Ryanair Ltd v Billigfluege.de GmbH and Others

• Jurisdiction: Ireland
• Judge: Charleton J
• Judgment Date: 19 February 2015
• Neutral Citation: [2015] IESC 11
• Docket Number: Record number: 7959P/2009
• Court: Supreme Court
• Date: 19 February 2015

Ryanair Ltd v Billigfluege.de GmbH & Ticket Point Reiseburo GmbH

An Chúirt Uachtarach

Between

Ryanair Limited

Plaintiff/Appellant

and

Billigfluege.de GmbH/Ticket Point Reisebüro GmbH

Defendants/Respondent

Plaintiff/Respondent

and

Defendants/Appellants

Ryanair Limited

Plaintiff/Respondent

and

On the Beach Limited

Defendant/Appellant

[2015] IESC 11

Hardiman J

McKechnie J

Clarke J

MacMenamin J

Charleton J

Record number: 7959P/2009

Appeal number: 084/086/2010

Record number: 7959P/7960P/2009

Appeal number: 108/109/2010

Record number: 8924P/2010

Appeal number: 272/2013

The Supreme Court

Practice & procedure – Jurisdiction – Purchase of airline travel – Online companies offering service to purchase travel rather than through plaintiff"s website –Council Regulation EC/44/2001

Facts: The two defendants offered a service to purchase online tickets for air travel with the plaintiff amongst other carriers. The parties were in dispute about the intellectual property rights regarding use of a website, which had passed to the High Court. These appeals concerned the jurisdiction of the Irish Courts to hear the matters in question.

Held by Charleton J, the other Justices concurring, that the appeals in both cases would be dismissed. Having considered the provisions of Council Regulation EC/44/2001, and the judgments below, the Court was satisfied that the conclusions reached by the respective High Court judges were reasonable and conclusions that were open to them to make. The burden of appeal fell on the appellants, and they had failed to make a substantive case that the judges had fallen into error. In respect of the burden of proof to be satisfied under Council Regulation EC/44/2001, this was to be on the balance of probabilities.

1 19th day of February 2015 by Charleton J

2 Judgment delivered by Charleton J [Nem diss]

3 1. This appeal is entirely concerned with the jurisdiction of the courts of Ireland to hear and determine the disputes in these three cases under Council Regulation EC/44/2001 of 22 December, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, O.J. L 012/1 16. 1.2001 (commonly called the Brussels I Regulation) as transposed into Irish law by the European Communities (Civil and Commercial Judgments) Regulations 2002 ( S.I. No. 52 of 2002). All of the cases are concerned with the use by online travel companies of the website of Ryanair Limited to book flights for their customers through those travel companies instead of directly by the customer accessing that airline's own website. The result for the customer is a slightly higher price but with a choice of several airlines flying from one destination to another. Appeals numbered 2010/084/086 in Ryanair Limited v Billigfluege.de GmbH/Ticket Point Reisebüro GmbH are concerned with an application for an interlocutory injunction, refused by Hanna J following his decision that the parties had made a clear choice of jurisdiction for the resolution of their dispute; [2010] IEHC 47. This does not form part of this judgment. The substantive hearings in the High Court will determine the questions as to the protection to be afforded to whatever intellectual property rights may be asserted notwithstanding the use of a publicly accessible website, and as to whether the parties to these various disputes have entered into a contract online and as to the terms thereof. The injunction applications in aid of whatever rights are asserted, either prior to trial or upon final decision, are also before the High Court. There are two separate but related sets of facts in the two cases under appeal. In appeal number 2010/108/109 Ryanair Limited v Billigfluege.de GmbH/Ticket Point Reisebüro GmbH, Hanna J has decided that the use of the website of Ryanair by the online travel website Billigfluege amounted to a choice by them as to jurisdiction; [2010] IEHC 47. In appeal number 2013/272 Ryanair Limited v On the Beach Limited, Laffoy J has made a similar decision on somewhat different facts consequent on the use by On the Beach of the Ryanair website; [2013] IEHC 124.

