1. This appeal is entirely concerned with the jurisdiction of the courts of Ireland to hear and determine the disputes in these three cases under Council Regulation EC/44/2001 of 22 December, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, O.J. L 012/1 16.1.2001 (commonly called the Brussels I Regulation) as transposed into Irish law by the European Communities (Civil and Commercial Judgments) Regulations 2002 (S.I. No. 52 of 2002). All of the cases are concerned with the use by online travel companies of the website of Ryanair Limited to book flights for their customers through those travel companies instead of directly by the customer accessing that airline’s own website. The result for the customer is a slightly higher price but with a choice of several airlines flying from one destination to another. Appeals numbered 2010/084/086 in Ryanair Limited v Billigfluege.de GmbH/Ticket Point Reisebüro GmbH are concerned with an application for an interlocutory injunction, refused by Hanna J following his decision that the parties had made a clear choice of jurisdiction for the resolution of their dispute;  IEHC 47. This does not form part of this judgment. The substantive hearings in the High Court will determine the questions as to the protection to be afforded to whatever intellectual property rights may be asserted notwithstanding the use of a publicly accessible website, and as to whether the parties to these various disputes have entered into a contract online and as to the terms thereof. The injunction applications in aid of whatever rights are asserted, either prior to trial or upon final decision, are also before the High Court. There are two separate but related sets of facts in the two cases under appeal. In appeal number 2010/108/109 Ryanair Limited v Billigfluege.de GmbH/Ticket Point Reisebüro GmbH, Hanna J has decided that the use of the website of Ryanair by the online travel website Billigfluege amounted to a choice by them as to jurisdiction;  IEHC 47. In appeal number 2013/272 Ryanair Limited v On the Beach Limited, Laffoy J has made a similar decision on somewhat different facts consequent on the use by On the Beach of the Ryanair website;  IEHC 124.
Appeal from hearings on affidavit
2. This appeal was characterised by confusion as to what the approach of an appellate court should be to disputed findings of fact where those facts as found by the trial judge derived entirely from affidavit evidence and the exhibits thereto. It was implied that a finding of jurisdiction by the High Court was somehow an exercise in judicial discretion. This is not correct. It is a finding of fact. A discretionary order is different. In such a case, an appellate court will “give great weight to the views of the trial judge and to any reasons stated by him for the course which he has taken” for the exercise of that discretion; Vella v Morelli  1 IR 11, per Budd J at p. 29, in that case considering an issue as to costs. In Desmond v MGN Ltd. 1 IR 737, Geoghegan J, giving judgment for the majority, affirmed that the position indicated by Budd J in Vella v Morelli is in his view the true legal principle in the light of the Constitution. However, Geoghegan J stated that while the Supreme Court would be slow to interfere with the High Court judge's management of his or her list, in a case where “much more substantial issues are at stake” the Supreme Court must “seriously consider whether in all the circumstances and in the interests of justice it should re-exercise the discretion in a different direction.”
3. Where issues of fact are in dispute, the approach of this court to arguments that the trial judge was incorrect in the findings made on hearing oral evidence is set out in Hay v O’Grady  1 IR 210. The three principles therein set out were predicated on the unique position of the trial judge in hearing and seeing all of the witnesses and then deciding where the truth lay. Thus, findings of fact supported by credible evidence are not to be disturbed, inferences of fact derived from oral evidence will rarely be interfered with, while inferences drawn from circumstantial evidence leave an appellate court in as good a position to draw its own inferences as the court of trial; see the judgment of McCarthy J at p. 217.
4. Principles based on the superior ability of a trial judge to decide, as between live witnesses, who is to be preferred in terms of credibility or of recollection cannot apply with the same force where facts are merely deposed to on affidavit. Apart from the gap between the experience of hearing and seeing a person giving testimony and the recitation of facts on paper that affidavit evidence represents, it must also be remembered that the gulf widens through those words on paper being generally chosen by lawyers as a reflection of what a witness wishes to say, as opposed to witnesses speaking or writing the account themselves. Sometimes facts deposed to on affidavit will clash in an unequivocal way; as where a witness for a plaintiff or an applicant gives an account of a conversation that carries legal effect in a particular way and a defendant’s or respondent’s deponent either denies that the conversation took place at all or gives a materially contradictory account. The High Court has emphasised that where resolutions of fact are essential to a decision necessarily founded on contradictory affidavit evidence, the trial judge may need to hear such limited portion of the evidence as enables him or her to reach a proper conclusion.: Director of Corporate Enforcement v Seymour IEHC 369, and see Irish Bank Resolution Corporation Ltd. V Quinn IESC 51 in the Supreme Court.
