Ryanair Ltd v Channel 4 Television Corporation
|Mr. Justice Meenan
|05 October 2017
| IEHC 651
|[2013 No. 8837 P],[2013 No. 8837 P.]
|05 October 2017
 IEHC 651
THE HIGH COURT
[2013 No. 8837 P.]
Facts: The plaintiff sought an order pursuant to o.31, r. (18) (1) of the Rules of the Superior Courts, 1986 for directing the first defendant to make available for the inspection of documents listed in the affidavit of discovery. The key issue that arose for the Court to determine was about the adequacy of the description of documentation listed in the affidavit of discovery; journalistic and legal advice privilege attached to those documents. The plaintiff claimed that the document in relation to which the privilege was claimed had not been adequately described.
Mr. Justice Meenan held that the documents for which the legal privilege was claimed, a full narrative of those documents must be given along with an affidavit being sworn by the solicitor to the effect that he had inspected those documents for categorising those in such a category. The Court did not grant an order for the disclosure of the documents over which journalistic privilege was asserted by the first defendant as it was not necessary for the plaintiff that the identity of the subject persons be disclosed. The Court noted that the plaintiff would have ample opportunities by way of cross-examination of the subject persons to establish its case. Similarly, the Court held that the documents for which litigation privilege was asserted by the first defendant should only be disclosed after the solicitor had sworn an affidavit that he had inspected those documents to ascertain whether such a privilege applied.
On 12th August, 2013, the first named defendant broadcast a programme as part of its 'Dispatches' series, entitled 'Secrets from the Cockpit'. The programme was produced by the second named defendant (for ease of reference I refer to both defendants collectively as 'Channel 4'). The first half of the programme concentrated on events that took place in July 2012 when, as a result of adverse weather conditions, some twelve flights bound for Madrid, Spain were diverted to Valencia. Amongst these twelve flights were three Ryanair flights. The airport at Valencia had only one runway which limited the facilities for the landing of the various aircraft.
The first Ryanair flight, with 150 passengers aboard, was requested to hold for a landing slot. However, the crew of this aircraft indicated that it did not have sufficient fuel and subsequently issued a 'fuel Mayday'.
The second Ryanair flight, with 179 passengers on board, radioed the airport that they needed to start an approach to landing in the next two to four minutes. Seven minutes later this flight issued a 'fuel Mayday'.
The third Ryanair flight found itself in a similar position and also issued a 'fuel Mayday'.
A 'fuel Mayday' is issued when an aircraft is going into its fuel reserve.
All three Ryanair flights landed safely. Ryanair was not the only airline to experience such difficulties that evening. A flight from LAN, Chilean Airlines, lost one of its engines due to lack of fuel.
The programme stated that the 'fuel Maydays' over Valencia that night were not the first fuel emergencies at Ryanair. Channel 4 referred to an internal memo from Ryanair in 2010 in which it was claimed that there had been three prior investigations into fuel emergencies on Ryanair flights.
Channel 4 stated that it had examined a number of safety reports into, what it described, as being serious incidents involving Ryanair. It stated that it found evidence that Ryanair had repeatedly failed to save Cockpit Voice Recordings, often referred to as the Blackbox, or CVR.
Further, according to the programme, almost 75% of Ryanair pilots were on so called 'zero hour contracts'. Under these contracts, pilots only work for Ryanair but have no guaranteed hours of work. This, it was said, resulted in pressure on Ryanair pilots, who could only make a living when they were actually flying which had adverse safety implications.
Finally, the programme broadcast various views of pilots concerning their lack of confidence in the official authorities charged with maintaining safety in air travel.
The programme broadcast interviews with four pilots who Channel 4 stated had some 44 years of experience of flying with Ryanair between them. They were said to be serving officers, three being captains and the other, a first officer. It was stated that what prompted theses pilots to speak out, was that they believed that the events over Valencia, already described, pointed to a wider problem with Ryanair's fuel policy. These pilots gave their interviews anonymously and were broadcast in silhouette.
