Supreme Court allows appeal against disclosure order but dismisses appeal regarding joinder of third party.

THE SUPREME COURT

[Appeal Nos: 139/2011,

288/2011, 290/2011

and 320/2011]

Hardiman J.

O'Donnell J.

Clarke J.

Between/

Ryanair Limited

Plaintiff

and

Unister GmbH, (by Order of the High Court) Aeruni GmbH and (by Order of the High Court) Ypsilon.net AG

Defendants

Judgment of Mr. Justice Clarke delivered the 13th of March, 2013.

1. Introduction

1.1 Perhaps one of the most basic questions which may arise in any set of court proceedings is as to whether the court even has

jurisdiction to deal with the case. There has been a significant amount of harmonisation at the European level of the rules which

determine the country whose courts are to have jurisdiction over transnational proceedings. Where disputes arise as to whether a

court, in which proceedings have been commenced, has jurisdiction in accordance with those European rules, the court must, of

course, try and come to an early decision as to whether it, in fact, has jurisdiction. There remain, however, questions as to what

measures can be put in place to assist the court in deciding whether it has jurisdiction and also as to the extent to which the court,

unless and until it has decided whether it has jurisdiction, can deal with the case other than for the purposes of resolving the

jurisdiction issue. Those questions are at the heart of the issues which this Court has now to decide.

1.2 Price comparison websites have become a regular feature of modern life. While the precise model utilised may vary, in general

terms such sites allow a potential customer to compare the price of various competing goods or services and, importantly, typically

permit the customer to purchase a selected product. The range of products covered by such websites is wide. However, airline

services represent one sector of the market. Some suppliers of goods and services are not happy that their offerings are included in

the information made available through comparison websites. There have been allegations that the activities of the websites in

question are unlawful for a range of reasons. This in turn has spawned litigation in many jurisdictions.

1.3 The plaintiffs ("Ryanair") are amongst those companies who have opposed the actions of websites of the type described. Ryanair

has been involved in litigation in a number of jurisdictions in that context. The first defendant ("Unister") describes its business as "an

online travel agent" involved in "the provision of an online and Internet-portal, offering users the possibility to make their own online

bookings for flights, holidays and hotels". In these proceedings generally Ryanair alleges that the actions of Unister are unlawful in a

number of respects. That allegation is strongly denied by Unister which contends that its business is entirely legitimate.

1.4 This Court is not currently concerned with the rights and wrongs of those competing positions. Rather this Court is concerned, as

has been pointed out, with questions which have arisen in the context of a challenge to jurisdiction. Unister brought an application

before the High Court seeking to have these proceedings struck out on the grounds that it was said that the courts of Ireland had no

jurisdiction to hear the case. In that context it should be noted that Ryanair had, as a justification for bringing the proceedings in

Ireland, placed reliance on, amongst other things, what was said to be a contractual agreement providing for a choice of jurisdiction

in favour of the courts of Ireland. In denying that any sufficient agreement existed Unister filed affidavit evidence which asserted that

it used an unnamed (or perhaps more than one unnamed) third party provider(s) to facilitate its business so that, it was argued, in all

the circumstances Unister had no direct contractual relations with Ryanair leading in turn to the contention that there could have

been no binding choice of jurisdiction agreement or consensus reached between Unister and Ryanair.

1.5 In response Ryanair brought an application, to which more detailed reference will be made in due course, seeking disclosure of the

identity of the unnamed third party provider(s) to which reference had been made and further seeking an order joining any such

unnamed party or parties as co-defendant(s) to these proceedings as soon as its identity had been disclosed. The order for disclosure

sought by Ryanair was made by the High Court (Gilligan J.) on the 22nd March, 2011. The court then adjourned the question of

whether to make the further order joining a co-defendant or co-defendants. While Gilligan J. had declined to place a stay on the order

for disclosure this Court did initially put in place such a stay, on a temporary basis, on the 1st April which stay was continued to the

trial of the appeal when the matter was fully considered on the 15th April. On that latter day, the order for disclosure having been

stayed, the matter came back before Gilligan J. In the run up to the hearing in the High Court, as a result of proceedings in Germany

to which it will be necessary to briefly refer in due course, Ryanair had already become aware of the identity of one service provider

being the third named defendant ("Ypsilon"). Gilligan J. made an order joining Ypsilon on the 15th April.

1.6 Against that complicated procedural background there are a number of appeals before this Court but, at this stage, only two

require to be immediately determined. The first is the appeal of Unister against the disclosure order. The second is an appeal by

Unister against the joining of Ypsilon. The other appeals relate to consequential matters and have been deferred until such time as

the two substantive issues have been determined.

1.7 As already noted that procedural history, even in the brief description which I have given, is complex and in order to fully

understand the issues which this Court now has to decide it is, perhaps, appropriate to start with a more detailed description of that

procedural history.

2. The Procedural History

2.1 Ryanair issued its proceedings against Unister on the 14th August, 2009. Unister entered a conditional appearance on the 24th

September which was stated to be without prejudice and solely "to contest the jurisdiction of the court". Thereafter Unister issued a

motion, returnable for the 22nd February, 2010, which sought that the proceedings be struck out "on the basis that this Honourable

Court has no jurisdiction to hear the proceedings by virtue of the provisions of Regulation (EC) No. 44/2001 of 22 December 2000 on

Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters and in particular by virtue of Article 2(1) of that Regulation

…". Regulation 44/2001 is frequently referred to as the Brussels Regulation and follows on from the Brussels Convention. Under the

Brussels Regulation, of course, the default position is that any party is to be sued in the place where it is domiciled. In its application

contesting jurisdiction Unister asserted (and it has not been disputed) that its domicile is in Germany. It followed that it was

necessary for Ryanair to assert and establish that one or more of the special jurisdictions, which are permitted to displace the default

jurisdiction of Germany, was in place.

