ON THE BEACH LTD v RYANAIR UK LTD & ANOR.

The Claimant, On The Beach Ltd (“OTB”), a UK company, is an online travel agent that allows members of the public to book package beach holidays via its websites and apps.

The Defendants operate Ryanair flights, including flights to and from the UK. Those to EU destinations are operated by the 2^nd Defendant Ryanair DAC, an Irish company; those to non-EU destinations are operated by the 1^st Defendant Ryanair UK Ltd, a UK company which is its subsidiary. It is not generally necessary to distinguish between them and I will refer to them together as “Ryanair”.

This action was brought by OTB against Ryanair for damages and injunctive relief for what is claimed to be a concerted campaign by Ryanair aimed at preventing competition from online travel agents, including OTB. This is said to be unlawful (i) as a breach of s. 18 of the Competition Act 1998 (which prohibits conduct which amounts to the abuse of a dominant position in a market if it may affect trade within the UK) and (ii) as constituting the tort of causing loss by unlawful means.

By the present application Ryanair applies for a stay of these proceedings pursuant to Art 30 of EU Regulation 1215/2012 (“Brussels Recast”) on the ground that there are related proceedings ongoing in Ireland. It is common ground that Art 30 continues to apply to the present application despite the UK having ceased to be a Member State of the EU. It is also common ground that the application gives rise to two questions: (1) whether the proceedings in Ireland, or any of them, are “related proceedings”; and (2) if so, whether the Court should exercise its discretion to order a stay.

Ryanair applies in the alternative for a stay under the Court’s general case management powers, but in practice this adds little, if anything, to the application under Art 30 and it was scarcely argued.

The facts have of course not yet been found and are in some respects highly contentious, but I can summarise the parties’ respective positions quite shortly.

OTB’s case, as set out in the Particulars of Claim in this action, can be summarised as follows:

Ryanair has not yet pleaded a Defence in this action, but I can take its case from evidence given by Mr Paul Phillips, a partner in Stephenson Harwood LLP, Ryanair’s solicitors, in support of the present application. It can be summarised as follows:

There are four sets of proceedings which need to be considered, namely this action and three actions pending in Ireland (collectively “the Irish proceedings”).

So far as this action is concerned, the procedural history can be shortly stated:

The three Irish proceedings have each been brought by Ryanair DAC and are (1) a claim against OTB (“the Irish OTB proceedings”); (2) a claim against a Romanian online travel agent called SC Vola.ro SRL (“Vola” and “the Vola proceedings”); and (3) a claim against Skyscanner Ltd and associated companies (“Skyscanner” and “the Skyscanner proceedings”).

The procedural history of the Irish OTB Proceedings is as follows:

Mr Brian Kennelly QC, who appeared with Ms Emma Mockford for Ryanair, took me through the latest iteration of Ryanair’s draft Amended Statement of Claim. After pleading that direct contact with its customers is fundamental to its business model, and that its website is a key part of its business, Ryanair alleges that OTB’s screen-scraping activity (i) is in breach of the terms of use of Ryanair’s website; (ii) infringes Ryanair’s intellectual property rights, namely its copyright and database rights, and its trademark; and (iii) constitutes the conversion of Ryanair’s property and trespass to its goods, and unlawfully interferes with its economic and contractual interests.

The procedural history of the Vola proceedings is as follows:

The procedural history of the Skyscanner proceedings is as follows:

Brussels Recast, or, to give it its full title, Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, contains a number of provisions for allocating jurisdiction between courts of the Member States of the EU. It is a rewriting of Regulation (EC) No 44/2001 (“Brussels I”).

Recital (21) of Brussels Recast is as follows:

“In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously.”

Section 9 of the Regulation (Arts 29 to 34) is headed “Lis pendens – related actions”. Art 29 applies where proceedings involving the same cause of action and between the same parties are brought in courts of different Member States. It is in mandatory terms, providing that any other court than the first seised shall first stay its proceedings until the jurisdiction of that court is established and then, once it has been established, decline jurisdiction in favour of that court.

Art 30 by contrast provides for a discretionary power to stay where there are related actions pending in the courts of different Member States, as follows:

“1.

Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.

2.

Where the action in the court first seised is pending at first instance, any other court may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3.

For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

Arts 31 to 34 contain various supplementary provisions (including by Art 32 provision as to when a court is to be deemed to be seised) but nothing turns on them in the present case.

Art 30 is the successor to Art 22 of the 1968 Brussels Convention and Art 28 of Brussels I, which were in very similar terms, subject to some minor differences which are not material for present purposes. Similar text is also found in Art 28 of the Lugano Convention 2007 in relation to actions pending in courts of different Convention States.

