Ryanair DAC v Van Zwol

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 16 April 2020
• Neutral Citation: [2020] IECA 105
• Date: 16 April 2020
• Court: Court of Appeal (Ireland)
• Docket Number: 2018/35

BETWEEN/

RYANAIR DAC

AND

RYANAIR HOLDINGS PLC

APPELLANTS

-AND-

EVERT VAN ZWOL, JOHN GOSS

AND

TED MURPHY

RESPONDENT

[2020] IECA 105

Whelan J.

Noonan J.

Haughton J.

2018/35

2013/11363P

THE COURT OF APPEAL

Defamation – Qualified privilege – Unfair trial – Appellants seeking to appeal from the order of the High Court whereby the claim of the appellants for defamation was dismissed – Whether the appellants had established that the trial was unfair

Facts: The appellants, Ryanair DAC and Ryanair Holdings PLC (collectively “Ryanair”), appealed to the Court of Appeal from the order of the High Court (Barton J sitting with a jury) made on the 21st December, 2017 whereby the claim of Ryanair for defamation was dismissed. Although, after a trial which lasted for 27 days, the jury found that the words complained of were defamatory, they also found that they were published by the defendants, Mr Van Zwol, Mr Goss and Mr Murphy, without malice and since the trial judge had previously ruled that the publication occurred on an occasion of qualified privilege, Ryanair’s claim failed. The primary ground of appeal arose from the refusal of the trial judge to accede to an application by Ryanair on Day 20 to discharge the jury on the ground that a fair trial could no longer be had as a result of the emergence of an undiscovered document during the course of the evidence of a witness for the defence. Ryanair further contended that the ruling of the trial judge that the publication occurred on an occasion of qualified privilege was erroneous.

Held by Noonan J that the trial judge correctly exercised his discretion in refusing to discharge the jury and that Ryanair failed to establish a real risk of an unfair trial. Noonan J held that any ostensible prejudice accruing to Ryanair by virtue of the late production of the “Tesco email” was effectively eliminated by the trial judge allowing further cross-examination of all the relevant witnesses and giving appropriate directions to the jury. Noonan J held that the trial judge’s ruling that Mr Duffy, an executive member of the Irish Airline Pilots Association, was not the servant or agent of the respondents and that the Tesco email was not discoverable by them was correct as a matter of law. Noonan J held that all matters of relevance to that email were fully ventilated during the course of the trial. Noonan J held that Ryanair was not deprived of the opportunity to sue Mr Duffy or to plead at any relevant stage that the respondents were vicariously liable for his actions. Noonan J held that even if there was malice on Mr Duffy’s part, the mere fact that he was a joint tortfeasor did not mean that his malice infected the respondents. Noonan J held that, in any event, this did not arise because Ryanair chose not to plead that the respondents were responsible for his malice on any basis. Noonan J held that the trial judge’s ruling on the issue of qualified privilege was correct in law and that the findings of fact made by him in reaching that conclusion could not be disturbed by the court. Noonan J held that the judge’s rulings during the course of the trial on the “open windows” issues and the evidence of Mr Hughes (a Ryanair witness) were entirely appropriate. Noonan J held that a number of Ryanair’s grounds of appeal arose out matters that occurred during the trial which were the subject of charge and re-charge by the trial judge without further requisition or complaint. Noonan J held that they could not be raised in the court on appeal in the absence of Ryanair demonstrating that they resulted in a manifest miscarriage of justice. Noonan J held that when all matters were taken into account and the trial viewed in the round, Ryanair had not established that the trial was unfair.

Noonan J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 16 ^th day of April, 2020

Introduction

1 This is an appeal from the order of the High Court (Barton J. sitting with a jury) made on the 21st December, 2017 whereby the claim of the appellants (collectively “Ryanair”) for defamation was dismissed. Although, after a trial which lasted for 27 days, the jury found that the words complained of were defamatory, they also found that they were published by the defendants without malice and since the trial judge had previously ruled that the publication occurred on an occasion of qualified privilege, Ryanair's claim failed.

2 The primary ground of appeal arises from the refusal of the trial judge to accede to an application by Ryanair on Day 20 to discharge the jury on the ground that a fair trial could no longer be had as a result of the emergence of an undiscovered document during the course of the evidence of a witness for the defence. Ryanair further contend that the ruling of the trial judge that the publication occurred on an occasion of qualified privilege was erroneous. There are a number of other grounds of appeal which I will come to in due course.

