Ryanair Ltd v Besancon
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 06 November 2019 |
| Neutral Citation | [2019] IEHC 744 |
| Docket Number | [2013 No. 3816 P.] |
| Court | High Court |
| Date | 06 November 2019 |
[2019] IEHC 744
THE HIGH COURT
Justice Barr
[2013 No. 3816 P.]
Defamation – Discovery – Balance – Defendant seeking production of an investigation report – Whether the report was relevant to the issues that would arise for determination at the trial of the action
Facts: The defendant, Mr Besancon, was a pilot employed by the plaintiff, Ryanair Ltd. Defamation proceedings arose out of certain postings made by the defendant on a website in December 2012 concerning an incident that had occurred involving a Ryanair flight at or near Memmingen Airport in Germany on 23rd September, 2012. The plaintiff alleged that these postings were defamatory of it. The defendant applied to the High Court seeking production of an investigation report drawn up by the plaintiff into the incident, which was known as the S.A.I.R. Base Investigation – final report dated 30th October, 2012, being the date that it was accepted by the Chairman of the S.A.I.R. review meeting (the B.I. Report). The defendant submitted that this report was highly relevant to the issues that would arise for determination at the trial of the action and accordingly that it was necessary for him to be furnished with a copy of this report in advance of the hearing. The plaintiff resisted production of the report on the basis that it was a confidential report, which was protected by both Irish and EU aviation legislation. It was submitted that if the Court carried out the correct balancing exercise, whereby it balanced the advantage to the defendant by production of the report, as against the adverse consequences to the investigation of incidents involving aircraft with the resultant negative effects on airline safety generally, the balance tipped in favour of withholding production of the document.
Held by Barr J that the balancing test set out in the judgment of Clarke J in Telefonica O2 Ltd v Commissioner for Communications Regulation & Others [2011] IEHC 265 and in the judgment of Meenan J in Ryanair Ltd v Channel 4 Television Corporation & Another [2017] IEHC 651 came down in favour of directing production of the B.I. Report by the plaintiff to the defendant, but subject to redaction of the names of any persons, or any other information that would identify them. Furthermore, Barr J held that he would place strict limits on the extent of circulation of the report once furnished to the defendant.
Barr J held that he would make the following order: (a) The plaintiff is to produce to the defendant’s solicitor the B.I. Report within a period of six weeks. The plaintiff may redact the report so as to remove the names of persons making statements or providing information, and the names of persons referred to therein and may also redact any other information which would identify them. (b) The plaintiff is to furnish six copies of the redacted report to the defendant’s solicitor. The plaintiff’s solicitor may put identifying marks on the copies of the report so furnished. The report may not be copied by the defendant’s solicitor. (c) The defendant’s solicitor may retain a copy for his own use, he may furnish three copies to counsel and he may furnish two copies to such experts as may be retained on behalf of the defendant. The defendant may view the report in the solicitor’s office. Any expert to whom the report is given, must furnish a written undertaking not to copy the report, or otherwise disclose its content to any third parties. However, the expert may refer to the content of the report in the body of any report furnished by him to the defendant’s solicitor. (d) At the conclusion of the hearing, or upon settlement of the matter, the defendant’s solicitor is to return all six copies of the report to the plaintiff’s solicitor, subject to the reports being returned to the defendant’s solicitor in the event of an appeal. (e) The parties have liberty to apply in the event of there being any disagreement between them as to the extent of the redactions made to the report. (f) There will be a stay on this order for a period of four weeks and if a notice of appeal is lodged within that period then the stay is to continue pending the final determination of the matter before the Court of Appeal.
Application granted.
The plaintiff is a limited liability company, involved in the airline business. The defendant was at the time of the matters complained of in these proceedings a pilot employed by the plaintiff.
These proceedings, which will be described in more detail in the next section of the judgment, are defamation proceedings arising out of certain postings made by the defendant on a website in December 2012 concerning an incident that had occurred involving a Ryanair flight at or near Memmingen Airport in Germany on 23rd September, 2012. The plaintiff alleges that these postings were defamatory of it.
