High Court of Ireland Decisions

1. This is an application for summary judgment in the sum of £356,777. That sum is claimed for landing charges and passenger load fees in respect of the Defendant’s Dublin/Paris and Dublin/Brussels routes. A claim in respect of the Dublin/Bristol route which existed when the summary summons was issued is no longer extant, it having been discharged with a payment of £103,108.

2. Landing charges and passenger load fees are payable by airlines using the facilities of airports operated by the Plaintiff Dublin Airport is one such airport and is the only one involved in this case.

3. Pursuant to the provisions of Section 39 of the Air Navigation and Transport (Amendment) Act, 1998 the Plaintiff is entitled to recover these charges as a simple contract debt.

4. For some years now the Plaintiff has operated a discount scheme in respect of these charges. These are given under traffic growth incentives and the discounts allowable are

5. A dispute arose between the Plaintiff and the Defendant as to the operation of the scheme in question. In accordance with the terms of that scheme the dispute was referred to the Department of Public Enterprise. Whilst the scheme provides that the decision of that department is final and binding it does not exclude the right of either party to have recourse to the courts. Indeed, even though the Plaintiff contends that it was successful before the department it does not seek in any way to argue that the view of the department is binding on this Court and still less summarily enforceable by it. I will ignore the views of the Department for the purposes of this motion.

6. It is accepted by Counsel for the defence that in essence this is a single issue case. The defence which is proffered through the mouth of the Defendant’s Chief Executive Mr Michael O’Leary on affidavit is that there were discussions between him and a Mr Brian J Byrne of the Plaintiff which resulted in either (a) a variation to the scheme for the benefit of the Defendant, or (b) a collateral contract which gave the Defendant additional advantages under the scheme. It is said that in bringing this action account has not been taken of either of these matters. A third proposition is also made. It is said that the Plaintiff is estopped from pursuing this action successfully by reason of a promissory estoppel arising from the representations made by Mr Byrne.

7. The Plaintiff denies in categoric terms that there was or indeed ever could have been such a variation as is alleged without specific board approval on the part of the Plaintiff

8. The test which I have to apply on this application is that set forth by the Supreme Court in First National Commercial Bank plc v. Anglin [1996] 1 IR 75. In that case Murphy J speaking for the Court said:

9. In his first affidavit which is animadverted upon very strongly by Counsel for the Plaintiff Mr O’Leary the Defendant’s Chief Executive at paragraph 4 of the affidavit accepts that the discount scheme applied generally. But he says

10. From the exhibits contained in his affidavit it is quite clear that the Defendant announced its commencement of services to Brussels and Paris on the 7th February, 1997.

11. Details of fares payable for these flights and ancillary arrangements for passengers to be taken from distant airports to Paris and Brussels by coach or taxi were also announced on that date. It is clear therefore, on Mr O’Leary’s own evidence that the Defendant had made its arrangements to commence these routes not later than the 7th February, 1997.

12. It follows therefore, that the “specific and deliberate” amendment to the discount scheme which was allegedly made “to procure” Ryanair’s commencement on these routes must have occurred prior to the 7th February, 1997.

13. Details of the negotiations which led to the alleged amendment to the discount scheme are set forth at paragraphs 19-30 of Mr O’Leary’s first affidavit. Paragraph 19 reads:

14. Paragraph 20 continues:

15. This final sentence makes it clear that any amendment must have been finalised prior to the 7th February, 1997.

16. The following three paragraphs of Mr O’Leary’s affidavit read:-

17. In the following paragraph of his affidavit he states:

18. I turn now to a consideration of the correspondence which Mr O’Leary says clearly sets out the fact of the agreement allegedly reached between him and Mr Byrne.

19. The first item of correspondence is a letter of the 14th February, 1997 from Mr Byrne to Mr O’Leary. It reads:

20. This letter provides no support for an assertion that the discount scheme had been altered in favour of the Defendant. On the contrary it sets out the terms of the scheme

21. The next exhibit is an internal memorandum from Mr O’Leary to an official of the Defendant called Howard. In it he says

22. This document does not appear to me to provide any support for the variation which had already allegedly been agreed as between the parties. Indeed, the final paragraph is inconsistent with such a variation ever having been effected.