2.2 In that context it is important to note that, recognising such domicile, Ryanair had endorsed its plenary summons with a

statement that the Irish courts had power under the Brussels Regulation to hear and determine Ryanair's claim by virtue of the

provisions of Article 5(1) and/or Article 5(3) and/or Article 23(1) of the Regulation. In the grounding affidavit for its motion contesting

jurisdiction filed on behalf of Unister, and sworn by a Mirko Richter, it was, amongst other things, asserted that there was no

agreement as to jurisdiction or, indeed, any other agreement made at any time between Ryanair and Unister such that, it was argued,

there could be no jurisdiction conferred on the courts of Ireland, under Article 23 of the Brussels Regulation, by virtue of a choice of

jurisdiction clause. In its replying affidavit, sworn by a Juliusz Komorek, Ryanair drew attention to clause 7 of the terms of use which

appear on its website which assert that it is a condition precedent to the use of the website, including access to information relating

to flights and costs, that a party so using submit to the sole and exclusive jurisdiction of the courts of the "Republic of Ireland".

Ryanair asserted that Unister had, necessarily, used its website and, thus, must be taken to have agreed to the choice of jurisdiction

clause in favour of the courts of Ireland. It should also be noted that Ryanair sought in addition, in that affidavit, to assert that the

special jurisdiction arising in respect of claims of tort or breach of contract, under various provisions of Article 5 of the Brussels

Regulation, conferred a jurisdiction on the courts of Ireland. Various further affidavits were filed by the parties but in an affidavit of

the 14th June, 2010, again sworn on behalf Unister by Mr. Richter, it was asserted that the methodology used by Unister in its

business involved the use of a "third party provider" who was unnamed but whose software, it was said, facilitated a customer of

Unister ultimately engaging with the Ryanair website so as to make a booking. On the basis of that evidence it was asserted on behalf

of Unister that it had no contractual relations with Ryanair nor could, it was said, it be suggested that any consensus between

Ryanair and Unister existed such as would bind Unister to the choice of jurisdiction clause to which reference has been made.

2.3 It was against the background of those averments that Ryanair brought its motion, returnable for the 11th October, 2010, in

which it sought an order which would have required Unister to disclose the identity of and various details concerning the "third party

provider" referred to in Mr. Richter's affidavit together with an order, under the provisions of O.15, r.13 of the Rules of the Superior

Courts, joining such "third party provider", once identified, as a defendant in these proceedings. As pointed out earlier an order

requiring disclosure of the identity of the third party provider was made. The reasons for making that order are set out in a judgment

of Gilligan J. of the 22nd March, 2011 (Ryanair v. Unister & anor [2011] IEHC 167). It will be necessary, in due course, to analyse the

evidence put before the court by Ryanair in support of that application, the arguments made and the reasoning of the trial judge

which led to the making of the order concerned.

2.4 As already pointed out, however, in the lead up to that hearing, Ryanair became aware, as a result of proceedings brought

against it by Unister in Germany, that Ypsilon was either the service provider referred to in Mr. Richter's affidavit or alternatively one

of a number of such service providers.

2.5 While the question of joining any such service providers as a co-defendant was left over by Gilligan J. when he made his order

requiring disclosure it became clear, as a result of a stay being placed by this Court on the disclosure order, that there would be no

disclosure until this appeal was resolved. In those circumstances, and in light of the fact that the identity of at least one such

service provider, being Ypsilon, had been disclosed through other means, an order joining Ypsilon as a co-defendant was sought and

made. Against the background of that procedural history it is next necessary to turn to the evidence and argument before the High

Court.

3. The Case before the High Court

3.1 As previously noted the genesis of the issue with which this judgment is concerned was the assertion, on behalf of Unister, that it

employed a third party provider whose services were such that it was said that there were no contractual relations or any other form

of sufficient consensus between Unister and Ryanair such as would bind Unister to the choice of jurisdiction clause to be found on

Ryanair's website.

3.2 For reasons which I hope will be come apparent it is of some relevance to the issues which arise on this appeal to identify the

precise basis on which Ryanair asserted that it was entitled to an order requiring disclosure of the identity of the relevant third party

provider(s) and a further order joining any such party once its identity had been disclosed. The grounding affidavit for Ryanair's

motion was again one sworn by Mr. Komorek. Having set out some general background facts together with the history of the

proceedings up to that point in time, Mr. Komorek made specific reference to the position adopted by Unister on its jurisdiction motion

being that it is not Unister but rather the third party provider (or, perhaps, it might be said, the ultimate customer) which accesses

Ryanair's website. Reference is then made to correspondence which passed between the parties in which Ryanair sought but was

refused disclosure of the identity and contact details of the third party provider to whom reference has been made. Mr. Komorek then

went on, at para. 26 of his affidavit, to assert that it was not appropriate for Unister to make what he described as a bald averment

about a third party without providing details. In the following paragraph Mr. Komorek suggests that the manner of interaction with its

website was a fundamental issue in the proceedings which, it was asserted, could not be resolved without information about Unister's

claim of third party involvement.

3.3 On that basis it was suggested that fair procedures and natural justice entitled Ryanair to the disclosure order sought.

3.4 So far as the joinder of that party is concerned it was asserted that, if the matters put forward on behalf of Unister were true,

then Ryanair would have a claim against the relevant third party or third parties. It was also suggested that Ryanair believed, from

previous proceedings, that it might be that any such third party was not an arms length third party but rather might be closely

connected to Unister.

3.5 A replying affidavit was filed on behalf of Unister, sworn by a Clodagh Harvey, solicitor, which suggested that orders of the type

sought could only be granted by the courts of Germany for the same jurisdictional reasons that had already been relied on by Unister

in its motion contesting jurisdiction. A further affidavit was filed on behalf of Ryanair, sworn by a Jenny Lynch, solicitor, which made

reference to the German proceedings between the parties which involved an application for an injunction by Unister against Ryanair

sought and granted by the Regional Court of Frankfurt on the 24th September, 2009. Reference was made to the fact that, in the

course of those proceedings, Unister disclosed the identity of Ypsilon in the following terms:- "It (Unister) uses the interfaces of

numerous data suppliers and booking agents, such as Ypsilon.net AG, which in turn worked together with airlines…"

3.6 It was on the basis of that evidence, together with the affidavits which had earlier been filed in the context of Unister's

application relating to jurisdiction, that the trial judge came to consider whether to grant Ryanair's application. It is, in my view,

important to emphasise that there was little or no reference in the affidavits put before the court on behalf of Ryanair of the need to

have information relevant to the jurisdiction issue but rather the information was said to be relevant to the proceedings in a more

general way. Against that background it is next necessary to turn to the High Court judgment.

