Ryanair Ltd v on The Beach Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Stack
• Judgment Date: 23 June 2022
• Neutral Citation: [2022] IEHC 385
• Docket Number: Record No. 2010/8924 P

Between

Ryanair Limited

Plaintiff

and

On The Beach Limited

Defendant

[2022] IEHC 385

Record No. 2010/8924 P

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendant seeking to dismiss the plaintiff’s claim for want of prosecution – Whether delay was inordinate and inexcusable

Facts: The defendant, On The Beach, applied to the High Court to dismiss the claim of the plaintiff, Ryanair, for want of prosecution by reason of inordinate and inexcusable delay. The primary excuse given for the failure of Ryanair to progress the proceedings was that Ryanair was involved in many law suits throughout Europe, including several more in Ireland’s jurisdiction, of a similar nature against online travel agencies, including On the Beach. On The Beach asserted four categories of prejudice which they said either cumulatively or individually justified dismissal of the proceedings in the interests of justice. These were: (i) the alleged damage to the defendant’s business reputation; (ii) the effect of the litigation on the defendant’s efforts to raise funding; (iii) the alleged collateral reliance by the plaintiff on this litigation so as to gain advantage in other disputes; and (iv) both general and specific prejudice relating to the ability of witnesses to give evidence.

Held by Stack J that Ryanair was guilty of inordinate delay in respect of the period of over three years from the time at which the motion for particulars was adjourned generally in December, 2017 until the motion was issued in June, 2021 (excluding the period from mid-March 2020 to June, 2020 when the difficulties caused by the very severe public health restrictions imposed at the outset of the pandemic probably made it very difficult to progress litigation in any meaningful way). Stack J held that this delay was not excusable as Ryanair seemed to have simply “parked” the litigation while progressing proceedings against other online travel agencies. Stack J held that the balance of justice favoured the continuance of the proceedings. Stack J held that On The Beach had not shown even moderate prejudice or injustice to them arising out of Ryanair’s delay; it had at best shown some impact on the 2015 IPO, which took place only shortly after its challenge to the jurisdiction to the Irish courts which had failed in the Supreme Court, and On The Beach had failed to demonstrate prejudice thereafter. Stack J held that the issues of fact and law in the case were ones which it was safe to try, as this was not a case of a one off event dependent on the recollection of witnesses which had either faded or become distorted by the passage of time; on the contrary, the essential business models of both parties remained the same, even if certain technological aspects of their practice had necessarily changed over the years. Stack J held that the alleged unlawfulness was a continuing one which could be safely tried in the next few years. Insofar as On The Beach was concerned about the proceedings lying dormant, Stack J held that it was open to it at any time to seek case management. While Stack J accepted that Ryanair had not applied for case management promptly, insofar as the proceedings would not be determined by related proceedings such as those involving Ryanair DAC v SC Vola.ro SRL and Ypsilon.net AG [Record No. 2017/8782 P], any remaining issues could be tried later; in addition, the parties had liberty to reapply for case management when the application had been finally determined.

Stack J refused the application.

Application refused.

JUDGMENT of Ms. Justice Stack delivered on the 23 ^rd day of June, 2022 .

Introduction

1 . This is an application by the defendant (“On The Beach”) to dismiss the claim of the plaintiff (“Ryanair”) for want of prosecution by reason of inordinate and inexcusable delay. The application is made pursuant to the inherent jurisdiction of the court, in accordance with the well-known principles as set out in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, where Hamilton C.J. summarised the principles to be applied as follows:

“(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

(iii) any delay on the part of the defendant — because litigation is a two party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.”

2 . As stated by the Court of Appeal (per Irvine J.) in Millerick v. Minister for Finance [2016] IECA 206, the Primor principles require the court to address its mind to three issues. The first is to decide whether, having regard to the nature of the proceedings and all of the relevant circumstances, the plaintiff's delay is to be considered inordinate. If it is not so satisfied, the application must fail. If on the other hand the court considers the delay inordinate it must then decide whether that delay can be excused. If the delay can be excused, once again the application must fail. Should the court conclude that the delay is both inordinate and inexcusable, it nevertheless should not dismiss the proceedings unless it is also satisfied that the balance of justice would favour such dismissal. I will consider this application by reference to those three broad issues.

Whether the delay was inordinate

3 . These proceedings were issued on 27 September, 2010. A conditional appearance was not entered until 24 January, 2011. On The Beach then brought a motion, issued 11 March, 2011, contesting the jurisdiction of the Irish courts to hear the proceedings. On The Beach was unsuccessful in this Court (see judgment of Laffoy J. [2013] IEHC 124) and in the Supreme Court on 19 February, 2015 (see judgment [2015] IESC 11).

4 . Ryanair delivered a statement of claim on 22 April, 2015, and On The Beach responded with a notice for particulars dated 4 June, 2015. The saga in relation to particulars did not conclude until December, 2017, and there was considerable dispute at the hearing of this application as to who was to blame for the time spent on particulars. On The Beach pointed to the fact that Ryanair only delivered its first replies to particulars on 16 September, 2016, having served a Notice of Change of Solicitor and a Notice to Proceed on 7 September, 2016. The first replies were therefore served approximately fifteen months after the notice for particulars had been served.

5 . By contrast, Ryanair stated that the particulars were excessive, and relied heavily on the fact that, although On The Beach had issued rejoinders by letter dated 21 December, 2016, seeking further responses in relation to all or part of 17 paragraphs of the original 22 paragraph notice for particulars, its motion to compel replies, which was issued on 5 May, 2017, pursued only three of the rejoinders.

6 . That motion ultimately adjourned generally in December, 2017, as Ryanair had decided that it needed to amend its statement of claim. A draft amended statement of claim was served on the solicitors for On The Beach by letter dated 8 November, 2017. However, this elicited a one sentence reply stating that On The Beach did not consent to the amendment. No reason was given for the refusal.

7 . In respect of the period from delivery of the Supreme Court judgment in early 2015, to the adjournment of the notice of particulars at the end of 2017, and the refusal of On The Beach to consent to the amendments, Ryanair says On The Beach is to blame for raising excessive particulars which were not pursued by way of motion and for failing to agree the amendment, or at least to point to some grounds for refusing. It asked the court to infer that On The Beach was acting unreasonably in seeking to contest every procedural step for the motion, particularly in light of the failure to motion for most of the particulars in relation to which the rejoinders were raised and the failure to consent to amendment of the Statement of Claim, given the extremely wide jurisdiction to permit amendments as established by the Supreme Court decision in Croke v. Waterford...