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THE HIGH COURT
COMMERCIAL
[2025] IEHC 320
[Record No. 2019/9399P]
BETWEEN
RYANAIR DAC
PLAINTIFF
AND
SKYSCANNER LIMITED, SKYSCANNER HOLDINGS LIMITED
AND SKYSCANNER 2018 LIMITED
DEFENDANTS
JUDGMENT of Mr. Justice Mark Sanfey delivered on the 5th day of June 2025.
Introduction
1. This judgment relates to a discovery application by the plaintiff ('Ryanair') against the defendants (collectively 'Skyscanner'), and a further discovery application by the defendants against the plaintiff. Each motion sought multiple categories. The categories sought in pre-discovery letters and the motions themselves were the subject of protracted correspondence and liaison between the respective legal teams with a view to agreeing as many categories as possible. Unfortunately, the parties were unable to reach agreement in relation to most of the categories, necessitating applications to this Court.
2. The hearing of the two motions took four days. At the outset of the application, both sides proffered charts which illustrated, in relation to each category, what was agreed or not agreed. The hearing had been scheduled for three days; unfortunately a fourth day proved necessary, and this took place some two weeks later, during which interval the parties continued to liaise and made some limited further progress. After the hearing concluded, the defendants' solicitors helpfully proffered agreed schedules of where negotiations stood in the two motions in relation to each category, indicating the areas of agreement or disagreement in each case.
3. I have attached those post-hearing schedules to this judgment. I do not propose to set out the original requests for discovery, or what the progress of negotiations was between the parties. The purpose of this judgment is to give rulings in relation to the categories which the parties could not agree, as indicated in those schedules, and to explain briefly, but not exhaustively, the reasons for those rulings.
4. I shall give some brief background to the litigation generally, so that the context of the discovery may be understood. There was little controversy between the parties as to the legal principles to be applied, so it is not necessary to set out in this judgment principles which are well-settled and agreed by the parties, save where any difference between the parties on the legal position may be relevant to a specific dispute as to a category.
Background
5. I propose to summarise the background to the matter and the passage of the litigation to date as briefly as possible; as we shall see, there are already a number of judgments in the High Court and Court of Appeal in the litigation, in each of which the nature of the proceedings as reflected in the pleadings is set out.
6. The present proceedings is one of several "screen scraping actions" which Ryanair has commenced against various parties. In an extensive statement of claim, the plaintiff claims that the defendants are engaged in activities which involve the unauthorised use of automated systems of software to access price, flight and time ('PFT') data from the plaintiff's website for the purpose of sale or facilitating the sale of the plaintiff's products and services on the defendant's website. The plaintiff seeks damages for breach of contract, infringement of trademark, breach of copyright, passing off, conversion, conspiracy and other torts; it also seeks a range of declaratory and injunctive reliefs, the latter primarily seeking to restrain Skyscanner from breaching or further breaching the Licence Agreement which Ryanair alleges governs the relationship between the parties, "and/or Ryanair's TOUs" ('terms of use').
7. In its defence and counterclaim, Skyscanner denies that it is engaged in such activity, but counterclaims that the plaintiff is in any event precluded from maintaining any cause of action or seeking any relief by reason of what Skyscanner alleges is abuse by Ryanair of a dominant position in certain markets in contravention of Article 102 of the Treaty on the Functioning of the European Union ('TFEU').
8. Ryanair alleges that, prior to November 2019, Skyscanner accessed Ryanair's PFT data legitimately by means of a licensed applicable programme interface ('API') which redirected users to Ryanair's website in order to book flights. Ryanair alleges that it became clear in November 2019 that the defendant had begun to obtain PFT data other than by means of the licensed API, but did not disclose how it was obtaining such data.
9. The present proceedings commenced by issue of a plenary summons on 5 December 2019. On 19 December 2019, Ryanair issued a notice of motion seeking interlocutory relief prohibiting the provision by Skyscanner of false email addresses for customers where flights were either sold by Skyscanner or where the sale was made via third party domains linked from the defendants' domain. The motion also sought an interlocutory injunction prohibiting the defendants from selling the plaintiff's flights on its website, whether on its own domain or via linked domains without ensuring that the defendant or the selling party provided the plaintiff with an email address and/or phone number which would enable Ryanair to directly contact its customer.
10. In the event, the High Court (Twomey J.) refused the reliefs sought by the plaintiffs: see [2020] IEHC 399 and [2020] IEHC 584. On Ryanair's appeal, the Court of Appeal (Murray J.) affirmed the decision of the High Court.
11. Subsequently, Ryanair issued a motion seeking an order pursuant to Order 19 rule 27 and/or rule 28 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court striking out the defendant's counterclaim and aspects of the defence on the basis that the counterclaim was inconsistent with the defence and/or contained mutually exclusive pleas. Ryanair also applied for an order pursuant to Order 63A and/or Order 36 rule 9 of the Rules of the Superior Courts directing a modular trial of the action in which liability issues would be determined first, with a subsequent module dealing with what Ryanair described as "competition law issues".
12. The High Court (Quinn J.) refused both applications: see [2022] IEHC 696.
The Motions
13. Ryanair's discovery motion issued on 20 July 2022. It was grounded upon the affidavit of Thomas McNamara, "Director of Legal" of Ryanair DAC, which was sworn on that date. Martin Nolan, "General Counsel and Company Secretary at Skyscanner Limited" swore a replying affidavit on 10 March 2023; both Mr. McNamara and Mr. Nolan swore a number of further affidavits in advance of the hearing of the application, which took place on 21 June 2023. The affidavits are extensive and deal in detail with each of the categories sought.
14. Ryanair seeks 28 categories of discovery against Skyscanner, 8 of which concern Skyscanner's alleged liability to Ryanair, 20 of which arise on Skyscanner's counterclaim. The motion was preceded by a letter of 17 June 2022 seeking voluntary discovery, to which Skyscanner responded on 8 July 2022.
15. Skyscanner also issued a motion on 20 July 2022. This application was grounded on the affidavit of Laura Scott, a partner in William Fry LLP, the firm of solicitors acting for the defendants. Thereafter, Mr. McNamara and Mr. Nolan swore affidavits setting out the respective positions of Ryanair and Skyscanner.
16. In support of its position on the competition law aspects of the case, Skyscanner adduced an affidavit sworn on 3 May 2023 by Miguel de la Mano, a partner of RBB Economics, an economic consultancy firm in Madrid, Spain. By way of reply, Ryanair introduced an affidavit sworn on 14 May 2023 by David Parker, a Director of Frontier Economics Limited, a London-based consultancy firm, which inter alia responded to Dr. de la Mano's affidavit. Skyscanner took the view that Dr. de la Mano should have the opportunity to reply to Mr. Parker's affidavit, and sought shortly before the hearing to introduce a further affidavit in this regard. The second affidavit of Dr. de la Mano took the opportunity to comment on a reformulation of Skyscanner's position of 17 June 2023, to which Mr. Parker had had no opportunity to respond.
17. Ryanair objected vigorously to the admission of Dr. de la Mano's second affidavit, but sought to proffer a further affidavit from Mr. Parker in the event that Dr. de la Mano's second affidavit was admitted. I allowed counsel for Skyscanner, on the first day of the hearing, to refer to Dr. de la Mano's affidavit de bene esse while all parties had an opportunity to read that affidavit and take instructions; by the third day of the hearing, it became necessary to rule on the admissibility of both affidavits. I decided that both second affidavits of Dr. de la Mano and Mr. Parker should be admitted: see transcript, day 3, pp. 98 to 104.
Ryanair's Motion
18. As previously indicated, I propose to deal with the categories as set out in Appendix 1, which is "Chart 3A", a schedule prepared by the defendant's solicitors and agreed between the parties setting out the "net position" between them as to what was agreed or not agreed in respect of each category of discovery sought by the plaintiff. The reader will require to have this appendix to hand, as I propose, in the interests of brevity and concision, to set out only my response and decision in relation to the parties' net positions. The formulation which I have ordered in each case takes into account the written submissions of both parties in relation both to the categories and to the legal position, and the oral submissions of counsel in relation to each category.
19. Ryanair alleges that Skyscanner attempted to circumscribe the discovery sought by averments that a hosting platform - "GitHub" - was involved in the process by which Ryanair PFT data ended up on Skyscanner's website. Ryanair complained that this issue had not been pleaded by the defendants, who had not furnished particulars of GitHub's alleged involvement despite a request from the plaintiff. Some of the categories sought by Ryanair therefore refer to the "GitHub issues", its position being that "Skyscanner is not entitled to aver the GitHub issues and force them into the mix, at the discovery stage, in order to limit Ryanair's discovery" [written submissions, para. 18]. This submission has been taken into account by the court in deciding on the formulation of the various categories.
Category 1 (Day 1, pp. 113 - 130)
20. I will order discovery of the following:
· The Licence Agreement;
· Emails from 1 October 2019 to 5 December 2019 including all reports or memoranda to which reference is made in the said emails, by or between Skyscanner's executive management (or any member of Skyscanner's executive management), or between those parties and any third party, discussing
(i) the status or operability of the Licence Agreement;
(ii) how Skyscanner would obtain Ryanair PFT data other than via the Licence Agreement.
Comment
21. In my view, the "all documents" designation sought by the plaintiff is too broad; discovery of any reports or other documents referred to in the emails for the period will suffice for the plaintiff's purposes. Skyscanner accepts that the category applies as between it and third parties, so any GitHub issues do not arise. The period agreed by the parties is short, so that the discovery ordered will not be oppressive. The "without prejudice" section which prefaces the suggested Skyscanner formulation is unnecessary.
Category 2 (Day 1, pp. 130 - 156, Day 2 pp. 7 - 32)
22. I will order discovery of the following:
The following documents which are sufficient to show the precise manner in which Skyscanner obtained Ryanair's PFT data between 1 October 2019 and 5 December 2019, and which data appeared on Skyscanner's website(s) during that period:
(a) files from Skyscanner's GitHub system;
(i) sufficient to show the software source code used by Skyscanner to request PFT data in respect of Ryanair flights from Ryanair's applicable programme interface and other files sufficient to show how the parameters for those calls are populated;
(ii) sufficient to show the software source code used by Skyscanner to request PFT data in respect of Ryanair flights from any third party interface and other files sufficient to show how the parameters for those calls are populated;
(b) contract(s) with third parties which were operable at any stage during the period 1 October 2019 and 5 December 2019 under which Ryanair PFT data was obtained;
(c) documents discussing or explaining the precise manner in which Skyscanner or third parties (via GitHub or otherwise) obtained Ryanair's PFT data between 1 October 2019 and 5 December 2019;
(d) documents explaining how Ryanair PFT data appears on Skyscanner's website;
(e) emails from 1 October 2019 to 5 December 2019 between Skyscanner's executive management (or any member of Skyscanner's executive management), or between those parties and any third parties, expressly discussing the engagement or effect of Ryanair's TOUs (for the avoidance of doubt, such documents to include documents demonstrating Skyscanner's understanding, acceptance and/or breach of Ryanair's TOUs).
Comment
23. I consider that Ryanair is entitled to documentation relating to how the parameters for the access calls are prepared, rather than - as Skyscanner suggests - an explanation of how the parameters are populated. The documents must be sufficient to demonstrate how this population of the parameters occurs. Skyscanner may of course furnish an explanation of the documentation discovered so that context or clarity may be provided.
24. In this and certain other categories, Ryanair sought files involved in the preparation of the parameter for access calls "including both dynamically constructed and statically defined variables". There was controversy between the parties as to whether this degree of specificity was desirable or necessary. It seems to me that, if discovery is made in the terms which I have set out, such discovery will be relevant and necessary for the plaintiff's purposes, and may include "dynamically constructed and statically defined variables", but it is not necessary to include this term in the formulation of the discovery category.
Category 3 (Day 2, pp. 32 - 44)
25. I will order discovery of the following:
(a) the following documents which are sufficient to show for the period of 1 October 2019 to 5 December 2019 the technical means by which Skyscanner redirected users to Ryanair's website and the technical means by which bookings with Ryanair in respect of Ryanair flights could be made via Skyscanner's website (i.e. dBook, etc):
(i) files from Skyscanner's GitHub system sufficient to show the software source code used by Skyscanner for the period of 1 October 2019 to 5 December 2019 to:
· generate hyperlinks to Ryanair's website for the purpose of redirecting users of Skyscanner's platform from their chosen search result to Ryanair's website;
· send user information collected by Skyscanner's dBook user interface to any third party for the purpose of users completing bookings with Ryanair in respect of Ryanair flights via dBook.