4. The High Court Judgment

4.1 The trial judge, at para. 14 of his judgment, identified the essence of Ryanair's claim as being one in which it sought disclosure so

as to enable the "third party provider" to be joined in these proceedings. In addition it is noted, at para. 15, that Ryanair contended

that, if the third party provider was innocent, an order of disclosure could be made on the authority of EMI Records v. Eircom [2005]

4 I.R. at p.148.

4.2 The trial judge went on to note the argument put forward on behalf of Unister which asserted that the Irish courts did not have

jurisdiction to entertain the proceedings and that orders of the type made in EMI (often referred to as Norwich Pharmacal orders

following Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133) should only be made as final relief in

proceedings rather than at an interlocutory stage. On that basis it was, the trial judge noted, suggested that such orders should not

be made in cases where jurisdiction is contested at least until the court had satisfied itself that it in fact had jurisdiction.

4.3 The essence of the determination of the trial judge can be found in the following passage from his judgment:-

"34. The rights and entitlements of the respective parties have to be balanced and, in my view, the overriding

feature of this case is that there is a prima facie demonstration of a wrongful activity in the use of the plaintiff’s

websites. The first named defendant is attempting to hide behind the activities of a service provider who actually

accesses the plaintiff’s website and delivers the information back to the first named defendant. The very fact of

the first named defendant’s claim that it does not actually access the plaintiff’s website is also a feature in respect

of the jurisdictional issue.

35. I am satisfied that the plaintiff makes out a case for the making of the order which is sought. The reality of

the situation is that the first named defendant for its own purpose was prepared to disclose the factual

background identifying the particular service provider in the German proceedings as set out in court

documentation. Accordingly, it is apparent that the first named defendant was prepared to reveal the identity of

the service provider website for its own purpose in the German proceedings but not prepared to reveal the

identity of that entity for the purpose of these proceedings and, in my view, that situation has the potential to

create an injustice.

36. Accordingly, I grant the application as brought by the plaintiff for a direction that the first named defendant

discloses the name, personal and/or business registered address and/or place of business, email address,

telephone number, fax number and such other points of contact of the third party provider referred to throughout

the affidavit of Mirko Richter, sworn on the 14th June, 2010."

It is against that order and judgment that Unister appeals to this Court. It is next necessary to turn to the argument on the appeal.

5. The Argument on the Appeal

5.1 In the way that the appeal developed both by virtue of the written submissions filed by the parties and the oral argument before

the court, it became clear that two sets of issues divided the parties on the disclosure issue.

5.2 First, there was the question of the jurisdiction, if any, to make an order of the type sought particularly in the context of

proceedings in respect of which there was an active, and as yet unresolved, jurisdictional issue under the Brussels Regulation.

Second, in the event that there was jurisdiction, it was said that it was wrongly exercised on the facts of this case.

5.3 Somewhat separate issues arose in respect of the joinder of Ypsilon. However, in one sense the same central point, in a different

form, again divided the parties with it being asserted on behalf of Unister that it was inappropriate to join a co-defendant to

proceedings while a jurisdictional issue remained outstanding.

5.4 From that analysis it is clear that a central issue between the parties, in respect of both orders, concerned the status of

proceedings which have been commenced in Ireland but in respect of which there remains an outstanding issue, raised by the

defendant, as to the jurisdiction of the Irish courts to entertain the proceedings under the Brussels Regulation. I therefore turn to

that issue.

6. The Status of proceedings subject to Jurisdictional Challenge

6.1 It is important to start by noting the overall structure of the Brussels Regulation insofar as it relates to the process by which

jurisdiction is to be determined. Where proceedings are first commenced in a particular Member State and where the defendant

asserts that the courts of that Member State do not have jurisdiction under the Brussels Regulation then it for the courts of the

jurisdiction in question to determine whether jurisdiction does in fact exist. Pending any determination on such a question by the

courts first seised, the courts of any other jurisdiction are precluded from continuing with any proceedings involving the same cause

of action and are required to stay any proceedings brought pending a decision by the courts of the jurisdiction first seised as to

whether those courts have jurisdiction (Article 27).

6.2 It seems to me to follow that courts faced with a challenge to their jurisdiction under the Brussels Regulation are required to

determine the question of their jurisdiction as quickly as possible, for not only are the proceedings in those courts potentially held up

pending a resolution of the jurisdiction question, but also proceedings, either contemplated or later proceedings actually in being, in

other jurisdictions are prevented from progressing. Thus, in a case where the court first seised finds that it does not have jurisdiction,

a court which will thereby ultimately transpire to be the proper court in which the proceedings are to be determined will have been

delayed in being able to progress the proceedings for as long as it takes the court first seised to determine jurisdiction. It clearly

follows that the period taken to determine jurisdiction should be as short as practicable consistent with allowing for a proper

examination of the issues which arise in relation to jurisdiction and a just determination of those issues. On that basis the question of

jurisdiction ought be the first item on the agenda.

6.3 However, that is not to say that the court whose jurisdiction is questioned may not, properly, make some orders prior to

determining the question of jurisdiction. First, it needs to be noted that, under Article 31 of the Brussels Regulation, the courts of any

jurisdiction are entitled to make orders for provisional (including protective) measures, available under its own law, which are to have

effect until such time as the proceedings have been determined in the courts of the Member State which has jurisdiction. Such orders

are intended to preserve a factual or legal situation so as to safeguard rights sought to be substantively vindicated in the Court

having jurisdiction (see e.g. Reichert and Kockler (1992) ECR I-2149). Given that such orders can be made by the courts of a state

which undoubtedly does not have jurisdiction to determine the substantive issues in the case then it clearly follows that the courts of

a Member State which might have jurisdiction (but where that jurisdiction is questioned) have at least a similar entitlement to make

orders of the type contemplated by Article 31.

