Ryanair Ltd v Bravofly Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 23 February 2016
• Neutral Citation: [2016] IESC 53
• Court: Supreme Court
• Docket Number: Appeal No. 375/10
• Date: 23 February 2016

McKechnie J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

BETWEEN

RYANAIR LIMITED

PLAINTIFF/APPELLANT

AND

BRAVOFLY LIMITED

DEFENDANT/RESPONDENT

[2016] IESC 53

Appeal No. 375/10

THE SUPREME COURT

Witness statements – Misconduct – Damages – Appellant seeking the furnishing of additional witness statements – Whether the additional evidence was relevant and probative to the case

Facts: The appellant, Ryanair Ltd, alleged that between June and December, 2007, via a process known as "screen scraping" the respondent, Bravofly Ltd, entered its website and, having accessed some of the data therein contained, extracted segments thereof, in particular that regarding flight information, and thereafter, subject to some editing, utilised it in such a manner as enabled Bravofly to offer for sale, and sell, Ryanair flights on its own website. It was alleged by the appellant that this constituted actionable misconduct, inter alia, by breaching the known terms and published conditions of Ryanair which Bravofly was bound by. Accordingly, the appellant sought a series of different but related injunctions and other ancillary orders, including damages and costs. As part of the case management process, a number of orders were made by the High Court including one made by Kelly J on the 1st February, 2010, whereunder he directed that Ryanair should deliver its witness statements to the respondent by the 15th March of that year. This obligation was duly complied with on time, with the delivered statements including one made by a Mr Dickson. Under cover of letter dated the 6th July, 2010, Ryanair delivered to the respondent a "supplemental précis of oral evidence" of Mr Dickson. On the 7th September, 2010, Bravofly made complaint about the inclusion of this supplemental statement and another, being that of one Mr Neville, in the draft indices of core documents and requested their removal. The grounds of objection were that such statements were delivered out of time and, in any event, contained hearsay evidence. The trial judge indicated that any matter of conflict could be dealt with at the time when the relevant witness was called to give evidence. On Day 2 of the trial objection was taken at the point during the course of Mr Dickson's evidence when counsel intended to elicit the evidence contained in the supplemental statement. McGovern J ruled the supplemental précis inadmissible. Having been informed of the significance of the supplemental statement and having been told of Ryanair's intention to appeal to the Supreme Court the ruling so made, the judge deferred the further continuation of the action until such appeal had been determined. On the 19th October, 2010, a Notice of Appeal was served in respect of the aforesaid order.

Held by McKechnie J that the additional evidence appeared relevant and probative to a key issue in the case. McKechnie J held that the evidence could not be described as new in any novel sense, nor did it expand or alter the nature of that issue or indeed any other issue in the case. In addition, McKechnie J held that it could not have taken the respondent by surprise, particularly if, as asserted by Ryanair, much of the information came from one of its own websites. Accordingly, McKechnie J found an absence of any prejudice which could weigh heavily in the Court's overall consideration of the appeal. McKechnie J concluded that the trial judge erred in not permitting the furnishing of the additional statement.

McKechnie J held that he would allow the appeal and permit the furnishing of the additional witness statement(s).

Appeal allowed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 23rd day of February, 2016

Introduction:

1 For the purposes of its core activity Ryanair Ltd ('Ryanair'), in its engagement with the public and would-be customers, operates as its main website www.ryanair.com. This website attracts a very significant volume of traffic, as details of all Ryanair's flights are directly available thereon. The site, which accounts for over 98% of all of its bookings, is therefore a very valuable platform not only for the plaintiff/appellant's ability to advertise and sell its flights, but also to advertise and sell its complimentary goods and services, both as ancillary to flight purchases and independently thereof.

2 At all material times access to and use of the plaintiff's website has been subject to the site's terms and conditions, which, in accordance with accepted internet practice, are made available on each page of the site via a hypertext link. Paragraph 1 of these terms and conditions at the relevant time states:-

'By using this website you agree to be legally bound by and act in accordance with these Terms of Use and by all other applicable provisions; in particular, you agree not to do the acts prohibited under paragraphs 3 to 5.'