(b) The following documents which are sufficient to show the manner in which Skyscanner obtained for the period of 1 October 2019 to 5 December 2019 PFT data from a sample of five OTAs, and which data appeared on Skyscanner's website(s):
(i) files from Skyscanner's GitHub system sufficient to show the software source code used by Skyscanner for the period of 1 October 2019 to 5 December 2019 to request PFT data from the aforesaid sample of five OTAs, and any other files sufficient to show how the parameters for these calls are populated;
(ii) contract(s) between Skyscanner and the aforesaid sample of five OTAs which were offerable at any stage during the period between 1 October 2019 and 5 December 2019.
For the purpose of this category, Ryanair may select the five sample OTAs covered by the category.
Comment
26. Many of the issues relevant to category 2 also apply to this category, and the parties have agreed much of what requires to be discovered. However, Skyscanner requests that the documentation be limited to a sample of five online travel agents (OTAs); Skyscanner comments that the Ryanair wording "would have captured documents which speak to completion of flight bookings with OTAs following a search on Skyscanner's website (Category 3(a)) or would require production of all PFT data and any other data received from OTAs, that may pertain to a flight operated by Ryanair, in the course of the hundreds of millions of searches conducted on Skyscanner's platform...Skyscanner's reformulation is also intended to address undue and disproportionate burden in circumstances where Skyscanner interacts with approximately 300 OTAs at any given time..." [written submissions, p.12].
27. In Ryanair DAC v. SC Vola.ro SRL [2021] IEHC 788, I authorised the use of sample documentation in relation to a discovery which, if not restricted in this fashion, would have been burdensome and disproportionate. At paras. 61 to 62 of that judgment, I stated that "...Ryanair is entitled to see the operation of the process a number of times to satisfy itself that operation of the Vola system is consistent...I do not consider that the use of sample documentation is inappropriate. It is used to reduce the amount of documents which would otherwise be discoverable, and is in ease of both parties...". In my view, those comments are equally applicable to the present situation.
28. I do not consider that the categories sought by Ryanair at category 3(b)(iii) and (iv) are necessary. In my view they are both speculative, and are not necessary in the sense set out by the Supreme Court in Tobin v. Minister for Defence [2020] 1 IR 211.
Category 4 (Day 2, pp. 44 - 55)
29. I will order discovery of the following:
(a) All documents generated in the searching and booking of five Ryanair flights on Skyscanner's website (via dBook or otherwise);
(b) All documents necessary to show how customers may be transferred to a sample of five OTAs (via Redirect or dBook), such documents being sufficient to show the technical means for the period 1 October 2019 to 5 December 2019 by which Skyscanner redirected users to a sample of five OTAs and the technical means by which bookings with OTAs could be made in respect of OTA flights via Skyscanner's website.
Comment
30. I do not consider that the "all documents" formula is disproportionate or burdensome given that it is to be limited to five Ryanair flights booked on the Skyscanner website. I consider that the sample approach is equally suitable to the documents showing how customers are transferred to OTAs. This category overlaps with category 3(a).
Category 5 (Day 2, pp. 57 - 63)
31. I will order discovery of the following:
Emails from 1 October 2019 to 5 December 2019 including all reports or memoranda to which reference is made in the said emails, by or between Skyscanner's executive management (or any member of Skyscanner's executive management), or between those parties and any third party, evidencing and/or recording that Skyscanner was aware of and/or acknowledged any rights that Ryanair may hold in respect of Ryanair's website and/or Ryanair's databases and limitations on Skyscanner or any Skyscanner affiliated OTA in using Ryanair PFT data.
Comment
32. This category was largely agreed between the parties, although the "all documents" formula preferred by Ryanair was in dispute. I have modified the suggested formulation by Skyscanner slightly, but otherwise adopted the wording agreed by the parties.
Category 6 (Day 2, pp. 63 - 73)
33. I will order discovery of the following:
Records of all queries and/or complaints raised by Skyscanner users limited by search term to tickets concerning "Ryanair" for the period of 5 December 2016 to date.
For the avoidance of doubt, the term "Ryanair" to also be searched by reference to its call sign "FR" and/or other relevant references which Skyscanner uses to denote Ryanair flight bookings.
Comment
34. This category relates to alleged abuse by the defendant of Ryanair's EUTM (EU Trademark), and the competing versions have been considerably reduced since the original discovery request.
35. Ryanair requests "[d]ocuments sufficient to represent the manner in which Skyscanner used Ryanair's EUTM during the period 5 December 2016 to date." This proposal is unacceptable to Skyscanner in its entirety. Skyscanner submits that, in effect, Ryanair wants Skyscanner to engage in a search of its systems to see where and how often the word "Ryanair" appears. It is submitted that this would impose an "extraordinary burden" on Skyscanner, given that it has 100 million users a month and 300 OTAs with which it deals. The electronic reviewers of the category would have to be educated as to whether each use of the word "Ryanair" is used in a trademark context. Further, it is submitted that Skyscanner is unaware as to whether its 300 OTAs have a particular manner in which they refer to Ryanair which is different to Ryanair's callsign. It is suggested that the front-facing page on the Skyscanner website is in fact "the page it is alleged constitutes an infringement of the EU trademark" (Day 2, page 67), and that the information which Ryanair will glean from the various categories of discovery is more than sufficient to enable it to advance its case that Skyscanner has breached the rights of Ryanair in relation to its EUTM.
36. I accept these submissions. It seems to me that a category of documents as extensive as that sought by Ryanair is not "necessary" in the Tobin sense, and that to order it would be unduly burdensome and disproportionate.
Category 7 (Day 2, pp. 73 - 87)
37. This category, together with category 8, is directed towards the computation by Ryanair of its alleged loss, damage, inconvenience and expense due to the alleged activities of Skyscanner. In both categories, there is overlap with some of the categories sought in relation to the competition aspects of the case.
38. Ryanair accepts that categories 7(a),(b) and (c) overlap with certain categories subsequently sought, and counsel accepted that consideration of those categories could be deferred until the subsequent relevant categories were considered.
39. Reformulated category 7(d) as set out in chart 3A (J.html"dix 1 to this judgment) responds to averments in para. 89 of Mr. Nolan's first affidavit of 10 March 2023 that "[a]t best, Skyscanner may have some summary data provided to it by partners after the fact, but it is highly unlikely to be possible to correlate such data with corresponding search returns. As such, Skyscanner will not be able to produce data at the level of granularity that Ryanair is seeking."
40. While that may be so, the reformulated category appears to me to be relevant and necessary, and likely to advance Ryanair's case in assisting it to quantify loss or damage allegedly suffered. If it is the case that Skyscanner can only respond to the category in a limited fashion for some reason, it can set out its reasons for this on affidavit.
41. In relation to Ryanair's reformulated category 7(e) as set out in Chart 3A, Skyscanner relies on para. 90 of Mr. Nolan's first affidavit, in which Mr. Nolan acknowledges that Skyscanner publishes one webpage in respect of Ryanair flights which references "lowest-priced Ryanair flight tickets from hundreds of providers", but goes on to aver that:
"...[U]sers visiting that webpage are presented with Skyscanner's standard meta-search tool, and searches conducted using the tool return results for flights offered by all airlines and OTAs covered by Skyscanner's platform, not just for Ryanair flights. Accordingly, there must logically be no documents responsive to Ryanair's request as drafted. Moreover, it has not been Ryanair's practice to report conversion information to Skyscanner, as Ryanair did not pay Skyscanner anything for redirects from Skyscanner's website or for resulting sales made by Ryanair. As it was not monetizing redirects to Ryanair's website or subsequent sales on Ryanair's website, Skyscanner did not need to obtain such information by other means for those purposes".
42. Counsel for Skyscanner confirmed that this remains Skyscanner's position. Skyscanner has simply rejected the Ryanair reformulation which takes account of Mr. Nolan's averment above. The responses from Skyscanner do not refer to specific difficulties in responding to the formulation requiring documents sufficient to show the conversion rate of searches returning Ryanair flights to affiliated Skyscanner OTAs websites. It seems to me that the category sought is relevant and necessary for Ryanair's purposes; the limitation of the period from 5 December 2016 to date seems to me to limit the burden of the category sought to acceptable levels. If there are reasons why Skyscanner is unable to find documents responsive to the categories sought, it can articulate such reasons on affidavit.
43. Ryanair's reformulated categories 7(f)-(i) as per Chart 3A address a wish on the part of Ryanair, as set out by Mr. McNamara at para. 46 of his second affidavit of 2 May 2023, "to obtain visibility on [the] pricing of Ryanair flights, as they appear on Skyscanner's website, in circumstances where it appears that OTAs may be engaged in a practice of reference pricing, i.e. the Ryanair seat is priced lower than the price offered by Ryanair for the same seat". Mr McNamara goes on in that paragraph to set out Ryanair's concerns arising from this state of affairs.
44. Skyscanner's position is bluntly set out at para. 91 of Mr. Nolan's first affidavit, where he avers as follows:
"...Skyscanner is unlikely to have any documents of which to make discovery. Skyscanner does not and has never sold Ryanair flights. As such, [Skyscanner] has never determined pricing in respect of Ryanair flights. Rather, all pricing in respect of Ryanair flights displayed on Skyscanner's platforms from time to time comes from pricing data provided to Skyscanner by Ryanair or alternatively by third parties. Skyscanner are not privy to the method of pricing Ryanair flights or the method of pricing OTA products. This is a matter for third parties such as Ryanair and OTAs. Similarly, Skyscanner did not itself sell any ancillary products during the period in question. Similarly, Skyscanner did not mark-up the prices of flights or of any ancillary products, and as such was not concerned with price differentials. I am informed by the preliminary investigations described in my Second Affidavit that Skyscanner's operational and archiving practices in respect of pricing data did not extend to archiving or even computing pricing differential data or to monitoring pricing data for flights "sold directly by Ryanair"."
45. While Skyscanner cannot categorically rule out the possibility that it does have some documents in these categories, in view of Mr. Nolan's averments, it seems to me that to order Skyscanner to make discovery of even these reformulated categories would be unduly burdensome in circumstances where Skyscanner has never determined pricing in respect of Ryanair flights. I do not propose therefore to order discovery of these reformulated categories; however, Mr. Nolan fairly acknowledges at para. 92 of his affidavit that "...[w]e expect that, in the normal way, an assessment of damages potentially payable by either Ryanair or Skyscanner should their respective claims succeed will follow after liability issues have been determined. Discovery in respect of any assessment of damages can be addressed in due course should such an assessment become necessary". It may therefore be that Ryanair's request may be revisited in the event that the assessment of damages becomes necessary as a result of determinations by the court in relation to questions of liability.
46. I will therefore order discovery of the following:
Category 7(d)
Documents sufficient to show the volume/number of Ryanair flights and/or ancillary in-flight services and/or ancillary non-flight services sold via transfers from Skyscanner's website or redirected to the websites of affiliated OTAs for the period 5 December 2016 to date.
Category 7(e)
Documents sufficient to show the conversion rate of all searches returning a Ryanair flight on Skyscanner's website and demonstrating the level of transfers (i.e., click throughs) to (a) Ryanair's website; versus (b) affiliated Skyscanner OTAs' websites; for the period 5 September 2016 to date.
Category 8 (Day 2, pp. 95 - 99)
47. This category complements category 7 of Ryanair's application and concerns Ryanair's computation of the alleged benefit and/or profit obtained by Skyscanner as a result of its actions, which allegedly caused Ryanair loss. Category 8(a) was ultimately agreed between the parties. It was accepted by Ryanair that other subcategories originally sought may not be necessary if certain categories sought in connection with competition law claims are granted.
48. I will order discovery of the following:
(a) Documents sufficient to identify each third-party operator offering for sale Ryanair flights on and/or via Skyscanner's website for the period 11 November 2019 up to and including 5 December 2019;
(b) Documents sufficient to identify criteria set by Skyscanner for the purpose of comparing and ranking between 5 December 2016 to date:
(i) flights displayed on the results page on Skyscanner's website(s) on which responsive results are presented when a customer searches for a flight on Skyscanner's website(s) (where results are sorted by "best", "cheapest", "fastest", "outbound: departure time", and "return: departure time"); and
(ii) providers displayed on the page on Skyscanner's website(s) reached by the user after selecting a preferred route/time/carrier on the page referred to in (i) above.