In this application the defendant seeks production of an investigation report drawn up by the plaintiff into the incident, which is known as the S.A.I.R. Base Investigation – final report dated 30th October, 2012, being the date that it was accepted by the Chairman of the S.A.I.R. review meeting (hereinafter referred to as the “B.I. Report”).
The defendant submits that this report is highly relevant to the issues that will arise for determination at the trial of the action and accordingly that it is necessary for him to be furnished with a copy of this report in advance of the hearing. The plaintiff resists production of the report on the basis that it is a confidential report, which is protected by both Irish and EU aviation legislation. It is submitted that if the Court carries out the correct balancing exercise, whereby it balances the advantage to the defendant by production of the report, as against the adverse consequences to the investigation of incidents involving aircraft with the resultant negative effects on airline safety generally, the balance tips in favour of withholding production of the document.
This action arises out of postings that were made by the defendant concerning an incident at or near Memmingen Airport on 23rd September, 2012. In very brief terms, what happened was as follows: a Ryanair plane was on a flight from Manchester to Memmingen Airport in Germany. It had 135 passengers and 6 crew members on board. There had been a delay of approximately 25/30 minutes in leaving Manchester. On the approach to Memmingen Airport, the flight crew asked for permission to move from runway 6 to runway 24. That request was granted. They also requested permission to make a visual approach to the runway, rather than using a technically guided procedure. That request was also granted. As the plane was approaching the runway, an early warning system known as the E.G.P.W.S. generated the warning “caution terrain”. Two seconds later the warning system generated a further warning of “terrain, terrain, pull up, pull up”. The crew conducted a missed approach procedure and went around, and a short time later landed uneventfully at Memmingen Airport on runway 24. The cockpit voice recorder (C.V.R.) recordings were not retained by the flight crew and accordingly were not available for the investigation.
As the incident occurred in German airspace, an investigation was carried out by the German Federal Bureau of Aircraft Accident Investigation, which produced an interim report (hereinafter referred to as “B.F.U. Report”). The account of the incident given above, is taken from that report.
In 2012 the defendant was employed as a pilot by the plaintiff. He obtained a copy of the B.F.U. Report which had been issued in November 2012. On 9th and 10th December, 2012, he made two postings on a website known as the Professional Pilots Rumour Network. He made these postings under the pseudonym “Enjoy The View”. In the postings he stated as follows:
“Ryanair should investigate what internal procedures led to a crew trying to make up for lost time by an impromptu change of plan that nearly went south. The crew screwed up, no doubt about it. However: it's also about company's culture. Crews being under pressure to make up lost time (it's in the report … negotiating the change of runway with ATC, avoiding longer taxi route, asking for a visual approach to avoid the procedural approach …). It's a bad habit found throughout the company, always run run run. “Expedite” as they say. The 25-minute turnaround is a start, putting massive stress on flight crews, but there is a lot more to it. Recent changes in cost index, flying slower but keeping same block times turn most flights into delays … is just another example. Most of us understand these issues which aren't obvious Joe Public. They are being discussed in details on other private forums/websites with deep concerns in the long run.
BOAC it must be annoying undoubted unprofessional pilots and trainers in Ryanair to see the company bring this on itself. [Not clear if this portion was written by the defendant].
Not really. Nobody pays attention to MOL or McNamara's declarations in the press. What we do worry about is the corporate culture the company is inflicting on us, which in turn could affect safety.”
In January 2013, as part of the general safety review carried out within the company in the wake of the Memmingen incident, an Operations Roadshow was held, where the chief pilot gave a presentation to Ryanair pilots and flight crew concerning general safety aspects and procedures that should be adopted in the wake of the Memmingen incident. The defendant also seeks production of this documentation.
As the defendant had made his postings on the website under a pseudonym, it took the plaintiff some time to identify that the postings had been...
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