6.4 In addition it seems to me that the obligation on the Court whose jurisdiction is questioned to examine the jurisdictional issue

necessarily carries with it an entitlement on the part of that court to make procedural orders which are reasonably necessary to

enable that court to determine the jurisdiction issue in a proper manner. It follows that there must be a jurisdiction to make orders in

aid of the resolution of the jurisdictional question.

6.5 The precise extent to which it may be appropriate for a court whose jurisdiction is questioned (and before the jurisdictional issue

is resolved) to go beyond making orders of the type contemplated by Article 31 and orders in aid of the resolution of the jurisdictional

issue, is a question which I would leave, so far as its detail is concerned, to other cases in which specific orders are sought prior to a

determination of whether the courts in Ireland actually have jurisdiction under the Brussels Regulation. However, one general

observation may be appropriate. The Brussels Regulation is intended to provide a definitive guide to the question of jurisdiction. It

follows that the ordinary progress of litigation is intended to be governed by the procedural law of the Member State on which

jurisdiction is conferred by the Brussels Regulation. It seems to me to follow that a court whose jurisdiction is questioned under the

Brussels Regulation ought to be slow (pending making a decision on its own jurisdiction) to make orders which could have a material

effect on the process to be followed in the substantive proceedings, for by so doing such courts run the risk of interfering with the

jurisdiction of a court which may ultimately be found to be the court having jurisdiction to determine the process leading to a final

resolution of the proceedings. That is not to say that there may not be circumstances where some form of interlocutory order beyond

those already identified (being those contemplated by Article 31 and those in aid of resolving the jurisdictional issue itself) may not be

appropriate. However, there would need to be a significant countervailing factor to justify such intervention by a court which may not

ultimately transpire to have jurisdiction over the proceedings at all.

6.6 In that context it is important to recall that the procedures followed in the courts of the respective Member States differ

significantly. The overall procedure for the conduct of litigation is, doubtless, seen as providing, in each Member State, a fair and just

means of reaching a determination on the merits of the case. However cherry picking parts of the procedure applicable in one country

and inserting such a procedure into litigation being conducted in accordance with the (often quite different) procedural law of another

Member State has the potential to create both unfairness and unnecessary procedural complexity. Such unfairness and/or procedural

complexity is risked if, pending a resolution of a jurisdictional issue, the courts of the Member State whose jurisdiction is challenged

made significant procedural orders (consistent with their own procedures) which might have no direct counterpart in a Member State

where the proceedings may ultimately come to be heard (in the event that the procedural challenge is successful).

6.7 It is for those reasons that it is important to attempt to characterise the disclosure application brought by Ryanair in these

proceedings. If that application is properly characterised as an application designed to assist in determining the question of

jurisdiction then it is, at least at the level of principle, an application which should be dealt with on its merits. The disclosure would,

however, have to be directly concerned with facts which might be relevant to the question of jurisdiction rather than anything else.

6.8 On the other hand, if it is appropriate to characterise Ryanair's application as one designed to assist it in the proceedings

generally (and if it is not an application of the type contemplated by Article 31 of the Brussels Regulation) then, for the reasons

already analysed, the Irish courts should be slow to make the order sought, for in so doing the Irish courts would be running the risk

of inappropriately trespassing on the proper jurisdiction of the courts of Germany by reference to whose procedural law it may

ultimately be determined that these proceedings should be conducted. In such a case an order of the type sought could only be made

if there was some significant countervailing factor to justify making the order.

6.9 Against the background of those general observations it is next necessary to turn to the specific issues which arise. I propose to

turn first to the disclosure application. As pointed out such an order should, in the absence of special circumstances, only be made if

it can be seen either to be in aid of a fair resolution of the jurisdiction issue or to be of the type contemplated by Article 31 of the

Brussels Regulation. So far as the argument before this Court was concerned counsel for Ryanair sought to characterise the disclosure

order as one which was sought in aid of the jurisdictional issue and would, therefore, be of assistance in the provision of information

which might be significantly material to a resolution of that issue. It is against that background that the question of the proper

characterisation of Ryanair's application to the High Court arises.

7. How should Ryanair's Application be characterised?

7.1 I have already indicated the broad content of the affidavit evidence placed before the High Court by Ryanair. I think it is fair to

say that a reading of Ryanair's affidavits suggests that the principal concern which Ryanair had was to come to know the identity of

the third party providers so that they could be joined in the proceedings or, at a minimum, inquiries made of them which might be of

assistance in the pursuing the proceedings generally. There is little in the case made on affidavit by Ryanair which would justify

characterising Ryanair's application as one which was brought in aid of the proper determination of the jurisdiction issue.

7.2 Likewise, it seems clear that the case made orally by Ryanair before the High Court did not focus on the need for a disclosure of

the identity of any third party providers beyond Ypsilon (it being recalled that the identity of Ypsilon had emerged from the German

proceedings before the application in the High Court had been completed) on the basis that such disclosure was necessary to enable

a proper determination of the jurisdiction issue. There is no mention of the disclosure as being required in aid of a just determination

of the jurisdiction issue to be found in the judgment of the trial judge.

7.3 In argument before this Court counsel for Ryanair sought, as has been pointed out, to suggest that disclosure of the identity of

any additional third party providers might have a bearing on the jurisdictional issue in one or more of the following four ways:-

(a) It is said that Ryanair has knowledge of the types of software typically used by various service providers. On

that basis it was suggested that a knowledge of the identity of any relevant service provider would enable Ryanair

to put forward evidence from which the Court might infer that a particular software was that which was actually

used and, in turn, thereby allow Ryanair to progress its argument as to the application of its choice of jurisdiction

clause;

(b) it is said that the disclosure of the identity of other third party providers might disclose that such providers

were not true arms length independent contractors but rather were commercial entities closely associated with

Unister;

(c) it is said that it is possible that an identified third party provider might be an Irish domiciled company such that

the default jurisdiction so far as that company was concerned would be Ireland such that the existence of such an

Irish domiciled company might, thereby, justify proceedings against both that company and Unister being maintained

in Ireland; and

(d) It is said that the identification of a relevant third party provider might allow Ryanair to conduct inquiries with

such third party provider. In turn it is said that such inquiries might lead to information which could be of some

relevance to the jurisdiction issue. It is said that if the third party provider was a non-Irish company it might

contest jurisdiction, if it was joined as a co-defendant, and that information relevant to the jurisdiction issue so far

as Unister was concerned might emerge in the context of such a challenge to jurisdiction.

