Ryanair p.l.c. v Aer Rianta c.p.t.

• Jurisdiction: Ireland
• Judge: FENNELLY J.,Mr. Justice M'Cracken
• Judgment Date: 02 December 2003
• Neutral Citation: [2003] IESC 62
• Court: Supreme Court
• Docket Number: [S.C. No. 324 of 2002],No. 324/Record No. 2002
• Date: 02 December 2003

RYANAIR PLC v. AER RIANTA CPT

BETWEEN

RYANAIR PLC

Plaintiff/Respondent

and

AER RIANTA CPT

Defendant/Appellant

[2003] IESC 62

Denham J.

Fennelly J.

McCracken J.

No. 324/Record No. 2002

THE SUPREME COURT

Synopsis:

- [2003] 4 IR 264 - [2004] 1 ILRM 241

The plaintiff alleged that the defendant had committed various breaches of both national and European Community competition law. The defendant sought discovery against the plaintiff. The plaintiff objected on the grounds that the defendant had not complied with O. 31, r. 12 as amended and that the documents sought were not necessary.

Held by the Supreme Court (Denham, Fennelly and McCracken JJ) in allowing the appeal and varying the order for discovery that the primary requirement for discovery is that the documents be relevant. The applicant for discovery did not have to prove that the documents sought were absolutely necessary. The overriding interest in the proper conduct of the administration of justice was the guiding consideration when evaluating the necessity for discovery.

Reporter: R.W.

Citations:

TREATY OF ROME ART 82

COMPETITION ACT 1991 S5

RSC O.31 r12(4)

RSC O.12 r1

SWORDS V WESTERN PROTEINS LTD 2001 1 ILRM 481

ALLIED IRISH BANKS PLC V ERNST & WHINNEY 1993 1 IR 375

BROOKS THOMAS V IMPAC LTD 1999 ILRM 171

COOPER-FLYNN V RTE 2000 3 IR 343

COMPAGNIE FINANCIERE V PERUVIAN GUANO CO 1882 11 QB 55

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999 O.31 r12(2)

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999 O.31 r12(3)

BURKE V DPP 2001 1IR 760

DOLLING-BAKER V MERRETT 1991 2 AER 890, 1990 1 WLR 1205

SMURFIT PARIBAS BANK LTD V AAB EXPORT FINANCE LTD 1990 1 IR 469

TAYLOR V ANDERTON 1995 1 WLR 447

1 JUDGMENT delivered on the 2nd day of December,2003by FENNELLY J.

2 This is the defendant's appeal from the judgment and order of Lavan Jdated 31 ^st July 2002, whereby he ordered discovery ofdocuments by the defendant. The protagonists to the litigation arerespectively the airline operator, Ryanair plc and Aer Rianta cpt, whichoperates Dublin, Cork and Shannon airports. I will describe the partiesas Ryanair and Aer Rianta.

3 The action was commenced in September 1999. In its Statement of Claim,delivered on 22 ^nd November 1999, Ryanair alleges that AerRianta had committed and was continuing to commit various breaches ofboth national and European Community competition law.

4 In order to consider the appeal from the order of Lavan J and the scopeof discovery, if any, which should be ordered, it is necessary toconsider the nature and extent of the allegations of anti-competitivebehaviour alleged by Ryanair and the response of Aer Rianta, as pleadedin its defence filed on 13 ^th July 2000.

5 Ryanair claims that Aer Rianta, as the operator and manager of the threeairports mentioned is a monopoly provider of essential facilities andairline facilities to airlines using those airports. These servicesinclude such aspects of airport services, to mention but a few, ascheck-in desks, baggage belts and other passenger facilities as well asrunways, cargo facilities, hangars and emergency services. Ryanair saysthat Aer Rianta occupies a dominant position in the market for theprovision of those services in the State, for the purposes both of Article 82 of the Treaty establishing the European Community and section5 of the Competition Act, 1991and that it has abused and continues to abuse that position.

6 Ryanair also says that, in 1998, Aer Lingus was the largest passengercarrier through Dublin Airport. It says that it competes with Aer Lingusin the provision of travel services from that Airport. Aer Lingus is itsmain competitor. In the Statement of Claim, it cites figures, over therelevant period, of 3,350,000 passengers for itself and 2,300,000 forAer Lingus, though acknowledging that Aer Rianta maintains that thecorrect Aer Lingus figure is 3,450,000.

7 Ryanair says that Aer Rianta and Aer Lingus are owned by the sameshareholder, the State, which also acts as regulator of air transportand airports.

8 Ryanair also alleges that Aer Rianta entered into various agreements,decisions or concerted practices with Aer Lingus, which had as theirobject or effect the prevention, restriction or distortion ofcompetition in the State. In effect, Ryanair alleges that Aer Rianta hasused and continues (at least up to the date of the events pleaded) touse its dominant position and its alleged relationship with Aer Lingusto favour the latter at the expense of Ryanair.

