Ryanair Ltd v Terravision London Finance Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 30 June 2011
• Neutral Citation: [2011] IEHC 244
• Court: High Court
• Date: 30 June 2011

[2011] IEHC 244

THE HIGH COURT

[No. 208 S/2010]

Ryanair Ltd v Terravision London Finance Ltd

COMMERCIAL

BETWEEN

RYANAIR LIMITED

PLAINTIFF

AND

TERRAVISION LONDON FINANCE LIMITED

DEFENDANT

RYANAIR LTD v COMMISSIONER FOR AVIATION UNREP KELLY 4.6.2010 2010/45/11408 2010 IEHC 220

O'CALLAGHAN v MAHON 2008 2 IR 514

LOCALBAIL UK LTD v BAYFIELD PROPERTIES LTD 2000 2 WLR 870

P (A) v JUDGE MCDONAGH UNREP CLARKE 10.7.2009 2009/46/11494 2009 IEHC 316

CONSTITUTION ART 34.5

DRURY v BBC 2007 EWCA 605 2007 AER D 384

COURTS

Judiciary

Fair procedures - Bias - Objective bias - Test to be applied - Whether comment made by court in other proceedings gave rise to reasonable apprehension of bias - Delay - Rights of opposing party - Interests of justice - Objectives of Commercial Court - O'Callaghan v Mahon [2007] IESC 17, [2008] 2 IR 514, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] Q.B. 451 and Drury v British Broadcasting Corporation [2007] EWCA 605, (Unrep, CA, 14/5/2007) approved - Relief refused but matter transferred to another judge (2010/208S - Kelly J - 30/6/2011) [2011] IEHC 244

Ryanair Ltd v Terravision London Finance Ltd

1 JUDGMENT of Mr. Justice Kelly delivered on the 30th day of June, 2011

This Action

2 On 18 ^th January, 2010, the plaintiff (Ryanair) began this action by the issue of a summary summons. It sought to recover €1,809,758.16 from the defendant (Terravision). By the time the statement of claim was delivered less than four months later, Ryanair's claim had been increased to €8,407,614.71 less a sum of STG£986,849.90.

3 In the meantime, I made orders in favour of Ryanair admitting the proceedings to the Commercial List and, inter alia, fixed a date for the hearing of an application for summary judgment against Terravision. When Ryanair received Terravision's replying affidavit, it became apparent to it that it had no prospect of obtaining summary judgment and so, on Ryanair's application, I vacated the summary judgment hearing date, adjourned the action for plenary hearing and directed an exchange of pleadings. Terravision sought costs in respect of that aborted hearing but I declined to award them against Ryanair and made them costs in the cause.

4 Having received the statement of claim of 4 ^th May, 2010, with the much increased claim, Terravision sought leave to bring a motion to strike out that pleading in whole or in part. In accordance with the normal case management of litigation, I gave leave to bring such a motion returnable for hearing at the end of June 2010.

5 On 5 ^th July, 2010, Ryanair issued the motion which is the subject of this judgment.

6 The motion seeks that I should discharge myself from:-

7 · "· hearing and determining the defendant's application to have all or part of Ryanair's statement of claim set aside or struck out which is pending before the courts; and

8 · hearing and determining any further applications and/or the substantive hearing in these proceedings."

9 The basis for the application is also stated on the notice of motion, it is "that there is a reasonable apprehension of bias due to his conduct, and/or his beliefs expressed, towards Ryanair in other proceedings".

10 It is immediately apparent that no allegation of actual bias is made. Indeed, counsel on behalf of Ryanair made that very clear from the outset of the hearing. What is relied on is what is called objective bias. That is a concept quite different to actual bias and I will consider it in some detail later in this judgment.

11 Secondly, it is clear from the terms of the notice of motion that the matters relied upon to support this claim do not arise from anything that has occurred in the present litigation.

12 The principal basis for the application arises from a sentence at the conclusion of a reserved judgment which I delivered in the case of Ryanair Limited v. Commissioner for Aviation Regulation [2010] IEHC 220, (the judicial review proceedings) where I said:-

"Having had to consider Ryanair's untruths to the Court, its untruths about the Court and its untruths about the Minister, one has to conclude that the truth and Ryanair are uncomfortable bedfellows."

