Supreme Court allows appeal permitting additional witness statement despite procedural default and breach of court order.

THE SUPREME COURT

Appeal No. 375/10

McKechnie J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

BETWEEN

RYANAIR LIMITED

PLAINTIFF/APPELLANT

AND

BRAVOFLY LIMITED

DEFENDANT/RESPONDENT

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 23rd day of February, 2016

Introduction:

1. For the purposes of its core activity Ryanair Ltd (“Ryanair”), in its engagement with the public and would-be customers, operates

as its main website www.ryanair.com. This website attracts a very significant volume of traffic, as details of all Ryanair’s flights are

directly available thereon. The site, which accounts for over 98% of all of its bookings, is therefore a very valuable platform not only

for the plaintiff/appellant’s ability to advertise and sell its flights, but also to advertise and sell its complimentary goods and services,

both as ancillary to flight purchases and independently thereof.

2. At all material times access to and use of the plaintiff’s website has been subject to the site’s terms and conditions, which, in

accordance with accepted internet practice, are made available on each page of the site via a hypertext link. Paragraph 1 of these

terms and conditions at the relevant time states:-

“By using this website you agree to be legally bound by and act in accordance with these Terms of Use and by all

other applicable provisions; in particular, you agree not to do the acts prohibited under paragraphs 3 to 5.”

Paragraph 3 makes permission to use the site conditional upon such use being non-commercial in nature and specifically prohibits the

use of any automated system or software to extract data for use or display on any other site. It also prohibits use of the site on a

commercial basis for the purpose of onward provision of the plaintiff’s flight information to third parties, with paragraph 5 further

providing that hypertext links to the site may not be established or operated without the prior written consent of the plaintiff.

3. Between June and December, 2007, it is alleged by Ryanair that via a process known as “screen scraping” the defendant entered

its website and, having accessed some of the data therein contained, extracted segments thereof, in particular that regarding flight

information, and thereafter, subject to some editing, utilised it in such a manner as enabled Bravofly to offer for sale, and sell, Ryanair

flights on its own website. It is alleged by the plaintiff that this constitutes actionable misconduct, inter alia, by breaching the known

terms and published conditions of Ryanair which Bravofly is bound by. Accordingly, in the substantive proceedings the plaintiff seeks a

series of different but related injunctions and other ancillary orders, including damages and costs.

4. The defendant, like the plaintiff, is a company incorporated in this jurisdiction with registered offices at Priory Hall, Stillorgan, Co.

Dublin. It carries on the business of providing internet search and booking facilities in respect of low fare flights, as well as other

complimentary services. Its business is conducted through a series of websites registered at .com addresses, as well as other sites

geared towards specific countries, such as, amongst others, www.bravofly.co.uk, for the United Kingdom, and www.bravofly.fr, which

covers France.

5. The defendant pleads that its business involves offering customers who use its websites the possibility of searching for all flight

offers within the geographic and time parameters chosen by the internet user, via an application, licensed from a UK company,

Travelfusion Ltd, which, if it includes any flights offered by Ryanair, informs the user of the availability of such flights and the price

charged by Ryanair therefor. It further provides an additional service whereby the user could, using that same application, proceed to

book any flight included in the search result.

6. Bravofly contends that it is the customer/user who undertakes the acts in respect of which Ryanair makes complaint. In addition

and/or alternatively, the defendant claims that at the material time Ryanair, being aware of and cooperating with the services

provided by it, must be taken as having consented to the activities in respect of which it now complains. It has thus entered a full

defence to the claim as made and has attached thereto a counterclaim in which it alleges that in the manner therein pleaded, Ryanair

is in breach of Articles 81 and 82 TEC (now Articles 101 & 102 respectively of the TFEU), and their corresponding provisions under the

Competition Act 2002. It seeks relief appropriate to such declarations, as well as damages, including exemplary damages.