Comment
49. In category 8(b) Ryanair required documents evidencing or recording the "methodology" for comparison and ranking; Skyscanner has suggested that it is sufficient to discover documents identifying the criteria for those purposes. The latter seems to me to be an adequate and proportionate measure by which to order discovery. I am satisifed however that Ryanair require a longer period to examine the selection of criteria for comparing and ranking, and have therefore opted for the longer period of 5 December 2016 to date.
Competition Categories
50. The remainder of Ryanair's discovery categories related to the competition claim made by Skyscanner. Counsel for Skyscanner submitted that, as Skyscanner is the plaintiff for the purpose of the competition counterclaim, and as Ryanair is not making any claims regarding competition, it would make more sense for Skyscanner at this point to proceed with submissions in support of its competition claims, going first with its own requests and then dealing with Ryanair's requests as regards the competition claim. This modus operandi was opposed by counsel for Ryanair, partly on the basis of the uncertainty prevailing at the time in relation to the affidavits of Dr. de la Mano and Mr. Parker.
51. I ruled that the competition categories should be dealt with together, and that Skyscanner should commence its submissions in relation to the categories which it had sought, and then go on to deal with the competition categories sought by Ryanair. I indicated that I would hear submissions in relation to Dr. de la Mano's second affidavit de bene esse, and reconsider the position when Ryanair had decided whether or not to submit a second affidavit by Mr. Parker. In the event, as we have seen, on Day 3 of the hearing I admitted second affidavits from both Dr. de la Mano and Mr. Parker.
52. The position, then, is that the parties dealt - and I will deal in this judgment - with the competition categories sought by Skyscanner in its discovery request. This commences with category 14 in Chart 3B, which is Appendix 2 to this judgment, and which the reader will require to have to hand.
The Skyscanner Counterclaim Generally
53. Counsel for Skyscanner prefaced his submissions in relation to the individual categories by directing the court's attention to the counterclaim, and in particular paras. 2 and 3 of same, which identifies the relevant product markets and geographic markets respectively for the purposes of the claim.
54. The product markets were as follows:
(a) Point of origin/point of destination city-pairs for air transport of passengers:
Paragraph 2(a) goes on to say that "[c]ompetition authorities have long defined the relevant market for scheduled passenger air transport services on the basis of the point of origin/point of destination ("O&D") city-pair approach."
(b) The supply of price, flight and timetabling ('PFT') data for an airline's own O&D route pairs;
(c) Online travel agents ('OTAs') for air transport passenger services;
(d) Online travel meta-search sites for air transport passenger services;
(e) Online sale of products/services ancillary to the purchase of air transport passenger services.
55. Counsel for Skyscanner, at p.100 of Day 2, neatly summarised these categories: he stated that (a) is "really Ryanair...the airline services market, these so-called O&D pairs..."; (b) is the "data information, the PFT" (i.e. Ryanair's PFT); (c) "is the OTAs...we're not an OTA" (i.e., Skyscanner); (d) "is the meta-search, which we are" (i.e., Skyscanner); and (e) is "a catalogue of ancillary services."
56. Para. 4 of the counterclaim relates to the alleged dominance of Ryanair. Counsel submits that, of the five product markets identified, dominance is alleged in only two categories, i.e., the O&D pairs and the PFT.
57. The alleged abuse is set out in particular at para. 6 of the counterclaim, which is summarised as "...Ryanair's seeking to enjoin the alleged "relevant activities" (all of which are denied in any event) is predicated on Ryanair seeking to prevent the sale of air passenger transport services for Ryanair O&D route pairs, and ancillary products/services as particularised at paragraph 3 above, by means other than Ryanair's own website".
58. At para. 6(b) of the counterclaim, Skyscanner particularises the alleged violation on which it relies as follows:
"By virtue of its dominant positions (indeed monopoly positions) in multiple O&D routes pairs and the supply of PFT data for Ryanair flights, Ryanair has a special responsibility not to distort competition on those markets. In particular, Ryanair is prevented under Article 102 TFEU from engaging in conduct that maintains or strengthens its dominant positions in the markets for multiple O&D routes pairs and the supply of PFT data, as well as from leveraging its dominant positions from these markets into other related markets, and in particular the markets for OTAs for air transport passenger services, online travel meta-search sites for air transport passenger services, and the market for products and services which are ancillary to the purchase of air transport passenger services."
59. Counsel for Skyscanner submitted that OTAs are meta-search providers who provide important and innovative resources for consumers; they aid price transparency, they reduce search costs, they provide an indirect competitive constraint against the inflation of air passenger services ticket prices and they provide a competitive choice for consumers in relation to ancillary services. It was submitted that Ryanair's refusal to allow OTAs and meta-search entities to access data in relation to Ryanair's flights would result in a distortion and material reduction in competition on the related and downstream markets [See Day 2, pp. 102 to 103].
60. Counsel also referred in some detail to the decision of the Court of Appeal in the appeal between the parties by Ryanair against the decision of Twomey J. regarding interlocutory reliefs: see [2022] IECA 64. The purpose of these submissions was to emphasise the view of counsel that the counterclaim was "a serious, credible competition claim" which "must go to trial", citing para. 109 of the decision of Murray J. in the Court of Appeal in that regard.
Category 14 (Day 2, pp. 99 - 144)
61. I will order discovery of the following:
Documents sufficient to show (e.g. a spreadsheet and all underlying data) Ryanair's market share on a monthly basis, and the methodology for calculating same for any or any combination of the following alleged product markets at (a) to (c) below, for the period from 1 January 2015 to date; and
All reports containing an economic analysis of Ryanair's market share, market position, market power and/or market dominance and the methodology for calculating same for any or any combination of the following alleged product markets at (a) to (c) below for the period from 1 January 2015 to date;
(a) point of origin/point of destination ('O&D') city/route pairs for air transport of passengers, including but not limited to all O&D route pairs for air transport of passengers in which Ryanair has at any time for the period from 1 January 2015 at least a 40% market share;
(b) the supply of PFT data for Ryanair flights; and
(c) any alternative product or geographic market upon which Ryanair intends to rely in these proceedings.
Comment
62. I have effectively adopted the formulation by Skyscanner's solicitors in a letter to Ryanair's solicitors of 17 June 2023 and clarified in a letter from Skyscanner's solicitors of 19 June 2023, in its totality. The category sought is not burdensome or disproportionate; it seeks a spreadsheet with data and documentation corroborating the methodology for producing the data in relation to certain product markets, and reports - rather than the materials on which such reports would be based - relating to an economic analysis of market share, market position, market power and/or market dominance in relation to those product markets. It should be pointed out that the appendix to the counterclaim contains a list of 1,157 O&D route pairs for air transport of passengers, and Ryanair, in the second replying affidavit of Mr. McNamara of 14 June 2023, accepted that it should give documents (evidencing or recording Ryanair's market share and market position) for the O&D city/route pairs set out in the annex to the counterclaim.
63. Skyscanner seeks the spreadsheet documentation on a monthly basis, rather than an annual basis. It is not suggested by Ryanair that it does not have data compiled on this basis, and the monthly basis appears to me to be more appropriate in all the circumstances.
64. If documentation was sought in relation to "market power" or "market dominance", such that Ryanair would have to search for documents which addressed these concepts, I think that this would have been unworkable. However, Skyscanner seeks reports "containing an economic analysis" of Ryanair's market share, market position, market power and/or market dominance, and this does not seem to me to be unreasonable or unworkable.
65. Skyscanner seeks the above information, not just in relation to the 1,157 O&D route pairs set out in annex A to the counterclaim, but all O&D route pairs in which Ryanair has had at least a 40% market share since 1 January 2015. It seems to me that the pleadings permit Skyscanner to rely on a market in which dominance can be established, rather than just monopoly positions; it seems to be accepted by the parties that dominance is possible with at least a 40% market share.
66. There was considerable controversy between the parties in relation to the temporal limit, with Ryanair contending that discovery should be made only from 5 December 2016 to date. Ryanair contended that ordering discovery from 1 January 2015 to date - almost two years over and above what Ryanair suggested - would be excessive. Skyscanner's position is that, given the Covid pandemic in which there was complete disruption of air travel, and the necessity to have at least a five years continuous period in which to assess matters such as market position, share, power or dominance, it is necessary to go back to 1 January 2015. I think that Skyscanner's position is a more prudent one; while it does present an extra burden to Ryanair, it is not argued by the plaintiff that it is an excessive or disproportionate burden, and it will have the benefit of ensuring a five year continuous period within which the competition aspects can be assessed prior to the requests for discovery.
67. At the end of its reformulation, Skyscanner states the following:
"For avoidance of doubt this category shall include any market with identical or similar parameters to the markets described in a or b notwithstanding that such markets may be differently titled or described in the relevant documents for example Ryanair may possess analysis that refers to airport pairs rather than route pairs that may incorporate air transport within a broader analysis including other airports in the city, near the city and other methods of transport, e.g. train etc."
68. It seems to me that this position is logical, and should be followed by the parties, although I do not intend to include it in the order for discovery.
Category 15 (Day 2, pp. 144 - 156)
69. I will order discovery of the following:
All documents by or between Ryanair's executive management (or any member of Skyscanner's executive management) or between those parties and any third party evidencing or recording any price effect and/or any non-price effect of Ryanair seeking to prevent the relevant activities, on competition or on other undertakings in any, or in any combination of, the following alleged markets and/or the methodology for calculating/assessing such effects on competition/competitors, for the period 1 January 2015 to date:
(i) all O&D route pairs for air transport of passengers at any time for the period from 1 January 2015 of which Ryanair has at least a 40% market share;
(ii) OTAs for air transport passenger services;
(iii) online travel meta-search sites for air transport passenger services;
(iv) online sale of product/services ancillary to the purchase of air transport passenger services;
(v) any alternative supposed product or geographic market upon which Ryanair intends to rely in these proceedings.
70. At the end of its reformulation, Skyscanner requires a paragraph identical to that set out at para. 67 above in respect of category 14. Again, while I approve the formulation, I do not intend to include it in the order for discovery.
71. The parties have agreed a "for the avoidance of doubt" list of matters to be taken into account for the purpose of category 15. This list seeks to bring clarity to what is required to be discovered in the categories above. As the list is agreed I am satisfied that it should inform the discovery to be made, but it will not be included in the formal order.
Comment
72. In my view the "all documents" formulation proposed by Skyscanner in its most recent iteration of the category is too broad, and I have sought to limit the discovery to documents held by "Ryanair's executive management team". The point was made by counsel for Skyscanner that the proffered category of "Ryanair's senior executive management team" was not defined and ran the risk of excluding very significant documents held by Ryanair operatives who are not part of this team. It seems to me however that, given the likelihood of scrutiny of any such documents by Ryanair's executive management team - whether senior or otherwise - it would be unduly burdensome to require Ryanair to produce every document held by a member of Ryanair staff which impinged on this category. It seems probable that documents evidencing or recording price effects or non-price effects of Ryanair seeking to prevent the relevant activities will have been scrutinised by Ryanair's executive management team, and will be likely to advance the competition claim brought by Skyscanner, or not as the case may be. It seems to me also reasonable that documents which evidence or record the methodology for calculating/assessing such effects on competition/competitors should be included.
73. As regards the temporal limitation, I have come to the same conclusion as that reached in relation to category 14, i.e., that the period should be 1 January 2015 to date, and for the same reasons. Likewise, I consider that O&D pairs for this period in respect of which Ryanair held a 40% market share should be discovered. Counsel for Skyscanner referred to the "asymmetry of information" between the parties, i.e., the fact that Skyscanner claims to be unaware of the extent of Ryanair's alleged abuse of a dominant position and is entitled to examine how widespread its activities in this regard were. While the court has to be wary of a counterclaimant "fishing" for information which will support its case, I think that Skyscanner is entitled to some latitude, given that it does rely on the monopoly 1,157 O&D route pairs and has pinned its colours to the mast in that regard.
74. Categories (ii), (iii), and (iv) above have been agreed by the parties; I do not think that category (v) can be regarded as inappropriate, as it refers to "any alternative supposed product or geographic market on which Ryanair..." - rather than Skyscanner - "...intends to rely in these proceedings."
