Title:	Ryanair Plc -v- Aer Rianta Cpt
Neutral Citation:	[2003] IESC 62
Supreme Court Record Number:	234/02
High Court Record Number:	1999 9764P
Date of Delivery:	12/02/2003
Court:	Supreme Court
Composition of Court:	Denham J., Fennelly J., McCracken J.
Judgment by:	McCracken J.
Status:	Approved
Result:	Allow And Vary
Judgments by Link to Judgment Concurring Fennelly J. Link Denham J. McCracken J. Link Denham J.

BETWEEN

1. Throughout this judgment I propose to refer to the parties as Ryanair and Aer Rianta. In his judgment, Fennelly J. has set out in detail the background to these proceedings and the contentions of the parties, and there is no need for me to repeat these. It is sufficient to say that this is a complex and difficult case in which documentary evidence will probably be of considerable importance.

2. I am in complete agreement with the legal principles relating to discovery as set out in the judgment of Fennelly J., and also with his analysis of the effect of the amendment to Order 31 Rule 12 of the Superior Court Rules. For that reason, I propose in this judgment to deal largely with the specific requests for discovery made by Ryanair, and to consider them in the light of those legal principles.

3. A general point has been taken by Ryanair in relation to Aer Rianta’s request for voluntary discovery dated 14th March, 2001, namely that the description of the documents does not satisfy the Superior Court Rules or the decision in Swords v. Western Proteins Limited [2001] 1 I.L.R.M. 481. That was a personal injury action in which the relevant category of documents in respect of which voluntary discovery was sought was stated to be “accident report book/record details”. No reasons for requesting this discovery were stated in the letter, although this was sought to be remedied in further correspondence. The Master of the High Court made an order requiring discovery of “accident report form and all documents relating to the reporting and investigation of the accident in which the plaintiff was involved up to 1 October 1997”. In the course of his judgment, Morris P. said at p. 487:-

“Accordingly, I believe that S.I. 233 of 1999 imposed a clearly defined obligation upon a party seeking discovery to pinpoint the documents or category of documents required and required that party to give the reasons why they were required. Blanket discovery became a thing of the past. The new rule was brought into being to ensure in the first instance that the party against whom discovery was being sought would, upon receipt of the preliminary letter, be in a position to note the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be discovered was valid. He would then be in a position to know if he was required to comply with the request. If he disputed his obligation to make discovery the court would know by reference to this letter precisely why the moving parties sought the documents in question and the grounds upon which the moving party believed that the documents sought to be discovered might help to dispose fairly of the cause or save costs.

In my view if the letter of application does not comply with the rules then the issue is not identified and there is no power vested in the Master to make a determination on any issue.”

5. In relation to the present case, I do not think that the general objection taken is valid. The letter basically attempts to categorise documents in relation to their subject matter. In many cases, and this is particularly so in relation to competition cases, a plaintiff cannot know whether documents exist, and if so what those documents are. For example, meetings may have been held between a defendant and third parties, or indeed between members of the staff of a defendant, relating to a number of the matters in issue. A plaintiff has no means of knowing whether those meetings were ever held, or whether any record or minutes of such meetings exist. All he can do is seek documents in relation to any such discussions which may have taken place, and cannot be any more specific than that.

6. One of the main purposes of the 1999 Rules is certainly to do away with the practice of ordering blanket discovery. This is in ease of both parties and to avoid an abuse of the discovery procedure. This abuse sometimes consisted in seeking vast numbers of documents which it would cause great hardship on the recipient of the request to identify and list, or equally can consist of vast numbers of documents being discovered by the recipient of the request which would cause grave hardship to the other party to inspect and identify the relevant documents. The object of the rules were certainly to prevent these abuses, but the reference to categories of documents recognises that a person seeking discovery may not know what documents exist and may not be able to specify the individual documents with precision.

7. In the present case I consider that Ryanair has clearly identified categories of documents in relation to quite precise and specific allegations of abuse against Aer Rianta. The situation in a competition case is very different from that in a personal injuries action, and any reference to precision in categories of documents must be considered in the light of the particular cause of action and the likely knowledge of the party claiming discovery as to what documents exist. Although the judgment of the learned High Court judge refers to the letter requesting voluntary discovery of 20th December 2000, I think it would be preferable to consider the terms of the late request contained in the letter of 14th March 2001. In this case I am satisfied that the letter of request of 14th March 2001 does satisfy the general requirement to specify precise categories of documents and to give reasons why each category is required.

8. To turn to the individual categories of documents as set out in the request for voluntary discovery, I would propose to deal with these in the order in which they are sought.