Paragraph 3 makes permission to use the site conditional upon such use being non-commercial in nature and specifically prohibits the use of any automated system or software to extract data for use or display on any other site. It also prohibits use of the site on a commercial basis for the purpose of onward provision of the plaintiff's flight information to third parties, with paragraph 5 further providing that hypertext links to the site may not be established or operated without the prior written consent of the plaintiff.

3 Between June and December, 2007, it is alleged by Ryanair that via a process known as 'screen scraping' the defendant entered its website and, having accessed some of the data therein contained, extracted segments thereof, in particular that regarding flight information, and thereafter, subject to some editing, utilised it in such a manner as enabled Bravofly to offer for sale, and sell, Ryanair flights on its own website. It is alleged by the plaintiff that this constitutes actionable misconduct, inter alia, by breaching the known terms and published conditions of Ryanair which Bravofly is bound by. Accordingly, in the substantive proceedings the plaintiff seeks a series of different but related injunctions and other ancillary orders, including damages and costs.

4 The defendant, like the plaintiff, is a company incorporated in this jurisdiction with registered offices at Priory Hall, Stillorgan, Co. Dublin. It carries on the business of providing internet search and booking facilities in respect of low fare flights, as well as other complimentary services. Its business is conducted through a series of websites registered at .com addresses, as well as other sites geared towards specific countries, such as, amongst others, www.bravofly.co.uk, for the United Kingdom, and www.bravofly.fr, which covers France.

5 The defendant pleads that its business involves offering customers who use its websites the possibility of searching for all flight offers within the geographic and time parameters chosen by the internet user, via an application, licensed from a UK company, Travelfusion Ltd, which, if it includes any flights offered by Ryanair, informs the user of the availability of such flights and the price charged by Ryanair therefor. It further provides an additional service whereby the user could, using that same application, proceed to book any flight included in the search result.

6 Bravofly contends that it is the customer/user who undertakes the acts in respect of which Ryanair makes complaint. In addition and/or alternatively, the defendant claims that at the material time Ryanair, being aware of and cooperating with the services provided by it, must be taken as having consented to the activities in respect of which it now complains. It has thus entered a full defence to the claim as made and has attached thereto a counterclaim in which it alleges that in the manner therein pleaded, Ryanair is in breach of Articles 81 and 82 TEC (now Articles 101 & 102 respectively of the TFEU), and their corresponding provisions under the Competition Act 2002. It seeks relief appropriate to such declarations, as well as damages, including exemplary damages.

7 By reason of the nature of these proceedings, the same, by order of the High Court dated the 7th July, 2008, were admitted to the commercial list for hearing and thereafter were managed in accordance with the relevant rules of court attaching to such list, namely those as set out in O. 63A of the Rules of the Superior Courts (RSC).

( S.I. No. 2/2004)

8 As part of the case management process, a number of orders were made by the High Court which were unexceptional in nature. One such order was that made by Kelly J. on the 1st February, 2010, whereunder he directed that Ryanair should deliver its witness statements to the defendant by the 15th March of that year. This obligation was duly complied with on time, with the delivered statements including one made by a Mr. Christopher Dickson, a software engineer employed by Charteris as a Principal Technologist. He was, from Ryanair's point of view, one of the essential witnesses which it intended to call on the 'liability side' of the main action. The trial date, with an anticipated duration of three weeks, was fixed for the 12th October, 2010.

9 Under cover of letter dated the 6th July, 2010, Ryanair delivered to the defendant what was described as a 'supplemental précis of oral evidence' of Mr. Dickson. On the 7th September, 2010, Bravofly made complaint about the inclusion of this supplemental statement and another, being that of one Eric Neville, in the draft indices of core documents and requested their removal. The grounds of objection were that such statements were delivered out of time and, in any event, contained hearsay evidence. No further action was taken by either side until the commencement of the case on the 12th October, 2010.

10 On that occasion the existence of this dispute was brought to the attention of the...