Supreme Court of Ireland Decisions

 
THE SUPREME COURT

Record No. 2002 No. 324

Denham J.

Fennelly J.

McCracken J.

BETWEEN

RYANAIR PLC

Plaintiff/Respondent

and AER RIANTA CPT

Defendant/Appellant

[Judgments delivered by Fennelly J & McCracken J; Denham J concurring]

JUDGMENT delivered on the 2^nd day of December, 2003 by FENNELLY J.

This is the defendant's appeal from the judgment and order of Lavan J dated 31^st July 2002, whereby he ordered discovery of documents by the defendant. The protagonists to the litigation are respectively the airline operator, Ryanair plc and Aer Rianta cpt, which operates Dublin, Cork and Shannon airports. I will describe the parties as Ryanair and Aer Rianta.

The action was commenced in September 1999. In its Statement of Claim, delivered on 22^nd November 1999, Ryanair alleges that Aer Rianta had committed and was continuing to commit various breaches of both national and European Community competition law.

In order to consider the appeal from the order of Lavan J and the scope of discovery, if any, which should be ordered, it is necessary to consider the nature and extent of the allegations of anti-competitive behaviour alleged by Ryanair and the response of Aer Rianta, as pleaded in its defence filed on 13^th July 2000.

Ryanair claims that Aer Rianta, as the operator and manager of the three airports mentioned is a monopoly provider of essential facilities and airline facilities to airlines using those airports. These services include such aspects of airport services, to mention but a few, as check-in desks, baggage belts and other passenger facilities as well as runways, cargo facilities, hangars and emergency services. Ryanair says that Aer Rianta occupies a dominant position in the market for the provision of those services in the State, for the purposes both of Article 82 of the Treaty establishing the European Community and section 5 of the Competition Act, 1991 and that it has abused and continues to abuse that position.

Ryanair also says that, in 1998, Aer Lingus was the largest passenger carrier through Dublin Airport. It says that it competes with Aer Lingus in the provision of travel services from that Airport. Aer Lingus is its main competitor. In the Statement of Claim, it cites figures, over the relevant period, of 3,350,000 passengers for itself and 2,300,000 for Aer Lingus, though acknowledging that Aer Rianta maintains that the correct Aer Lingus figure is 3,450,000.

Ryanair says that Aer Rianta and Aer Lingus are owned by the same shareholder, the State, which also acts as regulator of air transport and airports.

Ryanair also alleges that Aer Rianta entered into various agreements, decisions or concerted practices with Aer Lingus, which had as their object or effect the prevention, restriction or distortion of competition in the State. In effect, Ryanair alleges that Aer Rianta has used and continues (at least up to the date of the events pleaded) to use its dominant position and its alleged relationship with Aer Lingus to favour the latter at the expense of Ryanair.

Ryanair alleges anti-competitive behaviour against Aer Rianta, effectively in consort with or discriminating in favour of Aer Lingus. These allegations fall under some six principal headings, as well as a collection of miscellaneous complaints, which I list below as a seventh group. The following is a broad summary of the allegations:

1. Allocating to Ryanair only 15 check-in desks and a half of a baggage belt, while allowing 56 check-in desks and 3 baggage belts to Aer Lingus, all this without taking account of relevant matters such as relative passenger numbers carried by each airline and certain spare capacity said to be enjoyed by Aer Lingus;

2. Planning a cut-back of facilities, in order to facilitate construction works in the main terminal building at Dublin Airport in 1999, so that Ryanair would lose 3 of their 15 check-in desks while Aer Lingus were to be reduced from 56 to 48, (the poorer quality facilities provide for Ryanair meaning an effective reduction from 15 to 8), all this without any objective justification or any proper consultation of Ryanair, but after negotiation with Aer Lingus to the exclusion of Ryanair;

3. Introducing a fuel levy at Dublin airport, without any objective justification and, unlike BAA on introducing a similar levy in the United Kingdom, providing no service in return;

4. Introducing a compulsory service called "CUTE" (Common User Terminal Equipment), which is of value only to airlines using a computer ticketing system, but is of no value to Ryanair, which maintains a low cost system of its own;

5. Discriminating in favour of Aer Lingus by facilitating its building and operation of its own hangars, while refusing like facilities to Ryanair, and discriminating also in relation to the construction and funding for Aer Lingus of a new check-in area on favourable terms;

6. Depriving Ryanair of a discount previously enjoyed for the use of Pier A, which is low-cost, inferior and less convenient, in particular requiring Ryanair to cross-subsidise the newly-constructed Pier C used by high-cost airlines;

7. Discriminating against Ryanair and in favour of Aer Lingus: in relation to VIP lounge facilities; in refusing (prior to1995) to permit Ryanair passengers to have direct access to Pier A; in refusing to allow Ryanair to employ its own contractors such as a third-party handling agent, thus compelling it to employ a subsidiary of its competitor, Aer Lingus; employing Aer Lingus, to the exclusion of Ryanair, for flights by its own staff; by omitting Aer Lingus transfer passengers from its computation of passenger charges, Ryanair not having any such passengers.

