Ryanair Ltd v on the Beach Ltd

JurisdictionIreland
JudgeMs. Justice Laffoy
Judgment Date22 March 2013
Neutral Citation[2013] IEHC 124
CourtHigh Court
Date22 March 2013
Ryanair Ltd v On the Beach Ltd

BETWEEN

RYANAIR LIMITED
PLAINTIFF

AND

ON THE BEACH LIMITED
DEFENDANT

[2013] IEHC 124

[No. 8924P/2010]

THE HIGH COURT

Practice and procedure - Conflicts of law - Jurisdiction - Website - Terms of use - Infringement of rights - Brussels 1 Regulation

Facts: The plaintiff sought declaratory and injunctive reliefs concerning the infringement of the plaintiff"s database rights. The defendant sought an order that the Court had no jurisdiction to hear and determine the claim. The Terms of Use on the website of the plaintiff airline prohibited screen scraping thereof. The question arose as to the extent the defendants were bound by the jurisdiction clause. The plaintiff relied upon the provisions of Articles 5(1), 5(3) and 23 of the Brussels 1 Regulation, although the primary focus of the plaintiff"s submissions was on Article 23 Brussels 1 Regulation.

Held by Laffoy J. that the plaintiff had established compliance with Article 23(1)(a) and the Court had jurisdiction to hear the plaintiff"s claim. The defendant was bound by the jurisdiction clause in the Terms of Use on the plaintiff"s website through its use of the website, via an automaton or a third party data provider. The plaintiff had failed to identify a single place of performance which it contended for and had failed to establish that Article 5 applied.

EEC REG 44/2001 ART 5(1)

EEC REG 44/2001 ART 5(3)

EEC REG 44/2001 ART 23(1)

RSC O.12 r26

EEC REG 44/2001 ART 2(1)

EEC REG 44/2001 ART 60

EEC REG 44/2001 ART 23

EEC REG 44/2001 ART 5

EEC REG 44/2001 ART 23(1)(A)

EEC REG 44/2001 ART 23(1)(C)

EEC REG 44/2001 ART 23(2)

EEC DIR 2000/31 ART 11

EUROPEAN COMMUNITIES (DIRECTIVE 2000/31/EC) REGS 2003 SI 68/2003 REG 13

EUROPEAN COMMUNITIES (DIRECTIVE 2000/31/EC) REGS 2003 SI 68/2003 REG 14

EEC DIR 2000/31 ART 1(4)

RYANAIR LTD v UNISTER GMBH & ORS UNREP SUPREME 13.3.2013 2013 IESC 14

RYANAIR LTD v BRAVOFLY & TRAVELFUSION LTD UNREP CLARKE 29.1.2009 2009/50/12462 2009 IEHC 41

RYANAIR LTD v BILLIGFLUEGE.DE GMBH UNREP HANNA 26.2.2010 2010/45/11393 2010 IEHC 47

COLZANI v RUWA POLSTEREIMASCHINEN GMBH 1977 1 CMLR 345 1976 ECR 1831

EEC REG 44/2001 ART 2

CENTURY 21 CANADA LTD PARTNERSHIP & ORS v ROGERS COMMUNICATIONS INC & ANOR UNREP PUNNETT 2.9.2011 2011 BCSC 1196

KADRI v GOVERNOR OF WHEATFIELD PRISON 2012 2 ILRM 392 2012/20/5671 2012 IESC 27

I.LAN SYSTEMS INC v NETSCOUT SERVICE LEVEL CORP 2002 183 F SUPP 2D 328

SPECHT & ORS v NETSCAPE COMMUNICATIONS CORP & AMERICA ONLINE INC 2002 306 F 3D 17

EEC REG 44/2001 ART 23(1)(B)

EEC REG 44/2001 ART 6

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 1.379

CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGMENTS IN CIVIL & COMMERCIAL MATTERS (BRUSSELS CONVENTION) ART 17

MAINSCHIFFAHRTS-GENOSSENSCHAFT EG (MSG) v LES GRAVIERES RHENANES SARL 1997 QB 731 1997 3 WLR 179 1997 AER (EC) 385 1997 ECR I-911 1997 ILPR 411

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 1.395

BENINCASA v DENTALKIT SRL 1998 AER (EC) 135 1997 ECR I-3767 1997 ETMR 447 1997 ILPR 559

TRASPORTI CASTELLETTI SPEDIZIONI INTERNAZIONALI SPA v HUGO TRUMPY SPA 1999 ILPR 492 1999 ECR I-1597

WATTS BOWSTEAD & REYNOLDS ON AGENCY 19ED 2010 PARA 9.001

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 1.391

EEC REG 44/2001 ART 5(1)(A)

EEC REG 44/2001 ART 5(1)(B)

HANDBRIDGE LTD v BRITISH AEROSPACE COMMUNICATIONS LTD 1993 3 IR 342

BESIX SA v WASSERREINIGUNGSBAU ALFRED KRETZSCHMAR GMBH & CO KG (WABAG) & ANOR 2003 1 WLR 1113 2004 1 AER (COMM) 521 2004 AER (EC) 229 2002 ECR I-1699 2003 ILPR 8

MARITIM TRADE MARK, IN RE 2003 ILPR 17

DUMEZ FRANCE SA & TRACOBA SARL v HESSISCHE LANDESBANK & ORS 1990 ILPR 299 1990 ECR I-49

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Judgment of Ms. Justice Laffoy delivered on 22nd day of March, 2013.

