Ryanair Ltd v Erick Besancon
|Mr. Justice Robert Haughton
|15 April 2021
| IECA 110
|15 April 2021
|Court of Appeal (Ireland)
|High Court Record Number: 2013/3816P
 IECA 110
High Court Record Number: 2013/3816P
Court of Appeal Record No. 2019/534
THE COURT OF APPEAL
Defamation – Estoppel – Costs – Appellant appealing from the judgment and order of the High Court whereby it was ordered that the appellant was to produce to the respondent’s solicitors a report – Whether the trial judge erred in law and in fact in finding that the appellant was estopped from arguing that the report was not relevant or necessary
Facts: The appellant, Ryanair Ltd (Ryanair), in defamation proceedings, appealed to the Court of Appeal from the judgment of the High Court (Barr J) delivered on 6 November 2019 and its order perfected on 6 December 2019, whereby it was ordered, inter alia, that the appellant was to produce to the solicitors of the respondent, Mr Besancon, the SAIR Base Investigation Final Report dated 30 October 2012 (the B.I. Report) subject to certain specified redaction and limits on circulation/inspection. In the notice of appeal Ryanair set out four grounds, asserting that the trial judge erred in law and in fact in: (1) finding that Ryanair was estopped from arguing that the B.I. Report was not relevant or necessary; (2) finding that (a) the Report was relevant and necessary to the issues to be tried at the action, (b) that the application did not amount to fishing and (c) that inspection could be ordered on foot of an un-particularised plea of truth; (3) finding that the balance favoured the production of the un-redacted version of the B.I. Report; and (4) awarding costs to the respondent.
Held by Haughton J that an issue estoppel arose such that Ryanair, having agreed to make discovery of the B.I. Report, could not thereafter challenge an application for inspection or seek to justify complete or extensive redaction on the same grounds on grounds of relevance, or of necessity, provided always that this did not prevent Ryanair contesting the inspection application on grounds of confidentiality or grounds arising under the provisions of the aviation investigation legislation. In so far as Ryanair had attempted to go beyond this and relitigate these issues on this appeal it had in his view engaged in an abuse of the process and wasted valuable court time both in the High Court and in the Court of Appeal. Even if Ryanair were not estopped from pursuing the issues of “relevance and necessity” it had failed to satisfy him that the trial judge erred in law or in fact in any respect in his determination that the un-redacted B.I. Report was both relevant and necessary, and prima facie should be produced for inspection. He was satisfied that no valid or persuasive criticism was made of the trial judge’s approach to the balancing exercise, whether in identifying the relevant domestic and aviation law, or in applying that to the facts and the pleaded case. Further, he noted that the balancing exercise is one that falls within the discretion of the trial judge, and the Court of Appeal, whose function as an appellate court is limited to review rather than a re-hearing, must afford a reasonable margin of appreciation to the trial judge. He held that it would not be appropriate for the Court of Appeal to interfere with the exercise of the trial judge’s discretion unless there was a clear error of law or fact, or clear misapplication of legal principle to the facts. He held that nothing approaching anything of that nature had been demonstrated by Ryanair. He was of the view that the trial judge was entitled to exercise his discretion in relation to costs in the way that he did.
Haughton J held that as the respondent had entirely succeeded he was, under s. 169(1) of the Legal Services Regulation Act 2015, prima facie entitled to his costs of the appeal.
JUDGMENT of Mr. Justice Robert Haughton delivered on the 15th day of April 2021
. This is an appeal from the judgment of Mr. Justice Barr delivered on 6 November 2019 and his order perfected on 6 December 2019, whereby it was ordered, inter alia, that the plaintiff/appellant (“Ryanair”) is to produce to the respondent's solicitors the SAIR Base Investigation Final Report dated 30 October 2012 (“the B.I. Report”) subject to certain specified redaction and limits on circulation/inspection.
. Ryanair is a limited liability company involved in the airline business. The respondent was, at the time of matters complained of in these proceedings, a pilot employed by Ryanair. The proceedings are defamation proceedings arising out of certain postings made by the respondent on a website in December 2012 concerning an incident that occurred involving a Ryanair flight at or near Memmingen Airport in Germany on 23 September 2012. Ryanair alleges that these postings were defamatory of it.