The complaint under number 2 above led Ryanair to make an application for an interlocutory injunction in the High Court immediately upon the issue of the Plenary Summons. The interlocutory proceedings were settled on agreed terms. The fact that the affidavits then exchanged set out some, at least, of the background facts is relevant to some of the arguments advanced on behalf of Aer Rianta on this appeal. Ryanair, in its Statement of Claim, gives notice of its intention to rely on these affidavits at the hearing of the action, but Aer Rianta pleads that it will object to such reliance and says that it will apply to have those references struck out of the Statement of Claim.

The defence of Aer Rianta amounts, in almost every instance, to a traverse and denial of all the allegations, including almost every material allegation of commercial fact made in the Statement of Claim. One exception is that it pleads that, in order to facilitate essential construction works at Dublin Airport, it had to relocate and reallocate facilities on a temporary basis, while denying that it put in place plans such as alleged by Ryanair.

There followed two replies by Ryanair to requests for particulars. Some controversy, however, surrounds a letter of 15^th December 2000 in which Ryanair's solicitors gave notice of intention to rely on "additional information" as additional particulars of the claim. Aer Rianta maintains that this material, in reality, amounts to an impermissible expansion of the claim, which would require an amendment of the Statement of Claim. This matter is considered in the judgment of McCracken J. I agree with his account and his conclusions.

Solicitors for Ryanair wrote a preliminary letter on 22^nd December 2000 seeking voluntary discovery in accordance with the provisions of Order 31, rule 12(4) of the Rules of the Superior Courts. The request specified classes of documents under 15 headings, supported by stated reasons. The letter proposed six weeks for compliance with the request. Aer Rianta, while expressing willingness to make appropriate discovery, claimed that "many of the categories sought [were] irrelevant and not necessary to decide the matters at issue …."

After the Motion, seeking discovery in the same terms as the letter of 22^nd December, had been issued, Aer Rianta wrote a lengthy response to the request, outlining its objections to the scope of the discovery sought and alleging failure by Ryanair to comply with the requirements of the relevant rule, in particular by describing the documents sought only in the most general terms and by failing to pinpoint the categories of documents as indicated in the case law. Ryanair joined issue with these points in a letter dated 14^th March 2001, but accompanied its letter with a new version of its request, containing some minor amendments to the letter of request for voluntary discovery of 22^nd December 2000.

Aer Rianta's objections to the request for discovery were repeated in written submissions made in the High Court. In essence they were

i. Non-compliance with Order 12, rule 1, as amended in 1999, by failing adequately to specify the documents or categories of documents sought;

ii. Inclusion of requests relating to matters alleged in the letter of 15^th December 2000;

iii. Lack of necessity for discovery where Ryanair were able to establish the facts, as pleaded in the Statement of Claim and sworn in affidavits;

iv. Failure to give reasons showing necessity for the discovery.

Lengthy written submissions were exchanged and there was a three-day hearing of the motion. At that stage, Ryanair sought discovery in accordance with its amended request of 14^th March 2001. A principal legal issue was whether the amendment, in 1999, of Order 31, rule 12 of the Rules of the Superior Courts had effected a substantive or merely a procedural change in the existing law regarding discovery. In particular, the judgment of Morris P., in Swords v Western Proteins Ltd. [2001] 1 ILRM 481, was considered. Aer Rianta contended that, following this decision, it was necessary for a party seeking discovery to specify the document or documents sought with precision and also to give such reasons as would demonstrate that their discovery was necessary. Ryanair, on the other hand, argued that, while a procedural change had been effected, this did not change the basic law concerning discovery.

The learned trial judge gave judgment on 31^st July 2002. He held that "the plaintiff's objections to the perceived views of the Swords judgment are correct." He continued: "The defendants have a fundamental obligation as to the strategic and economic use of Irish facilities given the dominant position of the defendants it seems to me that the Court must look very carefully at the request of discovery." Insofar as this passage appears implicitly to determine one of the major issues in the action, it should not have done so. Furthermore, although it indicates an intention to examine the request for discovery very carefully, the learned trial judge merely directed Aer Rianta "to answer all of the plaintiff's requirements for discovery."

