Supreme Court dismisses appeal holding O.19 r.28 applies to entire pleadings, not partial sections.

THE SUPREME COURT

NO. 352/03

Denham J.

Hardiman J.

McCracken J.

BETWEEN/

AER RIANTA CPT

PLAINTIFF/RESPONDENT

AND

RYANAIR LIMITED

DEFENDANT/APPELLANT

Judgment delivered on 2nd day of April, 2004 by Denham J.

1. This is an appeal by Ryanair Limited, the defendant/appellant, hereinafter referred to as Ryanair, from the judgment and order of

the High Court (Lavan J.) given on the 29th July, 2003 refusing the application of Ryanair, under O. 19 r. 28 of the Rules of the

Superior Courts, 1986, to strike out paragraphs number 15, 16 and 17 of the Statement of Claim of Aer Rianta CPT, the

plaintiff/respondent, hereinafter referred to as Aer Rianta, in the main proceedings on the basis that “the said pleading discloses no

reasonable cause of action.”

2. Aer Rianta has pleaded that in a press release issued in January, 2001, and on its website, Ryanair overstated the amount of

airport charges levied by Aer Rianta pursuant to the Air Navigation and Transport (Amendment) Act, 1998, as amended. Aer Rianta

pleads that Ryanair stated that the passenger service charge was IR£9.50 per person, while Aer Rianta pleads that it was IR£7.20.

Aer Rianta claims that the actions of Ryanair have damaged its reputation and claims relief.

3. In the main proceedings Aer Rianta seeks, inter alia, declaratory relief, an account of monies, damages for defamation and

malicious falsehood by reason of the statements alleged to have been made by Ryanair in a press release and on its website

concerning the level of airport charges levied by Aer Rianta, a permanent injunction, an order for restitution and other relief. Aer

Rianta alleges that Ryanair overstated the level of the charges, has characterised the nature and extent of airport charges at the

airports of Aer Rianta in a false and misleading manner and has done so maliciously with the intent of causing damage to the business

and reputation of Aer Rianta. It is alleged also by Aer Rianta that Ryanair have misled passengers using their services into believing

that they are paying a higher passenger service charge than is in fact the case.

3. Ryanair, in its defence, denies the claim of Aer Rianta in defamation and pleads that the passenger service charge collected from

its passengers was based on a number of different factors and that it was an approximation. Ryanair denies that Aer Rianta has the

locus standi to pursue a claim based on unjust enrichment.

4. The pleadings in the action were instituted in January, 2001. The Statement of Claim was delivered in March, 2002. The Defence

was delivered in May, 2002. In July, 2002 Ryanair served a Notice of Trial. In February, 2003 this motion was brought.

5. Ryanair by Notice of Motion sought an order pursuant to O. 19 r. 28 of the Rules of the Superior Courts, 1986 striking out

paragraphs 15, 16 and 17 of the Statement of Claim on the basis that the said pleading discloses no reasonable cause of action.

6. One of the claims of Aer Rianta is that Ryanair has unjustly enriched itself in overstating the level of airport charges. This is set out

in paragraphs 15, 16 and 17 of the Statement of Claim. Paragraph 15, 16 and 17 of the Statement of Claim state:

“15. In the premises, Ryanair has unjustly enriched itself to the extent that it has levied a charge on its passengers on the

basis that it is a ‘charge’ or ‘tax’ payable to Aer Rianta but have not paid over the full amount thereof to Aer Rianta.

16. In addition, Ryanair has further unjustly enriched itself by retaining for its own benefit the so-called ‘passenger service

charge’ or ‘tax’ levied by it on its passengers where, for any reason, the passenger fails to fly as scheduled. In those

circumstances, notwithstanding that no PSC is payable to Aer Rianta, Ryanair refuses to repay the passenger the amount levied

by it.

17. In the premises, to the extent that Ryanair has unjustly enriched itself in the manner aforesaid, it must account to Aer

Rianta therefor. Aer Rianta cannot quantify the extent to which Ryanair has been unjustly enriched until the making of discovery

and/or the delivery of interrogatories herein.”

7. On the motion coming before the High Court the learned High Court judge accepted the submissions of Aer Rianta and refused the

application of Ryanair. Against that determination Ryanair has appealed.

8. This motion was brought pursuant to O. 19 r. 28 of the Rules of the Superior Courts, 1986 which provides:

“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer

and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court

may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

Both in the High Court and on appeal in this court the motion proceeded on the basis of O. 19 r. 28 of the Rules of the Superior

Courts alone. The issue of inherent jurisdiction was not argued and forms no part of the decision. Thus this decision is grounded on O.

19 r. 28.