Category 16 (Day 3, pp. 5 - 69)
75. I will order discovery of the following:
For the period 1 January 2015 to date:
(i) all documents held by or between Ryanair's executive management team, or between those parties and any third party, that evidences or records any of (a) to (k)
below; and
(ii) all documents evidencing or recording any consideration or comment by or between Ryanair's executive management team (or any member of Ryanair's executive management team), or between those parties and any third party, discussing
(a) any potential base competition advantage in favour of Ryanair at any EU airport;
(b) any potential entry barriers for other carriers resulting from Ryanair's base advantage(s);
(c) any countervailing buyer powers purported to place competitive pressure on Ryanair in any or any combination of the alleged product markets identified in Skyscanner's category 14;
(d) any business or strategic plans or market projections in respect of the supply of products or services ancillary to the purchase of air transport passenger services (as referred to in para. 2(e) of the counterclaim), and/or the supply of PFT data, including with respect to market shares, competition, or competitive positioning;
(e) any price or non-price effect(s) or impact(s) in respect of Ryanair, and/or in respect of any of the markets referred to in category 15, of a scenario in which Skyscanner was to show (i) no results for Ryanair flights or (ii) no OTA search results for Ryanair flights;
(f) any price or non-price effect(s) or impact(s) in respect of Ryanair, and/or in respect of any of the markets referred to in category 15, of a scenario in which all meta-search platforms were to show (i) no results for Ryanair flights or (ii) no OTA search results for Ryanair flights;
(g) any price or non-price effect(s) or impact(s) in respect of Ryanair, and/or in respect of any of the markets referred to in category 15, of a scenario in which OTAs could not purchase Ryanair flights for customers;
(h) any price or non-price effect(s) or impact(s) on Ryanair's sales of flights by the activities and/or existence of Skyscanner and/or other meta-search and/or flight comparison services and/or OTAs;
(i) the extent to which Ryanair's sales of products/services ancillary to the purchase of air transport passenger services are affected by the activities and/or existence of Skyscanner and/or other meta-search and/or flight comparison services and/or OTAs;
(j) the role and/or any effect of factors such as flight capacity, current seat availability (or alternatively current load/seats sold), and demand (as estimated or determined by reference to date, time or date, origin, destination, etc), and pricing of flights operated by other carriers on the same O&D city/route pairs in determining Ryanair flight prices (including base flight prices and real-time/dynamic prices);
(k) the impact on Ryanair sales of consumers receiving real-time and/or periodic alerts/updates as to changes to flight prices by (i) Ryanair and (ii) any third party.
Comment
76. The formulation by Skyscanner as regards the persons holding documentation of "Appropriate Ryanair Personnel" is in my opinion too broad; my formulation is more akin to that of Ryanair's final draft. The temporal limitation is the same as that for categories 14 and 15.
77. As regards the categories of documents sought by Skyscanner, much of these are cast in very general terms, and this was the subject of much criticism by counsel for Ryanair. The court has to be conscious of ordering discovery in relation to a document which "can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary" (per Brett L.J. in Compagnie Financičre et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55, as cited by Fennelly J. in Ryanair v. Aer Rianta [2003] 4 IR 264, 275); and documents may only be ordered if it is probable that they are relevant to the issues to be tried. The court is also mindful of the test of necessity and the concomitant necessity for proportionality.
78. Categories (a) to (c) above were put forward by Skyscanner on the basis that they are the "building blocks" of any competition claim, and are thus essential to a consideration of whether abuse of a dominant position has taken place. In a communication from the EU Commission: "Guidance on the Commission's Enforcement Priorities in Applying Article 82 of the EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings" (2009/C45/02), the Commission states as follows:
"12. The assessment of dominance will take into account the competitive structure of the market, and in particular the following factors:
- constraints imposed by the existing supplies from, and the position on the market of, actual competitors (the market position of the dominant undertaking and its competitors),
- constraints imposed by the credible threat of future expansion by actual competitors or entry by potential competitors (expansion and entry),
- constraints imposed by the bargaining strength of the undertaking's customers (countervailing buyer power)."
79. Counsel for Skyscanner summarised this as "(a) is base competition advantage; (b) is barriers to entry and (c) is countervailing buyer power" [day 3, p.5]. It may be anticipated that experts from both sides will be furnishing opinions as to whether or not the evidence supports a conclusion that abuse of a dominant position on the part of Ryanair has taken place. It seems to me that these three factors are relevant to that analysis and that it would be somewhat unrealistic to exclude documentation which is likely to be an integral part of the analysis of the central issue before the court on the competition claim.
80. Likewise, in relation to category (d), the same logic applies; it is clear that the sale of ancillary services and PFT data form part of the business plan of Ryanair, and are an essential component of any issue as to competitiveness and whether or not there has been abuse of a dominant position. It does not seem to me that categories (a) to (d) are unduly burdensome; they canvass issues which Ryanair has to canvass, consider and report on to the relevant authorities on an ongoing basis.
81. Sub-categories (e), (f) and (g) are agreed in principle between the parties. Sub-categories (h) and (i) address how Ryanair's sales of flights and ancillary services are affected by the activities of meta-search sites such as Skyscanner and the OTAs. This is a fundamental issue on the pleadings; Ryanair claims that it is adversely affected by the activity of OTAs and meta-search entities such as Skyscanner. The defendant on the other hand maintains that there is a customer or consumer benefit in its activities which Ryanair is attempting to restrain in an anti-competitive way. It seems to me therefore that the sub-categories at (h) and (i) are clearly discoverable. Sub-category (j) concerns capacity and pricing; much of sub-category (j), particularly in relation to pricing, is agreed by Ryanair. I am of the view that capacity and pricing are elements which are essential to a consideration of whether or not there has been abuse of a dominant position, and as such the documents are relevant and necessary. Sub-category (k) requires discovery of documentation in relation to the effect on Ryanair sales of consumers receiving real-time or periodic updates as to changes in flight prices; an essential meta-search or OTA activity, and in my view relevant and necessary.
82. In the circumstances, and given the expanded categories which it suggests, Skyscanner has omitted the list at the end of category 16 which seeks to bring clarity to the various matters to be addressed in category 16. I agree that, in view of the expanded categories, this list is more likely to cause confusion than clarity, and that it should be omitted.
Category 17 (Day 3, pp. 69 - 89)
83. I will order discovery of the following:
(i) Documents sufficient to show:
(a) Ryanair's annual capacity share for each of the years 2015 onwards in the market for the provision of air passenger transport/flight services in respect of each O&D city/route pair operated by Ryanair;
(b) Ryanair's monthly revenues from 1 January 2015 onwards in respect of each O&D city/route-pair by Ryanair, disaggregated to show revenue from:
(i) flight tickets;
(ii) pre-flight "add-ons" (e.g. luggage, seat selection) and in-flight revenue;
(iii) ancillary products and services, further disaggregated to show revenue from:
(i) insurance;
(ii) hotel bookings;
(iii) car rental;
(iv) accommodation.
(c) for each month from 1 January 2015, the total number of potential customers:
(i) redirected from Skyscanner's website to Ryanair's website;
(ii) accessing Ryanair's website via Skyscanner's dBook; and
(iii) the number of such customers who purchased flight tickets.
(d) for each month from 1 January 2015, the total number of potential customers who:
(i) browsed directly to Ryanair's website;
(ii) browsed to Ryanair's website from a search engine such as Google following a simple search for Ryanair;
(iii) initiated the flight search function on a Ryanair app (e.g. the Ryanair apps for IOS or android; and
(iv) the number of such customers who purchased flight tickets;
(e) for each month from 1 January 2015, the total number of customers served by Ryanair disaggregated by O&D route and customer origin/pathway;
(f) for each month from 1 January 2015, the total number of flight tickets sold by Ryanair disaggregated by O&D route, customer origin/pathway;
(g) for each month from 1 January 2015, disaggregated by O&D route and customer origin/pathway, the total number of customers who purchased ancillary products or services via Ryanair, further disaggregated by the type of ancillary product/service, i.e., number of customers who purchased:
(i) insurance services;
(ii) hotel stays;
(iii) car hire services;
(h) for each month from 1 January 2015, disaggregated by O&D route, and customer origin/pathway, the total value of ancillary products and services purchased via Ryanair, further disaggregated by the type of ancillary product/service i.e., as to the value of:
(i) insurance services;
(ii) hotel stays;
(iii) car hire services;
(i) for the period from 1 January 2015, any survey results or reports that consider consumer behaviour in relation to, and how customers engage with search, comparison, and booking services in respect of flights and ancillary services, including but not limited to such documents which discuss both established routes (e.g in operation for at least four continuous IATA seasons) and new or seasonal routes.
Comment
84. Much of category 17 has been agreed by the parties. As before, there is a difference between the parties on the temporal limitation and whether data should be provided in monthly or yearly terms. In argument, counsel for Ryanair conceded that it had not put in evidence matters to demonstrate that much of the documentation sought by Skyscanner was burdensome and disproportionate. Counsel for both parties relied on the evidence of Dr. de la Mano and Mr. Parker in relation to whether the level of granular information sought by Skyscanner was necessary. Mr. Parker in particular complained about having information disaggregated by time to departure and customers' frequency of travel in a number of categories, and also was of the view that yearly rather than monthly information was more usual when considering competition issues.
85. In the absence of evidence of any particular difficulty in producing monthly as opposed to yearly data, I have taken the view that monthly figures should be produced. I agree with Mr. Parker however that there does not appear to be a sufficient basis for seeking information disaggregated by time to departure or customers' frequency of travel.
Category 18 (Day 3, pp. 89 - 104)
86. I will order discovery of the following:
For the period from 1 January 2015
(i) all documents held by Ryanair's executive management team (or any member of Ryanair's executive team), or between those parties and any third party that evidences or records
(a) Ryanair's objectives or strategy in respect of, or commercial attitude to, meta-search sites and/or OTAs including but not limited to documents evidencing or recording any consideration of the constraint exerted by meta-search sites and/or OTAs on Ryanair in respect of flight retailing, intermediation, and/or ancillary products and/or services;
(b) the purpose and/or intent behind Ryanair's obtaining and/or seeking to obtain a personal email address for passengers flying with Ryanair;
(c) the purpose and/or intent behind Ryanair seeking to ensure that Ryanair passengers book directly with Ryanair on its own website and any effect of same on Ryanair's business/profitability.
(ii) A spreadsheet setting out, for each month from 2015 onward, the total number of Ryanair flights:
(a) operated;
(b) cancelled less than 48 hours before scheduled departure (resulting in a communication to ticket holders re cancellation);
(c) rescheduled less than 48 hours before scheduled departure (resulting in a communication to ticket holders re scheduling).
Comment
87. This category was - mercifully - largely subject to agreement between the parties. In category (i)(a), Ryanair sought to restrict the category to Skyscanner, rather than documents which would indicate Ryanair's objectives or strategy in relation to meta-search sites and/or OTAs in general. Counsel for Skyscanner pointed out that the defendant, in its counterclaim, indicated that it would be seeking discovery of documents "on Ryanair's general strategy in respect of meta-search sites and OTAs, and in relation to Skyscanner in particular" [Para. 9(d) of counterclaim]. It seems clear that, in certain circumstances where Skyscanner, a meta-search entity, acts in concert with OTAs and is integrally connected with them, documentation which would demonstrate Ryanair's objectives, not just in relation to Skyscanner but also in relation to meta-search entities is relevant and necessary to the issues between the parties.
Ryanair's Requests for Discovery on Counterclaim
88. In addition to the categories above which Skyscanner sought in relation to the competition counterclaim, Ryanair also sought numerous categories of documents in relation to the counterclaim. These are categories 9 to 28 in Chart 3A to Appendix 1 to this judgment. At the hearing - so as to hear argument in relation to all the competition categories together - submissions in relation to these categories were heard immediately after the submissions in relation to the competition categories sought by Skyscanner.
89. Given that there was almost a two-week gap between the third and fourth day of the hearing (6 July 2023), I strongly encouraged the parties to "keep talking and see if you can narrow the categories even further". Commendably, the parties did so; Messrs Arthur Cox on behalf of Ryanair wrote to Messrs William Fry, solicitors for Skyscanner, by letter of 4 July 2023, making substantive proposals on Ryanair's competition categories 9 to 28 and Skyscanner's "liability" categories 1 to 13. By letter of 5 July 2023, William Fry replied to the Arthur Cox letter setting out Skyscanner's position in relation to these categories.
90. This exchange of correspondence resulted in substantial progress - and indeed in some cases, full agreement - in relation to numerous categories, although there remain substantial issues to be decided. The positions of the parties as reflected in the correspondence are set out at Charts 3A and 3B in the appendices.
91. Substantial further arguments were advanced by the parties in the correspondence in relation to the appropriate temporal limit for the competition categories. The Arthur Cox letter suggested that Ryanair could agree a temporal limitation of 1 January 2015 to 1 January 2020; William Fry in its letter of 5 July 2023 rejected this suggestion at some length.
