High Court dismisses Ryanair's judicial review application due to lack of substantial grounds and misconduct.

Neutral Citation Number: [2010] IEHC 220

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

2010 107 JR

BETWEEN

RYANAIR LIMITED

APPLICANT

AND

COMMISSION FOR AVIATION REGULATION

RESPONDENT

AND

DUBLIN AIRPORT AUTHORITY PUBLIC LIMITED COMPANY

NOTICE PARTY

JUDGMENT of Mr. Justice Kelly delivered on the 4th day of June, 2010

Introduction

This is an application by Ryanair for leave to apply for judicial review against a determination (the determination) of the Commission

for Aviation Regulation (CAR). The determination set maximum levels of airport charges at Dublin Airport for the years 2010 – 2014.

The notice party (DAA) is the body vested by statute with the management and operation of that airport.

The determination was dated 4th December, 2009. These proceedings were commenced by the issue of a notice of motion dated 4th

February, 2010. As judicial review of a determination of CAR is governed by s. 38 of the Aviation Regulation Act 2001 (the Act), it

was necessary that the application be brought on notice to it and the DAA within a period of two months of publication of the

determination. Under the terms of that section, leave “shall not be granted” unless this Court is satisfied that there are substantial

grounds for contending that the determination is invalid or ought to be quashed.

An Appeal

In addition to regulating the entitlement of a party to apply for judicial review, the Act also creates an entitlement on the part of an

aggrieved party to appeal.

Under s. 40 of the Act, the Minister is obliged upon a request in writing from a person aggrieved by a determination (unless he

considers the request vexatious or frivolous) to establish an Appeal Panel to consider such an appeal. Under the provisions of s. 24 of

the State Airports Act 2004, a request for the setting up of such an Appeal Panel must be made promptly but not later than three

months after publication of the notice of the determination to which it relates.

Ryanair exercised its right of appeal under these statutory provisions. It did so by letter of 18th December, 2009 signed by Mr. Juliusz

Komorek, its Director of Legal and Regulatory Affairs.

The letter reads as follows:-

“Dear Minister

I write on behalf of Ryanair, the largest user of Dublin Airport, to request the establishment of an Appeal Panel, under s.

40 of the Aviation Regulation Act 2001, to consider Ryanair’s appeal against the Commission for Aviation Regulation’s

(CAR’s) decision CP4/2009 dated 4th December 2009.

Ryanair has a number of major concerns regarding the legality of the above decision and the continuing failure of the

CAR to properly or effectively regulate the Dublin Airport Authority in order to meet the reasonable requirements of

users, or to prevent the continuing abuse by the DAA monopoly of its dominant position through regulatory gaming.

Ryanair’s concerns with the above determination (CP4/2009) include, but are not limited to the following (please note

that this list does not constitute the full terms of Ryanair’s appeal which will be filed at a later stage):-

Failure of the CAR to comply with the government’s (triple safeguard) in the delivery of T2.

The failure of the CAR to ensure proper or effective user consultation.

The failure of the CAR to survey or take account of competitive market developments.

The failure of the CAR to respond to user queries either prior to or during the consultation period.

The failure of the CAR to respond, as required by statute to user concerns in the final determination.

The inclusion by the CAR of indexed depreciation in the yield formula, which the Commissioner himself confirmed

allows the DAA to ‘earn excess profits’.

The failure of the CAR to produce, verify or reconcile, audited regulatory accounts with the DAA.

The failure of the CAR to explain or justify its ‘x-factor’.

The inclusion by the CAR of an ‘equity risk’ premium, when the CAR acknowledges that the DAA suffers no equity

risk.

The failure of the CAR to address the excessive size of Terminal 2 as required by the previous Appeals Panel either

before or during the determination.

The failure of the CAR to address the extensive list of submissions, objections and points made by Ryanair.

The effect of this unlawful determination is to reward the DAA monopoly with excess profits as a result of its regulatory

gaming. Terminal 2, which was originally promised by the DAA at a cost of €170m - €200m has now escalated to some

€1.3b. This includes the early and unnecessary demolition of the eight year old Pier C, the closure of check-in area 14

(just two years after it opened, despite a promised 30 year lifespan), and the construction of an unnecessary T1X retail

extension, the cost of which is now being recovered through high and uncompetitive airport charges.