In fact, through inadvertence, the order was made by reference to the first request for voluntary discovery, as contained in the Notice of Motion, and not, as was intended, the amended request of 14^th March 2001. It has been agreed that, for the purposes of the appeal, the latter is the material request.

Aer Rianta has appealed to this Court against the entire of the judgment and order of the High Court.

Mr Paul Sreenan, Senior Counsel, on behalf of Aer Rianta restated the submissions that Ryanair had not complied with the requirements of Order 31, rule 12, and that the requests for discovery were too vague and unspecific. The principal basis of his attack on the High Court order was, however, that Order 31, rule 12 was amended in 1999 with the effect of substantially changing the law regarding discovery. The rule now requires an applicant for discovery to swear an affidavit verifying that discovery is "necessary for disposing fairly of the cause or matter" and furnishing "reasons why each category of documents is required to be discovered." He relied strongly on the judgment of Morris P. in Swords Proteins as establishing the obligation of the applicant to specify with precision the precise categories of documents sought. He advanced the further argument that, following amendment of the rule, discovery is much more difficult to obtain. The applicant has the burden of proving, not only compliance with the rule, and the relevance of the documents sought but, in addition, that discovery of the documents is necessary for the purpose of fairly disposing of the cause or matter. Whereas Finlay C.J., in Allied Irish Banks plc v Ernst & Whinney [1993] 1 I.R. 375, at page 388, may have laid the burden of establishing that discovery is not necessary on the party against whom discovery is sought, and, assuming that not to be an obiter dictum, the position has been expressly altered by the requirement in the rule, as amended, which obliges the applicant to verify necessity. He argued that Ryanair had other means of establishing most of the relevant facts, such as the service of notices to admit facts or documents or calling witnesses from Aer Lingus.

Mr Bill Shipsey, Senior Counsel, on behalf of Ryanair submitted that the 1999 amendment did not effect any change in the substantive law of discovery. It introduced the requirement of a preliminary request for voluntary discovery and of a verifying affidavit. The effect was to eliminate the right to obtain an order for general discovery or to obtain any discovery without a grounding affidavit. The existing principles regarding relevance and necessity are unchanged. Counsel cited the judgment of Lynch J in Brooks Thomas v Impac Limited [1999] I.L.R.M. 171 and its reference to the celebrated dictum of by Brett L.J. in Compagnie Financière v Peruvian Guano Company [1882] 11 QBD 55 at 63 (quoted below).

On the question of necessity, counsel referred to the judgment of Kelly J, in the High Court in Cooper-Flynn v RTE [2000] 3 I.R. 343. None of the authorities, in particular none of the Irish authorities, support the Aer Rianta argument that the right to discovery is contingent on the exhaustion of other procedures. An applicant is entitled to discovery even if the facts in question could be established by other means.

Conclusion

It is appropriate to commence by setting out the terms of Order 31, rule 12. Statutory Instrument No. 233 of 1999 substituted, so far as relevant, the following for the existing text of Order 31, rule 12:

"(1) Any party may apply to the Court by way of notice of motion for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his or her possession or power, relating to any matter in question therein. Every such notice of motion shall specify the precise categories of documents in respect of which discovery is sought and shall be grounded upon the affidavit of the party seeking such an order of discovery which shall:

(a) verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs;

(b) furnish the reasons why each category of documents is required to be discovered.

(2) On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or by virtue of non-compliance with the provisions of sub-rule 4(1), or make such order on terms as to security for the costs of discovery or otherwise and either generally or limited to certain classes or documents as may be thought fit.

(3) An order shall not be made under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

(4) (1) An order under sub-rule 1 directing any party or under rule 29 directing any other person to make discovery shall not be made unless:

(a) the applicant for same shall have previously applied by letter in writing requesting that discovery be made voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered; and

(b) a reasonable period of time for such discovery has been allowed; and

(c) the party or person requested has failed, refused or neglected to make such discovery or has ignored such request.

Provided that in any case where by reason of the urgency of the matter or consent of the parties, the nature of the case or any other circumstances which to the Court seem appropriate, the Court may make such order as appears proper, without the necessity for such prior application in writing.

(2) Any such discovery sought and agreed between parties or between parties and any other person shall, subject to sub-rule 4 below, be made in like manner and form and have such effect as if directed by order of the Court.

The changes effected by the 1999 amendment fall into three parts. Firstly, each applicant must, prior to applying to the court, write seeking the opposing party's agreement to make voluntary discovery within a reasonable time. Secondly, both the letter and any ensuing notice of motion must specify the precise categories of documents in respect of which discovery is sought. Thirdly, the Applicant may no longer apply, as formerly, "without filing any affidavit," but must file an affidavit verifying that the discovery of documents sought is necessary for disposing fairly of the cause or matter. Sub-rules 2 and 3, which deal, inter alia, with the necessity for discovery are taken unaltered from the old rule.