1. This relates to the number of passengers checked in by Aer Lingus for its own flights and for other airlines for whom it acts as handling agent. Ryanair is claiming that Aer Lingus is getting preferential treatment from Aer Rianta in a number of ways. Essential to this claim is the relative passenger numbers of Aer Lingus and Ryanair as it would be impossible to compare the facilities granted to each without this information. On first reading this request is very broad as it relates to “all” documents, but this is in fact limited by the words “setting out the number of passengers, by month, during the year 1998 and during the year 1999 up to the 27th September 1999”. If this limitation was not there, then of course the request would have been quite unreasonable, and indeed quite imprecise. An order should be made in relation to this category of documents.

2. This relates to all documents in relation to each check-in desk and baggage belt during the same period. While it is limited to “relevant documents”, in my view it should be restricted considerably further. Clearly the number of check-in desks and baggage belts provided to Aer Lingus is relevant to the Ryanair’s claim, as are the conditions under which such desk and belts were provided. I would allow the request subject to the addition of the following:-


“relating to (a) the number of check-in desks and baggage belts so provided, (b) the terms and conditions under which the same and each of them were provided and (c) any negotiations between Aer Rianta and Aer Lingus in relation to the provision of such check-in desks and baggage belts.

3. This relates to Aer Rianta’s plans to facilitate certain contractual works it intended to carry out at Dublin Airport. It is alleged that as a result of these plans Ryanair suffered disproportionate difficulties and restrictions when compared with those suffered by other airlines, and that this seriously undermined Ryanair’s ability to compete. It is also alleged that these plans were entered into by Aer Rianta after consultation with and in agreement with other airlines, but without proper consultation with Ryanair.

Aer Rianta has stated that it is prepared to furnish documents already exhibited in an affidavit of Don Treacy filed in interlocutory proceedings in this action. Unfortunately, the court has not been furnished with this affidavit or the exhibits thereto, but in any event such an offer, which only relates to such documents as Aer Rianta has chosen to exhibit, cannot replace an affidavit of discovery which contains an averment that these are all the relevant documents.

While the classification is very wide, it is quite clear what documents are required, and it is difficult to see how Ryanair could have been more precise. Ryanair is entitled to discovery, not only of decisions taken by Aer Rianta, but also of documents relating to the reasons for such decisions and to negotiations which may have taken place with third parties in relation thereto. This category should also be allowed.

4. This concerns documents relating to the introduction of a fuel levy at Dublin Airport by Aer Rianta. It is alleged by Ryanair that there was no objective justification for introducing this levy, and that to do so was an abuse of Aer Rianta’s dominant position. Aer Rianta denies that it arbitrarily introduced this levy. This gives rise to an issue as to the justification for the levy and documents which would show the reasons for its introduction are clearly relevant and necessary to resolve the issue.

However, Ryanair also seeks discovery of similar documentation in relation to the proposed introduction of a levy in Cork Airport in the year 2000. This would not seem either relevant or necessary as it occurred some five years after the action complained of by Ryanair, and indeed after the issue of these proceedings.

Ryanair also seeks documents in relation to “all negotiations” with fuel companies in relation to the supply of fuel, without any limitation. The only relevant documents under this heading would be those which relate to the introduction of the fuel levy or the reasons for it. Accordingly, there will be an order for discovery of:-


“all notes, memoranda, records of meetings, correspondence, reports or any other documents whatsoever in relation to the introduction of the fuel levy at Dublin Airport on the 1st January 1995, and it subsequent increase, and to all negotiations with fuel companies in relation to the supply of fuel which affected the introduction or increase of the levy.”

5. This relates to allegations by Ryanair that Aer Lingus was facilitated in relation to the supply of facilities at Dublin Airport, in particular in relation to hangar space, while an extension of similar facilities to Ryanair was arbitrarily refused. This is another claim that Aer Lingus received preferential treatment from Aer Rianta. This paragraph has been broken down into a number of specific sub-categories, and in relation to a number of these Aer Rianta objects that the matters covered by them were not pleaded in the statement of claim or in replies to the notices for particulars. These matters were raised for the first time in a letter of 15th December 2000 which sets out a number of new factual allegations. It is relevant that this letter commenced with the words:-

“The plaintiff has been made aware of the following additional information since the plaintiff delivered its replies to particulars. Please note that the additional information will be relied upon by the plaintiff as setting forth additional particulars of its claim and more detailed particulars justifying the discovery sought.”

Aer Rianta objects that the matters then listed raised totally new issues which could only be dealt with by an amendment of the pleadings. It is of note that Ryanair in the letter does not identify which part of its claim it is alleged that these matters refer to. On comparing these matters with the then existing pleadings, it would appear that they relate to new specific allegations of abuses of dominant position or of anti-competitive acts which were not related to any specific allegations in the statement of claim. That being so, they amounted to new causes of action which have not been pleaded, nor indeed denied, and therefore issue has not been joined in the pleadings. For this reason discovery should not be ordered in respect of these matters.