Is it incomprehensible to Ryanair that any effective regulatory process (which is designed to replicate the effects of

competition) would – at a time when traffic at Dublin Airport has fallen by 15% – respond to this market failure by

approving a 40% increase in passenger charges, when many other governments and airports across Europe are reducing

passenger charges – in some cases by 100% – in order to reverse traffic and tourism declines.

Ryanair believes that a review of the above determination by the Appeal Panel is urgently needed in order to prevent

further damage being visited upon Ireland’s air transport and tourism industries through the CAR’s inept regulation,

regulatory capture and the DAA’s repeated abuse of its monopoly position. We look forward to receiving details of the

membership of the panel in due course, and would welcome your advice as to how we should interact with the panel and

the format of any submissions which the panel may require.

Please acknowledge receipt of this request for the establishment of an Appeal Panel.”

Ryanair’s Appeal

Ryanair followed up its request for the establishment of an Appeal Panel with some vigour. It is clear from the terms of a letter written

on 11th January, 2010 that Mr. Komorek had a discussion with Mr. Liam Daly, a Principal Officer in the Department of Transport on 6th

January, 2010. The letter demonstrates that Mr. Daly informed Mr. Komorek that an Appeal Panel would not be established until the

three month period allowed under s. 24 of the 2004 Act for the brining of appeals had expired. The Minister clearly anticipated that

other appellants might emerge and he wished to have one panel deal with all such appeals. In this regard the Minister proved to be

correct since two other parties have exercised their right of appeal in respect of the determination.

The information conveyed by Mr. Daly did not please Ryanair. It provoked a minatory letter of 11th January, 2010 from Mr. Komorek.

The letter complained about the three month delay and went on to say:-

“An early review by the Appeal Panel is vital for the purposes of legal certainty, and we therefore request that the

Department establish this panel, in consultation with Ryanair, by no later than the end of January 2010. Should the

Department not accede to this request, then Ryanair will publicly expose your attempt to further protect the DAA

monopoly by unnecessarily and unreasonably delaying the appeal process.”

On 19th January, 2010, the Minister for Transport, Mr. Dempsey, wrote to Mr. Michael O’Leary, Chief Executive of Ryanair. Insofar as

it is relevant the letter said:-

“I wish to inform you that I will be arranging for an Appeal Panel to be established to consider appeals against the

Commission for Aviation Regulations decision CP4/2009 dated 4th December, 2009 once the three month period for

receipt of requests under Section 40(2A) has expired.

I consider that this is the most appropriate approach allowing for the fact that other interested parties have until the

expiry of the statutory deadline to submit requests and taking into account practical considerations, including the time

required to put a panel in place. As you know this is in line with previous practice whereby one panel has been

established to consider all appeals relating to a particular determination.”

Ryanair was fully conversant with the “previous practice” referred to in the Minister’s letter since the determination is the third such

one issued by the CAR and all previous ones have been challenged on judicial review in this Court by Ryanair but without success.

The Minister’s letter of 19th January, 2010, was in turn responded to by Mr. O’Leary on 22nd January, 2010.

It is not necessary to repeat that lengthy letter in full but a number of aspects of it do bear examination. Its first paragraph read:-

“There is no reasonable explanation for your inordinate delay in establishing an Appeal Panel under the Aviation Regulation

Act 2001 other than the continuing policy of both yourself and your Department protecting and abetting the DAA

monopoly at the expense of consumers and Irish tourism.”

This statement is demonstrably incorrect. First, there was no “inordinate delay” on the part of the Minister. The statute permits of a

three month period for appeals to be brought and the Minister quite sensibly decided that, in the anticipation of further appeals, he

wished to have all of them dealt with by the same panel.

Second, the Minister’s explanation as set out in his letter of 19th January, 2010 was perfectly reasonable.

Mr. O’Leary’s letter then went on to accuse the Minister of having given a “corrupt direction” to the CAR and later in the letter

accused the Minister’s Department of providing “corrupt protection” to the “DAA Airport Monopoly”.

The Minister replied to this letter on 28th January, 2010. He pointed out that as Minister he was responsible for determining the

process of setting up an Appeal Panel under the statute.