9. The fact that a purely factual affidavit was filed with the motion does not undermine or enhance the jurisdiction of the court,

which is that under O. 19 r. 28. The affidavit sets out the factual situation as to the pleadings and does not seek to advance any

matter outside the pleadings.

10. The jurisdiction under O. 19 r. 28 to strike out pleadings is one a court is slow to exercise. A court will exercise caution in utilising

this jurisdiction. However, if a court is convinced that a claim will fail such pleadings will be struck out.

11. An application by way of motion under O. 19 r. 28 is decided on the assumption that the statements in the Statement of Claim

are true and will be proved at the trial. Thus this motion relates to and is grounded on the Statement of Claim of Aer Rianta.

12. Ryanair has sought the striking out of paragraphs 15, 16 and 17 of the Statement of Claim, not the striking out of the entire

claim. Aer Rianta has submitted that the rule does not apply to strike out part of a claim. Thus the case turns on the wording of O. 19

r. 28.

13. I am satisfied that the words of the rule are clear. First, the rule provides that:

“The court may order any pleading to be struck out …”

The key word is “pleading.” There is no reference to any part of a pleading. There is no wording such existed in England and Wales,

prior to the Woolf Reforms to the Civil Procedure Rules in 1999, where the equivalent rule expressly permitted the striking out of any

pleading or “anything in any pleading.”

The construction that O. 19 r. 28 is referring to an entire document is supported by O. 125 r. 1 which defines “pleading” as “includes

an originating summons, statement of claim, defence, counterclaim, reply, petition or answer.” In other words it refers to separate but

individual documents and not parts of documents.

This construction is also supported by contrasting O. 19 r. 28 and O. 19 r. 27. O. 19 r. 27 provides:

“The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading

which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action …”

Part of a pleading is specifically addressed in O. 19 r. 27. The rule expressly relates to “any matter in any” pleading. By contrast, the

next rule, the rule in issue, O. 19 r. 28, states merely that the court may order any pleading be struck out. All of this supports a

construction that the rule relates to a full document.

Such an interpretation is consistent also with the further words of the rule. Thus O. 19 r. 28, having enabled a court to order any

pleading be struck out, does so on the basis that “it” discloses no reasonable cause of action. This appears to refer to the whole

document. Indeed the wording repeatedly refers to “the action”, which I would infer is referring to the action and pleading as a whole.

The latter part of O. 19 r. 28 is also clear. It enables the court to order that “the action be stayed or dismissed, or judgment be

entered accordingly, as may be just.” This indicates that the whole action is acted upon, the whole document is acted upon, the

action is stayed, dismissed or judgment entered. It does not relate to a part of the pleading.

Further, if Ryanair were to succeed they could not obtain an order that “the action be stayed or dismissed or judgment be entered

accordingly.” Thus even if Ryanair succeeded they could not obtain the reliefs provided for in O. 19 r. 28.

I am satisfied that the clear words of O. 19 r. 28 refer to single documents and not parts of a pleading. I am satisfied that on the

plain meaning of the words O. 19 r. 28 applies to a pleading in its entirety and not to part of a pleading. Accordingly, under O. 19 r.

28 the court has jurisdiction to strike out an entire pleading, an entire document, for example a Statement of Claim, but not a portion

of it.

Quite apart from the plain meaning of the clear words of O. 19 r. 28, I am satisfied that to develop what Aer Rianta has referred to as

a “blue pencil” jurisdiction would have inappropriate consequences. It would have the potential of initiating a whole new jurisdiction of

interlocutory applications whereby parties sought to blue pencil (strike out) portions of Statements of Claim or Defences. It could

herald a whole new list in the High Court where parties would fight on the pleadings. Such an approach is contrary to the policy of

expeditious litigation. It would involve further cost and raise that consideration also. In addition it would involve motions which could

be time consuming; as if part of a pleading is to be sought to be struck out, the probability is that at least one party will seek to have

the issue analysed in the context of the whole pleading. Thus the entire pleading would be considered by the court. Indeed, there

may be great difficulty in analysing a part of a pleading independent of the rest of the pleading.

I am satisfied that by reason of the plain meaning of the words a court does not have jurisdiction to strike out part of a pleading

under O. 19 r. 28. This interpretation is based on a construction of the plain meaning of the words of the rule. However, it is also

consistent with a policy of cost effective litigation enabling matters to come with reasonable expedition before a trial court for

consideration and contrary to costly lengthy litigation with multiple interlocutory motions. In view of this construction of the rule, the

issues raised as to the merits of the application do not arise.

Consequently, for the reasons given, I would dismiss the appeal. I would affirm the order of the High Court refusing the motion.