On the Beach Ltd v Ryanair UK Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee |
| Judgment Date | 13 April 2022 |
| Neutral Citation | [2022] EWHC 861 (Ch) |
| Docket Number | Case No: CP-2021-000009 |
| Court | Chancery Division |
[2022] EWHC 861 (Ch)
Lord Justice Nugee
Case No: CP-2021-000009
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPETITION LIST (ChD)
Rolls Building, Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
Brian Kennelly QC and Emma Mockford (instructed by Stephenson Harwood LLP) for the Defendants
Robert O'Donoghue QC and Max Schaefer (instructed by Hogan Lovells International LLP) for the Claimant
Hearing date: 10 March 2022
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10.30am on 13 April 2022 by circulation to the parties or their representatives by e-mail and by release to BAILII and the National Archives.
Introduction
The Claimant, On The Beach Ltd ( “OTB”), a UK company, is an online travel agent that allows members of the public to book package beach holidays via its websites and apps.
The Defendants operate Ryanair flights, including flights to and from the UK. Those to EU destinations are operated by the 2 nd Defendant Ryanair DAC, an Irish company; those to non-EU destinations are operated by the 1 st Defendant Ryanair UK Ltd, a UK company which is its subsidiary. It is not generally necessary to distinguish between them and I will refer to them together as “Ryanair”.
This action was brought by OTB against Ryanair for damages and injunctive relief for what is claimed to be a concerted campaign by Ryanair aimed at preventing competition from online travel agents, including OTB. This is said to be unlawful (i) as a breach of s. 18 of the Competition Act 1998 (which prohibits conduct which amounts to the abuse of a dominant position in a market if it may affect trade within the UK) and (ii) as constituting the tort of causing loss by unlawful means.
By the present application Ryanair applies for a stay of these proceedings pursuant to Art 30 of EU Regulation 1215/2012 ( “Brussels Recast”) on the ground that there are related proceedings ongoing in Ireland. It is common ground that Art 30 continues to apply to the present application despite the UK having ceased to be a Member State of the EU. It is also common ground that the application gives rise to two questions: (1) whether the proceedings in Ireland, or any of them, are “related proceedings”; and (2) if so, whether the Court should exercise its discretion to order a stay.
Ryanair applies in the alternative for a stay under the Court's general case management powers, but in practice this adds little, if anything, to the application under Art 30 and it was scarcely argued.
Background in more detail
The facts have of course not yet been found and are in some respects highly contentious, but I can summarise the parties' respective positions quite shortly.
OTB's case, as set out in the Particulars of Claim in this action, can be summarised as follows:
(1) OTB offers services via the web and apps for mobile devices. These enable consumers to book short-haul package holidays online. Although it has an international segment which offers holidays from websites in Sweden, Norway and Denmark, the vast majority (99.7%) of holidays are booked via its UK-facing website and app, and almost all of these depart from the UK. Its claim in this action is concerned exclusively with holidays that are booked through the UK-facing website and app and depart from the UK, and the vast majority of relevant consumers are thus resident in the UK.
(2) OTB operates as a “one-stop shop” where customers can select various components of their holiday, such as flights and hotels, from different providers, and buy them in a single transaction. That includes Ryanair flights. For most flights, including Ryanair flights, OTB makes the booking (or attempts to do so) as agent on the customer's behalf. In providing its services it is directly competing with Ryanair both in providing flight booking services to customers and in offering to arrange ancillary travel services such as hotel accommodation and car hire. Ryanair does not welcome such competition but wants to own the customer relationship itself, monopolise the market for booking its flights, and reduce competition and choice for ancillary services.
(3) In pursuit of this end Ryanair has not only engaged in multiple litigation against online travel agents and their service providers, but adopted a multi-faceted course of conduct aimed at preventing such competition. This is said to include making false and disparaging claims about online travel agents, including OTB; attempting to prevent OTB from completing bookings on behalf of its customers; refusing to allow OTB customers to check in online, or requiring them to undergo a verification process which makes it difficult for OTB to perform its services for them; and withholding refunds from OTB customers. That conduct is pleaded as both an abuse of a dominant position, and as the tort of causing loss by unlawful means, and OTB claims damages and injunctive relief accordingly.