A further letter described on this occasion as an “open letter” was sent to the Minister by Mr. O’Leary in which he expressed the

regret of Ryanair at the ministerial decision to delay the establishment of the Appeal Panel for the three month period allowed by the

legislation. He went on to accuse the Minister and his Department of sitting on their hands and doing nothing whilst the DAA monopoly

“which you protect – will impose the largest airport fees increase of any EU airport in 2010, causing a further double digit decline in

Dublin Airport traffic on top of the three million passenger loss of last year.”

This letter elicited an acknowledgment from the private secretary to the Minister. On 9th February, 2010, the Minister responded

personally indicating that he intended to proceed in accordance with the approach outlined in his previous correspondence.

On 3rd March, 2010, the Minister wrote to Mr. O’Leary pointing out that he had received three requests for the establishment of an

Appeal Panel and that he had now established that panel and identified the members of it.

On 5th March, 2010, Mr. O’Leary wrote a further open letter to the Minister, the final paragraph of which read as follows:-

“We regret your repeated refusal to appoint an early Appeal Panel to consider Ryanair’s appeal against these

unwarranted and unjustified (Department sanctioned) 40% cost increases. Since the three month deadline for receipt of

request for appeals expired yesterday (4th March), you cannot delay any further the appointment of an Appeal Panel.

Can you please urgently confirm when this Appeal Panel will be appointed and, in the interest of efficiency and speed,

that you will reappoint the members of the 2008 panel, since these people are familiar with the issues at Dublin Airport

and can expedite the hearing of the appeal, hopefully before the DAA begins to impose these 40% price increases (as

they have notified users they intend to) from 28th March next.”

Without waiting for any response to this open letter and apparently not having as yet received the Minister’s letter of 3rd March,

2010, Ryanair issued a news release. Even if this release were factually accurate (which it was not), it could not be regarded as other

than gratuitously offensive to the Minister describing him variously as “Dozy Dempsey”, “Dolittle Dempsey” and “Donothing Dempsey”.

The release is headed “Ryanair calls ‘Dozy Dempsey’ to appoint Appeal Panel to review 40% cost increases at Dublin Airport”.

Of course, the Minister had, as far back as 19th January, written to Mr. O’Leary indicating his intention to set up the Appeal Panel

and two days before the press release had written furnishing the names of the members of that panel to Mr. O’Leary.

The third paragraph of the press release reads:-

“Ryanair first wrote to ‘Dozy Dempsey’ back in December calling on him to urgently form an Appeal Panel to review the

Regulator’s decision. Instead of acting quickly, to protect air passengers and consumers ‘Dolittle Dempsey’ has delayed

for a full three months, despite the fact that he has received no appeals other than Ryanair’s appeal last December...

Ryanair believes that Minister Dempsey has deliberately delayed the appointment of the Appeal Panel so that the DAA

monopoly (which his Department owns and protects) can impose these price increases before the Appeal Panel has had

a chance to rule on them.”

Not merely does the press release fail to record any of the correspondence emanating from the Minister concerning his intentions to

set up the Appeal Panel but it misstates his reasons for not doing so until the three month period expired. It was also wrong in saying

that the Minister had received no appeals other than Ryanair’s. The press release misstated the Minister’s reasoning for not appointing

the Appeal Panel until the end of the statutory three month period and then went on to allege that his reason for so doing was

entirely different to the one stated by him.

In the course of a hearing before me on oral evidence on 26th March, 2010, Mr. O’Leary stated that both Ryanair’s letter and its news

release of 5th March, 2010, crossed with the Minister’s letter of 3rd March and that it had no knowledge that the Minister had made

that decision when its open letter and news release were issued.

The following short extract from the transcript of that hearing is instructive:-

“Q. 120 Mr. Ferriter: Just to ask that question again Mr. O’Leary did you consider issuing a clarifying press release

apologising to the Minister, once you received his letter of 3rd March, to make it clear to the public that in fact he had

set up a panel?

