Court allows partial discovery of specific documents but rejects vague, blanket requests under Superior Court Rules.

[2003] IESC 62

THE SUPREME COURT

Record No:2002/234

Denham J.

Fennelly J.

McCracken J.

BETWEEN

RYANAIR PLC

Plaintiff/Respondent

AND

AER RIANTA CPT

Defendant/Appellant

JUDGMENT of Mr. Justice McCracken delivered on the 2nd day of December, 2003

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.”

4. He then held that the description in the letter in that particular case did not specify the precise category of documents sought and

that the elaboration of that description in the Master’s order was not justified. Unfortunately, no reason was given as to why the

elaboration was not justified. If a letter specifies a category of documents sufficiently to ensure that the recipient of the letter can

identify the documents either individually or in relation to a category so as to be able to determine whether he is bound to make

discovery, then the test is satisfied, and the court has jurisdiction. The court then examines the description of the documents or

category of documents to determine whether they are in fact they are discoverable. It may well be, as is exemplified in the present

case, that some documents in the category claimed will be discoverable and others will not. In such a case, the court clearly has

power to make an order for discovery in relation only to the documents which are discoverable, and in so doing may re-word or re-

categorise the documents in relation to which discovery is ordered. The letter seeking voluntary discovery is the party’s claim to

discovery, and provided that claim complies with the rules and specifies precise categories of documents, the test is satisfied. It

would lead to a ludicrous position if, once the test was satisfied, the court could not alter the category in its order as where, for

example, some documents in the category might not be relevant or might be privileged.

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.

9. I would therefore allow the appeal to the extent of the variations I have suggested.