5. Any party appealing a decision, however, bears the burden of demonstrating that the trial judge was incorrect as to whatever findings of fact underpin a decision. Where an appeal is taken against essential findings of fact drawn from affidavit evidence, the appellant must establish an error in those findings that is such as to render the decision untenable. Alternately, it may need to be established on appeal that the decision reached was impossible because an essential conflict could not be resolved on what was before the trial judge. In this appeal, it was argued on behalf of Billigfluege and that both Hanna J and Laffoy J, in both of their respective decisions, reached conclusions that they should not have reached because the affidavit evidence demonstrably clashed as to the issue of choice of jurisdiction in such a way as to have required them to first hear limited oral evidence. In this case, as in many heavy motion cases, volumes of affidavit evidence and accompanying exhibits were exchanged. Much of what was deposed to consisted of the iteration, reiteration or contradiction of mere argument. Essential fact tends, in those circumstances, to be swamped. The first task of the trial judge is to isolate the questions of fact that are essential to the decision and to identify such portions of the evidence as support one side or the other. Once that is clear, a trial judge will be aware that he or she is entitled to regard exhibits as part of the factual material. Where correspondence contradicts averments of fact, this should be taken into consideration; where bald allegations are unsupported, that may be important; where exhibits demonstrate that what a witness deposes to is unlikely, that can be significant; where a test result is confirmed by an analytic printout, it can be hard to gainsay; and where a fact is demonstrated through an unbroken chain of circumstances, mere argument will have to give way. What these considerations demonstrate is that sorting out the facts that can be relied on in the context of written material is an evaluative exercise. Such an analysis is one of finding where the probable balance of truth lies. As such, it should be treated with appropriate deference by an appellate court. Thus, an appellant arguing for the reversal of any judgment founded on a rigorous analysis of affidavit evidence as to fact bears a heavy burden in seeking to demonstrate that a trial judge has fallen into such error that the decision made is untenable. Separately, on an appeal, errors of law are either demonstrated or not as being present in a High Court judgment.
6. In Gramsci Shipping Corporation v Aivars Lembergs 4 All ER 157, the Court of Appeal in England and Wales took a similar approach on the issue of the appellate review of factual decisions based on affidavit evidence; relying on the decision of the neighbouring kingdom’s Supreme Court in VTB Capital plc v Nutritek International Corp and others  2 AC 337. At para. 34, Beatson LJ stated:
I start by reminding myself of the statements in the VTB Capital case about the approach of an appellate court to a question such as the one before this court: see  1 All ER (Comm) 1009 at , ,  and ,  2 WLR 398 per Lord Mance, Lord Neuberger and Lord Wilson. If the judge has erred in law, or taken into account any irrelevant matter or failed to take into account a relevant matter which could influence the conclusion reached, the appeal will be allowed. But they emphasised that, although the question before the judge is not the exercise of a discretion, it is ‘an evaluative, or a balancing exercise’, ‘a classic interlocutory exercise with which an appellate court should be slow to interfere’.
7. Turning to the analysis of the affidavit evidence on this appeal, there is nothing demonstrated whereby this Court should interfere with the respective decisions of Hanna J and of Laffoy J. There is no finding of fact that is not based on evidence and there has been no erroneous interpretation of the relevant material. Those facts are now considered.
Applicable law and jurisdiction. It is a condition precedent to the use of the Ryanair website, including access to information relating to flight details, costs etc., that any such party submits to the sole and exclusive jurisdiction of the Courts of the Republic of Ireland and to the application of the law in that jurisdiction, including any party accessing such information or facilities on their own behalf or on behalf of others.
In the absolute and sole discretion of Ryanair, a legal action may be brought by Ryanair against any party in breach of these terms and conditions, at its election, in Ireland or the place of breach or the domicile of that party, and, if more than one party, in the domicile of any one of those parties, and all other parties shall submit to that jurisdiction.
10. In making his decision, Hanna J rightly commented on the nature of the expertise involved in a travel company setting up, or commissioning, software of such sophistication as that engaged by Billigfluege. He was unconvinced by the general thrust of their argument:
11. That was a conclusion that the trial judge was entitled to reach on the affidavit and exhibit evidence before him and one which was arrived at in an entirely logical fashion.
On the Beach facts
13. An argument was also made that the relevant data on the On the Beach website was not provided by it, but rather by third party service providers. This was a variant, in aid of the proposition that there was no choice of jurisdiction, advanced before Hanna J in terms of the customer and the customer only doing the booking. Another argument was advanced that the screen scraping was not done on choosing a flight, but only when the flight was booked, and then by the customer and not by the travel company. The relevant quote from the affidavit in support of the contention by On the Beach that they had not made a choice of jurisdiction was thus:
However, as of 1st February, 2012, [the defendant] started screen-scraping but only at the booking stage (that is, when a consumer has submitted his/her booking form to [the defendant]). However, as previously advised, raw data for [the defendant’s] website continues to be provided by third party data suppliers and [the defendant] has no involvement or role in the collection of such data by such suppliers.
