The Supreme Court allowed Aer Rianta’s appeal against a High Court discovery order only to the extent that the order would be varied in the manner proposed by McCracken J. The Court upheld Ryanair’s entitlement to discovery in its competition action, while leaving the scope of the documents to be ordered subject to that variation.
Ryanair began the action in September 1999, alleging that Aer Rianta had breached Irish and European Community competition law. It claimed that Aer Rianta, which operates Dublin, Cork and Shannon airports, held a dominant position in providing airport facilities and had favoured Aer Lingus, its main competitor at Dublin Airport. The allegations included unequal allocation of check-in desks and baggage belts, a fuel levy, compulsory use of a terminal system Ryanair said it did not need, and different treatment over hangars, passenger facilities and charges. Aer Rianta denied almost all material allegations.
The appeal concerned discovery, not a determination of whether those competition allegations were true. The High Court had directed Aer Rianta to answer Ryanair’s discovery requirements. The order mistakenly referred to Ryanair’s original request; the parties agreed that its amended request of 14 March 2001 was the relevant one for the appeal.
Fennelly J said the 1999 amendment to the discovery rules required an applicant to identify precise document categories, explain why each was required and verify that discovery was necessary for the fair disposal of the case or to save costs. It shifted the initial burden to the applicant, but did not fundamentally change the law on discovery. The court must assess relevance and the likely effect of granting or refusing discovery on the fair conduct of the litigation, while considering the scale and cost of the request and any alternative means of proof.
Applying those principles, Fennelly J concluded that Ryanair had sufficiently specified and justified the categories it sought. He rejected Aer Rianta’s argument that Ryanair could establish the relevant facts by other means, noting that Aer Rianta disputed nearly all the pleaded facts and that a notice to admit facts or documents was not itself proof. He also noted the particular difficulty in competition cases that documents about alleged anti-competitive agreements or practices are likely to be held by the party accused of them.
Fennelly J agreed with McCracken J’s analysis of the discovery requests and proposed order. The judgment says the appeal was allowed only to the extent of the variation McCracken J proposed; it does not set out that variation in Fennelly J’s judgment.