Ryanair Ltd v Fleming

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 04 October 2016
• Neutral Citation: [2016] IECA 265
• Docket Number: [C.A. No. 528 of 2015],Appeal Nos. 2015/528
• Court: Court of Appeal (Ireland)
• Date: 04 October 2016

BETWEEN/

RYANAIR LIMITED

PLAINTIFF/APPELLANT

AND

PETER JOHN FLEMING

DEFENDANT/RESPONDENT

[2016] IECA 265

Hogan J.

Finlay Geoghegan J.

Irvine J.

Hogan J.

Appeal Nos. 2015/528

THE COURT OF APPEAL

Defamation – Jurisdiction – Forum conveniens – Appellant seeking to bring defamation proceedings against the respondent – Whether the Irish courts lacked jurisdiction

Facts: The appellant, Ryanair Ltd, sued the respondent, Mr Fleming, for what it said were defamatory comments made by him (under a pseudonym) on 29th September 2012 on an internet website forum entitled "Professional Pilots Rumour Network" (PPRune). Ryanair said that these comments seriously jeopardised its reputation and that it was entitled to have these issues determined by the courts of the place where the defamatory post had been published. Central to this contention was the claim that the defamatory post had in fact been published in Ireland's jurisdiction. The respondent denied that these comments were defamatory. He further maintained that the appellant had sought to ground the Irish defamation proceedings on a slender and technical jurisdictional basis (namely, that the tort was committed in Ireland) when the effect of this would be to deprive him of his right to be sued in the courts where he is domiciled. The High Court (O'Connor J), on 14th October 2015, made an order setting aside previous orders of the High Court made ex parte authorising service outside the jurisdiction of the proceedings upon Mr Fleming in New South Wales. The reason why O'Connor J arrived at this conclusion was because he took the view that even if the Irish Courts technically had jurisdiction in respect of these proceedings it would be appropriate on forum conveniens grounds to have the proceedings dismissed. O'Connor J held that there was nothing but a tenuous connection by way of a suggested inference between the appellant's alleged cause of action and Ireland and that there was no evidence to suggest that Ireland compared to Australia would be more convenient or less costly for the parties to litigate the issue raised by the appellant. Ryanair accordingly appealed to the Court of Appeal against that decision.

Held by Hogan J that there were two fundamental reasons why the decision of the High Court should be affirmed: 1) there was no evidence of actual publication (in the sense of the post having been accessed or downloaded by a third party) of the post in Ireland, so that the Irish courts in any event lacked jurisdiction; 2) even if the technical requirements of jurisdiction were satisfied, Hogan J agreed with the conclusions of O'Connor J that there was at most a tenuous connection between the alleged tort of defamation and Ireland's jurisdiction, so that in those circumstances one must agree with him that the natural forum for the hearing of this dispute remained that of the respondent's domicile, namely, the Australian courts.

Hogan J held that he would uphold the decision of the High Court and dismiss the appeal, both on grounds of lack of jurisdiction and, in any event, forum conveniens.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of October 2016

1 The respondent in these proceedings, Mr. Fleming, is an Australian pilot who is domiciled in New South Wales. He lives there with his wife and family and he has no connections with Ireland.

2 The plaintiff is the well-known Irish airline which is now one of the biggest airlines in the world, even if its operations are almost exclusively confined to the European continent.

3 In these proceedings Ryanair sues Mr. Fleming for what it says are defamatory comments made by him (under a pseudonym) on an internet website forum entitled 'Professional Pilots Rumour Network' ('PPRune'). This forum is operated by a company known as Internet Brands Inc. and is based in California, USA. It appears that the PPRune forum is principally used as a discussion vehicle by pilots in relation to aviation matters, including aviation safety. This internet forum can be casually accessed by members of the public who are interested in such matters, although participation in the forum requires prior registration. Issues raised by forum participants are, on occasion, subsequently picked up by the mainstream media.

4 The comments were made by Mr. Fleming on PPRrune on 29th September 2012. The comments themselves were made as a part of a series of lengthy posts concerning aviation safety generally. All of this arose from an initial post which stated that four Ryanair aircraft flying to Spain from different destinations on a particular evening had declared fuel emergencies. This had followed a heavy thunderstorm in Madrid which had required the diversion of the aircraft to Valencia. The initial post suggested that this incident highlighted unacceptable problems with minimum fuel policies practised by certain airlines.