14. Ryanair countered that the nature of the service provided by On the Beach was such as to make it, and not the consumer, the party which made a clear choice of jurisdiction. Laffoy J set out the contrary argument thus:
“By clicking to book and entering your personal and payment details on our website, you are requesting us to make an offer to the Principal/Flight provider to purchase the products on your behalf. At this point we immediately re-contact the Principal. Each Principal will still require a short period of time to confirm that your chosen flight/hotel is still available. Although the e-mail confirmation sent to you is NOT contractual acceptance of the Principal’s ability to provide this product, it is an acknowledgment that we have received your offer, and should the product be available as detailed on our website then you have entered into a legally binding agreement to purchase this product subject to the Principal’s Terms and Conditions.”
16. Article 2 is starting point for any choice of jurisdiction in relation to the Brussels I Regulation. Article 2 sets out the general rule that a defendant in proposed litigation should be sued in the country in which that defendant is domiciled. Since Billigfluege is a company registered under the laws of Germany, that is the default jurisdiction for this action; and since On the Beach is a company registered in England and so the same consideration applies. Article 2 provides:
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.
17. Consequently, the party initiating an action outside the domicile of a defendant must point to an exception under the Regulation to the general rule. Here, Ryanair call in aid Article 5, Article 23.1 and Article 23.2. Article 5 provides as follows:
A person domiciled in a Member State may, in another Member State, be sued:
1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
- in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
- in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,
(c) if subparagraph (b) does not apply then subparagraph (a) applies;
2. in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties;
3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
4. as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;
6. as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled;
7. as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question:
(a) has been arrested to secure such payment, or
(b) could have been so arrested, but bail or other security has been given;
provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.
18. On this appeal, Ryanair relied on the condition for use of the website term and, peripherally, on the booking consent provision as enabling Ireland to have jurisdiction. Hanna J dealt with the issue of jurisdiction in the Billigfluege litigation by reference to “traditional contract principles of offer, acceptance and consideration”. Laffoy J, however, in the On the Beach case, did not base her judgment on any aspect of the formation of a contract. That emerges as the more correct approach. Central to the disparate contentions of the parties is whether there ever was a contract between Ryanair and Billigfluege and Ryanair and On the Beach respectively. It is not for the Court to now adjudicate on this matter, as essential to the rights asserted by Ryanair, and denied by the travel companies, are the rights and obligations under the contract, if any, and any other intellectual property rights that are asserted on Ryanair’s pleadings. What is clear from both the judgments of Hanna J and Laffoy J in the High Court is that each judge was made aware of the minutiae of setting up a system such as that operated by Billigfluege and by On the Beach. The attention to detail that such a system involves may reasonably infer, absent factors to contradict that inference, a close scrutiny of not only the data that needed to be captured from the sites of airlines such as Ryanair in order for these comparison and purchase online sites to work, but also the other aspects of the airlines’ requirements for use of their online material; whether valid or not. That included in this instance the conditions for using the Ryanair site. The effect of contractual and other obligations is for trial, and not for this appeal.
19. Rather, central to the issue of jurisdiction is Article 23. This provides:
1. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to "writing".
3. Where such an agreement is concluded by parties, none of whom is domiciled in a Member State, the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.
4. The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.
5. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22.
20. Ryanair rely on paragraphs (a) and (c) of Article 23. In contending that there was an agreement conferring jurisdiction that was evidenced in writing, Ryanair claim that every click of assent to their terms and conditions of their website or their booking of flight terms and conditions amounts to a “communication by electronic means” and also contend that through their computer booking system they can provide “a durable record of the agreement”, considered under Article 23.2 to be equivalent to writing. This may or may not be correct. There is no record of it ever having been argued before either Hanna J or Laffoy J in the judgments of either court. For that argument to succeed, there would have to be an averment supported by appropriate computer print outs or screen shots of a small but representative sample of the transactions together with an opportunity to the travel companies to reply to that contention. The point should not be first decided on appeal.
21. On Article 23, clear principles have emerged from the Court of Justice of the European Union. There is nothing in the judgments of Hanna J or Laffoy J to indicate any variance from those principles, much less any error of law. It is appropriate to attempt to concisely set out the relevant approach to decisions on jurisdiction based on agreement.
22. Firstly, the primacy of jurisdiction under Article 2 being with the courts of the defendant to an action emerges clearly from the text of that article.
23. Secondly, since the primary rule for the place of trial is the domicile of the defendant, exceptions to Article 2 should be scrutinised carefully to ensure that any other mechanism for establishing jurisdiction under any other article of the Regulation is properly made. That principle emerges as early as Case C-269/95 Benincasa v Dentalkit Srl  ECR I-3767, which concerned the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, the precursor of the Brussels I Regulation. At paras. 13 and 14 the general rule was set out:
It must next be observed that, as the Court has consistently held, under the system of the Convention the general principle is that the courts of the Contracting State in which the defendant is domiciled are to have jurisdiction and that it is only by way of derogation from that principle that the Convention provides for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another Contracting State. Consequently, the rules of jurisdiction which derogate from that general principle cannot give rise to an interpretation going beyond the cases envisaged by the Convention (Shearson Lehman Hutton, paragraphs, 14, 15 and 16).