7. By reason of the nature of these proceedings, the same, by order of the High Court dated the 7th July, 2008, were admitted to the

commercial list for hearing and thereafter were managed in accordance with the relevant rules of court attaching to such list, namely

those as set out in O. 63A of the Rules of the Superior Courts (RSC).

(S.I. No. 2/2004)

8. As part of the case management process, a number of orders were made by the High Court which were unexceptional in nature.

One such order was that made by Kelly J. on the 1st February, 2010, whereunder he directed that Ryanair should deliver its witness

statements to the defendant by the 15th March of that year. This obligation was duly complied with on time, with the delivered

statements including one made by a Mr. Christopher Dickson, a software engineer employed by Charteris as a Principal Technologist.

He was, from Ryanair’s point of view, one of the essential witnesses which it intended to call on the “liability side” of the main action.

The trial date, with an anticipated duration of three weeks, was fixed for the 12th October, 2010.

9. Under cover of letter dated the 6th July, 2010, Ryanair delivered to the defendant what was described as a “supplemental précis of

oral evidence” of Mr. Dickson. On the 7th September, 2010, Bravofly made complaint about the inclusion of this supplemental

statement and another, being that of one Eric Neville, in the draft indices of core documents and requested their removal. The

grounds of objection were that such statements were delivered out of time and, in any event, contained hearsay evidence. No further

action was taken by either side until the commencement of the case on the 12th October, 2010.

10. On that occasion the existence of this dispute was brought to the attention of the trial judge, who indicated that any matter of

conflict could be dealt with at the time when the relevant witness was called to give evidence. On Day 2 of the trial, namely the 13th

October, 2010, objection was taken at the point during the course of Mr. Dickson’s evidence when counsel intended to elicit the

evidence contained in the supplemental statement. Having heard submissions from both parties, McGovern J. ruled the supplemental

précis inadmissible. He did so on the basis that no explanation was offered as to why the additional material had not been included in

the original statement, and that neither the consent of the defendant nor the prior leave of the court to extend the relevant time had

been sought. In such circumstances, the integrity of the commercial rules demanded that orders so made on that side of the court

must be complied with save for good reason, which did not exist in this case. Therefore, the statement could not be relied upon.

11. Having been informed of the significance of the supplemental statement and having been told of Ryanair’s intention to appeal the

ruling so made, the learned judge deferred the further continuation of the action until such appeal had been determined.

12. On the 19th October, 2010, a Notice of Appeal was served in respect of the aforesaid order, which had been also perfected on

the 13th October, 2010. On the 21st October an application was made to the Chief Justice for priority in respect of the appeal

hearing. During the course of such application, Bravofly alerted the Chief Justice to a preliminary objection which it proposed to make

as part of defending the substantive appeal. This was based on the general jurisprudence of the Supreme Court to the effect that

appeals should not be entertained from rulings on discrete issues which were made during the course of a hearing, but rather that if

the objection continued after final judgment, the same, together with all other contested issues, should then be determined by way

of a composite appeal, duly presented in the conventional manner.

13. The grounds of objection, of note, which are contained in the Notice of Appeal can be summarised as follows:-

(i) that since the defendant/respondent made no objection to the supplemental witness statement until the 7th

September, 2010, it should be prohibited, on the basis of acquiescence or estoppel, from raising as an objection any

non-compliance with the rule;

(ii) that the additional evidence contained in the supplemental statement is but an expansion of that previously

given by Mr. Dickson, in particular on the issues covered in paras. 56 – 60 of his original statement; accordingly, if it

had been so regarded by the learned trial judge, the same should have been admitted; and, thirdly,

(iii) that the ruling so made was inconsistent with the requirements of Article 34 and Article 40.3 of the

Constitution, and was also incompatible with the State’s obligations under Article 6 of the European Convention on

Human Rights.

In these circumstances it was asserted that the appeal should be allowed.

14. Extensive submissions have been filed by both parties, not only on the substantive appeal, but also on the preliminary objection

taken to this Court having jurisdiction to entertain the appeal in the first instance, given the circumstances in which it arose. These

submissions can be summarised as follows.