. In the course of these proceedings Ryanair agreed to make discovery of certain documentation, including the B.I. Report which is an internal Ryanair Safety Management System investigation report. Only a heavily redacted form of the B.I. Report was produced for inspection, and this prompted the respondent to apply by Notice of Motion dated 28 August 2018 for an order directing Ryanair to make it available in un-redacted form.
. The respondent contended in the High Court and before this court, that the B.I. Report is highly relevant to the issues that will arise for determination at the trial of the action, and that it is necessary for him to be furnished with a copy in advance of the hearing. Ryanair resisted production on the basis that it is a confidential report, and further that it is protected from disclosure by domestic and EU aviation legislation. Ryanair contend that if the court carries out the correct balancing exercise whereby it balances the advantage to the respondent by production of the report, as against the adverse consequences to the investigation of incidents involving aircraft with the resultant negative effects on airline safety generally, the balance tips in favour of withholding production of the document.
. The background to the proceedings is that a Ryanair passenger flight was involved in an incident on its approach to Memmingen Airport in Germany on 3 September 2012. There had been a delay of approximately 25/30 minutes in the flight departing from Manchester. On the approach to Memmingen Airport the flight crew asked to move from runway 6 to runway 24. That request was granted. They also requested permission to make a visual approach to the runway, rather than using a technically guided procedure. That request was also granted. As the plane was approaching the runway, an early warning system known as E.G.P.W.S. generated the warning “caution terrain”. Two seconds later the warning system generated a further warning of “terrain, terrain, pull up, pull up”. The crew conducted a missed approach procedure and went around, and a short time later landed uneventfully at Memmingen Airport on runway 24. The cockpit voice recorder (C.V.R.) recordings were not retained by the flight crew and accordingly were not available for investigation. This account of the incident is taken from the German Federal Bureau of Aircraft Investigation, which produced an interim report (the “B.F.U. Report”).
. In 2012 the respondent was employed as a pilot by Ryanair. He obtained a copy of the B.F.U. Report, which was issued in November 2012. On 9 and 10 December 2012 he made two postings on a website known as the Professional Pilots Rumour Network. He made these postings under the pseudonym “ Enjoy The View”. In the postings he stated as follows:-
“Ryanair should investigate what internal procedures led a crew trying to make up for lost time by impromptu change of plan that nearly went south. The crew screwed up, no doubt about it. However: it's also about company's culture. Crews being under pressure to make up lost time (it's in the report… negotiating the change of runway with ATC, avoiding longer taxi route, asking for a visual approach to avoid the procedural approach…) It's a bad habit found throughout the company, always run run run. ‘Expedite’ as they say. The 25-minute turnaround is a start, putting massive stress on flight crews, but there is a lot more to it. Recent changes in cost index, flying slower but keeping same block times turn most flights into delays… is just another example. Most of us understand these issues which aren't obvious Joe Public. They are being discussed in details on other private forums/websites with deep concerns in the long run.”
“BOAC it must be annoying for all those undoubted professional pilots and trainers in Ryanair to see the company bring this on itself.” [This comment does not appear to have been written by the respondent]”
“Not really, nobody pays attention to MOL or McNamara's declarations in the press. What we do worry about is the corporate culture the company is inflicting on us, which in turn could affect safety.”
. In January 2013, as part of a general safety review carried out within Ryanair, an Operations Roadshow was held, where the chief pilot gave a presentation to Ryanair pilots and flight crew concerning general safety aspects procedures that should be adopted in the wake of the Memmingen incident. The respondent also sought production of that documentation, but this was refused by the trial judge and is not the subject of any appeal.
. In August 2013, the respondent was dismissed from his position of employment with Ryanair.
. Having identified the respondent as the author of the postings, on 16 April 2013 Ryanair issued these proceedings by Plenary Summons against him claiming damages for defamation. In the Statement of Claim delivered on 29 June 2013 Ryanair pleads that the postings meant and...
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