9 Ryanair alleges anti-competitive behaviour against Aer Rianta,effectively in consort with or discriminating in favour of Aer Lingus.These allegations fall under some six principal headings, as well as acollection of miscellaneous complaints, which I list below as a seventhgroup. The following is a broad summary of the allegations:

10 1. Allocating to Ryanair only 15 check-in desks and a half of abaggage belt, while allowing 56 check-in desks and 3 baggage belts toAer Lingus, all this without taking account of relevant matters such asrelative passenger numbers carried by each airline and certain sparecapacity said to be enjoyed by Aer Lingus;

11 2. Planning a cut-back of facilities, in order to facilitateconstruction works in the main terminal building at Dublin Airport in1999, so that Ryanair would lose 3 of their 15 check-in desks while AerLingus were to be reduced from 56 to 48, (the poorer quality facilitiesprovide for Ryanair meaning an effective reduction from 15 to 8), allthis without any objective justification or any proper consultation ofRyanair, but after negotiation with Aer Lingus to the exclusion ofRyanair;

12 3. Introducing a fuel levy at Dublin airport, without any objectivejustification and, unlike BAA on introducing a similar levy in theUnited Kingdom, providing no service in return;

13 4. Introducing a compulsory service called "CUTE"(Common User Terminal Equipment), which is of value only to airlinesusing a computer ticketing system, but is of no value to Ryanair, whichmaintains a low cost system of its own;

14 5. Discriminating in favour of Aer Lingus by facilitating itsbuilding and operation of its own hangars, while refusing likefacilities to Ryanair, and discriminating also in relation to theconstruction and funding for Aer Lingus of a new check-in area onfavourable terms;

15 6. Depriving Ryanair of a discount previously enjoyed for the use ofPier A, which is low-cost, inferior and less convenient, in particularrequiring Ryanair to cross-subsidise the newly-constructed Pier C usedby high-cost airlines;

16 7. Discriminating against Ryanair and in favour of Aer Lingus: inrelation to VIP lounge facilities; in refusing (prior to 1995) to permitRyanair passengers to have direct access to Pier A; in refusing to allowRyanair to employ its own contractors such as a third-party handlingagent, thus compelling it to employ a subsidiary of its competitor, AerLingus; employing Aer Lingus, to the exclusion of Ryanair, for flightsby its own staff; by omitting Aer Lingus transfer passengers from itscomputation of passenger charges, Ryanair not having any suchpassengers.

17 The complaint under number 2 above led Ryanair to make an applicationfor an interlocutory injunction in the High Court immediately upon theissue of the Plenary Summons. The interlocutory proceedings were settledon agreed terms. The fact that the affidavits then exchanged set outsome, at least, of the background facts is relevant to some of thearguments advanced on behalf of Aer Rianta on this appeal. Ryanair, inits Statement of Claim, gives notice of its intention to rely on theseaffidavits at the hearing of the action, but Aer Rianta pleads that itwill object to such reliance and says that it will apply to have thosereferences struck out of the Statement of Claim.

18 The defence of Aer Rianta amounts, in almost every instance, to atraverse and denial of all the allegations, including almost everymaterial allegation of commercial fact made in the Statement of Claim.One exception is that it pleads that, in order to facilitate essentialconstruction works at Dublin Airport, it had to relocate and reallocatefacilities on a temporary basis, while denying that it put in placeplans such as alleged by Ryanair.

19 There followed two replies by Ryanair to requests for particulars. Somecontroversy, however, surrounds a letter of 15 ^th December2000 in which Ryanair's solicitors gave notice of intention to rely on "additional information" as additional particularsof the claim. Aer Rianta maintains that this material, in reality,amounts to an impermissible expansion of the claim, which would requirean amendment of the Statement of Claim. This matter is considered in thejudgment of McCracken J. I agree with his account and hisconclusions.

20 Solicitors for Ryanair wrote a preliminary letter on 22 ^ndDecember 2000 seeking voluntary discovery in accordance with theprovisions of Order 31, rule 12(4) of the Rules of the Superior Courts.The request specified classes of documents under 15 headings, supportedby stated reasons. The letter proposed six weeks for compliance with therequest. Aer Rianta, while expressing willingness to make appropriatediscovery, claimed that "many of the categories sought [were]irrelevant and not necessary to decide the matters at issue...."

21 After the Motion, seeking discovery in the same terms as the letter of22 ^nd December, had been issued, Aer Rianta wrote a lengthyresponse to the request, outlining its objections to the scope of thediscovery sought and alleging failure by Ryanair to comply with therequirements of the relevant rule, in particular by describing thedocuments sought only in the most general terms and by failing topinpoint the categories of documents as indicated in the case law.Ryanair joined issue with these points in a letter dated 14 ^thMarch 2001, but accompanied its letter with a new version of itsrequest, containing some minor amendments to the...