92. My view on the issue is as set out briefly at para. 66 above, and I have mainly provided for a period of "1 January 2015 to date" in the competition categories, save where otherwise agreed by the parties. In circumstances where a claim for abuse of a dominant position is being made, it seems to me that any expert evidence should be based on a five year period, and on data that is up to date. It does not seem appropriate, where the defendant claims that abuse of a dominant position is ongoing, that data should not be considered beyond the end of 2019, when the pandemic was looming on the horizon. Ryanair has not adduced any evidence to suggest that to produce evidence from January 2015 to date would cause particular problems such as to be excessively burdensome or disproportionate.
Category 9 (Day 3, pp. 104 - 131)
93. I will order discovery of the following:
A spreadsheet verified on affidavit as to its accuracy and with a statement as to Skyscanner's data sources showing (for the period 1 September 2017 to date and for all searches for flights on Skyscanner's website), the:
(a) total number of searches conducted;
(b) number of
(i) searches conducted for specific origin and destination pairs;
(ii) searches other than by reference to specific origin and destination pairs;
(iii) searches by reference to a country, rather than a specific origin and destination pair;
(iv) searches conducted for only one city pair in the same search session, where "same search session" means searches conducted on the same calendar day and associated with the same user identifier;
(v) searches conducted by a consumer for more than one city pair in the same search session, where "same search session" means searches conducted on the same calendar day and associated with the same user identifier;
(vi) searches for flights only;
(vii) searches for flights and other travel services (including car hire, accommodation and insurance) in the same search session, where "same search session" means searches conducted on the same calendar day and associated with the same user identifier;
(viii) bookings flights only;
(ix) bookings of flights and bookings of other travel services (including car hire, accommodation and insurance but not including flight related services such as seats, bags and priority boarding) in the same search session, where "same search session" means searches conducted on the same calendar day and associated with the same user identifier;
(c) average number of routes and/or destinations searched by customers before making a booking.
Comment
94. Much of this category was agreed between the parties in the correspondence of 4/5 July 2023. Martin Nolan, in his third affidavit on behalf of Skyscanner at para. 80, averred that Skyscanner's data source in relation to searches conducted contained data from 1 September 2017 onwards, but not prior to that date. I have therefore adopted Skyscanner's formulation of "1 September 2017 to date", rather than the Ryanair formulation of 1 January 2015 to 1 January 2020.
95. Objection was taken by Skyscanner in its letter of 5 July 2023 to category (viii), which sought, "results that included charter flights or indirect flights as well as direct flights". Skyscanner characterised this request as "unclear and, in any event, unworkable"; I am inclined to agree, and have omitted it from the categories discoverable.
96. The categories at 9(b)(x) and (c) are addressed in the William Fry letter of 5 July 2023. In relation to the former sub-category, it is stated that "Skyscanner's investigations indicate it is not possible to associate/compare search history records with booking records in a manner which would accurately show how many flight/car hire/accommodation/travel insurance bookings arose in each "same search session", e.g., by ascertaining whether user identifiers pertaining to searches conducted are also included in booking data such that the data sets can be matched". The letter states that "[a]ll indications so far are that corresponding identifiers are not present and that [it] is not possible to complete the exercise on that basis." The sub-category is described as "entirely unworkable"; the same points are made in relation to sub-category 9(c).
97. Counsel for Ryanair submitted that such information should be available, and that discovery of these categories be ordered so that Skyscanner can explain on affidavit definitively why the categories are "unworkable".
98. It seems to me that the language used in the William Fry letter ("...all indications so far are") is not definitive, and that there would be merit in ordering discovery of these categories, which seem to me to be relevant and necessary if the data exists, or can be retrieved. If Skyscanner is unable to retrieve data responsive to this sub-category, it can give the reasons for this on affidavit.
Category 10 (Day 3, pp. 138 - 147)
99. I will order discovery of the following:
All reports, analyses, studies, presentations and surveys evidencing or recording any other websites which customers typically visited when looking for a flight and/or other travel products/services for the period from 1 January 2015 to date.
Comment
100. The original formulation of this category by Ryanair was opposed on the basis that Skyscanner did not hold data in relation to the online search behaviour of Skyscanner's customers, or documentation relating to other websites which customers typically visited. In its letter of 4 July 2023, Ryanair reformulated the category to seek "reports, analyses, studies, presentations and surveys" rather than "all documents evidencing or recording" the websites which customers typically visited when looking for a flight or other services. I am satisfied that this category is relevant and necessary, and reports etc should be readily accessible by Skyscanner, which effectively offers no comment on this reformulation.
Categories 11 and 12 (Day 3, pp. 147 - 161)
101. The parties agreed at the hearing that these categories could be taken together. I will order discovery of the following:
Category 11. All documents considered by Skyscanner to calculate the market share estimates presented in annex A of Skyscanner's Defence and Counterclaim.
Category 12. All documents considered by Skyscanner as evidencing and/or recording Ryanair's market position and/or market share in respect of the provision of air transport services for the period from 1 January 2015 to date, to include all documents demonstrating the alleged position of "total monopoly" such as the ability to prevent new entry.
Comment
102. The formulation ordered above in relation to category 11 was ultimately agreed between the parties. I have amended slightly the formulation by Ryanair of category 12 in its letter of 4 July 2023 to bring it into line with the agreed category 11.
103. In relation to category 12, Skyscanner submits that it is "wrong in principle, certainly disproportionate to force a non-airline operator to give the airline operator market share data that they, in a way that is abundantly clear, possess on an enormous scale" [Day 3, page 151, lines 10 to 14]. It is further submitted that "...given our status as a non-airline operator, it is vanishingly unlikely that we would have reams of market share information" [Day 3, page 152, lines 6 to 9].
104. While it may be that, as a non-airline Skyscanner is not likely to have the sort of information available to it that Ryanair has in relation to its own market share, it does seem to me that all that is being sought is the documentation which Skyscanner considered in order to calculate the market share estimates presented in annex A of the defence and counterclaim. Skyscanner is being asked to discover the documentation used in the formulation of its own claim, and in particular its alleged position of "total monopoly". It may be that the claim of dominance is based on publicly available information and in particular statistics in relation to the O&D pairs; however, it seems to me that this documentation is relevant and necessary to an understanding by Ryanair of the manner in which Skyscanner's claim is formulated. It is suggested that Skyscanner will have to enter into licence agreements with third parties to obtain documentation, and to create new documents for the purpose of this category; there is no basis for this that I can see in the affidavits relating to the discovery application.
Category 13 (Day 3, pp. 162 - 169)
105. I will order discovery of the following:
All analyses, reports, presentations and briefing papers provided to Skyscanner's executive management (or any member of Skyscanner's executive management) evidencing and/or recording (for the period 1 January 2015 to date):
(a) the identity, nature and competitive activity of Skyscanner's competitors in the markets in which Skyscanner operates;
(b) the market shares of those competitors.
For the avoidance of doubt, this category will include (but not be limited to) documents evidencing or recording
(i) attempts by Skyscanner to identify other operators that compete in the alleged markets in which Skyscanner operates;
(ii) Skyscanner's views on the entities which it considers to be competitors (whether or not those views were or can be subsequently found to be objectively accurate); and/or
(iii) underlying data and sources used by Skyscanner to calculate/estimate market shares of competitors in the alleged markets in which Skyscanner operates.
Comment
106. This category was largely agreed between the parties subject to minor adjustments in respect of the temporal limit, and the inclusion of "analyses" as suggested by Ryanair in the categories of documents to be discovered.
Category 14 (Day 3, pp. 169 - 174)
107. This category follows on from category 13, which was largely agreed by the parties, and was the subject of a reformulated version in Ryanair's letter of 4 July 2023, which Ryanair offered having considered the submissions of Skyscanner's counsel at the hearing. The reformulated version is acceptable, and I will therefore order discovery of the following:
All documents evidencing and/or recording, for the period 5 December 2016 to date:
(a) monitoring of Skyscanner's competitors; and/or
(b) surveys relating to the criteria that consumers look for in deciding whether to use Skyscanner or a competing website (including flight coverage, transparency, flexibility, ability to book, ancillary services), the relative importance of these criteria, how Skyscanner scores on these criteria (both in absolute terms and relative to its competitors) and how differences between Skyscanner and its rivals in terms of these criteria affect its appeal to customers.
Category 15 (Day 3, pp. 175 - 180)
108. Ryanair's original request sought documents "evidencing and/or recording that Ryanair is a competitor of Skyscanner...". Skyscanner relies on para. 100 of Mr. Nolan's third affidavit of 14 June 2023, in which he says the following:
"Skyscanner maintains its refusal of category 15. Contrary to Ryanair's assertions, Skyscanner does not plead that Ryanair itself provides meta-search site services or OTA services. As noted in response to Categories 13 and 14 above, the core issue is the impact that Ryanair's activities in seeking to prevent or restrict meta-search sites and/or OTAs from obtaining booking and other information on Ryanair-operated flights on terms equivalent to which Ryanair grants to its own operations has on the competitive activities of meta-search sites/OTAs and consumers. That does not depend at all on Ryanair itself offering OTA and/or meta-search services and, accordingly, the requested documents are simply irrelevant."
109. Skyscanner maintained this position at the hearing. On the basis that Skyscanner accepted that it did not contend (or plead) that Ryanair itself provided meta-search site services or OTA services and did not compete with Skyscanner on any market, Ryanair decided not to press its request for discovery. No order therefore has to be made in respect of this category.
Category 16 (Day 4, pp. 22 - 44)
110. Categories 16 and 17 are related: category 16 relates to revenues of Skyscanner, and category 17 relates to volume in terms of bookings for travel products and/or services on or via Skyscanner's website.
111. The documents sought by Ryanair in category 16 relate to airline tickets and other ancillary matters such as car hire, accommodation etc. The main difference between the parties related to an insistence by Ryanair that discovery be made of sales of services by Skyscanner in combination with airline tickets both generally and specifically in relation to Ryanair flights. This position was vehemently opposed in a number of Mr. Nolan's affidavits on behalf of Skyscanner. In particular, paras. 132 to 137 of his first affidavit of 10 March 2023 set out his position in this regard. Those averments were not specifically addressed in the affidavit of Mr. McNamara of 2 May 2023 on behalf of Ryanair; nonetheless, Ryanair reiterated its insistence upon documents relating to sales of services in combination with airline tickets and Ryanair tickets in particular. In his third affidavit, Mr. Nolan comments that Mr. McNamara "fails to engage with any of the reasons for refusing discovery of certain aspects of category 16 set out in paragraphs 132 to 137 of my First Affidavit...[i]nstead, Ryanair has repeated requests for sub-categories of data which my First Affidavit in Ryanair's Discovery Motion has confirmed will be effectively impossible to produce" [para. 104].
112. Mr. Nolan goes on to aver at para. 105 of that affidavit that "Skyscanner's website(s) do not permit searches for ancillary services, or in respect of flights in combination with car hire, or similar combination searches. As such, Skyscanner does not collate or report revenue data attributable to those sub-categories."
113. The matter was further thrashed out in the correspondence of 4 and 5 July 2023 to which I have referred above. In the letter of 5 July 2023, Skyscanner comments that "... [the letter from Arthur Cox of 4 July] proceeds to reinstate the sub-categories in question. Skyscanner's investigations indicate that it would not be possible to accurately and fully produce the data requested by way of the deleted sub-categories, as Skyscanner does not intentionally collect, and does not collate or maintain revenue data in respect of services sold "in combination" following a redirect to a third party website."
114. Counsel for Skyscanner, in the hearing before me, maintained this position, i.e., that Skyscanner does not collate or keep this documentation. Counsel for Ryanair maintained that this was a critical category from Ryanair's point of view, in that the data was necessary to enable Ryanair to assess Skyscanner's ability to cross-sell ancillary services to customers. As the letter of 4 July puts it, the category "...is necessary in order for our client to capture activity via Skyscanner's website where combination sales (as well as sales of travel insurance) arise as a result of a redirect from Skyscanner's website to third party sites to which Skyscanner links...".
115. This Court is required to order discovery where the documents sought are relevant and necessary for disposing fairly of the matter or for saving costs. The position as deposed to by Skyscanner on affidavit and set out in correspondence is unequivocal; Skyscanner does not have the sub-categories of documents relating to sales of flight services in combination with airline tickets generally and Ryanair tickets in particular, and it would be disproportionate and unduly burdensome to cause it to search for any documentation which it may have by chance in this regard.