Such an interpretation must apply a fortiori with respect to a rule of jurisdiction, such as that contained in Article 14 of the Convention, which allows a consumer, within the meaning of Article 13 of the Convention, to sue the defendant in the courts of the Contracting State in which the plaintiff is domiciled. Apart from the cases expressly provided for, the Convention appears hostile towards the attribution of jurisdiction to the courts of the plaintiff's domicile (see Case C-220/88 Dumez France and Tracoba ECR I-49, paragraphs 16 and 19, and Shearson Lehman Hutton, paragraph 17).
24. That principle was reiterated by the Court in Case C-256/00 Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co ECR I-1699, where at paras. 52 and 53 it is stated:
The system of common rules on conferment of jurisdiction laid down in Title II of the Brussels Convention is based on the general rule, set out in the first paragraph of Article 2, that persons domiciled in a Contracting State are to be sued in the courts of that State, irrespective of the nationality of the parties. That jurisdictional rule is a general principle, which expresses the maxim actor sequitur forum rei, because it makes it easier, in principle, for a defendant to defend himself (see, in particular, Case C-412/98 Group Josi ECR I-5925, paragraphs 34 and 35).
It is only by way of derogation from that fundamental principle that the Brussels Convention makes provision, in accordance with the first paragraph of Article 3, for, in particular, special jurisdictional rules, such as that laid down in Article 5(1), where the choice depends on an option to be exercised by the claimant.
25. Thirdly, what is or what is not a choice of jurisdiction does not depend on traditional concepts of the formation of a contract, whether under civil law or common law systems. Consensus as to jurisdiction is a matter of fact for the judge asked to adjudicate in whatever Member State such a dispute is adjudicated but is not a matter of domestic law. Rather, the applicable law is a matter that emerges as a requirement from the text of the Regulation, and before it the Convention, and consent to jurisdiction is a concept that should be given a uniform interpretation throughout the European Union. It is an autonomous regime. In the Benincasa v Dentalkit Srl case, the Court put the matter thus in the context of the Convention at paras. 11 and 12:
The point sought to be clarified by the national court's first question is whether the first paragraph of Article 13 and the first paragraph of Article 14 of the Convention must be interpreted as meaning that a plaintiff who has concluded a contract with a view to pursuing a trade or profession, not at the present time but in the future, may be regarded as a consumer.
In this connection, regard should be had to the principle laid down by the case-law (see, in particular, Case 150/77 Bertrand ECR 1431, paragraphs 14, 15, 16 and 19, and Case C-89/91 Shearson Lehman Hutton ECR I-139, paragraph 13) according to which the concepts used in the Convention, which may have a different content depending on the national law of the Contracting States, must be interpreted independently, by reference principally to the system and objectives of the Convention, in order to ensure that the Convention is uniformly applied in all the Contracting States. This must apply in particular to the concept of 'consumer' within the meaning of Article 13 et seq. of the Convention, in so far as it determines the rules governing jurisdiction.
26. Fourthly, the objective of the Brussels I Regulation was to introduce confidence in commercial relations. Thereby, within the Member States, defaults on obligations should be predicted to be litigated in a particular jurisdiction. It follows, from the fundamental principle of legal certainty, that jurisdiction should be foreseeable on the relationship between the parties under the Regulation and on their choice of jurisdiction. This emerges from the Court in Case C-256/00 Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co  ECR I-1699 where at para. 26:
That principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the basic principle of the Brussels Convention laid down in Article 2, such as the rule in Article 5(1), should be interpreted in such a way as to enable a normally well informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued …
27. Fifthly, where any derogation from Article 2 is sought to be established by a plaintiff based on choice of jurisdiction, there is a requirement to show that a consensus has been reached between the parties as to where any disputes will be litigated. That must be clear and it is a matter of the independent will of the parties; see Case C-387/98 Coreck Maritime GmbH v Handelsveem BV E.C.R. I-9337 at paras. 13 and 14. In Case C-24/76 Estas Salotti v Rua ECR 1831, at para. 7, the Court of Justice of the European Union stated that Article 23:
… imposes upon the Court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties which must be clearly and precisely demonstrated.