7.4 However, it seems to me that many of those points were not made at all in the case which Ryanair put forward to the High Court

and even those which were touched on were addressed in only a tangential way and not in a manner which suggested that the

primary purpose of Ryanair's application was to obtain information which might be of assistance in resolving the jurisdictional question.

The point about the possibility of a third party provider not being an arm's length independent contractor was touched on but not in

the context of any possible direct relevance to the jurisdiction issue. None of the other issues were really touched on at all. Many of

them can, in my view, be described as speculative in the extreme.

7.5 If Ryanair's purpose in seeking disclosure were truly to assist on the jurisdictional issue rather than to obtain information which

might generally be useful to it in its overall battle with the so-called screen scrapers (whether in these proceedings or otherwise)

then it is highly surprising that the disclosure application was confined to the identity and contact details of the relevant providers. It

is only in the most tangential way that identity alone would help in resolving the jurisdiction issue. I say that for a number of reasons.

7.6 First, it must be recalled that the choice of jurisdiction clause is but one of the bases on which Ryanair asserts that Ireland has

jurisdiction. It is at least possible that the Court will not come to consider the choice of jurisdiction clause at all for if Ryanair is right

on any of its other suggested bases for Irish jurisdiction then it will be unnecessary to consider the applicability of the choice of

jurisdiction clause.

7.7 Second, and perhaps more importantly, the true issue on the choice of jurisdiction clause is as to whether there can be said to be

established a sufficient consensus between the parties such as to render the choice of jurisdiction clause applicable for the purposes

of the Brussels Regulation. Knowing the identity of a third party provider (as opposed to knowing the type of technology actually

used) would add very little to that picture. If Ryanair had truly been interested in discovering information which was principally

relevant for the purposes of advancing the jurisdiction issue then it seems to me to be inconceivable that its request for disclosure

would have been directed solely towards the identity of parties rather than the key question of how the relevant software works.

7.8 On that basis it seems to me that all of the indicators lead solely to the conclusion that the proper characterisation of the

application brought by Ryanair before the High Court was one whose purpose was, to put it at its best from Ryanair’s perspective,

only marginally connected with the jurisdiction question.

7.9 Having reached that conclusion it might not, strictly speaking on at least one view, be necessary to consider the sort of

information which could reasonably be said to be relevant to a jurisdictional issue of the type which arises in these proceedings.

However, as there was a significant debate between the parties as to the scope of the inquiry which properly arises on a jurisdictional

issue of the type raised and as that issue remains alive in these proceedings I should deal, at least in general terms, with some of the

issues debated between the parties under that heading.

8. Jurisdiction - The Scope of the Enquiry

8.1 In that context Unister drew attention to the decision of the ECJ in Soc. Trasporti Castelletti Spedizioni Internazionali SA v. Hugo

Trumpy SpA (1999) ECR 1/597 where the following is stated:-

"As the Court has repeatedly stated, it is in keeping with the spirit of certainty, which constitutes one of the aims

of the Convention, that the national court seised should be able readily to decide whether it has jurisdiction on the

basis of the rules of the Convention, without having to consider the substance of the case"

On that basis it is argued that the Court should decline jurisdiction unless it is possible to "readily decide" in favour of an exception to

the default rule of jurisdiction following domicile.

8.2 I am not sure that a fair reading of Hugo Trumpy and the other cases cited on behalf of Unister go that far. What the ECJ was

concerned with in those cases was a problem which emerged in the early years of the Convention concerning choice of jurisdiction

clauses which were to be found in contracts where one of the parties asserted that the relevant contract was invalid in accordance

with the laws of the Member State applicable to the contractual relations in question. The issue then arose as to how jurisdiction

under the Convention was to be determined for, on one view, it might have been necessary to decide whether the contract was valid

(and thus decide much of the substance of the case) before being able to decide whether the choice of jurisdiction clause applied.

However, such a course of action would almost certainly defeat the purpose of the Convention for the case would have to be tried

to, or almost to, a conclusion before it could be decided whether the Court embarking on that course of action actually had

jurisdiction in the first place.

8.3 The point that was being made in Hugo Trumpy was that the Convention provided an autonomous regime for determining

jurisdiction which was not dependent on the, doubtless, differing laws of Member States as to the validity of contracts. Therefore,

the question which the court considering jurisdiction has to address is as to whether the requirements of the Convention (or now the

Regulation) are met being, in a case where a choice of jurisdiction clause is involved, whether there has been a sufficient consensus

between the parties so as to meet the requirements of Article 23 of the Regulation. That question is not dependant on whether any

underlying contract is valid in accordance with the proper law of the contract concerned.

8.4 In response Ryanair placed reliance on Effer v. Kanter (Case 38/81) where the ECJ said the following:-

"It follows from the provisions of the Convention, and in particular from those in s.7 of Title II, that, in the cases

provided for in Article 5(1) of the Convention, the national courts jurisdiction to determine questions relating to

contract includes the power to consider the existence of the constituent parts of the contract itself, since that is

indispensable in order to enable the national court in which proceedings are brought to examine whether it has

jurisdiction under the Convention".

8.5 On that basis it is suggested that there is an obligation on the courts of a Member State whose jurisdiction is invoked but

challenged to enter into a sufficient inquiry to determine whether it truly has jurisdiction under the provisions of the Regulation.

8.6 As this Court is not currently called on to reach a view as to jurisdiction it is only necessary to indicate that it seems clear on the

authorities that a court which is called on to consider whether it has jurisdiction will be required, at least in some cases, to determine

questions of fact which may be material to the very question of jurisdiction even though some of the same questions of fact may also

be material to the substantive issues which arise in the proceedings generally. To take but a simple example there might be a written

document, purporting to be a contract between the parties, which contains a clear choice of jurisdiction clause which purported to

confer jurisdiction on the courts of a member state other that those of the domicile of the defendant. However, the defendant might

claim that its signature on the document was a forgery and that no agreement of any sort was ever entered into between the

parties. In order to determine whether it had jurisdiction the courts of the Member States specified in the relevant choice of

jurisdiction clause would need to determine, as a matter of fact, whether the defendant's contention that its signature was a forgery

was correct for if that contention were true, and in the absence of any other facts which might allow for a finding that the parties

had agreed a jurisdiction to determine disputes between them, then the court would clearly have no jurisdiction.