Morris P. interpreted the object and effect of these changes in his judgment in Swords v Western Proteins Ltd:

"… … I am satisfied that the amendment to Order 31 Rule 12 was made for the purpose of addressing a problem which had given rise to delays and potential injustices over a number of years. A practice had developed whereby Orders for Discovery were obtained unnecessarily and such Orders delayed litigation. As has been pointed out by the Courts on a number of occasions Discovery before the advent of the photocopying machine, fax, e-mail and word processors would probably involve the Discovery of a dozen documents. In recent years the number of documents discovered can amount to many thousands and the process has become unmanageable.

Accordingly I believe that Statutory Instrument 223 of 1999 imposed a clearly defined obligation upon a Party seeking Discovery to pinpoint the documents or category of documents required and required that Party to give the reasons why they were required. Blanket Discovery became a thing of the past. The new rule was brought into being to ensure in the first instance that the Party against whom Discovery was being sought would, upon receipt of the preliminary letter, be in a position to know the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be discovered was valid. He would then be in a position to know if he was required to comply with the request. If he disputed his obligation to make Discovery the court would know by reference to this letter precisely why the Moving Party sought the documents in question and the grounds upon which the Moving Party believed that the documents sought to be discovered might help to dispose fairly of the cause or save costs."

This passage was subsequently approved in express terms by Keane C.J., with the concurrence of the other members of the Court, in Burke v DPP [2001] I.R. 760. However, it does not seem to me that the judgment of Morris P goes any further than to identify the mischief which the amendment was intended to remedy, namely the automatic and unnecessary resort to blanket discovery, without sufficiently specifying the documents sought and the reasons for which their discovery was sought. In particular, neither Morris P., nor Keane C. J., in approving his dictum, expressed any intention of introducing a new or higher standard of proof of some objective necessity as a precondition to the grant of an order for discovery.

Mr Sreenan contends, nevertheless, that, principally because of the amendment of the rule, there is a burden on the applicant for discovery to prove the necessity of the discovery sought for the purpose of fairly disposing of the cause or matter. As already indicated, the 1999 amendment did not change the parts of the rule dealing with the necessity for discovery. Rule 2, whose wording formerly formed part of rule 1, gives the court a broad discretion to refuse discovery where it considers it not necessary or not necessary at that stage. Rule 3 is expressed in mandatory terms:

"An order shall not be made under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs."

In Allied Irish Banks plc v Ernst & Whinney, Finlay C. J., having cited the terms of both Order 31, rule 12(1) and (2) in the form in which they then stood, proceeded to rule that "it would appear that the court should only adjourn or refuse such an application if it is satisfied that it is not necessary, either at all or at the time at which it is made, either for disposing fairly of the cause or matter or for saving costs." He added: "The onus of establishing that would appear, prima facie, to lie upon the party against whom discovery is sought and who resists it." While Mr Sreenan has contended that this passage is obiter, it is interesting that it seems consistent with contemporaneous English authority (see Dolling-Baker v Merrett [1990] 1 W. L. R. 1205, per Parker L. J. at page 1209). Moreover, it seems logical that at a time when the applicant was not required to file any affidavit to ground his application for discovery and rule 3 was formulated negatively, the burden would rest on the respondent.

It is impossible to resist the conclusion, however, that the amendment to the rule has shifted the primary burden of proof. The applicant must, under the present rule, discharge the prima facie burden of proving that the discovery sought "is necessary for disposing fairly of the cause or matter." This is not a mere formalistic requirement: the affidavit must, in addition, "furnish the reasons why each category of documents is required." In context, there is no meaningful distinction between the words, "necessary" and "required." The latter term is implicitly referable to the objective of the fair disposal of the cause or matter. The nature of this burden is considered further below.

Apart from this alteration of the prima facie burden of proof, it is clear that the rule made no serious or fundamental change in the law regarding discovery of documents. The definition by Brett L. J. remains the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought:

"It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly," because, as it seems to me, a document 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, if it is a document which may fairly lead him to a train of inquiry …"

As already mentioned, this passage was cited with approval in the judgment of Lynch J, pronouncing the unanimous decision of this court in Brooks Thomas Ltd v Impac Limited. It has long been accepted as laying down the appropriate test of relevancy.