28. Where a contract is concerned, a particular cause for confusion can arise because the clause as to choice of jurisdiction may be merely a numbered clause within several other terms of a disputed agreement. No final decision can be made as to the existence of a contract where the question before the court is only the interlocutory issue as to whether the case is properly to be tried before the courts urged to assume jurisdiction. To the extent that it is necessary, however, but only to that extent, the court deciding the issue of jurisdiction may need to enter into a consideration of such limited facts as are relevant to jurisdiction while leaving any decision as to the substance of the case to the trial. This emerges, among others, from Case C-159/97 Societad Trasporti Castelletti Spedizioni Internazionali SA v. Hugo Trumpy SpA ECR I-1597 where the Court stated at para. 48:
As the Court has repeatedly stated, it is in keeping with the spirit of certainty, which constitutes one of the aims of the Convention, that the national court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case…
29. This Court in Ryanair Limited v. Unister GmbH IESC 14 summarised through Clarke J the extent of the obligation of a court “to enter into a sufficient inquiry to determine whether it truly has jurisdiction…” At para. 8.6, Clarke J stated that in some cases courts will be required to “to determine questions of fact which may be material to the very question of jurisdiction even though some of the same questions of fact may also be material to the substantive issues which arise in the proceedings generally.” His view in that regard coincides with that of the Court of Justice of the European Union since in the Hugo Trumpy case the issue was regarded as properly joined as to whether a particular course of conduct was generally and regularly followed in the type of contract in question. It follows that it is not enough for a defendant to baldly claim that matters are not at all clear. Where an unequivocal choice of jurisdiction can be uncovered on the materials before the trial judge, what is alleged by a defendant to be unclear, may become capable of being found as a fact. At para. 8.8 Clarke J stated:
There may be some doubt as to the precise extent to which it is appropriate for a court, in considering whether it has jurisdiction, to enter into detailed and contested factual questions in order to reach a conclusion as to whether jurisdiction has been established. However, it seems to me that the position adopted on behalf of Unister, which is to the effect that if the matter is not very clear the default jurisdiction applies, is not consistent with the jurisprudence of the ECJ. It follows that there may well be cases where an Irish court will be required to enter into some consideration of contested facts in order to determine whether, in accordance with the Regulation, it has jurisdiction. It seems to me to follow that an Irish court, in aid of such an inquiry, has jurisdiction to make any procedural orders which exist in the Irish legal regime and which may be considered to be of assistance in addressing such questions. However, it is important to identify that the availability of such measures (which could, in an appropriate case, include interrogatories or discovery orders or any other form of disclosure order in respect of which the Irish courts have jurisdiction) must be directed towards assisting in the resolution of the jurisdiction issue and must, therefore, relate to matters which could be said to be important for the resolution of the inquiry which the court is required under the Regulation to conduct as to whether it has jurisdiction.
30. This decision was in accord with Clarke J’s own judgment, while in the High Court, in Ryanair v Bravofly IEHC 41. In that case, Clarke J set out as an example of a disputed contract one which a defendant claims to be a forgery but which, none the less, contains an apparent assent by that defendant to jurisdiction. Difficult cases will arise. The duty of the courts remains to enter into an analysis of such limited facts as can determine whether the parties reached a consensus on jurisdiction.
31. Sixthly, and specifically with reference to Article 23.1(c) customs within a trade may be enquired into in order to determine a choice of jurisdiction. That clearly emerges from the text of the sub-Article. In addition, several cases support that approach. In Case C-106/95 Mainschiffahrts-Genossenschaft eG v Les Gravières Rhénanes SARL ECR I-911 the court unequivocally stated this principle at para. 20:
It must therefore be considered that the fact that one of the parties to the contract did not react or remained silent in the face of a commercial letter of confirmation from the other party containing a pre-printed reference to the courts having jurisdiction and that one of the parties repeatedly paid without objection invoices issued by the other party containing a similar reference may be deemed to constitute consent to the jurisdiction clause in issue, provided that such conduct is consistent with a practice in force in the area of international trade or commerce in which the parties in question are operating and the parties are or ought to have been aware of that practice.
32. This point was reiterated in the Hugo Trumpy case at para. 36, in a judgment where the court also restated the independence from national rules that such an enquiry entails:
It is therefore for the national court to refer to the commercial usages in the branch of international trade or commerce concerned in order to determine whether, in the case before it, the physical appearance of the jurisdiction clause, including the language in which it is drawn up, and its insertion in a standard form, which has not been signed by the party not involved in drawing it up, are consistent with the forms according with those usages.
33. Such are the core principles involved. Their application presents practical difficulties which the Court of Justice of the European Union has been careful not to ignore.