Appeal from hearings on affidavit

4 2. This appeal was characterised by confusion as to what the approach of an appellate court should be to disputed findings of fact where those facts as found by the trial judge derived entirely from affidavit evidence and the exhibits thereto. It was implied that a finding of jurisdiction by the High Court was somehow an exercise in judicial discretion. This is not correct. It is a finding of fact. A discretionary order is different. In such a case, an appellate court will "give great weight to the views of the trial judge and to any reasons stated by him for the course which he has taken" for the exercise of that discretion; Vella v Morelli [1968] 1 IR 11, per Budd J at p. 29, in that case considering an issue as to costs. In Desmond v MGN Ltd. [2009] 1 IR 737, Geoghegan J, giving judgment for the majority, affirmed that the position indicated by Budd J in Vella v Morelli is in his view the true legal principle in the light of the Constitution. However, Geoghegan J stated that while the Supreme Court would be slow to interfere with the High Court judge's management of his or her list, in a case where "much more substantial issues are at stake" the Supreme Court must "seriously consider whether in all the circumstances and in the interests of justice it should re-exercise the discretion in a different direction."

5 3. Where issues of fact are in dispute, the approach of this court to arguments that the trial judge was incorrect in the findings made on hearing oral evidence is set out in Hay v O'Grady [1992] 1 IR 210. The three principles therein set out were predicated on the unique position of the trial judge in hearing and seeing all of the witnesses and then deciding where the truth lay. Thus, findings of fact supported by credible evidence are not to be disturbed, inferences of fact derived from oral evidence will rarely be interfered with, while inferences drawn from circumstantial evidence leave an appellate court in as good a position to draw its own inferences as the court of trial; see the judgment of McCarthy J at p. 217.

6 4. Principles based on the superior ability of a trial judge to decide, as between live witnesses, who is to be preferred in terms of credibility or of recollection cannot apply with the same force where facts are merely deposed to on affidavit. Apart from the gap between the experience of hearing and seeing a person giving testimony and the recitation of facts on paper that affidavit evidence represents, it must also be remembered that the gulf widens through those words on paper being generally chosen by lawyers as a reflection of what a witness wishes to say, as opposed to witnesses speaking or writing the account themselves. Sometimes facts deposed to on affidavit will clash in an unequivocal way; as where a witness for a plaintiff or an applicant gives an account of a conversation that carries legal effect in a particular way and a defendant's or respondent's deponent either denies that the conversation took place at all or gives a materially contradictory account. The High Court has emphasised that where resolutions of fact are essential to a decision necessarily founded on contradictory affidavit evidence, the trial judge may need to hear such limited portion of the evidence as enables him or her to reach a proper conclusion.: Director of Corporate Enforcement v Seymour [2006] IEHC 369, and see Irish Bank Resolution Corporation Ltd. V Quinn [2012] IESC 51 in the Supreme Court.

7 5. Any party appealing a decision, however, bears the burden of demonstrating that the trial judge was incorrect as to whatever findings of fact underpin a decision. Where an appeal is taken against essential findings of fact drawn from affidavit evidence, the appellant must establish an error in those findings that is such as to render the decision untenable. Alternately, it may need to be established on appeal that the decision reached was impossible because an essential conflict could not be resolved on what was before the trial judge. In this appeal, it was argued on behalf of Billigfluege and that both Hanna J and Laffoy J, in both of their respective decisions, reached conclusions that they should not have reached because the affidavit evidence demonstrably clashed as to the issue of choice of jurisdiction in such a way as to have required them to first hear limited oral evidence. In this case, as in many heavy motion cases, volumes of affidavit evidence and accompanying exhibits were exchanged. Much of what was deposed to consisted of the iteration, reiteration or contradiction of mere argument. Essential fact tends, in those circumstances, to be swamped. The first task of the trial judge is to isolate the questions of fact that are essential to the decision and to identify such portions of the evidence as support one side or the other. Once that is clear, a trial judge will be aware that he or she is entitled to regard exhibits as part of the factual material. Where correspondence contradicts averments of fact, this should be taken into consideration; where bald allegations are unsupported, that may be important; where exhibits demonstrate that what a witness deposes to is unlikely, that can be significant; where a test result is confirmed by an analytic printout, it can be hard to gainsay; and where a fact is demonstrated through an unbroken chain of circumstances, mere argument will have to give way. What these considerations demonstrate is that sorting out the facts that can be relied on in the context of written material is an evaluative exercise. Such an analysis is one of finding...