116. Ryanair argues that the sub-categories are valid, and should be ordered, so that Skyscanner can set out on affidavit the reasons why it does not have such documentation. However, I consider that it has effectively already done so, and while there may be occasions on which the category which is relevant and necessary may be ordered despite it possibly being unlikely that any such responsive documents will be unearthed, I do not consider that this is such a case.
117. I will therefore order discovery of the following:
A spreadsheet (verified on affidavit as to its accuracy and with a statement as to Skyscanner's data sources) showing for the period from 1 January 2015 to date annual revenues to Skyscanner in respect of:
(a) airline tickets:
(i) for flights operated by non-Ryanair airlines,
(ii) for flights operated by Ryanair, sold by Skyscanner and/or third parties on or via the Skyscanner website(s);
(b) car hire:
(i) sold by Skyscanner and/or third parties on and/or via the Skyscanner website(s);
(c) accommodation:
(i) sold by Skyscanner and/or third parties on and/or via the Skyscanner website(s);
(d) other products/services:
(i) sold by Skyscanner and/or third parties on and/or via the Skyscanner website(s).
Category 17 (Day 4, pp. 22 - 44)
118. Similar considerations apply to category 17, which seeks information in relation to bookings. Mr Nolan makes averments in relation to this category at paras. 139 to 144 of his first affidavit, pointing out that "bookings are not made on Skyscanner's website. In the case of redirects in particular, Skyscanner redirects consumers to third-party websites, such as those of airlines including Ryanair. Once redirected, Skyscanner has no direct knowledge of the transactions that may occur between the user and the third-party airline or OTA and therefore, is not in a position to confirm what type of sale occurred or what products or 'bundles' were purchased on the third-party website. In this sense, Skyscanner is providing something akin to a pure referral service" [para. 140].
119. I will order discovery of the following:
A spreadsheet (verified on affidavit as to its accuracy and with a statement as to Skyscanner's data sources) showing the number of bookings in respect of travel products/services on/via Skyscanner's website(s) between 1 January 2015 to date, including the number of bookings in respect of the following on/via Skyscanner's website(s):
(a) airline tickets alone;
(b) Ryanair airline tickets alone;
(c) car hire alone;
(d) accommodation alone;
(e) other products/services alone.
Comment
120. Skyscanner indicates that it is unlikely to have any such documentation prior to April 2018. It is not clear to me why this is so; accordingly, I have ordered discovery from 1 January 2015 to date. I expect Skyscanner to explain on affidavit why it is that it has no responsive documentation in these categories prior to 1 April 2018.
Categories 18 and 19 (Day 4, pp. 44 - 53)
121. These categories were sought by Ryanair in the event that it did not obtain discovery in the terms sought in other categories. In respect of category 18, Ryanair states that it is willing to forego this category provided it has obtained discovery of categories 16 and 17 in the terms it sought as set out in Chart 3A. As I have not ordered such discovery, technically Ryanair maintains its request for category 18.
122. Likewise at category 19; Ryanair's position is that, provided it has obtained discovery of categories 9, 10, 13, 14, 16 and 25 in the terms it sought, it would be willing to forego its request for category 19.
123. Category 18 relates to booking volumes and revenues "generated for Skyscanner from the provision of products/services other than flights...". I consider that sufficient discovery in respect of category 16 and 17 has been ordered in this regard, and I do not propose any further order in relation to category 18.
124. In relation to category 19, Ryanair requests to "[a]ll documents evidencing and/or recording the competitive conditions in the market(s) in which Skyscanner operates, including market developments, user growth and the entry, growth and/or exit of Skyscanner's competitors".
125. In my view, this is a somewhat vague and speculative category, which should be adequately covered by the discovery ordered in other categories. Accordingly, no order in respect of this category is necessary.
Category 20 (Day 4, pp. 44 - 53)
126. In respect of this category, the letter of 5 July offered a counter proposal to the Ryanair offer in the letter of 4 July 2023. The parties have agreed a temporal limit of 1 January 2015 to 1 January 2020.
127. I will order discovery of the following:
All reports, studies, surveys and presentations provided to or held by Skyscanner executive management evidencing and/or recording the alleged need to evolve the Skyscanner business model in response to the alleged demand for direct booking on Skyscanner's website(s), as opposed to redirecting the customer to a third-party website for booking between 1 January 2015 to 1 January 2020.
Comment
128. I agree that the word "analyses", included in the Ryanair version, is somewhat vague; any analysis in relation to the need to evolve the Skyscanner business model or the alleged demand for direct booking on Skyscanner's website is likely to be included in any "reports, studies, surveys and presentations provided to or held by Skyscanner executive management". I also consider that it is appropriate to limit the category to documents provided to the defendant's executive management; any wider request would in my view be speculative and possibly excessively burdensome.
Category 21 (Day 4, pp. 44 - 53)
129. The issues in relation to category 21 are identical to those relating to category 20. Accordingly, I will order discovery of the following:
Reports, studies, surveys and presentations provided to or held by Skyscanner executive management evidencing and/or recording that it is essential, for competition in the markets in which Skyscanner operates that Ryanair flights can be booked directly on Skyscanner's website(s), rather than by redirecting to the Ryanair website between 1 January 2015 to 1 January 2020.
Category 22 (Day 4, pp. 53 - 54)
130. This category is now agreed by the parties. Accordingly, I will order discovery of the following:
A spreadsheet (verified on affidavit as to its accuracy and with a statement as to Skyscanner's data sources) showing the following:
(i) total number of searches for flights conducted;
(ii) total number of redirections to a third-party website in respect of flights;
(iii) total number of flight bookings;
(iv) total number of flight bookings completed via dBook
for the period 1 January 2015 to 1 January 2020.
Category 23 (Day 4, pp. 54 - 60)
131. At para. 9(a) of the counterclaim, Skyscanner pleads as follows:
"There is a direct effect in the markets for air passenger transport services. By seeking to constrain Skyscanner (and other meta-search sites) to only offering a traditional redirect model for the intermediation of flights, to prevent Skyscanner from listing OTA offerings in respect of Ryanair flights and to prevent Skyscanner from offering innovative and more direct and more convenient options such as dBook, Ryanair is reducing competitive pressure in the area of air passenger transport services, which has the potential to increase prices and/or reduce service quality."
132. Ryanair seeks "[a]ll documents evidencing and/or recording that by seeking to enjoin the "relevant activities" Ryanair is reducing competitive pressure in the area of air passenger transport services between 1 January 2015 to 1 January 2020." Skyscanner does not accept that this is a valid category.
133. Para. 9 of the counterclaim sets out four conclusions in relation to the effect on the markets which arise from "Ryanair's conduct in seeking to enjoin the alleged relevant activities...". It seems to me that these are general conclusions which follow from the preceding paragraphs of the counterclaim. The matters at para. 9 are more in the nature of a general summary of the effect of Ryanair's stance and conduct, rather than specific allegations in respect of which there would be particular documentation. Indeed, it is notable that Ryanair's request for discovery is cast in very general terms, corresponding to the very general nature of the allegations in para. 9.
134. I think that the matters in para. 9 will be corroborated - or not - by the documentation sought in other categories, and are likely to be the subject of fierce debate between expert economists. However, it does not seem to me to be appropriate to make such a general order as is sought by Ryanair in this category. The category is very vague, general, and is most likely covered by the other categories in relation to which I have made orders. To order discovery of this category would in my view be unduly burdensome and disproportionate.
135. Accordingly, I will make no order in respect of this category.
Category 24 (Day 4, pp. 60 - 64)
136. In this category, Ryanair seeks a spreadsheet showing the number of flight searches conducted by customers on Skyscanner's website which resulted in flight bookings on that website "and including in each case a breakdown between searches where a Ryanair flight is displayed, and searches where a Ryanair flight is not displayed."
137. Categories 16 and 17 above require Skyscanner to give discovery in relation to bookings both in relation to revenue and volume for the various sub-categories. At para. 132 of his third affidavit, Mr. Nolan avers that "...from further internal investigation as to its data sources, Skyscanner has confirm [sic] that it does not retain search results beyond temporarily caching of results for immediate operational purposes. As such, an aggregate or total data as to searches with a breakdown between search results where a Ryanair flight is displayed and search results where a Ryanair flight is not displayed is not possible."
138. The category seems directed towards a plea at para. 9(c) of the counterclaim in which it is alleged that "...[t]here are also indirect effects on the ability of meta-search sites (and OTAs) to compete and expand their activities into new areas...". This theme is developed in the rest of that paragraph. It is not clear to me how the category as sought addresses this plea, or how obtaining such granular information over and above that which Skyscanner is obliged to furnish under categories 16 and 17 will be relevant and necessary for the purpose of advancing Ryanair's case or damaging Skyscanner's case.
139. In any event, Skyscanner has averred on affidavit that it is unable to provide documentation or information in relation to searches with a breakdown showing where a Ryanair flight is or is not displayed. In those circumstances, I do not propose to make an order in respect of category 24.
Category 25 (Day 4, pp. 64 - 75)
140. Category 25 is agreed, and I will therefore make discovery of the following:
A spreadsheet, verified on affidavit as to its accuracy (and with a statement as to Skyscanner's data sources) showing the monthly number of Skyscanner's active users for the period between 5 December 2016 to date.
Category 26 (Day 4, pp. 64 - 75)
141. In relation to category 26, the temporal issue is the only difference between the parties. I will therefore make discovery of the following:
Skyscanner's annual audited financial statements including Skyscanner's balance sheet and Skyscanner's profit and loss account as filed between the period 1 January 2015 to date.
Category 27 (Day 4, pp. 64 - 75)
142. Ryanair now seeks "[a]ll documents evidencing and/or recording the alleged impact of Ryanair insisting on a "traditional redirect model" for the intermediation of flights on Skyscanner's pricing, by reference to the sub-categories in Category 17 for the period from 1 January 2015 to 1 January 2020 including documents containing data on Skyscanner's commission rates over time, and strategic documents relating to the factors used to determine Skyscanner's pricing."
143. Counsel for Ryanair drew particular attention to para. 6(c)(iii) of the counterclaim in this regard. Para. 6(c) in general addresses Skyscanner's allegation that Ryanair is "seeking to leverage its monopoly/ dominant positions in multiple O&D routes pairs and the supply of PFT data from these markets into the related market for online travel meta-search sites...". At para. 6(c)(iii) Skyscanner refers to the evolution of consumer demand in relation to the offering and purchase of air passenger transport services, and the need for meta-search sites such as Skyscanner to "innovate, evolve and adapt their services. In particular, demand is shifting away from a comparison model whereby users are typically redirected towards a third party site (e.g., OTA, airline) towards more convenient and more direct methods of booking...Skyscanner's traditional redirect option, dBook allows the user to complete the flight booking within the Skyscanner environment (albeit the airline or OTA remains the merchant). It is essential for Skyscanner to be a competitor in these new areas...".
144. As is clear from the original request, this category was directed towards Skyscanner's pricing. It is difficult to see how extensive documentation in relation to Skyscanner's pricing is relevant to the matters set out at para. 6 of the counterclaim. Counsel expressed the view that what Skyscanner was contending was that Ryanair's activities were "affecting their ability to price, as I understand it" [Day 4, p.73, line 15].
145. The connection between Skyscanner's pricing and the allegations - very general in nature - made at para. 6 of the counterclaim is not apparent to me. It seems to me that the scale and scope of this request is not sufficiently tethered to a claim in the Skyscanner pleadings such that discovery of the category as formulated by Ryanair would be relevant and necessary. Accordingly, I will not order discovery of this category.
Category 28 (Day 4, pp. 75 - 88)
146. In this category, documentation is sought in relation to investments "considered and made by Skyscanner...including any investments (a) that were ultimately not pursued and the reasons for not doing so, and (b) relating to Skyscanner's infrastructure (e.g. new product features, quality improvements, etc.), operations and/or marketing".
147. Counsel for Ryanair submits that "this category is designed to test the extent to which the Licence Agreement would limit the ability of Skyscanner to invest and/or innovate" [Day 4, p.79, lines 13 to 15]. However, the categories are expressed in amorphous and extremely vague terms, seeking to canvass Skyscanner's attitude to any investments over a period from 1 January 2015 to 1 January 2020. It is not clear to me how this is linked to an actual allegation made by Skyscanner. The category seems to me to be speculative; if Mr. Parker had expressed the view that this category was necessary to expressing a view as to the loss or damage allegedly suffered by Skyscanner, one might be inclined to look more closely at the relevance of the category sought.