34. These decisions were in accord with settled law. In the Billigfluege decision, Hanna J concluded as follows:
35. This decision was one open to the trial judge. In several passages in his judgment it is implied that the setting up of this operation involved a skilled scrutiny of the data for the purpose of sharing it; whether for a good purpose or whether it was made available generally as opposed to in a protected manner is not a matter for decision now. In her judgment, Laffoy J also reached a decision that was open on the materials before her. At para. 43 she decided that On the Beach was bound by the jurisdiction clause “by its use, either through the medium of an automaton or a manual operator or a third party data provider”. The summary of her reasoning occurs at para. 42:
36. The reasoning in that regard is in accordance with the evidence before the trial judge in the High Court.
37. An agency point has also been put forward. Very little was made of the agency argument on this appeal. The matter may not have been argued before Hanna J, in any event there is no serious consideration of the point in his judgment. No decisions were opened on this appeal for the contention that the correct defendants to these decisions were not the travel companies but, instead, the many thousands of customers who used the websites of Billigfluege or On the Beach to purchase flights with Ryanair. For the purposes of the appeal only, the reasoning of Laffoy J on the point should be affirmed only to the extent of establishing a consensus on jurisdiction, but not as to any wider point of defence based on agency. Her decision is reflected at para. 45 of the judgment:
In my view, whether, in accessing the plaintiff’s website for the purpose of searching and booking on behalf of a client, the defendant is acting as agent or principal is irrelevant to the Court’s determination as to the applicability of Article 23(1)(c). The defendant’s reliance on a passage from Bowstead and Reynoldson Agency (19th Ed.) (at para. 9 - 001) to the effect that “[in] the absence of other indications, when an agent makes a contract, purporting to act solely on behalf of a disclosed principal, whether identified or unidentified, he is not liable to the third party on it”, fails to have regard for the court’s function in applying Aricle 23(1). As Clarke J. stated (at para. 7.4) in the Bravofly case, the Court of Justice has been -
‘at pains to point out that the question of whether the requirements set out in the . . . Regulation for a choice of jurisdiction clause to apply are met (and whether they are met is to be determined on the basis of an autonomous application of Community Law) is wholly separate from any questions concerning the validity or enforceability of the contract in which the clause may be found’.
Accordingly, whether, vis-à-vis the plaintiff, the defendant, in using the plaintiff’s website, acted as an agent or a principal and, if it acted as agent, whether it has liability in contract or, indeed, in tort, which also forms a basis of the plaintiff’s claim against the defendant, are not issues which require to be determined on the application of Article 23(1) under European Union Law.
38. Some attempt was made on appeal by On the Beach to advance arguments based on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). This argument quickly dissolved as the text of the Directive, if ever relevant in the context of this case, a mystery that cannot now be elucidated, has nothing whatever to do with choice of jurisdiction. Laffoy J dealt in trenchant terms with that submission at para. 20 of her judgment:
39. Nothing has been advanced to morph this red herring into anything more digestible and, further, no argument has been made and no reading of the Directive makes this excursus into e-commerce in this context any more worthwhile.
Standard of proof
40. Ryanair has also sought to argue that the standard established for service of a summons or notice of a summons out of the jurisdiction under Order 11 of the Rules of the Superior Courts is the appropriate approach for a trial judge dealing with a dispute as to consensus as to jurisdiction under the Brussels I Regulation. At issue in Stryker Corporation and Another v Sulzer Metco AG IEHC 60 before Ó Néill J in the High Court was a motion under Order 12 Rule 26 to set aside service of a summons assuming that the courts of Ireland had jurisdiction in a dispute between a firm here and the supplier of a machine which exploded, the manufacturer of which was in Switzerland. The relevant principles for jurisdiction were based on the Lugano Convention. At issue was the standard of proof for establishing that the courts of Ireland had jurisdiction in a dispute. As between merely establishing an arguable case, the argument for the defendant, and requiring a party seeking to have courts in Ireland assume jurisdiction based on the normal balance of probabilities standard, Ó Néill J came firmly down for the ordinary standard of proof. He said:
Article 17 is cast in mandatory terms and where it applies the choice of jurisdiction made overrides any other potential place of jurisdiction which might arise from the other provisions of the Convention. Because of this overriding or overarching nature of Article 17, a consideration of which provision of the Convention applies so as to determine jurisdiction necessarily in my view starts with a consideration of whether Article 17 applies and in approaching the issues which arise on this motion, I propose first to consider whether Article 17 applies, as has been contended for by the plaintiffs.
Before embarking on such a consideration however I should deal with the appropriate standard of proof or the particular onus that rests on parties such as the defendant who asserts that there is an exclusive jurisdiction clause in existence which attracts the application of Article 17.
It was submitted by Mr. Finlay that the onus which was on him was merely to show a good arguable case. In that regard he was relying upon the following passage from the judgment of Lord Steyn in the case of Canada Trust Company v. Stolzenberg No. 2 1 AC 1 where the learned judge said the following at p. 13
‘In a purely internal case, the test of a good arguable case has been laid down by the House of Lords as applicable also in respect of domicile as a ground of jurisdiction: See Scaconsor Far East Ltd. v. Bank Markazi Jombouri High Islami Iran  1 A.C.4 38.
The question is whether in the context of Article 6 (of the Lugano Convention) the more stringent test of balance of probabilities should apply. Adoption of such a test would sometimes require the trial of an issue or at least cross-examination of deponents to affidavits. It would involve great expense and delay. While it is true that the jurisdictional issues under the conventions are very important they are generally to be decided with due dispatch and without oral evidence. In my view Waller L.J.’s judgment (1998) 1 W.L.R. 502, 553 - 559 correctly explained on sound principled and pragmatic grounds why the defendants argument is misconceived.’
