Ryanair Ltd v Commission for Aviation Regulation

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 July 2009
• Neutral Citation: [2009] IEHC 387
• Court: High Court
• Date: 31 July 2009

[2009] IEHC 387

THE HIGH COURT

No. 2204 P/2008

Ryanair Ltd v Bravofly Limited & Travelfusion Limited

[2009] IEHC 387

COMMERCIAL

BETWEEN

RYANAIR LIMITED

PLAINTIFF

AND

BRAVOFLY LIMITED AND TRAVELFUSION LIMITED

DEFENDANT

RYANAIR LTD v BRAVOFLY LTD & ANOR UNREP CLARKE 29.1.2009 2009 IEHC 41

PRACTICE & PROCEDURE

Particulars

Failure to provide - Application to strike out defence - Further and better particulars - Intellectual property - Computer software - Alleged breach of rights - Failure to furnish further and better particulars - Whether replies contradictory - Whether replies adequate - Whether defendant able to furnish particulars - Direction that indication be given as to whether particulars could be furnished - Consequences of inadequate replies - Positive defence raised - Positive assertions not particularised - Portion of defence struck out - (2008/2204P - Clarke J - 31/07/2010) [2009] IEHC 387

Ryanair v Bravofly Ltd

Facts The defendants were given an opportunity to mend their hand, a further five weeks (until the 12th June 2009) to provide their particulars as they experienced difficulty in being in a position to furnish the particulars concerned; the court was not satisfied that it was appropriate to make any order striking out part of the defendant's defence at that time. On 19th June 2009 in response to the particulars concerned, the defendants provided some additional particulars but indicated that replies to the relevant request for particulars were not within its knowledge. On that basis, the plaintiffs renewed their application to have the relevant portions of the defence and counterclaim struck out. The particulars identified by the court relate to the manner in which the Travelfusion system operates. In general terms, it would seem that customers of the defendant who access the defendant's website are enabled to use Travelfusion's facilities so as to ascertain the necessary information about the plaintiff's flights and, if desired, to book same. It is the characterisation of the interaction between the systems of the plaintiffs, defendants and Travelfusion that is at the root of the issues which arise in the proceedings.

Held by Clarke J in refusing the plaintiff's application and granting a final three week opportunity to remedy the failure of particularization identified; the court directed that the aspects of the defence and counterclaim which make a positive assertion concerning the manner in which the Travelfusion system operates must be deleted

Reporter: C. O'C

1. Introduction

2 1.1 On the 14 ^th May last, I gave judgment ("the particulars' judgment") in an application brought by the plaintiff ("Ryanair") seeking to have certain aspects of the defence and counterclaim of the defendant ("Bravofly") struck out on the basis of alleged non-compliance with a previous order requiring further particulars of Bravofly's defence and counterclaim to be delivered.

3 1.2 As noted at para. 5.6 of the particulars' judgment, I was satisfied that the complaint made by Ryanair as to the adequacy of the particulars concerned was well made out for the reasons addressed in more detail in the course of that judgment.

4 1.3 However, for the reasons also addressed in the course of the particulars' judgment, I was not satisfied that it was appropriate to make any order striking out part of Bravofly's defence and counterclaim. Rather, I afforded Bravofly an opportunity to mend its hand, by giving Bravofly a further period of five weeks (that is until the 12 ^th June last) to provide the particulars concerned.

5 1.4 In the light of the fact that Bravofly had, on its own case, experienced difficulty in being in a position to furnish the particulars concerned, I had regard to the possibility that that position might persist and, in the course of the particulars' judgment, indicated that, by the extended time, I would expect Bravofly to have provided particulars conforming with the earlier order for particulars which had been made. However, I went on to say as follows, at para. 5.7:-

"If it remains the case that it is asserted that it is impossible for Bravofly to provide some or all of those particulars, then I will require that there is clear sworn evidence before the court, deposed to by persons who can speak of their own knowledge (and not deposed to by solicitors speaking from instructions) which will allow an assessment to be made as to the efforts made by Bravofly to put itself in a position to deliver the relevant particulars, the likelihood of any such particulars becoming available in the future and the extent to which it is anticipated that any material evidence concerning the technical issues concerned is likely to be led at the trial."

6 1.5 On 19 ^th June last, further responses to the particulars concerned were furnished by Bravofly to Ryanair together with an affidavit sworn on the 18 ^th June last, by a Mr. Marco Coradino, who is also a director of Bravofly.

7 1.6 In some respects, additional particulars are given. However, in some other respects (and in particular in relation to item 10(d)), Bravofly indicated that replies to the relevant request for particulars were not within its knowledge.

8 1.7 On that basis, Ryanair renews its application to have the relevant portions of the Bravofly defence and counterclaim struck out. The matter came on for hearing again before me on Friday, 17 ^th July. This judgment is directed to the issues raised at that hearing. It is appropriate that I turn, first, to a general description of the particulars in issue.

2. The particulars in issue

2 2.1 Both in the particulars' judgment and in an earlier judgment dealing with other interlocutory matters given by me on 29 ^th January, 2009, (Ryanair Limited v. Bravofly Limited & Anor [2009] IEHC 41), the general background to these proceedings and the issues which arise between the parties is more fully set out. However, insofar as is material to the issues which arise on this application, it is important to understand that a key issue between the parties concerns the manner in which certain software operates to facilitate clients of Bravofly, who access the Bravofly website, in both gaining access to up to date information on the availability and price of Ryanair flights and, if such customer should so choose, to book such flights.

3 2.2 Those issues arise in the context of the general claims made by Ryanair in these proceedings, which are to the effect that Bravofly's operation contravenes Ryanair's intellectual property and other similar rights. It is to be inferred from the pleadings that, at least to some extent, a significant issue may arise between the parties as to how it is proper to characterise the manner in which the relevant software operates, so as to determine whether it can be said that Bravofly accesses Ryanair's website and uses Ryanair's information, or whether it is more proper to characterise what happens as a facilitation by Bravofly of the customers of Bravofly in being themselves able to access the Ryanair website. It is in that context that a series of questions has been asked by way of particulars, which are designed to elicit the precise manner in which it is said by Bravofly that the relevant software operates. Those questions arise, in the main, in the context of a positive assertion by Bravofly in the course of its defence and its counterclaim in which Bravofly asserts that it is not proper to characterise the service which it provides to its customers as one in which Bravofly itself can be said to have accessed or used Ryanair's website in any way that might amount to a breach of the intellectual property or other rights which are the subject of these proceedings. The particulars concerned request details of the manner in which Bravofly enables its customers to search for or book flights, how Bravofly's system enables it to carry out its activities and the precise technical mode of the operation of a third party IT system (to which...