However it is clear that if the statement of claim is ultimately amended, and these matters are put in issue, then Ryanair would be entitled to seek discovery of documents relating to them in accordance with the principles set out in this judgment. It is to be hoped that should that situation arise, it will not be necessary to bring the matter before the courts again.

In addition, sub-categories (n) and (o) do not appear to have any relevance to the issues in these proceedings, and accordingly there will be an order for discovery in accordance only with sub-categories (a) (b) (c) and (m).

6. This relates to the introduction of a new check-in system known as the common user terminal equipment at Dublin Airport. It is alleged by Ryanair that the introduction of this equipment was unnecessary and particularly affects Ryanair because of its low cost fare structure, and is therefore an abuse of Aer Rianta’s dominant position. This request does clearly seem to be in relation to a matter at issue, and should be allowed.

7. This relates to the fact that prior to 1st January 2000 Aer Rianta granted discounts to the charges applied in relation to Pier A at Dublin Airport, which is the pier which is used by Ryanair. Those discounts ceased to be applicable from 1st January 2000 and similar charges are imposed on airlines using all piers at Dublin Airport. It is alleged by Ryanair that in effect the users of Pier A are being asked to subsidise the construction of Pier C, although the facilities in Pier A are inferior to those of the others piers. In addition to all documents relating to the elimination of the discounts, Ryanair also seeks “details” of the total cost of construction of Pier C, the passenger terminal extension and Pier A. This is not a request for discovery of documents, but for information, and therefore should not be allowed.

Accordingly, there will be an order for discovery of the documents specified at paragraph 7A only.

8. This relates to the provision of VIP facilities at Dublin Airport. It seeks all documents relating to the provision and withholding of such facilities for three years prior to the institution of these proceedings. This is an extremely wide category of documents which would not seem to be relevant to the issues in these proceedings. There is, however, also a claim in the statement of claim in relation to the withdrawal of the VIP facilities from a specific employee of Ryanair, which has been denied, and documents in relation to that specific matter are clearly relevant. Accordingly, there will be an order for discovery of:-


“all notes, memoranda, records of meetings correspondence, reports or any other documents whatsoever in relation to the withdrawal of VIP facilities at Dublin Airport from an employee of Ryanair, namely Conor McCarthy.”

9. This relates to an alleged refusal by Aer Rianta to allow Ryanair’s third party handling agents to have access to Shannon Airport in 1995. This again has clearly been put in issue by Aer Rianta. Aer Rianta does state that it is prepared to furnish copies of documents concerning Ryanair’s request to have its own third parties handlers at Shannon Airport, but in my view Ryanair is entitled to discovery in the form claimed.

10. This concerns a somewhat similar complaint by Ryanair that Aer Rianta changed the designation of Ryanair’s parking stance at Shannon Airport. Again, as this has been put in issue by Aer Rianta, Ryanair is clearly entitled to discovery in relation thereto.

11. This relates to an alleged refusal by Aer Rianta to allow Ryanair’s passengers access to Pier A through a link access. It is alleged that there was no objective justification for this conduct by Aer Rianta and that it was an abuse of its monopoly and dominant position. Again Ryanair is entitled to discovery as sought.

12. This refers to a complaint that it is a policy of Aer Rianta to give its airline travel business to Aer Lingus rather than to Ryanair where both fly on the same routes. It is complained that this business was never put out for tender and that Ryanair never had an opportunity to quote for it. Ryanair is certainly entitled to documentation in relation to Aer Rianta’s policy, but is also seeking “details of flights taken, prices, usage, etc.” This latter request would not seem to be relevant to the principle of whether there has been a breach of competition law, and accordingly discovery will be ordered excluding the words “including but not limited to details of flights taken, prices, usage, etc”.

13. This relates to a claim that Aer Rianta or its servants or agents decided to clamp cars parked at Ryanair’s head office building, while not clamping cars similarly parked by Aer Lingus staff, and that there was an instruction by Aer Rianta to the vehicle recovery service to make things difficult for Ryanair and its staff. These documents should be discovered.

14. There are five sub-categories of documents specified and in effect, Aer Rianta have agreed to discover those at sub-categories (d) and (e), and these will therefore be included in the order for discovery. In relation to the other three sub-categories, they are extremely vague and wide ranging and will not be allowed.

15. This relates to a by-law regarding accommodating the needs of person with disability, and Aer Rianta has said it is prepared to furnish such documentation. It will therefore be also included in the order for discovery.