Ryanair Ltd v Van Zwol

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 13 December 2017
• Neutral Citation: [2017] IEHC 798
• Docket Number: [2013/11363 P],[2013 No. 11363 P]
• Date: 13 December 2017

[2017] IEHC 798

THE HIGH COURT

Barton J.

[2013/11363 P]

BETWEEN

RYANAIR LTD

AND

RYANAIR HOLDINGS PLC

PLAINTIFFS

AND

EVERT VAN ZWOL, JOHN GOSS, TED MURPHY,

DEFENDANTS

Practice & Procedure - Discovery obligation - Discharge of jury - Malice - Missing document - Fair trial

Facts: The plaintiffs filed an application for the discharge of jury. The plaintiffs alleged that the non-disclosure of the relevant e-mail by the named person at the time of the production of documents was deliberate and thus, it deprived the plaintiffs of an opportunity to join that person into the substantive proceedings. The plaintiffs alleged that the content of the missing e-mail that was produced later on was crucial evidence and thus, the plaintiffs were adversely prejudiced in the way they had approached the trial. The defendants asserted that they were not responsible for the omission of the e-mail from the discovered documents as they had no legal entitlement to the possession of any of the documents that were discovered.

Mr. Justice Bernard J. Barton refused the plaintiffs' application for the discharge of jury. The Court held that the power of the Court to discharge the jury was very restricted and it should be used as a measure of last resort. The Court found that the plaintiffs were not prejudiced by the omission to produce the missing e-mail. The Court noted that the named person was an independent contractor and he was not related to the defendants in any way. The Court held that there was no risk of unfair trial to the plaintiffs as the missing e-mail was neither relevant nor necessary for the disposal of the issues between the parties.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 13th day of December, 2017.

1 This is an application brought by the Plaintiffs to have the jury discharged in the following circumstances. On the 19th day of the trial, Mr. Martin Duffy, a witness called on behalf of the Defendants, was cross examined by Mr. Hayden S.C. in relation to discussions which took place on the 4th September, 2013, between a number of individuals, including the witness and the Defendants, concerning the preparation of a 'pilot update', published on the 12th September, which incorporated the statement which is the subject matter of these proceedings.

2 During his examination in chief Mr Duffy had been questioned about the origins of the "pilot update" discussions and recalled having received an email from an unidentified pilot colleague which had drawn his attention to a drop in the price of Ryanair shares. The existence of the email was unknown to the Plaintiff's up to that point in the trial.

3 The question of discovery has been extremely contentious in the course of these proceedings and resulted in a number of applications on foot of which written judgments of the Court were handed down. See Ryanair Ltd, and another v. Van Zwol and Others [2016] IEHC 264 and [2016] IEHC 616. Four affidavits of discovery have been sworn on behalf of the Defendants, the most recent of which was on the 6th November, 2017, shortly before the commencement of the trial. It is not in issue that the email which Mr Duffy received from his pilot colleague came within one of the categories of documents to be discovered but was not included in the documents discovered on affidavit.

4 When asked in the course of cross-examination by Mr. Hayden S.C. why the email had not been included with the other emails which he had produced for discovery, Mr Duffy said he believed it had been included. After the Court rose, the Defendants solicitor (with the permission of the Plaintiff as the witness was under cross-examination), asked Mr Duffy to carry out a search for the email over night which he located and produced to the Court, in the absence of the jury, the following morning.

5 The name of the author of the email had been redacted. It was sent on the 4th September, 2013, at 13:12 to Mr. Duffy. The subject of the mail is stated as: "Ryanair profit warning/sale of stock by O'Leary". Given the nature of the application and the content of the mail, I consider it pertinent to set out the text in full:

'Hi Martin,

Just been reading about the unexpected profit warning from Ryanair. Seems like the city wasn't expecting it as O'Leary had been upbeat at the investor's presentation in June and never hinted at any problems. I noted from a link on the REPA website that O'Leary sold 500,000 shares on the 27th July when the price was a lot higher (14% drop today!). David Bonderman sold over one million shares in mid June too.