At issue in that case was Article 6 of the Convention which could be said to present an issue capable of easier resolution than can arise under Articles 17 or 5(1). Article 6 provides that where a defendant is one of a number of defendants he may be sued in the courts of the place where any one of them is domiciled.
That apart however, I in the course of the hearing raised the question of what would happen when both sides, as in this case, in my view have what might fairly be described as a “good arguable case”. To say that an applicant/respondent, on a motion such as this is entitled to the relief sought, if he simply demonstrates a good arguable case, would in my view, be to risk a grave injustice against a respondent/plaintiff who equally might be said to have a good arguable case. In that circumstance if the applicant were granted the relief simply on that basis there would in my view be an invidious discrimination against the respondent, contrary to Article 40.1 of the Constitution of Ireland which guarantees equality before the law.
I am unable to adopt the reasoning as set out in the above quoted passage in the judgment of Lord Steyn and am inclined to agree with the submission of Mr. Hogan which was to the effect that as the issue raised in the notice of motion must be determined finally by this court on this application, that the normal standard of proof in civil matters must apply that is to say, the party who carries the burden, in this case the defendant, in so far as the issue under Article 17 is concerned, must prove relevant facts on the balance of probability and so far as legal issues are concerned must satisfy the court of the correctness of any submissions made by them.
In order to succeed on this application the defendant must demonstrate that there was an agreement as to the inclusion of the defendants exclusive jurisdiction clause into the contract and that the formal requirements in Article 17 are met. Insofar as these former requirements are concerned, clearly it is the first of these namely that the agreement conferring jurisdiction is either in writing or evidenced in writing, that is the appropriate requirement requiring compliance.
41. In Handbridge Limited v British Aerospace Communications Ltd  3 IR 342 the Brussels Convention was in issue. There, the issue was as between the place of domicile of a defendant as the ordinary jurisdiction and the place of performance of a contract as an exception to that general rule. Finlay CJ for the Supreme Court laid down a set of rules at p. 358 as to how such disputes as to jurisdiction were to be approached:
Applying these principles, as it is necessary to do, to what is the exception provided for in art. 5 of the Convention, and in particular, in art. 5 (1) which is what is in issue in this case, I am satisfied that certain conclusions of principle arise. They are:—
(1) The onus is on the plaintiff who seeks to have his claim tried in the jurisdiction of a contracting state other than the contracting state in which the defendant is domiciled to establish that such claim unequivocally comes within the relevant exception.
(2) In a case of a claim for breach of contract, therefore, what he must prove is that the obligation in question in that claim is, by virtue of the terms of the contract or by some generally applicable principle of Irish law, an obligation which must be performed in Ireland.
(3) It would follow from this that where the evidence adduced by a plaintiff seeking to have a claim for breach of contract tried within the jurisdiction of a contracting state other than the state of domicile of the defendant amounts to no greater standard of proof than establishing that the obligation which it is claimed was breached could have been performed in such state, he has failed to establish his entitlement to sue pursuant to art. 5 (1), the necessary proof being that the obligation which it is claimed has been broken by the defendant according to the contract or according to some general principle of law, must be performed in the state concerned.
42. As against the application of the ordinary standard of proof, Ryanair can point to only one case, Analog Devices BV v Zurich Insurance Company 1 IR 272. That case, however was based on Order 11 of the Rules of the Superior Courts. Fennelly J was concerned not with contract formation but a dispute as to whether an exclusion clause applied. This comment at p. 281-282 is nonetheless relevant:
When the court grants leave for the service out of the jurisdiction of proceedings, it requires a person, not otherwise within the jurisdiction of our courts, to appear here and to answer the claim of a person made in what is for him a foreign court rather than leaving the plaintiff to pursue his remedy against that person in that other jurisdiction. The international comity of the courts have long required, therefore, that our courts examine such applications with care and circumspection. The applicant must furnish an affidavit verifying the facts upon which he bases his cause of action. It is not sufficient that he assert that he has a cause of action. The court judges the strength of the cause of action on a test of a ‘good arguable case.’ No argument has been addressed to the court in this case on the existence of the plaintiffs' cause of action. The master policy is not disputed, nor does there appear to be any dispute about the fact that there was some incident capable of causing loss under the policy. The parties are at odds, it appears, only in respect of the applicability of the exclusion clause.
On the other hand, the parties are in dispute in respect of the existence of circumstances justifying the grant of leave to effect service out of the jurisdiction. In the case of O. 11, r. 1 (e)(iii) of the Rules of the Superior Courts, 1986, in particular, they are in dispute about issues of fact.
