The High Court has ordered Ryanair DAC to pay Skyscanner half of the costs of Ryanair’s failed application for an interlocutory injunction, reducing the award to reflect Skyscanner’s conduct of the case and the time spent on competition-law issues.
Mr Justice Twomey delivered the costs judgment on 13 November 2020, after refusing the injunction in a separate judgment on 30 July 2020. The interim order Ryanair sought would have required Skyscanner to make online travel agents that booked Ryanair flights through its website provide passengers’ email addresses to Ryanair.
The underlying proceedings have not yet been heard. Ryanair is seeking, among other things, a broader injunction to stop Skyscanner facilitating the sale of Ryanair flights on its website. The earlier judgment found a fair issue to be tried over whether Skyscanner accessed Ryanair price, flight and timetable information in breach of Ryanair’s website terms. But the court refused the interim order, finding that it was mandatory in substance and that Ryanair had not shown a strong case likely to succeed. The court also found that an injunction was not justified on the balance of justice and that damages were an adequate remedy.
Ryanair argued that there should be no costs order because it might obtain a permanent injunction after discovery and witness evidence were available at trial. It also relied on the court’s criticism of Skyscanner’s approach to explaining how it obtained Ryanair’s information. Skyscanner argued that it was not responsible for filling gaps in Ryanair’s evidence and that Ryanair chose to pursue the six-day interim hearing before obtaining further evidence.
The court applied the general rule that costs follow the event, identifying the refusal of the interim injunction as the relevant event. It said Skyscanner should not bear the financial burden of successfully defending an application that Ryanair had chosen to bring, and that the prospect of a later permanent injunction did not remove the consequence of losing at the interim stage.
However, the judge said Skyscanner’s approach to explaining how it accessed the information had been deliberately non-forthcoming. He also found that extensive competition-law arguments and expert evidence raised by Skyscanner had little or no relevance to deciding the interim injunction application and had used considerable court time. The court reduced the costs award by 35% for Skyscanner’s conduct and by a further 15% for the competition-law material, resulting in an award of 50% of the costs of the failed application in Skyscanner’s favour.
The judgment decided the costs of the interim application only. It did not determine whether Skyscanner breached Ryanair’s website terms or whether Ryanair will obtain a permanent injunction at trial.