In the great majority of cases, discovery disputes have revolved around the issue of relevancy. There are fewer cases concerning necessity. There are good reasons for this. If there are relevant documents in the possession of one party, it will normally be unfair if they are nor available to the opposing party. Finlay C. J., in his judgment in Smurfit Paribas Bank Limited v. A.A.B. Export Finance Limited. [1990] 1 I.R. 469 emphasised "the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice." The overriding interest in the proper conduct of the administration of justice will be the guiding consideration, when evaluating the necessity for discovery.

The issue of "necessity" for discovery has, consequently, usually been debated in cases where some other interest is involved, particularly the confidentiality of documents, especially where they involve the interests of third parties. To that extent, the arguments advanced on behalf of Aer Rianta on this appeal, effectively that Ryanair does not need the documents, because they have alternative means of establishing the relevant facts, has rarely arisen.

In order to establish that discovery of particular categories of documents is "necessary for disposing fairly of the cause or matter," the applicant does not have to prove that they are, in any sense absolutely necessary. Kelly J considered the matter in his judgment in Cooper Flynn v Radio Telefís Eireann [2000] 3 I.R. 344. He derived the useful notion of "litigious advantage" from certain English cases. He adopted the following statement of Bingham M.R. in Taylor v Anderton [1995] 1 W.L.R. 447 at 462:

"The crucial consideration is, in my judgment, the meaning of the expression 'disposing fairly of the cause or matter'. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test."

It may not be wise to substitute a new term of art, "litigious advantage," for the words of the rule. Nonetheless, the discussion gives guidance as to the context in which the matter has to be considered. Within that context, the court has to reach a conclusion as to the likely effect of the grant or refusal of the discovery on the fair disposal of the litigation.

The change made in 1999 exemplifies, however, growing concern about the dangers of unnecessarily costly and protracted litigation and, in particular, the burdens on parties and the courts arising from excessive resort to automatic blanket discovery. The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the objectives of expedition and economy.

The court, in exercising the broad discretion conferred upon it by Order 31, rule 12, sub-rules 2 and 3, must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required. It should also consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of the discovery sought. The court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of the litigation. It may have regard, of course, to alternative means of proof, which are open to the applicant. These may, no doubt, include the possible service of notices to admit facts or documents. But there are two sides to litigation. The behaviour of the opposing party is relevant. That party may, for example, have made or may offer to make admissions of facts, and thus persuade a court that discovery on some issues is not necessary. This is, perhaps, axiomatic. Those facts will no longer be in issue. On the other hand, it is difficult to see how a party, such as Aer Rianta in the present case, which contests all the relevant facts on the pleadings and has formally objected to the right of its opponent to resort to affidavit evidence, can plausibly ask the court to deprive its opponent of access to documents which will enable it prove matters which it disputes.

In the present case, I am satisfied that Ryanair has sufficiently specified the categories of documents in respect of which it seeks discovery, for the purpose of compliance with the rule. It does not follow that the court will not cut down the categories specified. It has also sufficiently verified that discovery of these categories is necessary for the fair disposal of the action and has complied with its obligation to give reasons why each category is required. I do not accept that Aer Rianta has shown that their discovery is not necessary. In particular, I reject that contention that Ryanair has sufficient alternative means of proving the relevant facts to deprive it of its right to discovery. A notice to admit facts or documents is not a means of proof. It does not, I think lie in the mouth of a party, which has denied almost all of the pleaded facts, and put the opposing party to proof, to evade discovery by claiming that the facts can easily be proved. Competition cases have, as McCracken J suggests in his judgment, the special feature that any documents relating to anti-competitive behaviour, whether by being party to agreements or concerted practices or protecting a dominant position, are likely to be in the possession of the party engaged in that behaviour. Anti-competitive agreements or practices will be kept secret.

I agree with the judgment of McCracken J with regard to the analysis of the requests for discovery and the order he proposes. In the result, the appeal should be allowed but only to the extent to which the order for discovery is to be varied in the manner proposed by McCracken J.

THE SUPREME COURT

Record No: 2002/234

Denham J.

Fennelly J.

McCracken J.

BETWEEN

RYANAIR PLC

Plaintiff/Respondent

AND AER RIANTA CPT

Defendant/Appellant

JUDGMENT of Mr. Justice M^cCracken delivered on the 2^nd day of December, 2003

Throughout this judgment I propose to refer to the parties as Ryanair and Aer Rianta. In his judgment, Fennelly J. has set out in detail the background to these proceedings and the contentions of the parties, and there is no need for me to repeat these. It is sufficient to say that this is a complex and difficult case in which documentary evidence will probably be of considerable importance.

I am in complete agreement with the legal principles relating to discovery as set out in the judgment of Fennelly J., and also with his analysis of the effect of the amendment to Order 31 Rule 12 of the Superior Court Rules. For that reason, I propose in this judgment to deal largely with the specific requests for discovery made by Ryanair, and to consider them in the light of those legal principles.

