraph 6 of its statement of claim, that “fundamental to the present and future operations of Ryanair is the promotion and consolidation of direct contact between Ryanair and its customers”.

16 . The statement of claim also sets out what it calls the “front end” and the “back end” elements of the website located at the domain name www.ryanair.com and related matters.

17 . Paragraph 8 of the statement of claim sets out a summary of the alleged wrongful acts of the first named defendant, its servants or agents and states as follows:

“The Ryanair website is the property of Ryanair. Ryanair is the creator, author, and owner of the Ryanair website. The defendant is engaging in screen scraping activity (as more fully described at para. 12 below); is taking and/or utilising data from, trespassing and/or converting the Ryanair website, and the data, information and property comprised therein; and is engaged in passing off the defendant's website as being associated with Ryanair shall be described below. In so doing the defendant's 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. Further, the activities of the defendant, its servants and/or agents are restricting, limiting and/or impeding Ryanair's development and/or expansion and depriving Ryanair of the ability to grow its business in accordance with the Ryanair business model. At all times the defendant, its servants or agents knew or ought to have known and/or were put on notice that the defendant's activities, the subject matter of these proceedings were unlawful and/unauthorised, and they continue to be unlawful and/unauthorised. The defendant is bound by the Ryanair website's terms of use (as more fully described at paras. 9 to 11 below) and is in breach of same.

18 . At para. 9 of the statement of claim Ryanair pleads that:

“At all material times, admission to and use of the Ryanair website has been subject to the Ryanair website terms of use (“terms of use”) which in accordance with accepted internet practice are made available for inspection on the Ryanair website via a hypertext link.”

19 . Ryanair pleads that the first defendant, as a user of the Ryanair website, is bound by its terms of use, paragraph 1 of which provides:

“By using this website or its contents, whether directly or through its third party, you agree to be legally bound by and act in accordance with these terms of use. In particular you agree not to do the acts prohibited under paras. 3 to 5 below. If you disagree with these terms of use, you are not permitted to, and agree not to, use this website or its content”.

20 . Paragraph 2 of the terms of use provides that the website is the “only website authorised to sell Ryanair flights whether on their own or as part of a package”.

21 . Paragraph 3 provides under the heading “Permitted Use”:

“You are not permitted to use this website (including the mobile app and any webpage and/or the data that passes through the web domain at Ryanair.com) its underlying computer programmes (including application programming interfaces, domain names uniform resource locators, databases, functions, or its content other than for private non-commercial purposes. Use of any automated system or software whether operated by a third party or otherwise extract any data from this website for commercial purposes (“screen saving”) is prohibited.

22 . Paragraph 4 provides that all of the information, data, computer programmes etc are subject to copyright, trademark rights, database rights and/or other intellectual property rights belonging to Ryanair.

23 . Paragraph 7 provides that:

“It is a condition precedent to the use of the Ryanair website including access to information relating to flight details, costs, etc...