About this case:

• Citation:
  [2020] IECA 105
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

Following a 27-day trial, the jury found that while the words complained of were defamatory, they were published by the defendants without malice and since Mr Justice Bernard Barton had previously ruled that the publication occurred on an occasion of qualified privilege, Ryanair’s claim failed.

Background

The claims were against three airline pilots, Captain John Goss, Captain Evert Van Zwol and Captain Ted Murphy. At the time they were members of the Interim Council of Ryanair Pilots Group. It was a kind of “nascent pilots’ trade union” that was in the course of being formed. In 2013, when the events with which the proceedings concerned occurred, it had always been the Ryanair policy not to recognise trade unions. This was changed in 2017.

In the course of forming the group, the three pilots developed an email database of Ryanair pilots which was used for communications known as “pilot updates” which included news bulletins on topical issues of relevance to the pilots. At the time, the Interim Council was assisted by two executive members of the Irish Airline Pilots Association, Gerard Kelly and Martin Duffy, who were also described as “consultants”, who assisted in the preparation of the pilot updates.

One such bulletin was issued on 12 September 2013 titled “What the Markets are Saying About Ryanair”. It stated: “The company’s share price fell sharply last week (down 11.54 per cent) as markets reacted to a negative statement issued by the company management. It has been indicated that profit targets for 2013 – 2014 may need to be revised downwards as the autumn-winter outlook remains weak. This is in spite of positive indications to investors in June which encouraged a share price increase and a sell off of shares by managers in late June, ahead of the winter period.”

Ryanair pleaded that the words meant, and were understood to mean, both in their natural and ordinary meaning and/or by way of innuendo, that Ryanair is guilty of market manipulation, that it misled investors, that it knowingly facilitated insider dealing by its managers, and that it conspired with its managers to abuse the markets for its shares.

Discovery was made of certain emails relating to the drafting of the bulletin. An email sent by an unidentified pilot to Mr Duffy contained information concerning a sale of shares by Michael O’Leary that was “entirely untrue”. In the course of cross-examination, Mr Duffy was asked where he saw the reference to Mr O’Leary selling 500,000 shares on 27 July. He said that it had been brought to his attention by an email from a colleague. Counsel said that this email was not discovered, and he replied that he thought it had been provided to the solicitors for the respondents. That was not the case and the email was produced by Mr Duffy the next day on Day 20 of the trial. The evidence of the respondents, subsequently given, was that they had never seen this email before it was produced in court on Day 20.

Having considered this email, counsel for Ryanair was instructed to apply to have the jury discharged. Mr Justice Bernard Barton refused the application.

The jury found that the pilot update did mean that Ryanair was guilty of market manipulation, but did not mean that the airline had misled investors, knowingly facilitated insider dealings by its managers, or conspired with its managers to abuse the market(s) for its shares. The jury found that Ryanair had not proved malice on the part of Captains Goss, Van Zwol or Murphy. Following the jury’s verdict, the trial judge made a consequential order dismissing the action. Ryanair appealed to the Court of Appeal.

Counsel for Ryanair, relying on Leech v Independent Newspapers [2014] IESC 78, contended that the standard to be applied was that a retrial will be ordered if a reasonable and fair minded observer would conclude that there was a danger, in the sense of a possibility, that a verdict was unsafe.

Giving the judgment of the court, Mr Justice Seamus Noonan said that it was manifestly clear that the Leech judgment was concerned with the issue of bias, and no other, in reaching this conclusion.

Conclusion

Mr Justice Noonan was satisfied that Mr Justice Barton correctly exercised his discretion in refusing to discharge the jury and that Ryanair failed to establish a real risk of an unfair trial. Any possible prejudice to Ryanair arising from late disclosure was cured by the trial judge allowing further cross-examination of all the relevant witnesses and giving appropriate directions to the jury.

He noted the authority of Hay v O’Grady [1992] 1 I.R. 210 in stating that the duty of the trial judge is to ensure that a fair trial occurs. In an application to discharge the jury, the onus is on the applicant to establish that by virtue of the matters complained of, a fair trial can no longer be had.

He said it was clear that this was the primary consideration to which Mr Justice Barton had regard in assessing Ryanair’s application to discharge the jury: “The mere occurrence of some procedural impropriety, erroneous ruling or introduction of inadmissible evidence will not, without more, give rise to a right to have the jury discharged.” The remedy of discharging a jury is, as noted by the Supreme Court in Dawson v Irish Brokers Association [1998] IESC 39, a remedy of last resort.

The court also found that Mr Justice Barton’s ruling on the issue of qualified privilege was correct in law. Ryanair’s appeal was dismissed.