8.7 Likewise the guidance given by the ECJ in a number of the cases makes clear that inquiries into the facts may be necessary, at

least in some cases, in order to decide jurisdiction. For example, some of the cases arise out of the provisions of the Regulation in its

amended form which allow a choice of jurisdiction agreement to derive from a relevant usage in international trade or commerce of

which the parties are or ought to have been aware and which is widely followed in the commercial area concerned (see Article 17(c)).

In Hugo Trumpy the court determined that awareness of the relevant usage was to be assessed with respect to the original parties

to the agreement allegedly conferring jurisdiction and in the light of whether a particular course of conduct is generally and regularly

followed in the conclusion of the particular type of contract in question. The ECJ, therefore, clearly contemplated that a court would

have to assess whether that test was met on the facts which assessment might well, at least in some cases, involve a consideration

of conflicting evidence.

8.8 There may be some doubt as to the precise extent to which it is appropriate for a court, in considering whether it has jurisdiction,

to enter into detailed and contested factual questions in order to reach a conclusion as to whether jurisdiction has been established.

However, it seems to me that the position adopted on behalf of Unister, which is to the effect that if the matter is not very clear the

default jurisdiction applies, is not consistent with the jurisprudence of the ECJ. It follows that there may well be cases where an Irish

court will be required to enter into some consideration of contested facts in order to determine whether, in accordance with the

Regulation, it has jurisdiction. It seems to me to follow that an Irish court, in aid of such an inquiry, has jurisdiction to make any

procedural orders which exist in the Irish legal regime and which may be considered to be of assistance in addressing such questions.

However, it is important to identify that the availability of such measures (which could, in an appropriate case, include interrogatories

or discovery orders or any other form of disclosure order in respect of which the Irish courts have jurisdiction) must be directed

towards assisting in the resolution of the jurisdiction issue and must, therefore, relate to matters which could be said to be important

for the resolution of the inquiry which the court is required under the Regulation to conduct as to whether it has jurisdiction.

8.9 In those circumstances it is next necessary to address the jurisdiction to make a disclosure order of the type which is at the

heart of this appeal as an aid to the proper determination of a jurisdiction issue. That, in turn, raises first the question of the

underlying jurisdiction to direct disclosure.

9 The Underlying Jurisdiction to direct Disclosure

9.1 Ryanair asserted that EMI Records is authority for the proposition that a disclosure order of the type sought can be made. That

much does seem to be clear. There was a dispute between the parties as to whether the so-called Norwich Pharmacal order made by

Kelly J. in EMI Records is the kind of order which can only be made as part of the substantive relief granted at the end of a case or

whether it can be made at an interlocutory stage. Ryanair suggested that there is authority for the proposition that Norwich

Pharmacal type orders can, in certain circumstances, be made at an interlocutory stage relying on cases such as Societe Romanaise

de Al Chaussure S.A. v. British Shoe Corporation Limited [1991] S.S.R. 1.

9.2 The parties were also in disagreement as to the circumstances in which it might be appropriate for a court to order disclosure of

the identity of a party by reference to whether that party might be innocently involved in the wrongdoing of others or be itself guilty

of wrongdoing. It is true that in EMI Records the disclosure order was made against Eircom who was an innocent party but who had in

its possession information about the identity of other parties who might have been engaged in wrongdoing.

9.3 It does not seem to me to be necessary to reach a definitive conclusion on whether, and if so in what circumstances and by

reference to the innocence or otherwise of the parties against whom disclosure is sought to be directed or whose identity is sought

to be disclosed, it may be appropriate to make such an order at an interlocutory stage. If the purpose of seeking disclosure was truly

in aid of a proper resolution of the jurisdiction issue then those questions would come into full focus. For the reasons already analysed

I am satisfied that an Irish court can deploy any procedural measures otherwise available as an aid to the proper resolution of such

jurisdictional questions. The precise parameters of disclosure orders which can be made may have to be decided in the context of a

case where it can properly be said that the disclosure sought would have the potential to have a material bearing on a jurisdictional

issue under consideration and where it was clear that the purpose of seeking the disclosure in question was for the purpose of

assisting in the resolution of that jurisdictional issue.

9.4 However, for the reasons already analysed I am not satisfied that the primary, or even a significant, purpose of the disclosure

application brought in this case was in aid of a resolution of the jurisdiction issue. I am prepared to accept, for the purposes of the

argument and without so deciding, that the Irish courts may have a general jurisdiction, at an interlocutory stage and in

circumstances such as that which would pertain to a third party provider in a case such as this, to make a disclosure order

concerning the identity of such third party provider. However, where, as here, there is a jurisdictional challenge pending determination

under the Brussels Regulation, it seems to me that such a disclosure order could only be made if it was seen to be in aid of the proper

resolution of the jurisdiction issue or was of the type of order contemplated by Article 31 of the Brussels Regulation. Ordering

disclosure in any other circumstances (save perhaps in unusual circumstances not here present) would have the potential to interfere

with the proper progress of the litigation where it may be determined that such litigation should not progress in the courts of Ireland

and in accordance with Irish procedural law but rather may have to progress, if at all, in the courts of Germany and in accordance

with German procedural law.

9.5 Having concluded that the application was not truly in aid of, or designed to assist, in the resolution of the jurisdictional question

it remains necessary to consider whether the disclosure application might be authorised by Article 31.

10 Could the Order be made under Article 31?

10.1 It does not seem to me that the disclosure order sought could be said to fall within the type of order contemplated by Article 31.

In that context it is appropriate to refer to St. Paul's Dairy Industries NV v. Unibel Exser BVBA (Case C-104/03). Under Dutch

procedural law it is possible, before issuing proceedings, to obtain from a Dutch court orders which allow for material evidence to be

taken from witnesses shortly after the facts in dispute have occurred so as to prevent evidence being lost but also for the purposes

of assisting parties in deciding whether they wish to commence proceedings.