As already referred to, Art 30 of Brussels Recast continues to apply in the present case despite the fact that the UK has ceased to be a Member State of the EU. There was no dispute about this, but for completeness the relevant provisions are as follows:

Art 30 and its predecessors (and the equivalent provision in the Lugano Convention) have been much litigated, and there is a substantial body of authority on them. Very little of this was in dispute, although there was one point of some potential significance that was. I can therefore take the law for the most part quite shortly.

It follows from the wording of Art 30 that there are two questions which arise: (i) a jurisdictional or threshold question as to whether the two sets of proceedings in question are related within the meaning given by Art 30(3); and, if they are, (ii) a discretionary question whether to grant a stay.

On the question of whether two sets of proceedings are related:

None of the above was in dispute. The one point of law which was in dispute was this. It is established that the exercise of seeing whether actions are related may require one to look not only at the claim but also at the defence to it: Research in Motion at [36]. Mr Kennelly, for Ryanair, says that in considering whether the Irish OTB proceedings are related to these proceedings, I can therefore consider the defence that OTB is likely to advance in the Irish OTB proceedings (and indeed the defence that Ryanair intends to plead in these proceedings). Mr Robert O’Donoghue QC, who appeared with Mr Max Schaefer for OTB, said that I could not do so as neither OTB in Ireland nor Ryanair in England has yet pleaded any defence, so the proceedings cannot be said to be currently related, even if they might become related in the future. This is a point that I consider below when considering the Irish OTB proceedings.

If proceedings are related the Court has a discretion to grant a stay. Again there was little dispute on the law.

The leading domestic authority on the exercise of the discretion is The Alexandros T [2013] UKSC 70 at [92] per Lord Clarke (with whom all the other members of the Court agreed, at any rate on this point). He there referred to the opinion of Advocate General Lenz in Owens Bank Ltd v Bracco (C-129/92) where the Advocate General identified a number of factors which he considered to be relevant to the exercise of the discretion. Lord Clarke summarised what he said as follows. The circumstances of each case are of particular importance but the aim of what was then Article 28 of Brussels I is to avoid parallel proceedings and conflicting decisions, and in a case of doubt it would be appropriate to grant a stay. (The Advocate General also appeared to say that there was a strong presumption in favour of a stay but in the light of the way this statement has been regarded in later cases (see Office Depot International BV v Holdham SA [2019] EWHC 2115 (Ch) at [53] per Vos C) Mr Kennelly placed no reliance on this.) Three particular factors were identified as being of importance:

Three other points of general principle can conveniently be mentioned at this stage. First, the burden of persuasion is on the applicant: Centro Internationale Handelsbank AG v Morgan Grenfell Trade Finance Ltd [1997] CLC 870 (“Centro Internationale”)at 891f per Rix J, followed in many other cases.

Second, although the Court of Appeal decided in Kolomoisky that the requirement, before two actions could be said to be related, that it be expedient for them to be heard together did not mean that it had to be shown that it was in fact possible for them to be consolidated or heard together, only that it would in principle be desirable (paragraph 25(6) above), nevertheless the Court went on to say that, when it comes to the exercise of the discretion, the fact that two actions could not be consolidated was highly significant, saying (at [210]) that “absent some strong countervailing factor, the fact that proceedings cannot be consolidated and heard together will be a compelling reason for refusing a stay”.

Third, in his written argument, although not I think repeated orally, Mr O’Donoghue submitted that the applicant must show a compelling reason to grant a stay, citing SCOR SE v Barclays Bank plc [2020] EWHC 133 at [32] per Mr Christopher Hancock QC. Mr Hancock did say that, but I do not think he was seeking to enunciate any principle of general application, merely to record what was agreed to be the position on the facts of the case. That was a case where it was common ground that English proceedings could not be heard with French criminal proceedings (see at [22]), and in those circumstances it was not disputed, on the basis of Kolomoisky, that there needed to be a compelling reason to grant a stay. I do not read Mr Hancock’s decision as intending to say any more than that.

A number of other matters were argued, but it is more convenient to consider them when considering the application of the principles to the present case.

As appears above, in neither this action nor in the Irish OTB proceedings has any Defence yet been served. If one considers the matters that have already been pleaded, there is little overlap: the claims pleaded by OTB in this action are that Ryanair has abused its dominant position and caused loss to OTB by a number of unlawful acts, whereas the claims pleaded by Ryanair DAC in the Irish OTB proceedings are that OTB’s screen-scraping practices are wrongful in a number of different ways (contrary to the terms of use of Ryanair’s website, an infringement of Ryanair’s intellectual property rights and involving a number of torts). It was not I think disputed by Mr Kennelly that if I am confined to a comparison of the claims currently pleaded the two actions are not related.

