Ryanair Ltd v Unister GmbH & Aeruni GmbH

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 13 March 2013
• Neutral Citation: [2013] IESC 14
• Date: 13 March 2013
• Court: Supreme Court
• Docket Number: [S.C. Nos. 139, 288, 290 & 320 of 2011]

Ryanair Ltd v Unister GmbH & Ors

Between/

Ryanair Limited

Plaintiff

and

Unister GmbH, (by Order of the High Court) Aeruni GmbH and (by Order of the High Court) Ypsilon.net AG

Defendants

[2013] IESC 14

[Appeal Nos: 139/2011,

288/2011, 290/2011

and 320/2011]

THE SUPREME COURT

PRACTICE AND PROCEDURE

Jurisdiction

Fair procedure - Order for disclosure - Order for joinder- Whether court has jurisdiction to direct disclosure - Whether court has jurisdiction to direct joinder of party - Whether "cause or matter" before Irish courts - Effer SpA v Kantner (Case 38/81) [1982] ECR 825; EMI Records (Ireland) Ltd v Eircom Ltd [2005] IEHC 233, [2005] 4 IR 148; Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; Reichert and Kockler v Dresdner Bank (Case C-261/90) [1992] ECR I- 2149; Ryanair v Unister [2011] IEHC 167, (Unrep, Gilligan J, 22/3/2011); Societe Romanaise de la Chaussure SA v British Shoe Corporation Limited [1991] FSR 1; St Paul Dairy Industries NV v Unibel Exser BVBA (Case C-104/03) [2005] ECR I-3481 and Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA (Case C-159/97) [1999] ECR I-1597 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 15, r 13 - Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 - Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters - Appeal against disclosure allowed; appeal against joinder dismissed (139, 288, 290 & 320/2011 - SC - 13/3/2013) [2013] IESC 14

Ryanair Ltd v Unister GmbH

Facts: Unister, an online travel agent, had brought an order seeking to have proceedings struck out on the basis that courts in Ireland had no jurisdiction to hear a case involving Ryanair. Ryanair had sought disclosure of the unnamed third party provider. Ryanair became aware of the identity of this entity, Yspilon, in proceedings in Germany and the Irish High Court had joined this party. Ryanair asserted that the use of its website entailed that it had agreed to the choice of jurisdiction clause therein being in Ireland. The Court considered the question of jurisdiction and the impact of Article 31 of the Brussels Convention in proceedings to obtain a disclosure order where a jurisdictional challenge was pending.

Held by Clarke J (Hardiman, O" Donnell JJ) that the Court was satisfied that the disclosure order should not have been made. A court should be slow to make orders while a jurisdictional challenge under the Brussels Regulation is pending. The disclosure order was not filed to determine the jurisdictional question. The Court would allow Unister"s appeal and would substitute an order refusing Ryanair"s application. There was no legitimate basis for resisting the application to join Ypsilon. The Court would dismiss the appeal and affirm the order of the trial judge.

EEC REG 44/2001 ART 2(1)

EEC REG 44/2001 ART 5(1)

EEC REG 44/2001 ART 5(3)

EEC REG 44/2001 ART 23(1)

RSC O.15 r13

RYANAIR v UNISTER & ANOR UNREP GILLIGAN 22.3.2011 2011/45/12666 2011 IEHC 167

EMI RECORDS v EIRCOM 2005 4 IR 148 2005 IEHC 233

NORWICH PHARMACAL v CUSTOMS & EXCISE CMRS 1973 2 AER 943 1974 AC 133 1974 RPC 101

EEC REG 44/2001 ART 27

REICHERT & KOCKLER CASE NO C-51/97 1992 ECR I-2149

EEC REG 44/2001 ART 31

SOC TRASPORTI CASTELLETTI SPEDIZIONI INTERNAZIONALI SA v HUGO TRUMPY SPA CASE NO C-159/97 1999 ECR I-597

EFFER v KANTER CASE NO C-38/81 1982 ECR 825

EEC REG 44/2001 ART 17(C)

SOCIETE ROMANAISE DE AL CHAUSSURE SA v BRITISH SHOE CORP LTD 1991 FSR 1

EEC REG 44/2001 ART 31

ST PAUL'S DAIRY INDUSTRIES NV v UNIBEL EXSER BVBA CASE NO C-104/03 2006 AER (EC) 172 2005 ECR I-3481

BRUSSELS CONVENTION 1968 ART 24

RSC O.15 r13

1. Introduction

2 1.1 Perhaps one of the most basic questions which may arise in any set of court proceedings is as to whether the court even has jurisdiction to deal with the case. There has been a significant amount of harmonisation at the European level of the rules which determine the country whose courts are to have jurisdiction over transnational proceedings. Where disputes arise as to whether a court, in which proceedings have been commenced, has jurisdiction in accordance with those European rules, the court must, of course, try and come to an early decision as to whether it, in fact, has jurisdiction. There remain, however, questions as to what measures can be put in place to assist the court in deciding whether it has jurisdiction and also as to the extent to which the court, unless and until it has decided whether it has jurisdiction, can deal with the case other than for the purposes of resolving the jurisdiction issue. Those questions are at the heart of the issues which this Court has now to decide.