The proceedings and the application
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1. These proceedings were initiated by a plenary summons which issued on 27 th September, 2010. In the general endorsement of claim on the plenary summons the plaintiff claimed various reliefs. The first relief was a declaration that the terms of use of the plaintiff's website (www.ryanair.com) are binding on the defendant its servants and/or agents. There followed claims for various declaratory and injunctive reliefs and for damages for various alleged wrongs, namely, breach of contract, misrepresentation, passing off, trespass to goods, conversion, infringement of the plaintiff's registered trademarks, infringement of the plaintiff's database rights and suchlike. There was a statement at the end of the endorsement of claim to the effect that the Court has power under Council Regulation (EC) No. 44/2001 dated 22 nd December, 2001 (Brussels 1 Regulation) to hear and determine the plaintiff's claim against the defendant and that the Court should assume power to hear and determine the claim under the provisions of Article 5(1) and/or Article 5(3) and/or Article 23(1) of the Brussels 1 Regulation.

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2. The defendant, which is a limited liability company incorporated under the laws of the United Kingdom with a registered office in England, having been served with the proceedings in mid-December 2010, entered a conditional appearance on 24 th January, 2011 for the purposes of contesting jurisdiction.

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3. The application to which this judgment relates was initiated by a notice of motion which issued on 11 th March, 2011 in which the defendant sought an order pursuant to Order 12, rule 26 of the Rules of the Superior Courts 1986 (the Rules) or, in the alternative, pursuant to the Court's inherent jurisdiction, setting aside the issue of the plaintiff's plenary summons, and the service of notice thereof, on the ground that this Court has no jurisdiction to hear and determine the claim against the defendant having regard to the provisions of the Brussels 1 Regulation.

The factual basis of the proceedings
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4. This application has generated approximately the equivalent of four large lever arch folders of affidavits and exhibits. The principal deponents on behalf of the defendant are Gwendoline Parry, the Finance Director of the defendant, who swore a grounding affidavit on 11 th March, 2011 and further affidavits on 1 st December, 2011, 18 th April, 2012 and 7 th January, 2013, and Michael Gerard Robb, who is described as an I.T. consultant, who swore affidavits on 1 st December, 2011 and 23 rd April, 2012. The principal deponents on behalf of the plaintiff were Juliusz Komorek, the Company Secretary and Director of Legal and Regulatory Affairs of the plaintiff, who swore affidavits on 23 rd June, 2011, 20 th January, 2012 and 19 th July, 2012, and Darran Thomas, who is described as a professional computer programmer, who swore affidavits on 23 rd June, 2011, 16 th January, 2012 and 19 th July, 2012. Duncan Smith, the Service Operations Manager of the defendant swore an affidavit on 18 th April, 2012 in which he addressed matters which had been deposed to in Mr. Komorek's second affidavit and in Mr. Thomas's second affidavit. Finally, an averment in Ms. Parry's affidavit sworn on 7 th March, 2013 was the springboard for five further affidavits, three of which were sworn by Eric Neville, the Director of Information Technology with the plaintiff on 14 th January, 2013, 25 th January, 2013 and 31 st January, 2013, and the remaining two having been sworn by Jonathan Smith, Chief Technology Officer with the defendant, on 21 st January, 2013 and 29 th January, 2013. The affidavits are replete with factual controversies which cannot be resolved on this application. Moreover, much of the factual material is irrelevant to the determination of the issue the Court has to determine, which is whether, given that the defendant is a company registered and carrying on business in the United Kingdom and thus domiciled in the United Kingdom, which is not in dispute, an Irish Court has jurisdiction to hear and determine the plaintiff's claim against the defendant. It is against that background that I will summarise what I consider to be the relevant facts.

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5. Mr. Komorek has averred that Ryanair is the leading European low fares airline. It advertises flight information and sells seats on its flights through its websites. Its customers can avail of other services through the website, for example, car hire, hotel reservations and insurance services. It earns significant revenue by allowing other service providers advertise on its website. The website is a key part of the plaintiff's business, over ninety nine per cent of its bookings being made through it.

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6. The plaintiff's "Terms of Use", which Mr. Komorek has emphasised are distinguishable from its "General Terms & Conditions of Carriage", are available to each user of the plaintiff's website by way of hypertext link at the bottom of each page and as part of the booking process. The position of the plaintiff is that the plaintiff's Terms of Use govern the use of its website and are binding on all persons using the website, irrespective of whether a booking is made or not, whereas its General Terms & Conditions of Carriage are only applicable in respect of a flight booked by a person. Mr. Komorek emphasised that the plaintiff is not relying on the General Terms & Conditions of Carriage in support of its position that this Court is seised of jurisdiction in respect of the substantive proceedings.

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7. Although their application to the defendant is hotly disputed, there is no dispute as to the contents of the relevant Terms of Use in relation to use of its website which are relied on by the plaintiff as establishing the Court's jurisdiction to hear this action. They are headed "Terms of Use of the Ryanair Website". The terms are set out in seven clauses as follows:

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(a) Clause 1, which is prefaced "General", having stated that the owner of the...

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