Another pilot, Captain John Goss, who had been with Ryanair for some 27 years, was interviewed in person by Channel 4. He spoke of his experiences with Ryanair and of his, and other pilots', lack of confidence in the Irish Aviation Authority.
The broadcast interviews with the Ryanair pilots gave details of the fuel policy followed by Ryanair which involved a 'fuel league table' involving all Ryanair pilots.
In addition to Ryanair pilots, Channel 4 also broadcast interviews with Ewert Van Zwol, of the Ryanair Pilots Group, an air traffic controller and other experts.
In simple terms, the programme broadcast by Channel 4 was alleging, or that there were reasonable grounds for believing that, Ryanair compromised the safety of passengers, crew and those living under the flight paths of Ryanair flights, particularly in the vicinity of airports, in pursuit of financial gain. Channel 4 were further alleging that by failing to maintain Blackbox or CVR recordings, Ryanair were impeding the proper investigation of incidents involving its aircraft.
For any airline, in particular an airline such as Ryanair that, on its pleadings, has some 1,600 flights a day carrying more than 80 million passengers, these are extremely serious allegations.
Ryanair issued a plenary summons on 16th August, 2013, some four days after the programme was broadcast, claiming damages, including aggravated and/or exemplary damages for defamation. The subsequent statement of claim delivered 29th August, 2013, claimed that Channel 4 'falsely and maliciously broadcast and published or caused to be broadcast and published' the said programme. Paragraph 7 of the statement of claim stated that the words complained of meant, and were understood to mean, both in their natural and ordinary meaning and/or by way of innuendo that: -
(i) Employment practices and working conditions in Ryanair jeopardise the safety and lives of passengers by placing pilots under abnormal stress and pressure;
(ii) Ryanair forces its pilots to fly with dangerously low levels of fuel;
(iii) Ryanair's fuel policy will lead to a crash;
(iv) Ryanair aircraft landed in Valencia on 26th July, 2012, with minimum landing fuel because of Ryanair's fuel policy;
(v) Three investigations where made into fuel emergencies on Ryanair flights in 2010;
(vi) The chances of being involved in a serious incident or accident on Ryanair are greater than on other airlines;
(vii) A serious incident or accident on Ryanair is inevitable;
(viii) Ryanair conceals the truth in order to prevent the proper investigation of incidents;
(ix) Ryanair compromises the safety and lives of its passengers and is consequentially an airline that should be avoided;
(x) Ryanair is not a safe airline company.
Paragraph 12 of the statement of claim set out a number of matters to support a claim for aggravated and/or exemplary damages. These matter included, inter alia, that the programme complained of was broadcast in a sensationalist manner; that Captain John Goss had previously furnished correspondence in which he confirmed that he had no concerns regarding safety on Ryanair; and that there was a failure to give any, or any sufficient, weight to the report of the Irish Aviation Authority's investigations into the three flights diverted to Valencia on 26th July, 2012.
Channel 4 in its defence, delivered 16th December, 2013, sets out a robust defence. In particular, I refer to para. 6 of the defence wherein Channel 4 pleads:-
'6. And in so far as the said words in their natural and original meaning meant that there were reasonable grounds to investigate whether some of the practises and operating policies of Ryanair, which were outlined in the broadcast, have consequences for passenger safety, they were true in substance and in fact ...'
Channel 4 then set out, under the heading 'material facts', matters concerning 'fuel policy', 'cockpit voice recordings (CVRs)' and 'employment policies and other issues'.
In subsequent paragraphs of the defence, Channel 4 plead that the words which consist of opinion in the broadcast were honestly held, and that Channel 4 were entitled to the defence of 'honest opinion' as is provided for in s. 20 of the Defamation Act, 2009 (the 2009 Act). Channel 4 further stated that it was entitled to the defence of fair and reasonable publication on a matter of public interest as is provided for in s. 26 of the 2009 Act.
Ryanair delivered a detailed reply in 2015.
I feel that it is important to set out in some detail the nature and extent of the dispute between Ryanair and Channel 4. The issue of 'journalistic privilege' is addressed in subsequent paragraphs of this judgment so it is important to highlight the serious issues of public interest that are raised...
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