A general point has been taken by Ryanair in relation to Aer Rianta's request for voluntary discovery dated 14^th March, 2001, namely that the description of the documents does not satisfy the Superior Court Rules or the decision in Swords v. Western Proteins Limited [2001] 1 ILRM 481. That was a personal injury action in which the relevant category of documents in respect of which voluntary discovery was sought was stated to be "accident report book/record details". No reasons for requesting this discovery were stated in the letter, although this was sought to be remedied in further correspondence. The Master of the High Court made an order requiring discovery of "accident report form and all documents relating to the reporting and investigation of the accident in which the plaintiff was involved up to

1 October 1997". In the course of his judgment, Morris P. said at p. 487:-

"Accordingly, I believe that S.I. 233 of 1999 imposed a clearly defined obligation upon a party seeking discovery to pinpoint the documents or category of documents required and required that party to give the reasons why they were required. Blanket discovery became a thing of the past. The new rule was brought into being to ensure in the first instance that the party against whom discovery was being sought would, upon receipt of the preliminary letter, be in a position to note the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be discovered was valid. He would then be in a position to know if he was required to comply with the request. If he disputed his obligation to make discovery the court would know by reference to this letter precisely why the moving parties sought the documents in question and the grounds upon which the moving party believed that the documents sought to be discovered might help to dispose fairly of the cause or save costs.

In my view if the letter of application does not comply with the rules then the issue is not identified and there is no power vested in the Master to make a determination on any issue."

He then held that the description in the letter in that particular case did not specify the precise category of documents sought and that the elaboration of that description in the Master's order was not justified. Unfortunately, no reason was given as to why the elaboration was not justified. If a letter specifies a category of documents sufficiently to ensure that the recipient of the letter can identify the documents either individually or in relation to a category so as to be able to determine whether he is bound to make discovery, then the test is satisfied, and the court has jurisdiction. The court then examines the description of the documents or category of documents to determine whether they are in fact they are discoverable. It may well be, as is exemplified in the present case, that some documents in the category claimed will be discoverable and others will not. In such a case, the court clearly has power to make an order for discovery in relation only to the documents which are discoverable, and in so doing may re-word or re-categorise the documents in relation to which discovery is ordered. The letter seeking voluntary discovery is the party's claim to discovery, and provided that claim complies with the rules and specifies precise categories of documents, the test is satisfied. It would lead to a ludicrous position if, once the test was satisfied, the court could not alter the category in its order as where, for example, some documents in the category might not be relevant or might be privileged.

In relation to the present case, I do not think that the general objection taken is valid. The letter basically attempts to categorise documents in relation to their subject matter. In many cases, and this is particularly so in relation to competition cases, a plaintiff cannot know whether documents exist, and if so what those documents are. For example, meetings may have been held between a defendant and third parties, or indeed between members of the staff of a defendant, relating to a number of the matters in issue. A plaintiff has no means of knowing whether those meetings were ever held, or whether any record or minutes of such meetings exist. All he can do is seek documents in relation to any such discussions which may have taken place, and cannot be any more specific than that.

One of the main purposes of the 1999 Rules is certainly to do away with the practice of ordering blanket discovery. This is in ease of both parties and to avoid an abuse of the discovery procedure. This abuse sometimes consisted in seeking vast numbers of documents which it would cause great hardship on the recipient of the request to identify and list, or equally can consist of vast numbers of documents being discovered by the recipient of the request which would cause grave hardship to the other party to inspect and identify the relevant documents. The object of the rules were certainly to prevent these abuses, but the reference to categories of documents recognises that a person seeking discovery may not know what documents exist and may not be able to specify the individual documents with precision.

In the present case I consider that Ryanair has clearly identified categories of documents in relation to quite precise and specific allegations of abuse against Aer Rianta. The situation in a competition case is very different from that in a personal injuries action, and any reference to precision in categories of documents must be considered in the light of the particular cause of action and the likely knowledge of the party claiming discovery as to what documents exist. Although the judgment of the learned High Court judge refers to the letter requesting voluntary discovery of 20^th December 2000, I think it would be preferable to consider the terms of the late request contained in the letter of 14^th March 2001. In this case I am satisfied that the letter of request of 14^th March 2001 does satisfy the general requirement to specify precise categories of documents and to give reasons why each category is required.

To turn to the individual categories of documents as set out in the request for voluntary discovery, I would propose to deal with these in the order in which they are sought.