5 This post then generated a lively debate among forum participants, with some posters coming to the defence of Ryanair and dismissing any suggestion that aviation safety had been jeopardised. Others asserted that these incidents highlighted the difficulties associated with minimum fuel policies and complained that these events showed that pilot airmanship had been lacking. This was the background to Mr. Fleming's own post where he challenged both the experience of the Ryanair pilots and the wisdom of the minimum fuel policies which he maintained were practised by Ryanair.

6 It was this post which prompted the present defamation proceedings. Ryanair says that these comments seriously jeopardised its reputation and that it is entitled to have these issues determined by the courts of the place where the defamatory post had been published. Central to this contention, of course, is the claim that the defamatory post had in fact been published in this jurisdiction.

7 The defendant denies that these comments were defamatory. He further maintains that the plaintiff has sought to ground these Irish defamation proceedings on a slender and technical jurisdictional basis (namely, that the tort was committed in Ireland) when the effect of this would be to deprive him of his right to be sued in the courts where he is domiciled.

8 As it happens, Mr. Fleming has never even been to Ireland. The un-contradicted evidence is that any judgment given by an Irish court in this matter would not be enforced by the Australian courts in the absence of proof that the foreign defendant was either present or domiciled in Ireland at the time the proceedings were commenced: see the affidavit of law sworn on 3rd December 2014 by Mr. Adrian Maroya, a member of New South Wales Bar.

9 Mr. Fleming's identity came to light after Ryanair obtained orders from the Californian courts directed against Internet Brands requiring it to identify Mr. Fleming and certain other posters. Mr. Fleming then agreed to remove the offending post. While he further agreed not to reproduce the offending publication, he was not prepared to give the additional undertakings which Ryanair had sought. The present action for defamation was then commenced by Ryanair.

10 At that stage it was necessary for Ryanair to obtain an order pursuant to s. 11(2)(c)(iii) of the Statute of Limitations 1957 (as inserted by s. 38 of the Defamation Act 2009)('the 2009 Act')) to extend time within which to bring proceedings for defamation. On 4th November 2013 the High Court (Peart J.) made an order ex parte granting the plaintiff liberty to seek such an order extending time. An order extending time was made by Ryan J. on 12th May 2014 for the purposes of the Statute of Limitations 1957 for a two year period up to 28th September 2014 (i.e., two years from the date of publication of the post). He made a further order authorising the service of the proceedings on the defendant in Australia. The defendant did not appear or otherwise oppose the making of any such order extending time.

11 The proceedings were then issued by Ryanair on 15th May 2014 and served upon the defendant. On 19th September 2014 the defendant then entered a conditional appearance to these proceedings and sought to set the order of Ryan J. which had authorised such service. In this context Ryanair have argued that the failure on the part of the defendant to raise the jurisdiction and the forum conveniens issue at the time when the application for an extension of time in respect of the defamation proceedings was first aired precludes him from applying to set aside the order authorising service of the jurisdiction.

12 For my part, I cannot agree: the defendant was fully entitled to wait until notice of the substantive proceedings were served on him pursuant to the order of Ryan J. before raising the jurisdictional and forum conveniens issue. Ord. 12, r. 26 of the Rule of the Superior Courts provides that a defendant before appearing:

'shall be at liberty to service notice of motion to set aside the service upon him of the summons or of notice of the summons or to discharge the order authorising service,'

13 It is necessarily implicit in the language of Ord. 12, r. 26 that a defendant is entitled to wait until he is served before issuing a motion seeking to have the order of the High Court authorising such set aside. This is precisely what happened here and I would therefore reject the argument that the defendant is in some way now precluded from raising these jurisdictional and forum conveniens questions.

14 The jurisdictional and forum conveniens issues were then dealt with by the High Court (O'Connor J.) in October 2015. In his ex tempore judgment delivered on 14th October 2015, O'Connor J. made an order setting aside previous orders of the High Court made ex parte authorising service outside the jurisdiction of these proceedings upon Mr. Fleming in New South Wales. The reason why O'Connor J....