A. No.

Q. 121 Mr. Justice Kelly: And why not Mr. O’Leary?

A. Because the press release, your Honour, simply calls on the Minister to appoint the Appeals Panel.

Q. 122. Mr. Justice Kelly: Which he had already done?

A. With respect, we were not aware that he had already done when we issued that.

Q. 123 Mr. Justice Kelly: I know, you’ve told me that. When you did become aware, you didn’t think it right to put the

matter right and say the Minister has now done it?

A. I’m not sure, why we would issue – if we issue a press release calling on the Minister to do something, why would we

issue a press release subsequently saying thank you to the Minister for doing it?”

It is, of course, a gross misrepresentation of the press release to say as Mr. O’Leary did that it “simply calls on the Minister to

appoint the Appeals Panel”.

These Proceedings

This application commenced by the issue of a notice of motion dated 4th February, 2010. It was returnable in the Judicial Review List

on 15th February, 2010.

On 17th February, 2010, CAR issued a motion seeking to have the proceedings transferred to the Commercial List. I heard that motion

on 22nd February, 2010 and made an order pursuant to O. 63A, r. 1(g) of the Rules of the Superior Courts transferring the litigation to

the Commercial List. I fixed 15th April, 2010, for the hearing of the application for judicial review and made a number of orders to

ensure that the case was in a state of readiness to proceed on that date. Ryanair also issued a notice of motion seeking an

adjournment of the proceedings pending the determination of its appeal. I fixed the same hearing date for that and likewise gave

directions so as to ensure that that adjournment application could be heard on the same date.

That motion was grounded on an affidavit of Mr. Kenan Furlong, a Solicitor acting for Ryanair. That affidavit was sworn on 20th

February, 2010. In it, the deponent, having referred to Ryanair’s letter to the Minister of 18th December, 2009, swore that the

Minister had not yet decided whether to form the Appeal Panel. That statement was clearly incorrect. Mr. Furlong subsequently swore

an affidavit apologising for this incorrect statement being included in his affidavit. Likewise, Mr. Komorek apologised for an omission in

his affidavit grounding the application for leave to apply for judicial review where he failed to disclose the decision of the Minister.

When the matter was before me on 22nd February, the question of the judicial review proceedings and Ryanair’s appeal gave rise to

debate. I gave the directions which I have already indicated and in the course of my ruling, I referred to the uncertainty concerning

Ryanair’s request for an appeal and, having regard to what was contained in the affidavits to which I have just referred, I said “I

don’t know when and if the Minister will set up the appellate Tribunal or at what pace it will move”. I made no criticism of the Minister

whatsoever. I pointed out the discrepancy in the legislation allowing a judicial review which is required to be brought within two

months and at the same time permitting an appeal where the Tribunal does not have to be set up for three months.

CAR and DAA had no better information than the court concerning the Minister’s decision to set up the appeal panel. They also

believed what was contained in the Ryanair affidavits on this topic.

When CAR and DAA became aware of the true situation about the appeal they were very concerned about the misinformation which

was placed before the Court and brought an application concerning it. It was, of course, a highly unsatisfactory situation where both

the solicitor acting for Ryanair and its head of regulatory affairs should have misled the court concerning the Minister’s decision to set

up the Appeal Panel. At a hearing before me on 26th March, 2010, Mr. Michael O’Leary, Ryanair’s Chief Executive explained that he

had not furnished a copy of the Minister’s letter to either of them nor did either deponent examine or check the file before they swore

their respective affidavits.

Apologies were tendered by both deponents and by Mr. O’Leary. It is wrong that such a state of affairs should have occurred. The

Court is entitled to expect that sworn testimony placed before it should not materially misstate a fact or omit the existence of a fact

thereby effectively misrepresenting the true position to the Court. That is what happened in the present case. It is not demonstrative

of proper care being taken by Ryanair.

That unfortunately was not the end of the matter. In the course of the hearing before me on 26th March, 2010, I became aware of a

letter written by Mr. O’Leary to Minister Dempsey on 25th February, 2010.

The letter read as follows:-

“Dear Noel,

I refer to our previous letters of 18th December, 11th, 12th, 22nd January and 1st February, all of them requesting you

to urgently establish an Appeal Panel to consider Ryanair’s appeal against last December’s determination by the CAR

(CP4/2009) which rubberstamped up to 40% cost increases in passenger charges at Dublin Airport during 2010, at a time

when traffic is collapsing and there is price deflation in the Irish economy.