Submissions of Ryanair:

15. On behalf of Ryanair it is claimed that the commercial rules should not be applied in an overly rigid manner; rather, their underlying

purpose is to facilitate the orderly and effective dispatch of cases coming within their remit, subject always to the overriding

principles of fairness and justice. Specifically, when dealing with witness statements, the rationale behind their exchange is to ensure

that a party is not taken by surprise and that it knows the essence of what its opponent intends to rely upon. In the circumstances

presenting in the instant case, none of these features were put in jeopardy. Moreover, there is no express prohibition in the rules

against a party submitting a supplemental witness statement, a factor entirely overlooked by the learned trial judge.

16. The appellant further makes a distinction between O. 63A of the Rules of the Superior Courts and its corresponding provision

under the Civil Procedure Rules in the United Kingdom. In that jurisdiction there are also detailed provisions regarding witness

statements, inter alia, in commercial litigation. These are to be found in substance in Part 32 of such rules. In essence, the admission

of a supplemental statement is regarded as the exception rather than the norm; in this regard, however, it has been noted that the

court should not be totally inflexible, as otherwise the drafting of the statement in the first instance may become “an elaborate costly

branch of legal drafting” (Lord Woolf, Access to Justice – Final Report (July, 1996) Chapt. 12, para. 54).

17. As is to be expected, the Courts of England and Wales have developed a body of jurisprudence identifying the factors which are

relevant for consideration on an application to admit a supplemental statement where there has been non-compliance with the

underlying court order. Relevant considerations include matters such as an explanation of why the statement has become necessary

in the first instance; its contents and their relevance; why it was not submitted in compliance with the antecedent court order; what

effect or impact it will have on the other party if admitted; and that party’s ability to “properly prepare” for the trial so as to do

justice to their case. Cases such as Cowland v. District Judges of the West London County Court (Court of Appeal, 20th July, 1999),

The Mortgage Corporation Limited v. Sandoes (Court of Appeal, 26th November, 1999) and Roberts v. Williams [2005] EWCA Civ.

1086 have been mentioned by Ryanair in support if its appeal.

18. Whilst Blackstone’s Civil Practice 2010 (Oxford) pp. 643 – 644, has also been referred to as a source where such matters are

identified and commented upon, it is unnecessary in my view to dwell on that text at any depth. It is sufficient to conclude by saying

that the general consideration of the overall administration of justice is an umbrella guide on hearing such an application.

19. The final argument touched upon in the main appeal related to fairness and the right to a fair hearing, with the terms of Article

34.1 and Article 40.3 of the Constitution being outlined. Moreover, there was also a peripheral reference to Article 6 of the European

Convention on Human Rights.

20. On the preliminary objection point (para. 12 supra), Ryanair, whilst acknowledging the relevant case law which is hereinafter

mentioned, submits that in the particular circumstances the decision of the trial judge to defer the further continuation of the hearing

was correct.

Submissions of the Respondent:

21. At the forefront of the respondent’s replying submission is the objection that this Court should not entertain an appeal arising out

of a ruling made during the currency of an ongoing action. It relies heavily on Condon v. Minister for Labour & the Attorney General

[1981] I.R. 62 (“Condon”) and on Superwood Holdings Plc & Ors v. Sun Alliance & London Insurance Plc & Ors [1999] 4 I.R. 531

(“Superwood”), in this regard.

22. On the substantive appeal the respondent fully supports the decision of the trial judge, pointing out that at no time was any

request made seeking its consent to the admission of the supplemental statement. Of more significance in its view was the failure of

the appellant to apply to the court, pre-trial, seeking an extension of time for that purpose. If this had occurred, the respondent

would have had an opportunity, if the need arose, to seek leave to file a supplemental statement from its corresponding witness(es).

Moreover, it could have made the argument that in any event the content of the supplemental statement is entirely hearsay and that

any such application should have been rejected on that ground alone.