Background Facts

3 Ryanair owns and operates a well-known airline. The respondents are airline pilots. The second respondent, Captain Goss, is a former Ryanair pilot but the other respondents, Captains Van Zwol and Murphy, have never flown for Ryanair. At the relevant time, all three respondents were members of what was called the Interim Council of a grouping known as the Ryanair Pilots Group (RPG). RPG was a type of nascent pilots' trade union that was in the course of being formed with the assistance of the respondents. In and about the year 2013, when the events with which these proceedings are largely concerned occurred, it had always been the Ryanair policy not to recognise trade unions.

4 Evidence was given during the course of the trial that Ryanair pilots in general felt that it was disadvantageous to them to be seen to be involved with any form of union activity and for that reason, there was a desire to maintain anonymity on the part of any current Ryanair pilots involved with the RPG. The respondents did not suffer from that inhibition and were duly elected to the Interim Council of the RPG. In or about June of 2013, a Dutch legal entity known as a Stichting was formed with the name Interim Council Ryanair Pilots Group. The respondents' evidence was that, in the course of forming the RPG, they developed an email database of Ryanair pilots which was used for communicating with the pilots on topics of interest. At the relevant time, there were over two thousand email addresses on this database although in the course of the trial, controversy arose as to whether all of these email addresses were in fact associated with Ryanair pilots.

5 One of the modes of communication adopted by the RPG was the issuing of what were described as “pilot updates” to these email addresses. These were in the form of news bulletins on topical issues of relevance to the pilots. One such bulletin was issued on the 12th September 2013 to which I will refer as the Pilot Update. It was titled “What the Markets are Saying About Ryanair”. The first paragraph was as follows: -

“The company's share price fell sharply last week (down 11.54%) as markets reacted to a negative statement issued by the company management. It has been indicated that profit targets for 2013 – 2014 may need to be revised downwards as the autumn-winter outlook remains weak. This is in spite of positive indications to investors in June which encouraged a share price increase and a sell off of shares by managers in late June, ahead of the winter period.”

6 Shortly thereafter, Ryanair commenced the within proceedings for defamation. At para. 6 of its statement of claim, Ryanair pleads as follows: -

“6. The words complained of meant, and were understood to mean, both in their natural and ordinary meaning and/by way of innuendo, that: -

(i) Ryanair is guilty of market manipulation.

(ii) Ryanair misled investors.

(iii) Ryanair knowingly facilitated insider dealing by its managers.

(iv) Ryanair conspired with its managers to abuse the market(s) for its shares.”

The Genesis of the Pilot Update

7 At the time of the publication of the Pilot Update, the Interim Council of the RPG comprised five members, the respondents and two other individuals who were originally also named as defendants in the proceedings, which were ultimately discontinued as against those two parties. In September 2013, the Interim Council of the RPG was receiving outside assistance in relation to its activities from the Irish Airline Pilots Association (IALPA) and in particular, two executive members of IALPA, Mr. Gerard Kelly and Mr. Martin Duffy. In the course of the respondents' evidence, Mr. Kelly and Mr. Duffy were described as “consultants” who were assisting in the preparation of the Pilot Update. It would appear that both IALPA and the RPG were associated with a larger pan-European pilots' organisation called the European Cockpit Association (ECA), which provided financial assistance for the purpose of furthering the aims of the RPG.

8 Mr. Kelly and Mr. Duffy were primarily involved in the drafting of the Pilot Update which went through several iterations before the final version was arrived at. Prior to the trial, Ryanair sought and obtained an order for discovery against the respondents. The respondents' discovery included an email string of the 4th September, 2013. The participants in that email conversation included Mr. Kelly, Mr. Duffy, Captain Van Zwol and an unidentified pilot. The emails from this pilot that were discovered by the respondents redacted his/her identity. It is fair to say that the pre-trial discovery in this case became extremely contentious, resulting in multiple applications by Ryanair, one of which sought disclosure of the emails from the unidentified pilot in unredacted format. This was ultimately refused by the High Court (Barrett J.) who delivered a written judgment.

9 The...