The High Court dismissed Ryanair Limited’s challenge to the Commission for Aviation Regulation’s interim review, finding that the review changed the statutory determination by altering the Regulatory Asset Base (RAB), even though the maximum airport charges stayed the same.
In a supplemental judgment delivered on 20 May 2008, Mr Justice Clarke considered a clarification issued by the Commission after an earlier judgment had directed it to state whether its decisions on including capital expenditure in the RAB formed part of its statutory determination or merely reflected its current thinking. The Commission said those decisions were part of its formal exercise of statutory powers.
The court held that the original review decision and the clarification had to be read together. Although the documents were ambiguous, their proper construction in context was that the RAB had changed. The judgment said the change affected an important building block of the regulatory model, while other changes offset its effect on the maximum permitted price.
The court rejected Ryanair’s arguments on the merits in the earlier judgment. In this judgment, it also rejected Ryanair’s claims that the Commission had failed to comply with the clarification direction and that capital could not be added to the RAB where the practical effect would arise only in a later regulatory period. The judge said that second argument sought to reopen an issue already decided.
The judge found that Ryanair’s original application for leave to seek judicial review had not clearly raised the specific argument that adding capital to the RAB was impermissible because it was outside a formal statutory determination. He said that, had the case been heard in two stages, he would have allowed an amendment and granted leave on that limited ground. But at the substantive hearing, the argument would have failed because the review decision, properly construed, did change the determination. The court found nothing impermissible about that course.
Ryanair’s claim was dismissed in full. The judge awarded the Dublin Airport Authority its full costs, including reserved costs, and limited the Commission to 50% of its costs, also including reserved costs. He said the reduction reflected the Commission’s lack of clarity and the fact that Ryanair would have needed an amendment to pursue the limited ground on which leave might have been granted.
The judge did not rule definitively on whether an appeal lay from the Commission’s decision. He said that question was outside the function of the court in this case, particularly because the Minister was not a party.