23. Bravofly refers to and quotes heavily from the decision in Moorview Developments Ltd v. First Active Plc [2009] 2 I.R. 788

(“Moorview”), as does Ryanair; Bravofly points in particular to paras. 28 – 31 of the judgment of Clarke J. In essence, these passages

underline how critical it is that the rules of engagement when dealing with commercial litigation are adhered to, and that no deviation

therefrom ought to be permitted save for good and substantial reason, which does not exist in this case. Therefore, in the

respondent’s view the trial judge, and by extension this Court, should not permit the introduction of the supplemental statement, for if

either did, the continuing authority of the rules would be eroded. Accordingly, it submits that even should this Court entertain the

main appeal, the same should be dismissed for the reasons advanced.

Decision:

Preliminary Objection:

24. There are two separate but obviously inter-related issues involved in this appeal. The first is the ruling by the learned trial judge

rejecting the application to have the supplemental witness statement adduced in evidence, and the second, distinct from the first, is

the judge’s decision to defer the continuation of the trial until the intended appeal from that ruling has been determined. For reasons

which I will come to in a moment, it by no means follows that the trial should not have continued even in the absence of the disputed

evidence.

25. It has long been an established practice of this Court to refuse to entertain an appeal moved by an aggrieved party from an

adverse decision made by the trial judge whilst the substantive proceedings are ongoing. Even without authority, there are self

evident reasons for this approach, which are amply illustrated by the facts of this case. An action which should have concluded at

trial level in October/November, 2010 has yet to make it past the second day of the hearing, this as a result of the disputed

supplemental statement and how that issue was dealt with. It is now almost nine years since the occurrence of the events giving rise

to these proceedings and even with the utmost dispatch and commitment, it is likely that their conclusion is yet some distance off. If

the trial had not been deferred, a step vigorously contended for by Ryanair, it is almost certain that such proceedings would have

been fully disposed of well before now. Whilst the intervening period cannot be attributed to either party, the fact remains that the

process argued for and adopted played a central role in the timeframe as outlined.

26. In Condon it was not disputed but that at the date of its filing, the statement of claim disclosed an existing cause of action. It

was however hotly contested by the defendants that such continued at the trial date, given the intervention of the legislature in the

intervening period which saw the impugned statutory provisions ceasing to have effect. The learned trial judge, at the

commencement of the hearing, agreed to determine that point as a preliminary issue and, having done so, rejected the defendants’

argument to that effect. He then proceeded however to accede to their application for an adjournment so that an appeal from his

ruling could be taken to this Court.

27. In the Supreme Court, Kenny J., with whom the other members agreed, said on this precise point:-

“The procedure which was adopted of allowing the defendants an adjournment to enable them to appeal to this

Court was grossly irregular: the preliminary point was never set down for argument as a preliminary point, and no

rule of court has been cited which justified the course taken. When the judge decided against the defendants’

preliminary submission, his proper course was to continue [with the trial].” (p. 74 of the report)

That passage, although cited at greater length, was fully endorsed by the Supreme Court in Superwood, with Hamilton C.J., “[being]

satisfied that this case [Condon] provides ample authority for the proposition that appeals should not be made to this Court against

orders or rulings made by a trial judge during the course of an action being tried by him or her” (pp. 538-539 of the report).

28. I am entirely satisfied that this is a correct statement of the law, and affirm its continuing application with clear-cut conviction.

Any other approach, if routinely adopted, would be incompatible with and grossly disruptive of good and efficient administration, would

potentially fragment in a disorderly manner the unity of a trial, would lengthen the duration of cases and increase their costs, and

would result in a state of continuing uncertainty for the parties which is inimical to the principle of finality of litigation. No system of

administration could survive such a practice. Therefore, the dominant and overriding approach of a trial court when faced with

circumstances such as those in the instant case must be to continue with the action until final order.

29. The situation which occurred in the instant case is quite unlike the determination of a preliminary issue which has been

procedurally set up in the correct manner; different considerations may apply in those circumstances. Equally so where a particular

ruling has the effect of disposing of the action, in which case a final order should quite evidently be made. In addition, there may be

other circumstances which require individual consideration, but overall the approach above suggested should prevail.