148. However, in its current terms, I am of the view that the category is unduly burdensome and disproportionate, and is not tethered to any particular pleading in the counterclaim. Accordingly, I will not order discovery in respect of this category.
Skyscanner's "Liability Categories"
Category 1
149. This category is agreed, and I will order discovery of the following:
All documents which explain or discuss:
(a) for the period from 1 October 2019, the "screen-scraping" activities which it is alleged have been carried out by Skyscanner;
(b) for the period from 1 January 2019 to date, the alleged use by Skyscanner, in its own right and/or by any alleged servant, agent, joint-adventurer and/or co-conspirator of Skyscanner, of an automated system of software that facilitates and/or enables access to Ryanair's website and/or its underlying computer programmes and databases for the purposes of, inter alia, extraction and reutilisation therefrom; and/or
(c) for the period from 1 January 2019 to date, any technical impact (or lack thereof) on the operation of the Ryanair website as a result of screen-scraping activities.
For the avoidance of doubt, this category will not include documentation evidencing all sales of Ryanair flights which have been sold on and/or via Skyscanner's website(s) and will also not include documentation generated in Ryanair's attempts to prevent same.
Category 2 (Day 4, pp. 89 - 121)
150. The first three sub-categories of category 2 sought by Skyscanner proved to be extremely controversial. In essence, Skyscanner seeks, in each of the three sub-categories, "[a]ll communications for the period from 1 January 2015 between Appropriate Ryanair Personnel and third parties...", in relation to the mechanisms, whether technological, commercial or otherwise, including communications to customers or third parties, used by Ryanair to attempt to obstruct or prevent screen-scraping type activities in respect of Ryanair's website, and the same in relation to customer bookings for Ryanair flights being made via third party meta-search platforms such as Skyscanner or online travel agents. Skyscanner also seeks this documentation in relation to the use by Ryanair of the above mechanisms to identify customer bookings made via third party meta-search platforms or OTAs and/or to provide a differentiated booking management experience for such bookings after the initial sale.
151. Skyscanner maintains that the use by Ryanair of mechanisms to pre-empt screen scraping activities is an issue in the proceedings, and references para. 15 of the statement of claim in this regard, and in particular para. 15(b) as follows:
"Ryanair has sought to protect itself from the relevant activities by way of investment (e.g knowledge, expertise, capital expenditure) in defence software. More particularly, Ryanair has used a mechanism known as "Shield" (a sophisticated propriety application, the object of which is to filter out IP addresses that it is programmed to identify as screen scraping IP addresses) and continues to invest in and develop new tools and methods to prevent screen scraping-type activities and, by extension, activities such as the relevant activities..."
152. Skyscanner argues that this is "not just background information", and that Ryanair is on proof of these matters, which Skyscanner alleges are engaged in by Ryanair for a particular purpose which is anti-competitive and is part of the alleged abuse of a dominant position.
153. Counsel for Ryanair submits that Ryanair is quite open about the fact that it has put in place mechanisms to combat screen scraping, and is concerned that the category "really represents an abuse of the discovery process" [day 4, p.101, line 6]. Counsel makes the point that Skyscanner "won't tell us how they are getting in and complain and resist heavily when we look for discovery" in relation to Skyscanner's alleged screen-scraping activities.
154. Skyscanner relies on the affidavits of Dr. de la Mano as supporting its claim to discovery. Dr. de la Mano sets out at para. 17 to 19 of his first affidavit the reasons why he says this documentation is required for his expert economic analysis and the preparation of his expert report. He avers at para. 17 that the documents requested in category 2 "are relevant to whether Ryanair leverages dominance in an abusive manner, as well as to Ryanair's claimed objective justifications for its conduct".
155. Mr. Parker, in his first replying affidavit, is of a different view. He avers that "...it is not clear why it is necessary to identify the mechanisms through which Ryanair allegedly attempted to undertake these activities nor the relevance of those mechanisms for the counterclaim". He goes on to aver that "...requesting all documents evidencing or recording these mechanisms (as opposed to evidencing or recording whether Ryanair has undertaken the activities listed) is neither necessary nor relevant for the purposes of determining whether Ryanair had leveraged any dominant position in an abusive manner, whether there was a distortion of competition, or (if so) whether there was an objective justification for its conduct" [Para. 12].
156. The sole task facing this Court is deciding whether or not discovery should be ordered of the categories sought. This in turn requires a consideration of well-settled principles relating to discovery which require that only documents which are relevant and necessary for disposing fairly of the matter or for saving costs should be discovered. Documents are not discoverable simply because they are relevant to facts surrounding the case; the documents must be such as would support or defeat an issue that arises in the existing action (Peruvian Guano (1882) 11 QBD 55). The question of necessity requires a balance to be struck between the litigious advantage that the documents would confer on an applicant, and the prejudice to the respondent. Importantly - as the Supreme Court (Murray J.) stated in Framus Ltd v. CRH plc [2004] IESC 25, and which dicta were cited by the Supreme Court in Tobin v. Minister for Defence at para. 6.3 - where there is no proportionality between the extent of discovery and "the degree to which the documents are likely to advance the case of the applicant", discovery will not be necessary.
157. Ryanair has been clear that it has taken whatever steps it can to preclude the activities of which it complains. It has given some detail as to the manner in which it does this. Skyscanner, through its own activities, will have some knowledge of the methods used by Ryanair to pre-empt or discourage screen-scraping. However, it does not seem to me that, by acknowledging that it does take steps to discourage screen scraping, Ryanair is obliged to divulge with great specificity the manner in which it does so. It is difficult to see how a granular exposition supported by documentation of the manner in which it combats screen scraping is relevant and necessary to the economic argument that, in doing so, Ryanair is abusing its dominant position. It seems to me that the documentation sought in these three sub-categories is excessive, and could prejudice Ryanair's position should it ultimately be successful in resisting the counterclaim.
158. Accordingly, I do not propose to order discovery in respect of sub-categories (a), (b), or (c).
159. Sub-categories (d) and (e) are largely agreed, the main difference being a temporal issue. I have decided that the Skyscanner reformulation as set out in Chart 3B for both sub-categories is preferable, and I will order discovery of the following:
(d) customer interactions stored on the Zendesk ticket tracking system from 1 January 2015 to date evidencing and/or recording booking issues and/or post-sale booking management issues arising from customers booking Ryanair flights on or via Skyscanner's website and/or any other meta-search site and/or any online travel agents (OTAs).
(e) any communications with regulatory authorities or consumer bodies for the period from 1 January 2015 to date concerning complaints made by or on behalf of customers recording booking issues and/or post-sale management issues arising from customers booking Ryanair flights on or via Skyscanner's website and/or any other meta-search site and/or any online travel agents (OTAs).
Category 3 (Day 4, pp. 121 - 132)
160. This sub-category is largely agreed subject to disagreement on a temporal issue. Skyscanner requests copies of agreements/arrangements/offers between Ryanair and any third party in relation to "any litigation or threatened litigation concerning allegations of 'screen scraping'". Ryanair rejects that any such documentation should be discovered. Skyscanner argues in its letter of 5 July 2023 that any agreements/arrangements/offers concerning PFT should not be excluded simply because they have arisen in the context of litigation, and indeed may be all the more relevant for this reason.
161. I am inclined to agree. While even very similar litigation against different parties may have fundamental differences, it seems to me to be unrealistic to exclude any deals made by Ryanair for the supply of PFT data, simply because those deals have arisen in the course of litigation. If any such deals are privileged or confidential, Ryanair can refer to this in the affidavit of discovery. Nonetheless, I think that any such documentation should be discoverable.
162. I will therefore order discovery of the following:
(a) a copy of all Ryanair's template Licence Agreements which were the basis of an operative licence agreement in force during the relevant period from 1 January 2015 to date; and
(b) in respect of each form of template Licence Agreement provided at (a):
· a list of all current and former licensees that have entered into each form of licence agreement;
· the dates on which such Licence Agreements are/were in force and effect for such licensees;
(c) a copy of all other agreements/arrangements/offers between Ryanair and any third party meta-search platform or OTA concerning the supply of or use of PFT data and/or any litigation or threatened litigation concerning allegations of "screen scraping".
(d) all communications from 1 January 2015 between Appropriate Ryanair Personnel and third parties evidencing or disclosing the purpose or effect of such arrangements or agreements or offers of same.
163. This is strictly on the basis that Ryanair confirm on affidavit that all former and current licensees have entered into the template licence agreements provided at (a) with no amendments of the terms and conditions of such licence agreements having been agreed with the licensee. If an amendment to the template licence agreement has been agreed with the licensee, then a copy of such licence agreement with such amendments should also be provided.
Category 4 (Day 4, pp. 121 - 132)
164. Category 4 is effectively agreed between the parties. Skyscanner wanted the reinsertion of a previous reformulation of sub-category 4(c) in the event that its formulation of category 3 was not agreed. As I have accepted Skyscanner's version of category 3, I will order discovery of the following:
(a) A copy of the correspondence which has been exchanged between the parties up to 5 December 2019;
(b) a copy of the Licence Agreement, and copies of any other arrangements or agreements entered into between Ryanair and the defendants regarding access to and use of PFT data;
(c) all documents from 1 January 2019 to 5 December 2019 discussing or considering the status, operability or termination of the licence agreement or any arrangement with Skyscanner;
(d) all emails between Appropriate Ryanair Personnel and third parties from 1 January 2019 to 5 December 2019 evidencing or discussing Ryanair's reasons for terminating or threatening to terminate the agreement entered into between Ryanair and Skyscanner.
Category 5 (Day 4, pp. 132 - 145)
165. This category deals with what Skyscanner claims are instances of disparaging claims made by Ryanair intended to discourage consumers from using services offered by Skyscanner and OTAs. Ryanair denies the claim.
166. This category is largely agreed, but certain differences remain. Skyscanner wants a general discovery of documents that evidence and/or record "any unfavourable commentary", which phrase is clarified by "including reference to any alleged illegitimacy of services, alleged impact on pricemarkup, online check in or booking management processes". Ryanair seeks to limit the documentation to these included items. It seems to me that Ryanair's formulation is more precise, in that "any unfavourable commentary" is a vague term which is open to interpretation.
167. Likewise, Skyscanner seeks documents which refer to entities such as Skyscanner, and other meta-search platforms and/or OTAs "in combination with terminology such as "fake email addresses". Ryanair seeks to delete "such as" and restrict the documentation to documents "in combination with the terminology 'fake email addresses'". Once again, it seems to me that it would be difficult for Ryanair to interpret what is meant by documents which are in combination "with terminology such as "fake email addresses"". Ryanair's formulation seems to me to be sufficient for Skyscanner's purposes.
168. In sub-category (a), Ryanair seeks to exclude "commercial partner" from the list of entities to whom communication is made. While it could be argued that communications to commercial partners do not directly discourage consumers from using the Skyscanner website or meta-search platforms or OTAs, it seems to me that disparagement to Ryanair customers, consumer bodies or regulatory authorities are of a piece with any disparagement to commercial partners, and documentation in this regard is relevant and necessary to the issue of whether disparagement generally with a view to discouraging the use of those media has taken place.
169. Finally, in making the foregoing requests, Skyscanner seeks emails to customers and emails to the media or trade organisations and social media posts which may include disparagement or unfavourable commentary. Ryanair has sought to restrict this category to template emails and public customer announcements. Counsel for Ryanair, in addressing this point, referred to the use of "template" emails saying that "[Ryanair] don't retain contact with the consumers" and suggesting that the affidavit ultimately sworn might refer to this. Skyscanner continues to maintain its requirement of emails generally, and in relation to the purported exclusion of media briefings refers in its letter of 5 July 2023 to an "enclosed media report from the Irish Mirror which is clearly based on a briefing from Ryanair and which includes statements such as "There have been incidents in recent weeks where these OTAs are using Irish customers' payment details - used to secure their flight booking - for "fraudulent use at a later date"."
170. It seems to me that it is sufficient to discover template emails to customers where relevant, but that emails generally to the media or trade organisations and social media posts which fall within the discoverable criteria should be discovered.
171. I will therefore order discovery of the following:
(a) All documents from 1 January 2015 to date that evidence and/or record any unfavourable commentary relating to alleged illegitimacy of services, alleged impact on price/markup, online check in or booking management processes, ostensibly by or on behalf of Ryanair about Skyscanner, any other meta-search platform, and/or any Skyscanner affiliated OTA, which is communicated to any Ryanair customer, consumer body, commercial partner and/or regulatory authority;
(b) all documents from 1 January 2015 to date referring to entities such as Skyscanner, other meta-search platforms, and/or OTAs in combination with the terminology "fake email addresses".