1. This relates to the number of passengers checked in by Aer Lingus for its own flights and for other airlines for whom it acts as handling agent. Ryanair is claiming that Aer Lingus is getting preferential treatment from Aer Rianta in a number of ways. Essential to this claim is the relative passenger numbers of Aer Lingus and Ryanair as it would be impossible to compare the facilities granted to each without this information. On first reading this request is very broad as it relates to "all" documents, but this is in fact limited by the words "setting out the number of passengers, by month, during the year 1998 and during the year 1999 up to the 27^th September 1999". If this limitation was not there, then of course the request would have been quite unreasonable, and indeed quite imprecise. An order should be made in relation to this category of documents.

2. This relates to all documents in relation to each check-in desk and baggage belt during the same period. While it is limited to "relevant documents", in my view it should be restricted considerably further. Clearly the number of check-in desks and baggage belts provided to Aer Lingus is relevant to the Ryanair's claim, as are the conditions under which such desk and belts were provided. I would allow the request subject to the addition of the following:-

"relating to (a) the number of check-in desks and baggage belts so provided, (b) the terms and conditions under which the same and each of them were provided and (c) any negotiations between Aer Rianta and Aer Lingus in relation to the provision of such check-in desks and baggage belts.

3. This relates to Aer Rianta's plans to facilitate certain contractual works it intended to carry out at Dublin Airport. It is alleged that as a result of these plans Ryanair suffered disproportionate difficulties and restrictions when compared with those suffered by other airlines, and that this seriously undermined Ryanair's ability to compete. It is also alleged that these plans were entered into by Aer Rianta after consultation with and in agreement with other airlines, but without proper consultation with Ryanair.

Aer Rianta has stated that it is prepared to furnish documents already exhibited in an affidavit of Don Treacy filed in interlocutory proceedings in this action. Unfortunately, the court has not been furnished with this affidavit or the exhibits thereto, but in any event such an offer, which only relates to such documents as Aer Rianta has chosen to exhibit, cannot replace an affidavit of discovery which contains an averment that these are all the relevant documents.

While the classification is very wide, it is quite clear what documents are required, and it is difficult to see how Ryanair could have been more precise. Ryanair is entitled to discovery, not only of decisions taken by Aer Rianta, but also of documents relating to the reasons for such decisions and to negotiations which may have taken place with third parties in relation thereto. This category should also be allowed.

4. This concerns documents relating to the introduction of a fuel levy at Dublin Airport by Aer Rianta. It is alleged by Ryanair that there was no objective justification for introducing this levy, and that to do so was an abuse of Aer Rianta's dominant position. Aer Rianta denies that it arbitrarily introduced this levy. This gives rise to an issue as to the justification for the levy and documents which would show the reasons for its introduction are clearly relevant and necessary to resolve the issue.

However, Ryanair also seeks discovery of similar documentation in relation to the proposed introduction of a levy in Cork Airport in the year 2000. This would not seem either relevant or necessary as it occurred some five years after the action complained of by Ryanair, and indeed after the issue of these proceedings.

Ryanair also seeks documents in relation to "all negotiations" with fuel companies in relation to the supply of fuel, without any limitation. The only relevant documents under this heading would be those which relate to the introduction of the fuel levy or the reasons for it. Accordingly, there will be an order for discovery of:-

"all notes, memoranda, records of meetings, correspondence, reports or any other documents whatsoever in relation to the introduction of the fuel levy at Dublin Airport on the 1^st January 1995, and it subsequent increase, and to all negotiations with fuel companies in relation to the supply of fuel which affected the introduction or increase of the levy."

5. This relates to allegations by Ryanair that Aer Lingus was facilitated in relation to the supply of facilities at Dublin Airport, in particular in relation to hangar space, while an extension of similar facilities to Ryanair was arbitrarily refused. This is another claim that Aer Lingus received preferential treatment from Aer Rianta. This paragraph has been broken down into a number of specific sub-categories, and in relation to a number of these Aer Rianta objects that the matters covered by them were not pleaded in the statement of claim or in replies to the notices for particulars. These matters were raised for the first time in a letter of 15^th December 2000 which sets out a number of new factual allegations. It is relevant that this letter commenced with the words:-

"The plaintiff has been made aware of the following additional information since the plaintiff delivered its replies to particulars. Please note that the additional information will be relied upon by the plaintiff as setting forth additional particulars of its claim and more detailed particulars justifying the discovery sought."

Aer Rianta objects that the matters then listed raised totally new issues which could only be dealt with by an amendment of the pleadings. It is of note that Ryanair in the letter does not identify which part of its claim it is alleged that these matters refer to. On comparing these matters with the then existing pleadings, it would appear that they relate to new specific allegations of abuses of dominant position or of anti-competitive acts which were not related to any specific allegations in the statement of claim. That being so, they amounted to new causes of action which have not been pleaded, nor indeed denied, and therefore issue has not been joined in the pleadings. For this reason discovery should not be ordered in respect of these matters.