It is in this context that the plaintiffs submit that the court should apply a test of a ‘fair arguable case’ leaving the resolution of any disputes to the trial of the action. That approach needs to be applied with special circumspection in a case where the issue in contention is whether the court can take upon itself jurisdiction over a foreign person or corporation. Tests similarly worded are adopted by the courts in deciding whether or not to grant some forms of interlocutory relief, specifically injunctions, or whether to grant leave to apply for judicial review. But, in those cases, the position of the opposing party is not irrevocably affected. He may succeed at the trial of an action, though an interlocutory injunction has been granted against him, and he may defeat the substantive application for judicial review. This case is different. If the court grants leave to effect service out of the jurisdiction, it asserts that it has jurisdiction. The foreign defendant is required to submit to that jurisdiction and fails to do so at his peril. In particular, if the court declines to set aside an order for service, that ends the dispute about jurisdiction. There is no later opportunity to re-open the matter.
When Barrington J., in Short v. Ireland  2 I.R. 188 at p. 215, referred to a ‘good arguable case,’ he was speaking of the merits of the substantive claim of the plaintiffs against British Nuclear Fuels to be suffering or apprehending suffering from the activities of that company in the United Kingdom. Lord Goff of Chieveley analysed the matter at some length in Seaconsar Far East Ltd. v. Bank Markazi Jomhouri Islami Iran  1 A.C. 438, though he also was principally concerned with the rule for assessment of the strength of the plaintiffs' case on the merits as distinct from the question of what test to apply on an application for service out of the jurisdiction. His discussion of the earlier House of Lords decision in Vitkovice Horni A Hutni Hezirstvo v. Korner  A.C. 869 shows how confused the English courts were about the matter. The law lords thought the test to be, as laid down by the rule, as in our O. 11, r. 5 of the Rules of the Superior Courts, whether ‘the case was a proper one for service without the jurisdiction.’ This might not be thought to advance the matter much and Lords Simonds and Lord Normand appeared to accept the value of ‘a good arguable case.’ Lord Radcliffe spoke of ‘a strong argument’ and ‘a strong case for argument.’ Hence the notion of ‘good arguable case.’ I agree that this is the appropriate standard.
43. In Case C-256/00 Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co ECR I-1699 at para. 26, however, the Court of Justice of the European Union made it clear that both principles of legal certainty and ease of knowledge by a proposed defendant as to jurisdiction were at the heart of properly establishing jurisdiction under the relevant rules. It would be contrary to those principles were a mere standard of the application of an arguable case allowed to usurp the general principle that unequivocal proof of the exception to Article 2 is required. Further, since the probability standard is the ordinary standard throughout the European Union for the establishing of contentious issues, no lesser standard than that is required to prove an exception to the domicile of the defendant as the ordinary rule for jurisdiction.
44. In both cases a consensus emerges as to jurisdiction in favour of the courts of Ireland. Both appeals should therefore be dismissed. Article 2 of the Brussels I Regulation specifies that persons domiciled in a Member State should be sued in the courts of that state. Exceptions to this rule in Article 23 include an agreement on a different choice of jurisdiction between the parties. This can be arrived at through assent or through a custom within a relevant commercial area. In summary, Ryanair sought to demonstrate that such a choice had been made by virtue of clause 7 of its terms and conditions of use of its website, which specified that Ryanair could elect to take proceedings against any breach of those terms and conditions in Ireland, or elsewhere at its discretion. Ryanair argued that the appellant travel companies had agreed to those terms through the use of their website. The appellant travel companies argued that their customers were bound by those terms, and not the companies themselves.
45. In the course of their decisions, Hanna and Laffoy JJ individually reached conclusions that were open to them on the evidence as presented, albeit that their conclusions were reached on different grounds. The conclusion of Laffoy J in the On the Beach decision was that the expression of assent to the terms and conditions of the websites of airlines and travel agencies through the clicking or ticking of a box is a practice generally and regularly followed in those commercial sectors. Moreover, she noted, in accordance with that practice, the terms and conditions of use of the website are available throughout such websites by way of hyperlink, with the objective of binding the user of the website to these terms. She held that it was clear that On the Beach were aware of the operation of that practice. Hanna J decided the jurisdiction issue in the Billigfluege hearing by reference to traditional contractual analysis. In upholding that decision on this appeal, and in accordance with precedent, no decision is made that a binding contract was entered into, only that a clear choice of jurisdiction has been made by the parties.
46. The burden of proof in taking such an appeal is on the appellant. There has been no demonstration of error. In rejecting the appeals of both travel companies, the result is that the decisions of the High Court were in accordance with Irish and EU precedent on the application of the Brussels I regulation. Further, there has been no finding of fact on the part of the High Court that had not been based on evidence.
47. Finally, the operative standard of proof in respect of a dispute over consensus as to jurisdiction under the Brussels I Regulation is the balance of probabilities as provided by the authorities set out herein and in accordance with national and EU law.