About this case:

• Citation:
  [2024] IEHC 40
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Nolan

Delivering judgment for the High Court, Mr Justice David Nolan determined: “If one were to allow an appendix to be used as an alternative form of pleading, it has the potential of giving rise to confusion, as well as creating the potential of matters falling outside the parameters of the Rules.”

Background

In 2010, the plaintiff airline issued proceedings in Ireland seeking to inter alia prohibit the defendant travel agent from “screen-scraping” its website and seeking damages for multiple torts including passing off, copyright infringement, breach of contract, misrepresentation, trespass to goods and conversion of the plaintiff’s property.

The plaintiff applied to the court pursuant to Order 63 of the Rules of the Superior Courts for directions in relation to the status of an “appendix” to the defendant’s defence, and whether that appendix could be incorporated into the defence and the consequences of same. The plaintiff also sought to exclude parts or the whole of the appendix which it alleged repeated key elements of pleadings in proceedings before the UK High Court between the parties.

The plaintiff alleged that this unusual form of pleading was not expressly provided for in the Rules of the Superior Courts and was the defendant’s attempt to run the same case for “abuse of dominance” under both English and EU law in two jurisdictions, creating a risk of irreconcilable judgments.

The defendant asserted that the plaintiff was trying to provoke it into counterclaiming and that the appendix was simply a convenient reference to a location where the pleas to the competition law defences were grouped.

The High Court

Mr Justice Nolan considered the characterisation of a pleading, noting that “the need for pleadings to be convenient and concise, in a language which is easily understood by litigants, is crucial”.

Focusing on Order 19, Rule 3 of the Rules of the Superior Courts, the judge noted that “every proceeding shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to provide, and shall, when necessary, be divided into paragraphs, numbered consecutively”.

Observing that the Rules of the Superior Courts do not define what an appendix is, the court commented that “…it does not seem to be a creature of the Rules at all. However, as counsel for the defendant has pointed out it is often used in many types of action. For example, in defamation proceedings the offending article is often appended as an appendix. Indeed, it seems to me that the word ‘appended’ characterises what an appendix is, in the context of litigation.”

Mr Justice Nolan endorsed the stance of Mr Justice Michael Peart in Window and Roofing Concepts Ltd v. Tolmac Construction Ltd [2004] 1 ILRM 554, wherein he stated: “I have always believed that the Rules of the Superior Courts should, as far as possible, be construed so as to enable things to be done, rather than to prevent things from being done. They are a framework within which litigation is to be conducted, and they are an enabling set of rules rather than a disabling set of rules.”

The court qualified this position in the context of the case before it, finding Order 19 rule 19 to be relevant, which states: “When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. …. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.”

Remarking that “I have my doubts as to whether that has occurred in this case”, the judge opined that the use of the appendix in this matter before it was unusual and that “in 38 years of practice I have never come across a case where another set of pleadings have been appended to a set of pleadings, without amendment”.

The court observed that a further complexity in the case arose from the fact that the other set of pleadings were in a different jurisdiction but on the same issue, and that the appendix needed to be considered in light of the history of litigation between the parties and its chronology.

Mr Justice Nolan noted:

The court determined that this use of the appendix did not clarify the issues nor provide further information which could not have been furnished by way of replies or furnishing a book of the UK pleadings to the court, and on that basis, “it certainly is not convenient”.

Finding that there was a greater potential risk of irreconcilable judgments arising by permitting the appending of substantial portions of the UK proceedings to the Irish pleadings, the court commented: “There is nothing to stop the defendant properly pleading matters, which it alleges are anticompetitive and give rise to an abuse of a dominant position… If the appendix is a pleading, and I believe it is, then it should be pleaded in the proper way with specific reference to those matters which the defendant says amount to an abuse of a dominant position.”

Conclusion

Accordingly, the High Court struck out the appendix, noting that the defendant should be given the opportunity to amend its defence to plead the matters in the appendix.

Ryanair Ltd v. On the Beach Ltd [2024] IEHC 40