Ryanair Ltd v on the Beach Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 17 July 2023 |
| Neutral Citation | [2023] IECA 180 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Number: 2022/214 |
[2023] IECA 180
Costello J.
Haughton J.
Butler J.
Court of Appeal Record Number: 2022/214
High Court Record Number: [2022] IEHC 385
THE COURT OF APPEAL
CIVIL
JUDGMENT of Ms. Justice Costello delivered on the 17th day of July 2023
. This is an appeal against the judgment and order of the High Court ( [2022] IEHC 385) (Stack J.) dated 23 June 2022 where the High Court refused to dismiss the proceedings for want of prosecution by reason of inordinate and inexcusable delay. The application was made pursuant to the inherent jurisdiction of the court in accordance with the well-known principles set out in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459. The trial judge found that the plaintiff (“Ryanair”) was responsible for both inordinate and inexcusable delay, and this finding has not been appealed. The appeal concerns the balance of justice and whether, in the circumstances, it would be just to dismiss the proceedings.
. The proceedings were issued on the 27 September 2010. They concern the disputed sale by the defendant (“On The Beach”), an online travel agent, of tickets for travel on Ryanair flights as part of bespoke package holidays which On The Beach puts together and sells to its customers. Ryanair says On The Beach has no permission to do this; that it is breaching Ryanair's terms and conditions, infringing its copyright in its database and engaged in the tort of passing off. On The Beach entered a conditional appearance on 24 January 2011. On The Beach then issued a motion on 11 March 2011, contesting the jurisdiction of the Irish Courts to hear the proceedings. The High Court rejected the contentions of On The Beach in 2013 (Laffoy J, S [2013] IEHC 124) and the Supreme Court rejected the appeal from that judgment on the 19 th February, 2015 ( [2015] IESC 11).
. Ryanair delivered a statement of claim on the 22 April 2015. On The Beach responded with a notice for particulars dated 4 June 2015. These were replied to on the 16 September 2016, and On The Beach issued a motion on the 5 May 2017 seeking to compel Ryanair to provide further and better particulars. In the meantime, Ryanair decided that it wished to amend its statement of claim and by letter dated the 8 November 2017 it served a draft amended statement of claim on the solicitors for On The Beach and sought its consent to the proposed amendments. This was refused. The motion to compel further and better particulars was adjourned generally in December 2017 to allow Ryanair to bring a motion to amend its statement of claim. For reasons which were never explained, Ryanair failed to take any further steps in the proceedings. On the 31 July 2020, it filed a notice of change of solicitor and a notice of intention to proceed which were then served on On The Beach's solicitors on 5 August 2020.
. On The Beach issued its motion to dismiss the proceedings on the ground of inordinate and inexcusable delay on the 21 June 2021. On the same day it instituted competition law proceedings against Ryanair in England and Wales, alleging breaches of competition law and in particular of abuse of a dominant position.
. On The Beach's motion was grounded on the affidavit of Simon Cooper sworn on 7 June 2021. He says he is the founder and Chief Executive Officer of On The Beach limited, an online travel agency, and that On The Beach is part of a group of companies whose parent company is On The Beach Group Plc.
. Mr. Cooper says that On The Beach apprehends that Ryanair has no intention of prosecuting its claim and instead it is using the existence of the proceedings for two identified improper purposes.
The essence of his claim as to this non-litigious prejudice is set out in paragraph 7:
“… Ryanair is using the existence of these proceedings (whether or not they are referred to expressly) to support its allegations of unlawful screen scraping and to help it exert improper pressure on OTB in other disputes. By failing to progress the proceedings, Ryanair is keeping this prospective claim hanging over OTB for these illegitimate purposes.”
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“(a) To damage OTB's business and to smear its reputation, by claiming to customers (and the world at large) that OTB is unlawfully screen scraping the Ryanair website; and
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(b) to exert improper pressure on OTB in other unrelated disputes by alleging that OTB is unlawfully screen scraping the Ryanair website.”