30. Having said that, however, it must be acknowledged that this central approach is not pitched at a jurisdictional level, but rather is

in place to enhance the efficient dispatch of proceedings in an orderly and fair fashion so that litigious issues can be concluded with

certainty, within a reasonable time and in a cost efficient manner. Therefore, from time to time, albeit with extreme rarity, one will

come across cases where this Court has determined the substantive appeal even when moved in live proceedings. But, as cautioned,

any trial judge faced with such an application should examine the context in which the issue arises with conscious scrutiny, and

should only accede to such an application when the administration of justice in the broadest sense demands it.

31. One such case is Condon itself, with Kenny J. explaining that “the substantive point is of such importance that I think we should

decide it” (p. 74 of the report). Likewise with Superwood, where the Chief Justice said “I am satisfied in the particular and unique

circumstances of this case … [that] this Court is entitled to deal with the matters raised in this appeal” (p. 541 of the report). A third

example is, in fact, the instant case, where the critical factor which has convinced this Court to deal with the substantive appeal is

the passage of time which has elapsed from October, 2010 until the present date, a feature most unlikely to reoccur given the

passing of the Thirty-third Amendment of the Constitution and the enactment of the Court of Appeal Act 2014. If we should have

declined to entertain the appeal and remitted the matter back to the High Court for the substantive hearing to continue, then the

entire litigation would most likely be ongoing for several more years. That is a situation which we could not countenance. Accordingly,

for these undoubtedly special reasons, we will entertain the appeal.

Main Appeal:

32. It is difficult to understand the approach adopted by Ryanair to the supplemental witness statement. Evidently, with its obvious

litigious experience, it was fully familiar with the rules contained in O. 63A RSC and with the practice and application of those rules by

the judge for the time being in charge of the commercial list. There are several surprising features of what occurred, including:-

(i) the absence of any explanation as to why the additional material was not included in the original statement when

the same clearly existed at that time and with due diligence should have been so included;

(ii) that no request was made to Bravofly seeking its consent to have the statement admitted;

(iii) that without court application the statement was submitted, in a manner very much articulated in

correspondence, which suggested an unconditional right to so do;

(iv) that when objection was first taken on the 7th September, 2010, the stance previously asserted was simply

and boldly repeated, and

(v) that when objection continued thereafter, at no time prior to the trial was the commercial court ever asked to

extend the time for the delivery of such a statement.

This lack of engagement with the court, even though the parties were actively in dispute about certain matters (judgment of Clarke J.

of the 15th July, 2010), shows a clear disregard of an obvious obligation on Ryanair which immediately arose on the 6th July, 2010

(para. 9 supra), and which obtained added urgency on receipt of the first and subsequent objection notifications from the

respondent. Yet what appears to be almost a principled position, without the slightest justification therefor, was adopted by that

company.

33. The specific rule of court directly in issue on this appeal is that set out at O.63A, r. 22(1) of the RSC which reads as follows:-

“22.(1) Unless a judge shall otherwise order, a party intending to rely upon the oral evidence of a witness as to fact

or of an expert at trial shall, not later than one month prior to the date of such trial in the case of the plaintiff,

applicant or other party prosecuting the proceedings and not later than seven days prior to that date in the case of

a defendant, respondent or other party defending the proceedings, serve upon the other party or parties a written

statement outlining the essential elements of that evidence signed and dated by the witness or expert, as the case

may be.”

As is apparent from its terms, what the witness statement must contain is the “essential elements” of the evidence intended to be

given: once all of the salient features are outlined, that will be a sufficient compliance with the rule. A verbatim account, strictly so

called, is not necessary, very much for the reasons identified at para. 15 above. Accordingly, when in place, that written outline will

satisfy the underlying purpose of the rules, which is to avoid surprise, to enable the opposing party to properly prepare for trial, to

facilitate the possibility of settlement and to further the efficiency of the judicial process.