You have repeatedly refused to appoint an Appeal Panel and have confirmed that you will take no action on this issue

until after 4th March next, which is just three weeks before the DAA have already advised Dublin airlines of their intention

to impose these excessive and unjustified charge increases.

This matter came before the High Court on Monday, 22nd Feb and was criticised by Mr. Justice Kelly, who stated:-

‘There is a discrepancy in the legislation as far as I can see in that an application for judicial review is required to

be brought within the two month period, yet this appeal mechanism provides for the Minister to set up an Appeals

Tribunal and he does not even have to set it up for three months.’

Mr. Justice Kelly then went on to recommend:-

‘It seems to me that what is required is that the Act be amended so as to ensure that people cannot ride two

horses at the one time and where two separate timetables are fixed by the same legislation allowing a judicial

review to be heard much more quickly than the appeal.’

Both Mr. Justice Kelly and indeed the DAA’s lawyers were critical of your inexcusable delay to appoint an Appeal Panel

which seems to be another attempt by the Dept of Transport to frustrate any appeal against the CAR’s determination, in

order to allow the DAA monopoly to impose these unjustified and excessive cost increases from 28th March next, long

before any Appeal Panel can rule on Ryanair’s appeal.

May I again respectfully ask you to stop delaying this appeal, and in the interest of efficiency and speed, to invite the

same members who formed the 2008 panel to join the 2010 panel so that people who are familiar with the issues at

Dublin Airport can expedite the hearing of Ryanair’s appeal and remove the uncertainty that presently (sic) hangs over

airlines and passengers at Dublin Airport.

Your repeated delay and inaction in this matter is inexcusable, but sadly unsurprising from a Minister whose only action

at Dublin Airport in recent months was to order (the supposedly independent) Aviation Regulator to rubberstamp the

DAA’s request for a 40% increase in airport fees during 2010, at a time of price deflation and continuing traffic collapse

at Dublin Airport.

Yours sincerely

Michael O’Leary

Chief Executive.”

This was a letter written with some care which contained two verbatim transcriptions from the ruling which I had given three days

beforehand on 22nd February concerning the unsatisfactory state of the legislation. However, the letter went on to allege that I had

been critical of the Minister’s “inexcusable delay” in appointing an Appeal Panel.

That statement had no basis in truth. I made no criticism of the Minister whatsoever, still less criticism of an alleged “inexcusable

delay”. This part of Mr. O’Leary’s letter was a fiction.

Mr. O’Leary tried to justify what was said in the letter by reference to the two portions from the transcript quoted in it. This was, as I

said at the time, a pathetic attempt to try and justify the untruth.

A further apology was forthcoming from Mr. O’Leary which I accepted at the time. I also required him to write a letter to the Minister

by way of apology but only after I had vetted it. This was done.

Subsequent to the hearing on 26th March, 2010, a further apology was proffered in relation to another letter which had been written

by Mr. Komorek misrepresenting my position in like fashion.

The very unsatisfactory position which I have outlined concerning Ryanair’s behaviour is one of the matters relied upon to support the

contention that Ryanair’s behaviour justifies a refusal of leave.

The Grounds

When the matter came before me on 22nd February, 2010, the statement required to ground an application for judicial review was in

a thoroughly unsatisfactory condition. In essence Ryanair sought certiorari of the determination. No fewer than twenty three

different forms of relief were sought, many of them repetitious and tautologous. The grounds seeking those reliefs were in no better

condition. Some were not grounds at all. One could be forgiven for thinking that they were designed to obfuscate rather than

elucidate. I directed Ryanair to file and serve an amended statement of grounds identifying with clarity the precise reliefs sought and

the grounds upon which they were being sought. My endeavours to bring some clarity to the situation bore only limited success. The

amended statement reduced the numbers of reliefs to nine as opposed to twenty three. Five of the original grounds were deleted but

the amended statement of grounds added six new ones, two of which appear to be modelled on one of the fourteen forms of

declaratory relief that were contained in the original notice but which were dropped from the amended one.