The Judicial Review Proceedings

13 My judgment in the judicial review proceedings was delivered on 4 ^th June, 2010.

14 The case involved an application by Ryanair for leave to apply for judicial review against a determination of the Commission for Aviation Regulation. That determination set maximum levels of airport charges at Dublin Airport for the years 2010 - 2014.

15 It is not necessary to rehearse in detail the matter which I already considered in my judgment in that case, save to record the following.

16 In the course of hearing this motion, Ryanair's counsel expressly accepted that I was correct in my earlier judgment that Ryanair had, indeed, been untruthful to the court, had been untruthful about the court and had been untruthful about the Minister. A number of these untruths were contained in communications made by the Chief Executive of Ryanair (Mr. O'Leary). Others were contained in affidavits sworn on behalf of Ryanair but in circumstances where the deponents had not been informed of the true position which Mr. O'Leary knew but failed to tell them. The affidavits sworn by them misled the court and misled the other parties to the litigation.

17 All of this having been accepted by Ryanair, in the course of discussion with counsel I asked the following question concerning the conclusion which I expressed at the end of my judgment in the judicial review proceedings and to which exception is now taken.

"Question:	What is wrong with that conclusion when you accept that Ryanair told untruths to the court, told untruths about the court and told untruths about the Minister?
Answer:	Because that reference is to Ryanair and all its employees and this Court had evidence before it and formed the view that informs that decision on the evidence of Mr. O'Leary, the individual who wrote the letter, who apologised to the court. If the court had said at that point in time that Mr. O'Leary was the individual and it had formed a view on (sic) in relation to the credibility of or otherwise of that witness, that is one thing but what the court did, in my respectful submission, was to globalise that to the entirety of an organisation where there is (sic) 8,000 employees, 7,999 who are not involved in that particular correspondence and that letter that the court rightly identifies is the basis for the decision was a letter written and sent by Mr. O'Leary.
Question:	Well, could any reasonable person conclude in the context of this judgment that when that comment was made that it affects every Ryanair employee, pilot, airhostess, ground handler whatever it

	might. Could any reasonable person so conclude when one reads the judgment in context, quite apart from isolating one clause in one sentence.
Answer:	Whether I can form that view or this Court forms that view is not the appropriate approach."

18 Ryanair does not complain that the comment was not justified. Indeed it would be difficult to so complain given the serious untruths, involved. Rather the complaint is that by referring to Ryanair I was, to use counsel's expression, "globalising" my conclusion to cover "the entirety of an organisation where there is ( sic) 8,000 employees".

19 From counsel's response, which I have set out in full above, it appears that I if I had commented that one had to conclude that the truth and Mr. O'Leary were uncomfortable bedfellows, this application would not have resulted. In order to be sure that that was indeed what counsel was submitting I put precisely that question to him. Here is the question and his answer.

"Question: So if, instead of saying "Ryanair", I had said at the end of the judgment that Mr. O'Leary and the truth are uncomfortable bed fellows, there would not be this application, is that what you are saying?

Answer: That is a reasonable question and one I would wish not to have to answer, because it is not one that I had to trouble myself with. And avoiding the question, I know, the only matter I had to address my mind to was what was actually said by the court.

20 Because to date, to get to this point in time, and I do not want to get -Ryanair at no stage prior to this, and there have been many cases in which Ryanair has been involved, has it ever brought an application prior to this before for your Lordship not to hear the matter. And your Lordship has heard many cases. And I was at pains, both in the submission and the opening, to indicate to the court that the view furnished to Ryanair was the fact that a judge has in the past held one way or another relative to that particular entity is not a grounds of itself to base any application for a recusal.

21 And it is only and simply because of the issue that has subsequently arose (sic) in relation to the reference to Ryanair as the party which the court identified as being the issue in relation to the truth, not, as I say, Mr. O'Leary."

22 That response appears to confirm that had I made my comments concerning Mr. O'Leary and not Ryanair, this application would not have been brought.

23 Despite the fact that it was Mr. O'Leary who was personally responsible for the untruths in question (a fact which is obvious on a fair reading of my judgment in the judicial review proceedings) the comment to which exception is taken did not name him.

24 The reason why I did not personalise the comment in question to Mr. O'Leary was because on each occasion of his untruthfulness he was acting in his capacity as the Chief Executive of Ryanair. He acted at all times on behalf of Ryanair and in that company's...