Another overdue post following up on earlier Twitter flag. In On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch) is a competition law ‘stand-alone’ damages suit. OTB is an online travel agent. It claims against Ryanair on the basis of abuse of dominant position. Ryanair have claimed against ia OTB in Ireland, on the basis among others of infringement of intellectual property rights. (Ryanair prefer to sell directly to consumers and do not generally co-operate with online or other travel agents). OTB suggest the Irish claim is effectively warehoused and that an Irish court will soon hold the claim be dismissed for want of ‘prosecution’.
Nugee LJ considered in particular whether in assessing the relatedness of proceedings, the judge can indeed may have to take into account what is likely to be pleaded by way of defence in both actions (here: OTB is likely to plead competition law arguments should the case continue in Ireland). He held [52] he can:
the better view is that where an application for a stay is made at a stage when the defence to an action has not yet been pleaded, the Court can have regard to the substance of a defence that it can confidently predict is likely to be pleaded.
However [53] ff on the facts he then sided with OTB which argued
that the Court can hardly proceed on the basis that OTB is likely to plead any particular matter by way of defence in the Irish OTB proceedings as if its motion to dismiss the action for want of prosecution succeeds, there never will be a defence. At that point any chance of the two actions being related will disappear.
This is where the reasoning becomes contradictory. The judge [54] concedes that he ‘was not asked by either party to form any view of the likely outcome of OTB’s motion to dismiss, and I would in any event be very reluctant to do so as this is self-evidently a matter for the Irish court’ . However [55] he says that
if one looks at the Irish proceedings as they stand, with no competition issues yet raised, there does not seem to me much overlap between the claims there made and Ryanair’s prospective defence in England which will be focused very largely on competition issues.
This I believe amounts to a form of judicial and litigation clairvoyance which goes too far, even in the wide remit which Article 30 gives to the judge assessing relatedness and the appropriateness of an Article 30 stay.
[57] ff Nuggee LJ holds obiter that had the cases been related, he would have exercised his discretion not to stay.
Geert.
EU Private International Law, 3rd ed. 2021, 2.521 ff.
gavc law - geert van calster 