10.2 In St. Paul's Dairy it was common case that the courts of Belgium had jurisdiction over the substantive proceedings but the

question which arose was as to whether evidence gathering procedures such as were available in the Netherlands could be invoked as

coming within Art.24 of the Brussels Convention (which was the precursor of Article 31 of the Brussels Regulation). The ECJ held that

it could not.

10.3 The ECJ concluded, at para.24 of its judgment, that a measure, the aim of which was to allow the applicant to assess the

chances or risks of proceedings, could not be regarded as a provisional or protective measure within the meaning of Article 24 of the

Convention. By a parity of reasoning it seems to follow that a measure designed to disclose the identity of persons who might be sued

cannot be regarded as the type of measure which comes within Article 31 of the Brussels Regulation. In the light of the various

conclusions already reached it is necessary to take an overview of the disclosure issue.

11. The Disclosure Issue - An Overview

11.1 In all those circumstances it seems to me to follow that the application brought by Ryanair for disclosure in this case was

neither, in truth, an application in aid of the resolution of the jurisdiction issue nor an application which comes within the scope of

Article 31 of the Brussels Regulation. In those circumstances it seems to me that the Irish courts should not entertain such an

application while the jurisdiction of the Irish courts is under challenge in the absence of very significant countervailing factors. I find

no such factors to be present in the instant case.

11.2 On that basis I am satisfied that the High Court was incorrect to allow Ryanair's application for disclosure. Rather the High Court

should, as soon as practicable, proceed to determine the question of jurisdiction. If the High Court determines that the courts of

Ireland have jurisdiction then it will, of course, be open to the trial judge to consider what further procedural orders (including, if

there be such a jurisdiction on the facts of this case and at this stage of the proceedings, disclosure orders) should be made for at

that time the proceedings will have been determined to be properly within the jurisdiction of the Irish courts and to be properly

subject to Irish procedural law. On the other hand if the High Court determines that the courts of Ireland do not have jurisdiction then

it follows that it is the courts of Germany which will have jurisdiction and it will be for the relevant German courts to decide what

procedural steps (including disclosure) are to be taken in order to bring any litigation, which Ryanair might be minded to commence in

those courts, to fruition.

11.3 Finally, I would wish to make one comment on the complaint made by Ryanair to the effect that Unister's assertion concerning

the consequences of the intervention of third party providers is extremely bald given that the identity of the relevant third party

providers was not disclosed. There may well be some merit in Ryanair's complaint. However, it seems to me that the proper course of

action for Ryanair to adopt is to seek to place whatever reliance Ryanair properly can on what might be said to be the limited nature

of the facts put before the Court, on that aspect of the jurisdictional issue, on behalf of Unister. Indeed it will be for the trial judge to

decide whether any weight is to be attached to Unister’s assertion concerning third party providers given the limited nature of the

evidence put before the court. It should be recalled that the evidence concerning third party providers was advanced by Unister as

part of its case in seeking to challenge jurisdiction. It will be for the trial judge to assess whether putting forward evidence in a

manner which I think can properly be characterised as extremely bald is even admissible most particularly in circumstances where the

party concerned has been invited, but has declined, to elaborate. Whether the admissibility of such evidence or, even if admissible,

the limited scope of the facts given in evidence, turns out to be decisive is a matter for the trial judge. However, Ryanair is free to

make whatever case it wishes as to the consequences of the limited scope of the facts placed before the Court by Unister in the

context of the argument which will doubtless follow on the applicability or otherwise of the choice of jurisdiction clause. Against that

background it is next necessary to turn to the appeal against the order joining Ypsilon.

12 The Order Joining Ypsilon

12.1 While a number of technical issues were raised on this aspect of the appeal, in substance the case made by Unison against the

order joining Ypsilon is very similar to the case made against the granting of the disclosure order. It is said that it is inappropriate to

make an order joining a new defendant to proceedings where there is already in being a challenge to the jurisdiction of the court

which applies to all of the defendants currently sued. The argument suggests that the proper course of action to adopt is for the

court to get on with the task of determining jurisdiction and only if it finds that it has jurisdiction should it consider the question of

whether to join co-defendants.

12.2 A starting point has to be to consider the logic of joining co-defendants in the first place. A party, when commencing

proceedings, is, of course, subject to it not being an abuse of process, entitled to name any defendants against whom relief is being

sought. It is for that reason that a court will normally be sympathetic to an application to join a co-defendant. If the proposed co-

defendant could have been named as a co-defendant in the first place then it needs some substantial reason to refuse to later join

the same party as a new co-defendant. The fact that there may be logistical prejudice because the case has come close to trial

where the trial would inevitably be significantly delayed by the joinder of a co-defendant would be an obvious example of

circumstances where a court might well find a substantial countervailing factor and, thus, not accede to an application for joinder.

However there would be very few cases where an early application to join a co-defendant would be refused especially where the case

sought to be made against the proposed co-defendant was, as here, very closely linked to the case sought to be made against the

existing defendant.

12.3 In that context Ryanair suggested, as a preliminary technical objection, that Unister does not have standing to object to the

joining of Ypsilon. I do not agree. It is true that the fact that Unister could not have objected to Ypsilon being named as an original

co-defendant significantly limits the bases on which Unister could reasonably object to an order joining Ypsilon as a new co-

defendant. However, the sort of logistical prejudice to which reference has already been made (and doubtless other arguments based

on prejudice to an existing defendant) are clearly available to a defendant, in an appropriate case, to suggest that a co-defendant

not be joined. A defendant does, therefore, have standing to resist the joining of a co-defendant but the grounds on which such

resistance can be maintained may well be quite limited.

12.4 Were it not, therefore, for the complication arising out of the contest over jurisdiction it is hard to see how there could be any

legitimate basis for suggesting that the order joining Ypsilon was inappropriate. In what way, then, can it be said that the

jurisdictional contest changes things?