. In paragraphs 8 through to 19 he sets out details of what he describes as Ryanair's campaign against OTB. He avers that Ryanair “has embarked upon a smear campaign against OTB which seeks to denigrate its reputation.” In support of this assertion, he refers to various posts and videos from September 2020 until 31 March 2021. He complains that Ryanair has raised the same issues in this campaign as arise in these proceedings and that Ryanair is “quite prepared to state publicly that (by way of example only) OTB is a ‘screen scraper’, that it acts ‘illegally’; that it uses ‘fake’ customer contact details and payment cards to make bookings; and that it ‘dupes’ its customers.” At para. 19 he avers that:
“The smear campaign described above is obviously prejudicial to OTB because of the damage being inflicted on OTB's reputation. The existence of these moribund proceedings gives this smear campaign legitimacy and credibility, which I would respectfully suggest is not fair to OTB nor an appropriate use of the court system.”
. Separately, he asserts that the existence of the proceedings and the requirement by On The Beach and On The Beach Plc to disclose the existence of the proceedings is prejudicial as it discourages investors and it hinders On The Beach and its parent company from attracting investment. He refers to the mere existence of the proceedings as being “clearly prejudicial” to On The Beach because “no investor looks favourably upon material litigation”. He says that the existence of such litigation is a real “red flag” for certain investors, while others will assess the value of the assessment opportunity by reference to the existence of the litigation. This has been the actual experience of On The Beach and On The Beach Plc in relation to these proceedings both while seeking private equity investment in 2013 and when listing on the London Stock Exchange in 2015. He sets out the evidence to support this assertion in paragraphs 23 to 34 of his affidavit.
. Mr. Cooper points out that On The Beach Plc continues to have to make disclosure about the litigation in its annual financial reports and he exhibits the relevant extracts from the financial reports for 2015 to 2021. He says that these disclosures continue to be prejudicial for On The Beach Plc because:
“42. … [T]he existence of this litigation will likely put off certain investors from investing in OTB PLC. Indeed, we know this issue is highly relevant to our investors because financial analysts and investors have asked us about the litigation when we present our financial results, for example during the question and answer session which follows between analysts, investors and OTB PLC's management.”
Mr. Cooper says that financial analysts who report on OTB PLC to investors provide guidance on whether to invest in that company and that these investment reports specifically refer to the litigation with Ryanair. In paragraphs 44 to 49 he sets out extracts from reports from November 2015, April 2015, March 2017, March 2019, July 2019 and March 2021.
. He alleges that Ryanair is wrongfully exploiting the existence of these proceedings in a dispute between Ryanair and On The Beach in relation to refunding passengers in relation to flights cancelled due to the Coronavirus pandemic. On The Beach complains that Ryanair is not refunding it for payment Ryanair received for flights which in the event were not operated. Ryanair says it is required to refund the passengers, and not the credit card owned by OTB, which was used to book the flights. On The Beach is relying on the Visa Scheme Rules to enable card issuers to reverse transactions and recover the monies paid into Ryanair's bank where Ryanair fails voluntarily to repay the payment made using the Visa card issued in the name of On The Beach. Mr. Cooper says that On The Beach has initiated chargebacks and has successfully recovered tens of millions of pounds through the process. He says that Ryanair has threatened to report On The Beach to the UK Financial Conduct Authority and “in addition, Ryanair has continually referenced screenscraping and the screenscraping litigation in its correspondence with OTB to exert pressure upon OTB. The implication is that, unless OTB drops its chargeback requests against Ryanair, Ryanair will opt to pursue this litigation.” Mr. Cooper quotes from eight letters dated between 22 July 2020 and 6 May 2021 and he concludes at para. 53:
“It is clear that Ryanair is using this litigation as a stick with which to beat OTB in unrelated disputes, whilst never actually progressing the litigation. It is inherently unfair and prejudicial to OTB for Ryanair to abuse the court process in this way.”
. In paragraphs 54 – 56 Mr. Cooper addresses what he describes as additional prejudice On The Beach will suffer. He avers as follows:
“54. Such a significant amount of time has now passed since Ryanair began this litigation that the vast majority of those involved at the time the proceedings were issued have since left OTB. This includes Wendy Parry (Chief Financial Officer) who left in January 2017. I imagine the position is similar for Ryanair.
55. Moreover, the memory of witnesses who would testify is likely to have faded with time. It will be difficult for witnesses to speak to events which occurred...
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