The High Court has refused Ryanair’s application to add Bravofly S.A., a Swiss company, as a co-defendant in its dispute with Bravofly Limited and Travelfusion Limited over the alleged extraction of information from Ryanair’s website.
Ryanair’s underlying action alleges that Bravofly Limited breached the website’s terms by using automated systems to collect information for commercial purposes, a practice described as “screen scraping”. Ryanair seeks declarations, injunctions and damages relating to alleged breaches of contract, database rights and trademark rights. Bravofly’s defence and counterclaim alleges that Ryanair holds a dominant position in low-cost online air travel and is trying to restrict competition. Those claims were not decided in this judgment.
Ryanair said Bravofly S.A. had admitted involvement in screen scraping in Swiss proceedings and had taken over key management and operational responsibilities for the relevant websites. It sought permission to join the company and serve it outside the jurisdiction. Bravofly Limited objected, arguing that any proceedings against S.A. would be stayed because S.A. had already brought related cases in Switzerland.
The Swiss proceedings began on 10 June 2008. One seeks declarations concerning alleged infringement of Ryanair’s website terms and database rights; the other concerns assertions allegedly made by Ryanair and Swiss unfair competition law. Ryanair accepted that the infringement case involved the same cause of action as claims in Ireland. It argued, however, that the Irish case began first, on 14 March 2008.
Mr Justice Kelly held that, under the applicable court rule, proceedings against a newly joined defendant are deemed to begin only when the order adding that party is made. The Irish proceedings therefore did not predate the Swiss proceedings as against S.A. He also rejected Ryanair’s argument that Bravofly Limited and S.A. should be treated as one economic entity, finding no evidence to justify lifting the corporate veil and noting that Ryanair had previously described the companies to the Swiss court as separate legal entities.
The Lugano court had rejected Ryanair’s applications to stay the Swiss cases, including on review, and had decided that both should proceed. Justice Kelly considered the Irish and Swiss cases related and concluded that the Swiss courts were first seised. He said that, if S.A. were joined, the High Court would exercise its discretion under Article 22 of the Lugano Convention to decline jurisdiction. He refused the joinder application. The judgment decided only that application; it did not determine the underlying allegations or claims.