The Supreme Court allowed Unister GmbH’s appeal against an order requiring it to disclose the identity and contact details of third-party providers, but dismissed its appeal against the joinder of Ypsilon.net AG as a defendant. The Court did not decide whether the Irish courts have jurisdiction over Ryanair Limited’s underlying claim.
Ryanair alleges that Unister’s online travel business unlawfully used Ryanair’s website. Unister denies wrongdoing and says a third-party provider facilitated customers’ access to the site. Unister challenged the Irish proceedings under the Brussels Regulation, relying on its domicile in Germany and disputing that it had agreed to Ryanair’s Irish jurisdiction clause.
The High Court ordered disclosure of the unnamed provider’s identity and contact details on 22 March 2011. It later joined Ypsilon, whose identity had emerged in separate German proceedings. Unister appealed both orders. The Supreme Court considered the appeals while the jurisdiction challenge remained unresolved.
The Court held that, while a Brussels Regulation jurisdiction challenge is pending, courts should generally deal first with jurisdiction. Before deciding that issue, they may make orders needed to resolve it and provisional or protective measures within Article 31. Other procedural orders should be made cautiously because the case may ultimately belong in another member state’s courts and follow that state’s procedures.
Ryanair argued on appeal that identifying providers could help resolve jurisdiction, including by revealing how the booking technology worked or whether a provider was closely connected to Unister. The Court concluded that this was not the purpose for which Ryanair had principally sought disclosure in the High Court. Its application focused on identifying and joining providers, and the identity information sought would only marginally assist with jurisdiction. The Court also held that the disclosure order was not a provisional or protective measure under Article 31. With no significant countervailing circumstances, it substituted an order refusing disclosure.
The Court reached a different conclusion on Ypsilon. Its joinder did not interfere with Unister’s right to challenge Irish jurisdiction or affect where a claim against Unister could be heard if that challenge succeeded. Ypsilon may bring its own jurisdiction challenge. The Court therefore affirmed the order joining it.
The High Court must determine the jurisdiction question as soon as practicable. The Supreme Court left that question, and any later procedural orders if Ireland is found to have jurisdiction, undecided.