23. It is also of some significance that there is no evidence either in this memorandum or in any other document which suggests that Mr Byrne’s letter of the 14th February, 1997 (which I have already reproduced) is wrong.

24. On the same day that he wrote the memorandum which I have just quoted Mr O’Leary wrote a letter to the Plaintiff. It reads

25. Again, this letter provides no support for the Defendant’s contention. The penultimate paragraph is indeed inconsistent with the agreement which is contended for.

26. The next letter is from the Plaintiff and is dated the 11th March, 1997 insofar as it is relevant it reads

27. This letter makes it clear that it is the general scheme which applies and not some special arrangement allegedly entered into more than a month beforehand between Mr Byrne and Mr O’Leary. A criticism is made of the fact that this letter is dated the 11th March and is in reply to one of the 17th February. Nothing turns on that since there was no need to respond to the earlier letter which was completely consistent with the scheme as applied generally.

28. On the same day Mr O’Leary responded. Insofar as it is relevant he said

29. “Your letter of the 11th refers. I don’t have any difficulty with computing the overall net growth on any route or “city pair” but must emphasise that the net growth will not be shared with any incumbent unless that incumbent actually generates growth on its own services. To the extent that Aer Lingus and Air Inter/City Jet don’t increase their carryings in calendar 1997 over calendar 1996 on the Dublin/Paris route for instance, then they will not attract any growth rebates. We will not accept a situation whereby growth actually delivered by us is then shared on some arbitrary rebate formula basis with those incumbents.”

30. This letter of the 11th March from the Defendant does not provide any support for the variation contended for.

31. This correspondence is dealt with at paragraphs 25 and 26 of Mr O’Leary’s affidavit. In dealing with the letter of the 17th February, 1997 which was not responded to until March, 1997 Mr O’Leary swears

32. No reply was received to that letter until March, 1997. In the meantime the Defendant took all of the necessary decisions, committed the necessary resources and began selling its very low fares and marketing its new routes from Dublin to Paris and Dublin to Brussels.”

33. This last averment is wholly inconsistent with the launch having taken place on the 7th February, 1997 by which time all arrangements were made. It furthermore destroys any claim of promissory estoppel.

34. In my view far from establishing an “express agreement clearly set out in correspondence” the documents in this exhibit demonstrate the opposite.

35. There are other inconsistencies in the Defendant’s approach. For example, in the memorandum to the Department of Public Enterprise it stated “It is quite clear that the exchange of correspondence between Ryanair and Aer Rianta in February and March, 1997, which formed the basis for Ryanair’s entry into those routes, formed a written agreement between the two companies for the specific application of the scheme”. This assertion of a written agreement was wrong. There was no such agreement. Furthermore, this exchange of correspondence post-dated Ryanair’s announcement of its entry into those routes when, having regard to the launch which took place on the 7th February, 1997 all necessary arrangements had been made.

36. Even on Mr O’Leary’s own affidavit and exhibits it is difficult to see how there is any support to be obtained for his assertion on oath concerning an alleged variation to the scheme. The variation is denied by the Plaintiff who asserts not merely that no variation occurred but says that it could not have occurred since it would have required the express approval of the Plaintiff’s board of directors. Moreover, they allege that prior to the launch on

37. There is of course conflict on the affidavits. But a mere assertion in an affidavit of a given situation which is said to be the basis of a defence does not of itself constitute a ground for granting leave to defend. I have to look at the whole situation to see whether the Defendant has satisfied me that there is a fair or reasonable probability of it having a real or bona fide defence. I have to ask ‘is what the Defendant says credible’? In my view it is not. Mr O’Leary’s credibility is undermined by the very documents which he exhibits, his assertion of an agreement when the exact opposite is indicated by those exhibits and the inconsistencies both as to the form of the agreement and when it was allegedly entered into.

38. In my view there is no fair or reasonable probability of the Defendant having a defence to these proceedings and the Plaintiff is entitled to summary judgment in the amount claimed.