3 1.2 Price comparison websites have become a regular feature of modern life. While the precise model utilised may vary, in general terms such sites allow a potential customer to compare the price of various competing goods or services and, importantly, typically permit the customer to purchase a selected product. The range of products covered by such websites is wide. However, airline services represent one sector of the market. Some suppliers of goods and services are not happy that their offerings are included in the information made available through comparison websites. There have been allegations that the activities of the websites in question are unlawful for a range of reasons. This in turn has spawned litigation in many jurisdictions.

4 1.3 The plaintiffs ("Ryanair") are amongst those companies who have opposed the actions of websites of the type described. Ryanair has been involved in litigation in a number of jurisdictions in that context. The first defendant ("Unister") describes itsbusiness as "an online travel agent" involved in "the provision of an online and Internet-portal, offering users the possibility to make their own online bookings for flights, holidays and hotels". In these proceedings generally Ryanair alleges that the actions of Unister are unlawful in a number of respects. That allegation is strongly denied by Unister which contends that its business is entirely legitimate.

5 1.4 This Court is not currently concerned with the rights and wrongs of those competing positions. Rather this Court is concerned, as has been pointed out, with questions which have arisen in the context of a challenge to jurisdiction. Unister brought an application before the High Court seeking to have these proceedings struck out on the grounds that it was said that the courts of Ireland had no jurisdiction to hear the case. In that context it should be noted that Ryanair had, as a justification for bringing the proceedings in Ireland, placed reliance on, amongst other things, what was said to be a contractual agreement providing for a choice of jurisdiction in favour of the courts of Ireland. In denying that any sufficient agreement existed Unister filed affidavit evidence which asserted that it used an unnamed (or perhaps more than one unnamed) third party provider(s) to facilitate its business so that, it was argued, in all the circumstances Unister had no direct contractual relations with Ryanair leading in turn to the contention that there could have been no binding choice of jurisdiction agreement or consensus reached between Unister and Ryanair.

6 1.5 In response Ryanair brought an application, to which more detailed reference will be made in due course, seeking disclosure of the identity of the unnamed third party provider(s) to which reference had been made and further seeking an order joining any such unnamed party or parties as co-defendant(s) to these proceedings as soon as its identity had been disclosed. The order for disclosure sought by Ryanair was made by the High Court (Gilligan J.) on the 22 ^nd March, 2011. The court then adjourned the questionof whether to make the further order joining a co-defendant or co-defendants. While Gilligan J. had declined to place a stay on the order for disclosure this Court did initially put in place such a stay, on a temporary basis, on the 1 ^st April which stay was continued to the trial of the appeal when the matter was fully considered on the 15 ^th April. On that latter day, the order for disclosure having been stayed, the matter came back before Gilligan J. In the run up to the hearing in the High Court, as a result of proceedings in Germany to which it will be necessary to briefly refer in due course, Ryanair had already become aware of the identity of one service provider being the third named defendant ("Ypsilon"). Gilligan J. made an order joining Ypsilon on the 15 ^th April.

7 1.6 Against that complicated procedural background there are a number of appeals before this Court but, at this stage, only two require to be immediately determined. The first is the appeal of Unister against the disclosure order. The second is an appeal by Unister against the joining of Ypsilon. The other appeals relate to consequential matters and have been deferred until such time as the two substantive issues have been determined.

8 1.7 As already noted that procedural history, even in the brief description which I have given, is complex and in order to fully understand the issues which this Court now has to decide it is, perhaps, appropriate to start with a more detailed description of that procedural history.

2. The Procedural History

2 2.1 Ryanair issued its proceedings against Unister on the 14 ^th August, 2009. Unister entered a conditional appearance on the 24 ^th September which was stated to be without prejudice and solely "to contest the jurisdiction of the court". Thereafter Unister issued a motion, returnable for the 22 ^nd February, 2010, which sought that the proceedings be struck out...