Ryanair Ltd v Bravofly Ltd & Travelfusion Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 30 July 2009
• Neutral Citation: [2009] IEHC 386,[2009] IEHC 41
• Court: High Court
• Date: 30 July 2009

Ryanair Ltd v Bravofly Ltd & Travelfusion Ltd

[2009] IEHC 386

COMMERCIAL

BETWEEN

RYANAIR LIMITED

PLAINTIFF

AND

BRAVOFLY LIMITED AND TRAVELFUSION LIMITED

DEFENDANTS

[2009] IEHC 386

[No. 2204 P/2008]

THE HIGH COURT

PRACTICE & PROCEDURE

Parties

Joinder - Contract - Damages - Use of website - Screen scraping - Terms of use - Whether breach of contract - Leave to join co-defendant - Separate proceedings between plaintiff and proposed co-defendant outside jurisdiction - Whether related proceedings - Application for stay of Irish proceedings refused in second set of proceedings - Whether proceedings began upon making order joining party - Conflict of laws - Whether obligation to decline jurisdiction - Whether related actions - Hynes v Western Health Board [2006] IEHC 55 (Unrep, Clarke J, 8/3/2006) considered - Rules of Superior Courts (SI 20/1996), O 11B, O 15 r 13 - Jurisdiction of Courts and Enforcement of Judgments Act 1998 (No 62) - Lugano Convention on Jurisdiction of Courts and Enforcement of Judgments Act 1988, art 21 and 22 - (2008/2204 P - Kelly J - 30/07/2009) [2009] IEHC 386

Ryanair v Bravofly Limited and Travelfusion Limited

RSC O.11B

LUGANO CONVENTION ART 21

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1998 7 SCHED

LUGANO CONVENTION ART 21 S8

LUGANO CONVENTION ART 22

RSC O.15 r13

HYNES v WESTERN HEALTH BOARD UNREP CLARKE 8.3.2006 2006/29/6275 2006 IEHC 55

1 Mr. Justice Kelly delivered on the 30th day of July, 2009

The Issue

2 Should the plaintiff (Ryanair) be permitted to join an additional defendant called Bravofly S.A. (S.A.) to these proceedings? The first defendant (Bravofly) believes that it should not and argues accordingly.

The Proceedings

3 In this action, Ryanair claims, inter alia, a declaration that the terms and conditions of use of its website are lawful, valid and binding on Bravofly. It alleges that a contract was entered into between it and Bravofly as a result of Bravofly accessing and using Ryanair's website. Ryanair seeks injunctive relief against Bravofly from infringing the rights of Ryanair which are alleged to subsist in its database of flight information contained on its website. Ryanair also seeks injunctive relief restraining Bravofly from infringing its community registered trademark and also from using data and/or information extracted from Ryanair's website regarding services provided by that entity. Damages for breach of contract and wrongful interference with Ryanair's economic interests and infringement of its trademark are also sought.

4 In its statement of claim, Ryanair alleges that its website plays a central part in the conduct of its business. It contends that it has spent large sums of money in designing, organising, operating and maintaining the website so as to ensure its efficient operation. It alleges that admission to the website is subject to Ryanair's terms and conditions. Those conditions make permission to use the website conditional upon such use being non-commercial in nature and furthermore prohibit use of any automated system to extract data from the site.

5 Ryanair contends that in October 2007, it became aware that Bravofly was breaching the aforesaid terms and conditions by, inter alia, using the system to extract information from the website for commercial purposes and by establishing unauthorised links into the website. This practice is known in the airline business as "screen scraping".

6 Amongst the items alleged in Bravofly's defence and counterclaim is a plea that Ryanair is in a dominant position in respect of low cost online booked air travel and is allegedly attempting to stymie competition in the relevant market contrary to both domestic legislation and European law.

The Present Application

7 Ryanair seeks leave to join S.A., a Swiss Company, as a co-defendant in the proceedings in circumstances where the plaintiff claims S.A. was conducting the screen-scraping activities complained of, and to amend the summons and statement of claim to reflect that. At para. 15 of the grounding affidavit of Michael Cawley, the deponent avers that S.A. have admitted their involvement in the screen-scraping activity in certain Swiss proceedings (which I will deal with later) and have further admitted to having taken over the key management and operational role in respect of the websites in question at the relevant dates. On that basis, the plaintiff says S.A. should be joined in the present proceedings. It also seeks leave to serve S.A. out of the jurisdiction pursuant to O. 11B of the Rules of the Superior Courts. Bravofly objects to this course on the basis that such an exercise would be fruitless. If joined, it is argued that the proceedings between Bravofly and S.A. would be subject to an immediate mandatory stay by the court of its own motion pursuant to Article 21 of the Lugano Convention (the Convention). The reason for this is the existence of the Swiss proceedings brought by S.A. against Ryanair in the District Magistrates Court of Lugano. Those proceedings were commenced on the 10 ^th June, 2008. Even if S.A. is joined, it is argued that this Court would ultimately have to decline jurisdiction in favour of the Swiss Court thus making the joinder of S.A. a futile and unnecessary step causing delay and additional costs.

The Convention

8 The Convention is set forth in the 7 ^th Schedule to the Jurisdiction of Courts and Enforcement of Judgments Act 1998 (the Act). The Act provides that the Convention shall have the force of law in this State and stipulates that judicial notice shall be taken of it.

9 Article 21 is contained in s. 8 of the Convention under the heading "Lis Pendens - Related Actions".

10 Article 21 provides:-

"Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."

11 Article 22 of the Convention is also relevant. It reads:-

"Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.

A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.

For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."

The Swiss Proceedings

12 The instant proceedings were commenced on 14 ^th March, 2008.

13 On 10 ^th June 2008, S.A. commenced two sets of proceedings in Switzerland. S.A. is a company with its seat in Switzerland and...