34. The very fact of furnishing the supplemental statement, of itself, would suggest that Ryanair was not satisfied that the original

proof was sufficient to cover all matters upon which Mr. Dickson proposed to give evidence. It is therefore instructive to pick up the

context into which the supplemental statement fits and see what relationship it has with the evidence as originally tendered.

35. The basic allegations upon which the case rests are set out at paras. 1 – 6 above. In his witness statement of the 15th March,

2010, Mr. Dickson expanded upon these assertions. He said that if a Ryanair flight is chosen from the respondent’s website, the

customer clicks a link giving him or her access to the contractual terms and conditions associated with that particular booking. This

results in a pop-up window which includes both the terms and conditions of Bravofly and those of Ryanair itself. Much of the text

presenting as the appellant’s in fact corresponds with its actual terms and conditions, but there are some slight changes which

indicate that the original has been altered. Mr. Dickson could not say at that time how the software used by Bravofly collects the

content of this pop-up window containing, as is alleged, the mixed sourced text of the appellant and respondent. Despite this

limitation, however, he continued to make some observations but these related to the information available to him at the date of his

witness statement, rather than to information current to a date during the relevant period in controversy (para. 3 supra).

36. The supplemental statement appears to be designed to enable Mr. Dickson to comment more explicitly on the state of affairs at a

relevant date within the disputed period, rather than having to draw inferences and make observations solely from the 2010 websites

of the parties. In essence, the additional evidence, together with the supporting documentation, was intended to demonstrate that

the respondent had entered and used Ryanair’s website, had extracted the terms and conditions of its use and had reproduced them

on its own websites in an altered form. This was a key and core element of Ryanair’s proofs. In short, it involved displaying and

exhibiting the terms and conditions and associated matters used by Ryanair on its own website in November, 2007, and the

corresponding material which the respondent company displayed and relied upon on its Italian website, www.volagratis.com, as of the

same date. Through this evidence, in conjunction with that previously submitted, it was Ryanair’s intention to establish on the facts,

inter alia, that Bravofly had been guilty of the actionable wrong as alleged.

37. As is evident from the recital of the relevant facts and circumstances above given, the delivery of the supplemental witness

statement was some distance outside the time limit imposed therefor by order of the commercial court. Such occurrences, though

infrequently tolerated within the context of O. 63A RCS, can occur, but can be overlooked or conditioned in the event of the trial

court exercising its discretion, which it undoubtedly has, in this regard. It should be noted that the rules do not expressly exclude the

admission of such a statement, surely for the very reason that to do so would both overly restrict the court’s power and curtail the

court’s control over the litigation process.

38. The circumstances in which Ryanair failed to include the additional material, which evidently had to exist as of November, 2007, in

the original witness statement of Mr. Dickson cry out for an explanation. The same must undoubtedly exist but for some reason it has

not been offered to this Court. As unsatisfactory as this is, its absence however cannot per se prevent the trial judge from admitting

such a statement if otherwise it would be appropriate to so do. Again, such failure cannot have the effect of automatically ruling out

such a statement. However, in such circumstances the court will rigorously scrutinise the surrounding circumstances with a high level

of scepticism so as to make sure that justice in an overall sense, as between the parties and the court, is not impaired if the

statement should be admitted.

39. Bravofly, it must be noted, did not respond to the submission of this additional statement until the 7th September, 2010, even

though in the intervening period the parties were still litigating interlocutory matters (para. 32 supra). No explanation has been given

for this delay. Its objection, when made and thereafter repeated on several occasions up to the date of trial, was based on two

grounds, namely the delay point and also that the content of the statement was hearsay. In the absence of engagement at a

concrete level with the content of the supplemental statement, its reliance on the delay point can only be characterised as strategic

in nature. In addition, there is, in my view, no substance to the second ground of objection in the sense that even if the trial judge

had allowed the statement to be furnished, that decision of itself would not in any way have affected the defendant’s right to object

to its actual use on any evidential basis that was open to it, including quite clearly the hearsay point. Therefore, neither of these

grounds have any real merit to them.