However it is clear that if the statement of claim is ultimately amended, and these matters are put in issue, then Ryanair would be entitled to seek discovery of documents relating to them in accordance with the principles set out in this judgment. It is to be hoped that should that situation arise, it will not be necessary to bring the matter before the courts again.

In addition, sub-categories (n) and (o) do not appear to have any relevance to the issues in these proceedings, and accordingly there will be an order for discovery in accordance only with sub-categories (a) (b) (c) and (m).

6. This relates to the introduction of a new check-in system known as the common user terminal equipment at Dublin Airport. It is alleged by Ryanair that the introduction of this equipment was unnecessary and particularly affects Ryanair because of its low cost fare structure, and is therefore an abuse of Aer Rianta's dominant position. This request does clearly seem to be in relation to a matter at issue, and should be allowed.

7. This relates to the fact that prior to 1^st January 2000 Aer Rianta granted discounts to the charges applied in relation to Pier A at Dublin Airport, which is the pier which is used by Ryanair. Those discounts ceased to be applicable from 1^st January 2000 and similar charges are imposed on airlines using all piers at Dublin Airport. It is alleged by Ryanair that in effect the users of Pier A are being asked to subsidise the construction of Pier C, although the facilities in Pier A are inferior to those of the others piers. In addition to all documents relating to the elimination of the discounts, Ryanair also seeks "details" of the total cost of construction of Pier C, the passenger terminal extension and Pier A. This is not a request for discovery of documents, but for information, and therefore should not be allowed.

Accordingly, there will be an order for discovery of the documents specified at paragraph 7A only.

8. This relates to the provision of VIP facilities at Dublin Airport. It seeks all documents relating to the provision and withholding of such facilities for three years prior to the institution of these proceedings. This is an extremely wide category of documents which would not seem to be relevant to the issues in these proceedings. There is, however, also a claim in the statement of claim in relation to the withdrawal of the VIP facilities from a specific employee of Ryanair, which has been denied, and documents in relation to that specific matter are clearly relevant. Accordingly, there will be an order for discovery of:-

"all notes, memoranda, records of meetings correspondence, reports or any other documents whatsoever in relation to the withdrawal of VIP facilities at Dublin Airport from an employee of Ryanair, namely Conor McCarthy."

9. This relates to an alleged refusal by Aer Rianta to allow Ryanair's third party handling agents to have access to Shannon Airport in 1995. This again has clearly been put in issue by Aer Rianta. Aer Rianta does state that it is prepared to furnish copies of documents concerning Ryanair's request to have its own third parties handlers at Shannon Airport, but in my view Ryanair is entitled to discovery in the form claimed.

10. This concerns a somewhat similar complaint by Ryanair that Aer Rianta changed the designation of Ryanair's parking stance at Shannon Airport. Again, as this has been put in issue by Aer Rianta, Ryanair is clearly entitled to discovery in relation thereto.

11. This relates to an alleged refusal by Aer Rianta to allow Ryanair's passengers access to Pier A through a link access. It is alleged that there was no objective justification for this conduct by Aer Rianta and that it was an abuse of its monopoly and dominant position. Again Ryanair is entitled to discovery as sought.

12. This refers to a complaint that it is a policy of Aer Rianta to give its airline travel business to Aer Lingus rather than to Ryanair where both fly on the same routes. It is complained that this business was never put out for tender and that Ryanair never had an opportunity to quote for it. Ryanair is certainly entitled to documentation in relation to Aer Rianta's policy, but is also seeking "details of flights taken, prices, usage, etc." This latter request would not seem to be relevant to the principle of whether there has been a breach of competition law, and accordingly discovery will be ordered excluding the words "including but not limited to details of flights taken, prices, usage, etc".

13. This relates to a claim that Aer Rianta or its servants or agents decided to clamp cars parked at Ryanair's head office building, while not clamping cars similarly parked by Aer Lingus staff, and that there was an instruction by Aer Rianta to the vehicle recovery service to make things difficult for Ryanair and its staff. These documents should be discovered.

14. There are five sub-categories of documents specified and in effect, Aer Rianta have agreed to discover those at sub-categories (d) and (e), and these will therefore be included in the order for discovery. In relation to the other three sub-categories, they are extremely vague and wide ranging and will not be allowed.

15. This relates to a by-law regarding accommodating the needs of person with disability, and Aer Rianta has said it is prepared to furnish such documentation. It will therefore be also included in the order for discovery.

I would therefore allow the appeal to the extent of the variations I have suggested.