For the purposes of this category (a) customer communications will be limited to searches within Zendesk, within template emails to customers, emails to the media or trade organisations and social media posts by or on behalf of Ryanair and (b) Skyscanner is to provide a list of Skyscanner affiliated OTAs for the temporal period.
Category 6 (Day 4, pp. 144 - 157)
172. This category relates to allegations by Ryanair that the "relevant activities" of the defendant of which it complains expose it to accusations of breach of, or sanction under, consumer protection law.
173. I will order discovery of the following:
(a) Customer interactions stored on the Zendesk ticket tracking system from 1 January 2018 to date, evidencing and/or recording complaints made by customers in relation to customers booking Ryanair flights on or via Skyscanner's website, and/or any other meta-search platforms and/or any online travel agents (OTAs);
(b) all correspondence exchanged with any regulatory authority or consumer body from 1 January 2018 to date in relation to any alleged breach by Ryanair of any regulatory or consumer law obligation, which breach arises as a result of OTA activity or Skyscanner's activity (pursuant to the Montreal Convention, Regulation 261, Regulation 1008/2008, or the Consumer Protection Act 2007);
(c) all documents from 1 January 2018 to date which evidence or record any comment or consideration by Appropriate Ryanair Personnel of any concern regarding a breach or breaches of Ryanair's regulatory or consumer law obligations arising as a result of the activities of Skyscanner or OTAs (pursuant to the Montreal Convention, Regulation 261, Regulation 1008/2008, or the Consumer Protection Act 2007.
174. This category was largely agreed. In sub-categories (b) and (c) above, Skyscanner sought documentation or correspondence where the breach arose as a result of Ryanair activity as well as that of OTAs or Skyscanner. Ryanair objected to this, saying that it would cause it to make discovery of regulatory or consumer law obligation infractions which had nothing to do with the dispute in the present proceedings. In the absence of any carve-out offered by Skyscanner in respect of Ryanair breaches related to OTA activity or Skyscanner activity, it seems to me that this objection is valid, as it would be burdensome and disproportionate to order Ryanair to make discovery of all regulatory infractions, even where the connection to activities of Skyscanner, OTAs or other meta-search operations would be tenuous if not non-existent.
175. Skyscanner objected to the omission of the word "including" by Ryanair when specifying the Montreal Convention and other regulatory provisions ("including pursuant to the Montreal Convention..."). While para. 3 of the statement of claim states that Ryanair is "subject to an abundance of legislation...", counsel for Ryanair accepted in the course of submissions that the naming of the various regulatory provisions in this category restricted the discovery sought; as counsel put it, "...[w]e have hung our hat on the ones that we are relying upon..." [day 4, p.155, lines 18 to 19].
Category 7 (Day 4, pp. 157 - 192)
176. This category relates to documents in which Ryanair claims that copyright subsists. Ryanair has simply offered a list of such works, together with "sample employment contracts" and "sample IP/NDA contracts". Skyscanner however requires a copy of each such work and the name of the author corresponding to each such work, and additional details in relation to the authorship of any such work.
177. Counsel for Skyscanner submitted that copyright is a matter which must be proved by the party who asserts it in relation to each document. It was submitted that it is inappropriate in these circumstances to offer up in discovery sample documents only. A party facing a claim of assertion of copyright is entitled to examine that claim in relation to each document over which copyright is claimed.
178. Ryanair complains that the category of discovery sought is disproportionate and unnecessary, and that its solution is "realistic and workable". At para. 63 of his second replying affidavit, Mr. McNamara on behalf of Ryanair refers to the documents offered by Ryanair as "the key documents sought". At para. 64 he confirms that "all copyright created by employees of Ryanair vests in Ryanair...".
179. Having read the pleadings and the particulars raised thereon, it is not clear to me exactly what sort of claim is being made by Ryanair in respect of copyright, other than in relation to the Ryanair website, which is the subject of a discovery request at category 8 below. At para. 53 of his first replying affidavit, Mr. McNamara avers that "the exercise of collecting every single document which discloses or evidences each specific work in which copyright is alleged by Ryanair to subsist, including the work itself would be disproportionately burdensome, costly, unworkable, and excessive." However, in this affidavit, Mr. McNamara does not go into detail as to why this is so.
180. It is difficult to know what is an appropriate level of discovery in relation to this category without having some idea of what the works are in which Ryanair claims copyright. Ryanair now accepts that it should produce a list of such works; however, it baulks at producing a copy of each work, although it is not entirely clear to me why to do so would be burdensome or disproportionate. Ryanair effectively suggests that the works will be either employment contracts or IP/NDA contracts. This is because these are the documents of which it offers samples. It surely cannot be the case that there are other documents over which Ryanair claims copyright, but is not prepared to offer copies or samples of such documents.
181. I am prepared to accept Mr. McNamara's assertion that it may be burdensome to produce copies of each document over which Ryanair claims copyright, particularly if samples would suffice to demonstrate the nature of such documents. Production of the list which both parties accept should be prepared should clarify exactly what claim is being made by Ryanair in this regard, and it may be that Skyscanner would wish to interrogate this list further by way of seeking copies of specific documents on the list. Ryanair also rely on category 19, which has been agreed in the initial exchange of letters between the solicitors - although it does not appear on Chart 3B, Appendix 2 to this judgment - by which the parties agree that "to the extent not already covered by any other category, all documents that will be relied upon by the plaintiff to support its claim" are discoverable. Ryanair offers this as assurance to Skyscanner that, if a claim is being made in respect of a document, that document will be the subject of discovery. I will therefore order discovery of the following:
(a) A list of the works in which Ryanair claims copyright subsists;
(b) sample employment contracts;
(c) sample IP/NDA contracts.
182. The court notes Skyscanner's point that a breach of copyright claim cannot be made in respect of any document which is not provided to the court, and the documents ordered above are ordered without prejudice to Skyscanner's right to make this argument at trial.
Category 8 (Day 4, pp. 157 - 192)
183. This category relates to the copyright claims made in respect of Ryanair's website. These claims are set out at paras. 49 to 54 of the statement of claim.
184. The parties agree that there should be sufficient documents to show the constituent elements of the Ryanair website; Ryanair objects to documents which record the identity of the persons who created those constituent elements or evidence or record the ownership of them.
185. Given the particularity of Ryanair's claims of breach of database rights and in particular copyright in the database, it seems to me that the documentation sought by Skyscanner is relevant and necessary. Accordingly, I will order discovery of the following:
(a) Documents sufficient to show (to include a diagram together with an explanation) precisely the constituent elements of "the Ryanair website" as pleaded (e.g. website architecture; specific computer services, applications, software programmes, and APIs; specific databases; specific domain names and URLs; specific data sets; specific interfaces; specific copyright works; etc).
(b) such documents as evidence or record the identity of the person(s) who created, each such constituent element referred to in 8(a);
(c) such documents as evidence or record the ownership or otherwise of each such constituent element referred to in 8(a), such documents to include but not be limited to project/design proposals, statements of work, design briefs, contracts, specifications and site maps.
Category 9 (Day 4, pp. 157 - 192)
186. This category, as originally constituted, related to the Navitaire and "15 Below" services used by Ryanair. The details of these systems are set out at para. 11 of the statement of claim, which sets out the expenditure by Ryanair on these systems. Skyscanner's request seeks to interrogate this section of the statement of claim, and in its discovery request it suggested that the category was "relevant to the claims made by Ryanair in respect of the website, and potentially non-website systems and services related to the website, and the question as to whether the rights asserted by Ryanair and invoked against Skyscanner actually exist."
187. Ryanair categorises the original request as "excessively broad", and states that it "makes no attempt to engage with the necessity requirement, and would be more appropriately addressed in legal submission and contains commercially sensitive information" [para. 61, Mr. McNamara's first affidavit]. Mr. McNamara goes on to suggest that it would place an undue burden on Ryanair if it were "forced to collate, upload and review at the various levels every single document that refers to the Navitaire system and the 15 Below service." Ryanair is prepared to disclose its contracts with Navitaire and 15 Below subject to appropriate redactions.
188. Counsel for Ryanair makes the point that the Navitaire and 15 Below systems are not referenced by Ryanair in connection with an intellectual property claim; as counsel puts it [day 4, p.186, lines 4 to 13], "[t]he only relevance of the category is in connection with facilitating Skyscanner in its understanding the elements of the website and/or to test Ryanair's plea that it has spent money on Navitaire...we are going to give them that information...Ryanair's formulation...would provide that documentation and will give, in the formulation we have given,...the information as to the expenditure...".
189. It seems to me that Skyscanner is entitled to know what the Navitaire and 15 Below systems do and why they required the expenditure which is pleaded by Ryanair at para. 11 of the statement of claim. Accordingly, I propose to adopt the Skyscanner formulation, which is as follows:
(a) Documents sufficient to show (to include a diagram together with an explanation) what precisely constitutes the Navitaire systems currently or previously used by Ryanair in connection with the "Ryanair website";
(b) the contract(s) between Ryanair and Navitaire, (subject to appropriate redactions, whether due to confidentiality/commercial sensitivity or otherwise);
(c) documents sufficient to show (to include a diagram together with an explanation) what precisely constitutes the "15 Below" service currently or previously used by Ryanair;
(d) the contract(s) between Ryanair and 15 Below, (subject to appropriate redactions, whether due to confidentiality/commercial sensitivity, or otherwise).
190. While I am prepared to allow appropriate redactions to protect legitimate interests, Ryanair will bear in mind that the redacted documents must be sufficient to corroborate the assertions made in the statement of claim, and at para. 11 in particular.
Category 10 (Day 4, pp. 157 - 192)
191. In this category, Skyscanner asserts that the documentation sought is relevant and necessary to test whether Ryanair has rights in the pleaded databases, copyright etc. Ryanair has objected to the category on a number of grounds, including proportionality and lack of adequate reasons. It also claims that it has pleaded its position in respect of the alleged breach of rights, and that the issues are likely to be decided by expert evidence or legal submission. Skyscanner seeks documents showing the arrangement or nature of content contained in and scope of the databases in addition to documentation exploring the issues of resources spent and investment made in relation to the databases. The latter category is agreed; the former category in relation to the arrangement or scope of nature of the content is not. That category is expressed by Skyscanner as follows:
"(a) Documents sufficient to show the arrangement, of nature of content contained in, and scope of each or any of the database(s) the subject of Ryanair's allegations of breach of original database rights, breach of literary copyright, breach of sui generis database rights and/or conversion (the "Pleaded Databases")..."
192. It seems to me that this formulation is somewhat vague and imprecise. It purports to seek an understanding of the nature of content and scope involved in the database so that the various intellectual property claims made by Ryanair can be better understood. However, the question of whether there is property in the database which is protected by copyright, database rights or conversion is a matter for Ryanair to prove. Counsel for Skyscanner rightly points out that there is no presumption that there is property in the website which is protected by these rights. I do not think that a trawl through documents establishing the working of the databases will be necessary to an examination of Ryanair's claims that their rights have been infringed.
193. Accordingly, I will order discovery of the following:
(a) documents sufficient to disclose, evidence, identify, and/or quantify resources spent and investment made, and by whom, to obtain, present, produce and/or verify, and evidencing, disclosing, and/or identifying who so obtained, presented, produced, and/or verified each or any of the Pleaded Databases.
Categories 11, 12 and 13
194. These categories are agreed, subject to a temporal limitation. I will order discovery of the categories as agreed, with the temporal limitation "11 November 2019 to date".
Category 19
195. While this category is not included in Chart 3B, - presumably due to its being agreed by the parties - the court notes that the parties have agreed to make discovery in the following terms: "to the extent not already covered by any other category, all documents that will be relied upon by the plaintiff to support its claim".
Conclusion
196. The above represents my conclusions in relation to the categories set out in the respective motions for discovery. I will allow some time for the parties to draw up a draft order reflecting the determinations, so that it may be agreed and presented to the court. I will list the matter for mention only at 10:30am on Thursday 17th of July to ensure that draft orders have been agreed, and to deal with any issue that may arise.
197. In the event that there is any difficulty in relation to the format of the order, or disagreement as to ancillary orders such as costs, I will fix a date for brief argument in this regard. The parties will understand that under no circumstances will attempts to re-argue any of the ordered categories be permitted. Hopefully the final orders can be finalised quickly and efficiently so that the parties may press on with this litigation.