The High Court has directed that an appendix to On the Beach’s defence in Ryanair’s website-scraping case be struck out, while allowing the travel company an opportunity to plead the matters it contained in an amended defence.
Mr Justice David Nolan ruled on an application by Ryanair for directions about the appendix, which set out allegations of anti-competitive behaviour. He found that it went beyond providing information or convenience: it reproduced substantial parts of On the Beach’s separate UK pleadings and functioned as a pleading in its own right.
The dispute in Ireland began with Ryanair’s 2010 claim. Ryanair alleges that On the Beach accessed its website without permission using automated systems to offer Ryanair flights through its own website and call centre. It claims this breached its terms and involved, among other things, passing off, copyright infringement, breach of contract and trespass. Those claims remain allegations in the proceedings.
On the Beach’s defence disputes Ryanair’s claims and says the airline’s terms of use and conduct involve anti-competitive behaviour and abuse of a dominant position. The appendix, headed “particulars of anti-competitive behaviour”, ran to more than nine pages. The judgment noted substantial similarities between parts of it and On the Beach’s claim in separate UK proceedings.
Ryanair argued that the appendix was effectively a second claim attached to the defence, creating uncertainty about the issues and a greater risk of irreconcilable judgments in the Irish and UK cases. On the Beach said it was a convenient way to group its competition-law defence and maintained that it would not bring a counterclaim in Ireland.
The judge said appendices can be used in litigation for information and convenience, and the court rules did not prohibit them. But, in this case, the appendix set out a detailed narrative of alleged anti-competitive conduct and could create confusion rather than clarify the issues. He concluded that its use in its current form was inappropriate and directed that it be struck out.
The order did not prevent On the Beach from pleading allegations that Ryanair’s conduct was anti-competitive or amounted to abuse of a dominant position. The judge said the company should have the opportunity to amend its defence and plead those matters in the traditional way. He did not determine the underlying competition allegations or Ryanair’s claims. The judgment states that he would hear the parties about the nature of the order to be made.