CAR and DAA argue that the grounds upon which the reliefs are sought are really merits based rather than proper judicial review

grounds. That conclusion, they say, can be reached not merely by a reading of the grounds but also by comparing and contrasting

them with the grounds which were set out by Mr. Komorek in his originating letter to the Minister of 18th December, 2009, seeking to

appeal the decision. Those grounds were merits based.

It might be expected that I would at this stage of the judgment set out the grounds and compare them to the contents of Mr.

Komorek’s letter of 18th December, 2009. That would establish the correctness or otherwise of CAR’s and DAA’s proposition. I will not

lengthen this judgment by so doing because Ryanair has made that wholly unnecessary.

As I have already pointed out, there was also listed for hearing before me on 15th April, 2010, Ryanair’s application to adjourn the

judicial review proceedings pending the outcome of its appeal. That application was withdrawn by Ryanair. However, the affidavit

evidence which was adduced in support of it was before the Court. In the course of that, the following averment was made:-

“The Appeal Panel is a cost efficient, quick and satisfactory forum for the purpose of addressing the grievance that

Ryanair has with the Commission’s determination. This is Ryanair’s preferred forum on the basis that, if successful, it will

obviate the need for lengthy litigation, which litigation will be at the expense of all of the parties (i.e. Ryanair, the

Commission and the notice party) or the airport users and members of the public who are the persons that will pay for

any judicial review proceedings in the event that Ryanair is successful. I say that this litigation will potentially involve

very significant costs to all the parties. In 2007, Ryanair issued similar proceedings challenging the 2007 determination

entitled Ryanair v. the Commissioner for Aviation Regulation, Record No. 1246/2007 J.R. which were issued in September

2007 and determined in May 2008. In my opinion, based on the costs incurred by the same three parties in the 2007

judicial review proceedings, the combined costs of the three parties in this litigation could well be in excess of

€1,000,000.”

Rarely, if ever, does one find a party to litigation making such a comprehensive case – against itself!

That statement is a clear acknowledgement that the grievance which

Ryanair has with CAR can be fully dealt with by the appeal mechanism which it has invoked. Indeed that that is its preferred course.

In these circumstances, CAR and DAA contend that the Court should, at this stage, as a matter of discretion, refuse leave to apply

for judicial review.

This proposition is advanced on the basis that the appeal taken by Ryanair provides a full and complete opportunity for it to advance

all its complaints against CAR and thus judicial review is inappropriate.

The second ground as already alluded to is that Ryanair’s conduct and behaviour concerning this matter amounts to misconduct and

misbehaviour of a type that warrants a refusal of leave. It was argued that such conduct demonstrated “an ingrained culture of

disrespect for process”, including the court process, so as to disentitle Ryanair to leave to apply for judicial review.

CAR and DAA also argue that Ryanair has failed to show substantial grounds that the determination is invalid and thus fails the

statutory test prescribed by s. 38 of the Act.

Normally the question of discretion arises after the court decides whether substantial grounds have been demonstrated. If they are,

the court decides whether as a matter of discretion leave should be granted to apply for judicial review or not. Given Ryanair’s own

evidence which I have just repeated, I am of the view that CAR and DAA are correct and that I should now deal with the question of

discretion.

Alternative Remedy

If leave to apply for judicial review were granted in this case, the principal relief being sought is certiorari quashing the determination.

That was so both in the original statement grounding the application and in its’ amended form.

Certiorari is not granted as of right. It is a discretionary remedy. (See The State (Abenglen Properties Limited) v. Dublin Corporation

[1982] I.L.R.M. 590; De Roiste v. Minister for Defence [2001] I.E.S.C. 4.)

It is nothing new for the Court to be asked to decide to refuse certiorari because of the existence of an alternative remedy. That

question has been agitated in many cases over the years.

One of the principal authorities on the topic is the Abenglen case. In that case the Supreme Court had to consider how it would

exercise its discretion where there was an alterative remedy available. It decided that the exercise of discretion was a question of

justice and in deciding it at least three factors could be taken into account. The first was the purpose for which certiorari was being

sought, the second the adequacy of the alternative remedy and the third the conduct of the applicant.