40. Furthermore, the respondent has never suggested that it would be prejudiced in any other way by having to meet this evidence:

this apart from the obvious, namely that the additional material might support the position of the defaulting party and damage its

own. Thus, what one can deduce from this is that the respondent did not envisage irredeemable prejudice being caused to its ability

to prepare for trial if the supplemental statement was to be allowed in. In other situations, prejudice may be irreversible in the sense

that irrespective of what ameliorating orders were made by the court, the same could not be addressed. Again, one could find that

the prejudice identified might be conditional in nature, for example, that the innocent party would not have sufficient time to consult

its own expert, or to obtain a responding statement on its behalf. None of these difficulties, however, arise in this case.

41. The absence of such a prejudice by itself, much like the absence of an explanation from Ryanair, does not mean that the

statement should automatically be admitted. It is, however, an additional factor to be considered by the court, but its precise

significance in any given case will move on the vertical scale when viewed in the context of the overall evidence.

42. It has often been said that the underlying purpose of the commercial rules is to implement three imperatives in respect of actions

admitted to that list. Firstly, that the parties should engage in a fair trial of the issues so identified; secondly, that such issues should

be dealt with and disposed of with reasonable expedition; and, thirdly, that costs should be reduced so far as possible in such

litigation (O. 63A, r. 5 & 14(7) RSC). I agree with this particular classification and would only add a general observation, even if trite,

namely that justice is the ultimate objective of case management. This may suggest an inter partes evaluation only, but that is not

the case: the administrative system is an integral part of the justice objective and its functional operability is a real factor for

consideration on an application such as that moved before the trial court.

43. That being so, the final matter of general importance is the requirement of upholding the integrity of the Commercial Court rules,

which would be seriously undermined if court orders made by it in the context of the imperatives above outlined were routinely

disregarded. I do not feel that the default in this case, even when the additional factors are also considered, is such as to jeopardise

the ongoing value of such rules. Moreover, the court has available to it a range of options short of rejecting the statement, including

appropriate orders via the imposition of costs and other appropriate conditions, if it so wishes to rely upon them.

44. It is true that the order of the court was breached, but in my view the resulting default could not be considered as a significant

non-compliance with the order, given the fact that the additional statement was still submitted almost three months prior to the

hearing (c/f : time requirement of O. 63A, r. 22(1) itself: para. 33 supra). Whilst the reasons advanced by both parties for their

respective stance on this issue ranged from nil to unsatisfactory, nonetheless it is important to recognise that, at least at a prima

facie level, the additional evidence appears relevant and probative to a key issue in the case. That evidence could not be described

as new in any novel sense, nor does it expand or alter the nature of that issue or indeed any other issue in the case. In addition, it

could not have taken the respondent by surprise, particularly if, as asserted by Ryanair, much of the information comes from one of

its own websites. Accordingly, it is not surprising, in these circumstances, to find the absence of any prejudice which could weigh

heavily in the Court’s overall consideration of this appeal.

45. In arriving at the conclusion that the trial judge erred in not permitting the furnishing of the additional statement, I wish to make

clear that this order does not in any way affect the respondent’s right to challenge its admission into evidence or its use on any

evidential basis, including the hearsay ground, which may be open to it. Moreover, I would envisage that the High Court would review

the position of the case as it presently stands and would make any updated order(s) as may be appropriate to meet that situation,

including an order permitting Bravofly to file a responding statement if it so wishes.

46. Finally, as the case will clearly have to commence afresh, there will be certain costs incurred which will have no value in that

situation and which will have resulted directly from Ryanair’s failure to comply with the original order. Such costs, as articulated in the

perfected order of this Court, must be borne by Ryanair.

47. This conclusion equally applies to the supplemental statement of Mr. Eric Neville, if that should still be in contention.

48. Accordingly, for the above reasons and in light of these conditions, I would allow the appeal and permit the furnishing of the

additional witness statement(s), being the subject matter of this appeal.