Ryanair has not yet pleaded a Defence in this action, but I can take its case from evidence given by Mr Paul Phillips, a partner in Stephenson Harwood LLP, Ryanair's solicitors, in support of the present application. It can be summarised as follows:
(1) Ryanair is a low-fares airline. Its business model is based on being able to sell its flights directly to customers, thereby maximising its opportunities to sell ancillary products to them. It therefore predominantly advertises, markets and sells its flights to customers via its own website and not through travel agents or other online platforms.
(2) Online travel agents such as OTB obtain data regarding Ryanair flights by “screen-scraping” Ryanair's website in order to display Ryanair's flight information on their own websites. Screen-scraping is the practice of using software to interact with a website to extract information from it such as price, flight and timetable information. OTB is one of a number of online travel agents which do this, and has been doing it for 10 years.
(3) This practice has caused wide-ranging difficulties for Ryanair, due in large part to the fact that agents such as OTB do not provide Ryanair with the personal e-mail address of the customer but instead with an e-mail address generated by the agent. That has led to customers not being informed of cancellations, or Ryanair being unable to assist with customer service queries, or in one case (not I think involving OTB) Ryanair suffering adverse publicity when a letter of apology did not reach a customer.
(4) Second, screen-scraping interferes with Ryanair's business model. Ryanair bears the significant costs involved in hosting and operating its website and regards the actions of the online travel agents as the unauthorised taking and use of its property at its expense, depriving it of the ability to sell ancillary products which is what enables it to operate its low-cost model.
(5) Third, the practice of online travel agents has inhibited Ryanair from complying with its own regulatory obligations. To satisfy various regulatory obligations Ryanair needs to liaise with its passengers directly, and it requires customers' own e-mail addresses to do this.
(6) Ryanair's position is that screen-scraping constitutes a breach of the terms of use of its website and the infringement of its intellectual property rights.
These proceedings
There are four sets of proceedings which need to be considered, namely this action and three actions pending in Ireland (collectively “the Irish proceedings”).
So far as this action is concerned, the procedural history can be shortly stated:
(1) The claim form was issued on 10 June 2021.
(2) OTB applied for permission to serve Ryanair DAC out of the jurisdiction on 18 June 2021, and such permission was granted by former Chief Master Marsh, sitting as a Deputy Master, on the same day.
(3) OTB's Particulars of Claim were served on 1 October 2021.
(4) On 5 November 2021 Ryanair issued this application.
(5) By agreement between the parties (and a consent order dated 5 November 2021) time for service of the Defence has been extended until 28 days after determination of this application.
The Irish proceedings
The three Irish proceedings have each been brought by Ryanair DAC and are (1) a claim against OTB ( “the Irish OTB proceedings”); (2) a claim against a Romanian online travel agent called SC Vola.ro SRL ( “Vola” and “the Vola proceedings”); and (3) a claim against Skyscanner Ltd and associated companies ( “Skyscanner” and “the Skyscanner proceedings”).
The procedural history of the Irish OTB Proceedings is as follows:
(1) Ryanair DAC (then called Ryanair Ltd) issued a claim against OTB in the High Court of Ireland on 27 September 2010. The general endorsement claimed various relief for breach of contract and infringement of intellectual property rights. It was served on OTB in December 2010.
(2) OTB entered a conditional appearance in January 2011, and applied by motion in March 2011 to set aside service on the grounds of lack of jurisdiction. That was rejected by Laffoy J in a judgment on 22 March 2013 to the effect that the terms of use of Ryanair's website (which incorporated an express choice of Irish law) were sufficient to found jurisdiction: Ryanair Ltd v On The Beach Ltd [2013] IEHC 124. OTB appealed to the Supreme Court where the appeal was heard together with another appeal concerning a claim by Ryanair against a German online travel agent. Both appeals were dismissed by the Court for reasons given by Charleton J on 19 February 2015: Ryanair Ltd v Billigfluege.de GmbH, Ryanair Ltd v On The Beach Ltd [2015] IESC 11.
(3) On 22 April 2015 Ryanair served its Statement of Claim. On 4 June 2015 OTB issued a Notice for Particulars, asking...
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Dr Véronique Marie Elisabeth Simon v Ms Anne “Anouk” Taché
...continue to apply to both sets of proceedings. 73 Although there is no judicial authority on the point as such, I note that in On the Beach Ltd v Ryanair UK Ltd [2022] EWHC 861 (Ch), albeit in circumstances in which the parties were agreed on the point, Nugee LJ (sitting at first instance)......