Particularly apposite are the following quotations from Henchy J. in that case:-

“The present case does not seem to me to exhibit the exceptional circumstances for which the intervention of the

courts was intended. On the contrary certiorari proceedings would appear to be singularly inapt for the resolution of the

questions raised by Abenglen. Certiorari proceedings, based as they are on affidavit evidence, can result only in a stark

and comparatively unilluminating decision to quash or not to quash; whereas an appeal to the Board would have allowed

all relevant factors to be explored (if necessary, in an oral hearing with the aid of experts in the field of planning), thus

allowing an authoritative exposition to be given of the appropriate practice and procedure, aided, if necessary, by

reference to the High Court on a question of law.”

Later he said:-

“I am merely explaining why I would exercise my discretion against Abenglen in the event of the court deciding that

certiorari lies as a matter of discretion. Such an exercise of my discretion would appear to accord with the practice in

the United States, which is stated as follows in 14 Am. Jur. 2d:-

‘Under the prevailing practice, a writ of certiorari will not issue if there is another adequate remedy, such as an

appeal or writ of error, an action at law or in equity, or intervention with the right of appeal secured. It is only in

cases of unusual hardship and in the furtherance of justice that the use of the writ of certiorari is permitted to

supplement the method of review expressly provided by statute (Emphasis supplied) (at 787).’

It may be that not all of the limitations in that passage on the issue of certiorari accord with the law as it has evolved in

this jurisdiction; but where Parliament has provided a self-contained administrative and quasi-judicial scheme, postulating

only a limited use of the courts, certiorari should not issue when, as in the instant case, use of the statutory procedure

for the correction of error was adequate (and, indeed, more suitable) to meet the complaints on which the application

for certiorari is grounded.”

That approach must apply a fortiori in circumstances where the applicant for judicial review has expressly identified the Appeal Panel

as “a cost efficient, quick and satisfactory forum for the purpose of addressing the grievance that Ryanair has with the Commission’s

determination”.

In De Roiste v. Minister for Defence [2001] I.E.S.C. 4, Denham J., speaking for the Supreme Court, identified matters which the Court

might take into account in deciding whether or not to allow judicial review. She said:-

“…the court may take into account factors such as: (i) the nature of the order or actions the subject of the application;

(ii) the conduct of the applicant; (iii) the conduct of the respondents; (iv) the effect of the order under review on the

parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed;

(v) any effect which may have taken place on third parties by the order to be reviewed; (vi) public policy that

proceedings relating to the public law domain take place promptly except when good reason is furnished. Such list is not

exclusive. It is clear from precedent that the discretion of the court has ever been to protect justice.”

A decision of Barron J. in McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 is also on point:-

“The true question is which is the more appropriate remedy considered in the context of common sense, the ability to

deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far

down one road to be estopped from changing his or her mind.”

In the present litigation, no better case can be made in favour of the appeal process than that which is articulated in the passage

from the affidavit sworn on behalf of Ryanair that I have already quoted.

In the light of those sworn statements made on behalf of Ryanair it would be wholly inappropriate for this Court to exercise its

discretion in favour of permitting leave to apply for judicial review.

Even if I were satisfied (and I am not) that substantial grounds were made out, I would refuse leave as a matter of discretion.

In these circumstances, the application for leave to apply for judicial review is refused.

Misconduct

In view of the conclusion which I have reached, it is not necessary for me to reach a decision on whether the conduct of Ryanair is

of a type that would warrant a refusal of leave as a matter of discretion.

It has to be recorded, however, that the factual misstatements in affidavits put before the Court on its behalf misled the Court in a

material way. Its chief executive in his letter of 25th February, 2010, to the Minister seriously misrepresented the position of the

court. A later letter from Mr. Komorek of 12th March, 2010 was to like effect. There are grave matters and fall far below the

standards that the Court is entitled to expect.

Earlier in this judgment, I set out the exchanges between Ryanair and the Minister and identified various misrepresentations of the

Minister’s position which occurred. Whilst that is not perhaps of direct relevance, I was invited to regard it as part of the alleged

“ingrained culture of disrespect for process”, including the court process, which appears to prevail in Ryanair.

Having had to consider Ryanair’s untruths to the Court, its untruths about the Court and its untruths about the Minister, one has to

conclude that the truth and Ryanair are uncomfortable bedfellows.

Result

The application is dismissed.