There was a big case earlier this year where a director of Tesco sold stock ahead of a profits warning. From what I can gather from the FSA guidelines:

'Directors should not buy or sell shares in their company while in possession of unpublished, price sensitive information'

The regulations, policed by the Financial Services Authority also directors and senior managers to obtain board-level approval before selling shares and forbid trading in shares during so called 'close periods' between the end of a financial period and the reporting of its results.

I don't know much about finance but could this be seen as some sort of insider dealing based on knowledge he had?

Also, a different perspective on it from the Telegraph.

HTTP://www.telegraph.co.uk/finance/newsbysector/transport/1028594/ryanairs-oleary-should-focus-on-the-main-job.html.

Best regards'

6 In the absence of the jury, Mr. Duffy gave evidence concerning his knowledge of the email, the requests made by the Defendants solicitor that he furnish all documentation in his possession relating to the process of discussion and preparation involved in the writing of the "pilot update" as well as the subsequent requests made in the context of supplemental affidavits of discovery having to be sworn. Mr. McAleese, Solicitor for the Defendants, also gave evidence concerning his first knowledge of the missing email and the requests which he had made to Mr. Duffy.

7 Having considered the evidence of these witnesses in relation to this aspect of the matter, I am satisfied that at the time when discovery was being made, and subsequently, Mr. Duffy was aware that he had received an email from a pilot colleague upon which he had relied in drawing up Draft No. 2 of the "pilot update". I also accept the evidence of Mr. McAleese concerning the requests he made of Mr Duffy for the purposes of making discovery, who, to be fair to him, now accepts that he did not produce the email, that it ought to have been produced and that he was mistaken in his belief that he had done so.

8 It is not intended to set forth the submissions made on behalf of the parties which are, in any event, apparent from the transcript. Suffice it to say that the principal grounds and submissions maybe summarised as follows.

Plaintiff's Submissions

9 The email contains information which the Plaintiffs contend was crucial to their case since it goes to the very heart of the complaints made by the Plaintiffs in relation to the impugned statement. Firstly, it is said the email encapsulates the whole essence of the case. Secondly, it was the very genesis of the subject statement about which the Plaintiffs complain and, finally, it was cogent evidence of the state of mind of both the author and Mr Duffy at the time.

10 Asserting that Mr Duffy was the servant or agent of the Defendants the Plaintiffs say that the email was thus in the power and possession of the Defendants. Accordingly, they were bound to make discovery of the email and had to take the consequences for their failure to do so, consequences which are serious. The Plaintiffs say they have been deprived of an opportunity to join Mr. Duffy into the proceedings and/or to plead, in the context of the plea of malice, that the Defendants are vicariously liable for his malice as their servant or agent, a plea which, if successful, would effectively deprive the Defendants of the defence of qualified privilege.

11 In the event the Plaintiffs also contend that the omission has created an unfairness and prejudice in the prosecution of the claim that cannot now be rectified. Accepting that a plea of malice against someone is a plea that should not lightly be made, it was submitted that without the email the Plaintiffs could never have made such a plea against Mr. Duffy. The content of the email was crucial to his state of mind when he inserted the extract from the email into Draft No. 2 which was part of the chain which led to the pilot update.

12 Additionally, the email referred to 'closed periods', a matter upon which the Court had made a ruling earlier in the trial which may have led to further enquiry as to whether that was a complaint which the Plaintiffs should have or could have made and pleaded.

13 It was also submitted that the Plaintiffs had been prejudiced by the way in which they had approached the trial, particularly the way in which they had approached the cross examination of Captains Van Zwol and Goss and the issue of the credibility of the Defendants which could have been called into question, especially in relation to the discussions which they may or may not have had or might have had and what they knew in relation to the contents of the email leading up to and at the time of the publication of the "pilot update". It is said that the resulting mischief cannot be undone by permitting these witnesses to be re-examined.

14 Finally, the Plaintiffs contend that they had also been deprived of the opportunity to deploy the email in the conduct...