SUPREME COURT OF IRELAND
13 MARCH 2013
(delivered the judgement of the court)
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.
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.
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.
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.
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.
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.
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
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.
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  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.
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.
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
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.
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.
On that basis it was suggested that fair procedures and natural justice entitled Ryanair to the disclosure order sought.
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.
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 ....
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
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  4 I.R. at p.148.
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  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.
The essence of the determination of the trial judge can be found in the following passage from his judgment:-
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
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.
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.
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.
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
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).
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.
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.
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.
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.
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).
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.
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.
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?
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.
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.
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:-
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;
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;
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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  S.S.R. 1.
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.
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.
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.
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?
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.
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.
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
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.
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.
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
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
In those circumstances it seems to me that the trial judge was correct in joining Ypsilon in all the circumstances of the case.
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.
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.
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