12.5 It must be recalled that the reason why a court should be slow to make procedural orders while a jurisdictional challenge under

the Brussels Regulation is pending (beyond orders necessary to deal with the jurisdictional issue itself or orders contemplated by

Article 31 of the Brussels Regulation) is that by so doing the court whose jurisdiction is challenged may be trespassing on what may

ultimately be found to be the proper jurisdiction of the courts of another Member State to ensure that the substance of the case is

conducted in accordance with the procedural law of the Member State which may be found to have jurisdiction. In what way would

an order joining a co-defendant, such as Ypsilon, amount to a potential trespass on what may be found to be the jurisdiction of the

courts of Germany to deal with Ryanair's claim against Unister? It does not seem to me that there is any such interference.

12.6 The Court was told that Ypsilon wishes, itself, to challenge the jurisdiction of the courts of Ireland to entertain the proceedings

against it. That application will come to be determined in due course as will Unister's application for a like order.

12.7 The result of Unister's application will either be that the Irish courts will be found to have jurisdiction in respect of the claim

against Unister or that they will not. If the Irish courts have such jurisdiction then there is, of course, no reason why Ypsilon should

not be a co-defendant subject, of course, to Ypsilon's entitlement to argue that, whatever might be the position in respect of

Unister, the proceedings as against Ypsilon lack Irish jurisdiction.

12.8 Equally, if Unister succeeds in its application and persuades the High Court that the Irish courts do not have jurisdiction then the

proceedings, so far as Unister is concerned, will be stayed and the proceedings against Ypsilon, as a remaining defendant, can

proceed subject, of course, to the outcome of Ypsilon's application contesting jurisdiction.

12.9 In neither eventuality are the rights of Unister interfered with. The joinder of Ypsilon does not, in any way, interfere either with

Unister's application to have the High Court stay the proceedings on the grounds of absence of jurisdiction or the right, if Unister

succeeds on that application, to have the substance of these proceedings determined, if Ryanair chooses to continue to maintain

them, in the courts of Germany in accordance with German procedure. If, in different circumstances, there were complications so far

as the jurisdiction issue is concerned arising out of the joinder of a co-defendant then the court might have to take into account a

wider range of factors in coming to an overall conclusion as to whether joinder should be allowed. However, no such complications

arise on the facts of this case.

12.10 It follows that the joinder of Ypsilon has no adverse effect on any rights which Unister may have under the Brussels Regulation.

Unister's application to have the Irish courts decline jurisdiction under the Regulation will go ahead unaffected by the joinder of

Ypsilon. If Unister succeeds then any proceedings which Ryanair may then choose to bring against Unister in Germany will not, in any

way, have been affected by the joinder of Ypsilon. On that basis it does not seem to me that there is any merit in the argument put

forward by Unister which suggests that it would be inappropriate, while a jurisdictional challenge is pending, to make an order joining a

co-defendant. That order has no effect either on the jurisdictional challenge or any other entitlements that may arise under the

Brussels Regulation.

12.11 Unister has suggested that there is a technical barrier to the joinder of Ypsilon by virtue of the provisions of O.15, r.13 of the

Rules of the Superior Courts which is, of course, the rule which permits the joinder of parties. That rule speaks of a party being joined

to a "cause or matter". Unister suggests that there is not, in reality, a "cause or matter" before the Irish courts by virtue of the fact

that the jurisdiction of the Irish courts has been challenged and that challenge not yet having been determined so that, it is said, the

Irish courts have not yet truly decided whether there is a "cause or matter" properly before them. That submission is not, I am

satisfied, well founded. There is a "cause or matter", being these proceedings, before the Irish courts. It may, of course, be the case

that these proceedings, and thus the "cause or matter", may be stayed if the Irish courts find an absence of jurisdiction. However,

unless and until such a decision is made, there remains a "cause or matter" before the Irish courts and there remains a jurisdiction to

join any further party or parties to those proceedings.

12.12 Finally, Unister suggests that the circumstances in which the order joining Ypsilon was made deprived them of fair procedures.

It will be recalled that the original application made by Ryanair sought both the disclosure order and an order joining any parties so

disclosed. It will also be recalled that Ryanair had become aware of the identity of Ypsilon, prior to the hearing before Gilligan J.,

arising out of information obtained in the German proceedings. Finally, it must be noted that the original order made by Gilligan J.

provided for disclosure as sought but deferred, at that stage, making any order concerning joinder presumably on the basis that

disclosure would be made and that a comprehensive order of joinder could then be put in place joining any parties so disclosed. When

the disclosure order was stayed by this Court, the matter came back before Gilligan J. who proceeded to make an order joining Ypsilon

on the basis that the identity of Ypsilon had already been disclosed. Unister suggests that it should have been given a further

opportunity at that stage to put forward argument as to why Ypsilon should not be joined. I do not agree. The question of the joinder

of any party whose identity might be disclosed was already before Gilligan J. when Ryanair's motion came before him. Unister was free

to put forward any argument it wished at that stage. Unister could not have objected, on fair procedure grounds, if Gilligan J. had

made the precise order sought by Ryanair which would have automatically led to the joinder of any parties disclosed. In those

circumstances it does not seem to me that Unister has any fair procedure argument available to it against the order joining Ypsilon.

12.13 In those circumstances it seems to me that the trial judge was correct in joining Ypsilon in all the circumstances of the case.

13. Conclusions

13.1 For the reasons set out I am, therefore, satisfied that the disclosure order under appeal should not have been made. A court

should be slow to make orders, while a jurisdictional challenge under the Brussels Regulation is pending, other than orders designed to

assist in the process of determining jurisdiction or orders of the type contemplated by Article 31 of the Brussels Regulation. The

disclosure order was not, on an analysis of the documents filed, in truth an order sought in aid of the determination of the

jurisdictional issue or one designed to provide any real assistance to a fair resolution of that issue. There being no special

circumstances warranting the making of the order I would allow Unister's appeal against the disclosure order and substitute an order

refusing Ryanair's application in that regard.

13.2 However, for the reasons set out, I am not satisfied that there was any legitimate basis for resisting the application to join

Ypsilon. So far as that order is concerned I would dismiss the appeal and affirm the order of the trial judge joining Ypsilon.