Mr Kennelly however submits that I should have regard to what is likely to be pleaded by way of defence in both actions. So far as the Irish OTB proceedings are concerned, he submitted that I could safely infer that if OTB’s motion to dismiss the action fails, then it will plead its case on abuse of a dominant position by way of defence. OTB has not in terms said what it would plead, but Mr Hutton of Hogan Lovells International LLP, OTB’s solicitors, said in his witness statement that he understood that OTB intends robustly to defend Ryanair’s claims; OTB’s position that Ryanair’s conduct is an abuse of a dominant position is clear from its claim in the English proceedings; and, Mr Kennelly submitted, it is not obvious what other defence OTB might have. Indeed in October 2010, when the Irish OTB proceedings were at a very early stage, Field Fisher Waterhouse LLP, OTB’s then London solicitors, wrote to Ryanair denying that there was any substance to its claims, and one of the points they took was that Ryanair’s conduct was anti-competitive and contrary to competition law.

I accept Mr Kennelly’s submission as to the likely content of OTB’s Defence in Ireland. If the Irish OTB proceedings survive OTB’s application to dismiss them for want of prosecution, it seems to me wholly unrealistic to suppose that OTB will not deploy its competition arguments by way of defence. I asked Mr O’Donoghue if he had any instructions as to what OTB’s Defence, if it comes to it, would look like, to which his answer was that he did not; and that it would depend on when a Defence had to be pleaded as Ryanair’s conduct keeps evolving and the pleading might not be the same as that pleaded in the English action. No doubt that is the case, but Mr O’Donoghue did not deny that OTB would rely on Ryanair’s conduct being anti-competitive, and since OTB’s position is that it is, it seems to me obvious that they will say so in Ireland.

So far as the English proceedings are concerned, Mr Phillips’ evidence is that if Ryanair has to defend the claim it intends to do so, among other things, by relying on its conduct not being abusive, or being objectively justified. That will involve considering a number of matters already in issue in the Irish OTB proceedings such as the nature of Ryanair’s business model, the screen-scraping activities of OTB, whether that amounts to a breach of the terms of use of Ryanair’s website and an infringement of Ryanair’s intellectual property and so on. I have no reason to doubt that evidence.

In those circumstances I have no hesitation in concluding that if I can have regard to the Defences likely to be served in the respective actions, then they are indeed related for the purposes of Art 30. If both cases got to trial there would be likely to be a very significant overlap between them, such that it would indeed be expedient to hear them together to avoid the risk of inconsistent judgments. Put simply, there would be an obvious inconsistency if one Court decided that OTB’s screen-scraping was unlawful and Ryanair’s conduct not abusive, and the other Court decided the opposite.

So the next question is whether I can have regard to defences that have not yet been pleaded. It appears that there is no binding authority on the point, but Mr O’Donoghue said that I could not do so and that that followed from the decision of the Court of Appeal in FKI Engineering Ltd v Stribog Ltd [2011] EWCA Civ 622 (“FKI”). I will therefore look at that case in some detail.

The facts were as follows. In 2005 a German company called DeWind GmbH (“DeWind”) agreed to sell its business assets to Stribog Ltd (“Stribog”) by way of a business transfer agreement (“BTA”). In 2008 DeWind became insolvent at a stage when a sum of some €33m was still outstanding to it from Stribog by way of purchase price under the BTA, and a Dr Pannen was appointed as insolvency administrator in October 2008. In August 2009 he purported to assign to FKI Ltd and its subsidiary FKI Engineering Ltd (together “FKI”) various claims that DeWind had, including claims against Stribog. On the basis of that assignment FKI on 2 September 2009 started proceedings in California against various members of the Stribog group. That precipitated a claim in Germany by Stribog, which issued proceedings in Lübeck on 18 September 2009 against FKI, claiming a declaration of non-liability with respect to any claims or rights asserted by FKI against it. There was an express carve-out of purchase price claims under the BTA where there was an English jurisdiction clause (somewhat eccentrically specifying Milton Keynes as the exclusive place of jurisdiction). At that stage nothing was said in the German proceedings about the possible invalidity of the assignment. On 21 January 2010 FKI brought proceedings in England against Stribog for the balance of the purchase price under the BTA, relying on the assignment. On 12 February 2010 Stribog, having obtained a copy of the assignment, served a voluntary statement in the German action which for the first time raised the argument that the assignment was void under German law.

In those circumstances Stribog applied in the English proceedings for a stay of them under what was then Art 28 of Brussels I on the basis that the proceedings were related and the German court was first seised. The application was heard by Burton J. He refused it on the ground that it was the English court that was first seised. His analysis was that the actions were not related until the question of the validity of the assignment was raised in the German action in February 2010, by which stage the English court was already seised of the English action.

The Court of Appeal allowed Stribog’s appeal. Mummery LJ said that the first step was to identify if both courts were seised of an action. The second step was to identify when each court was seised of each action, here 18 September 2009 for the German court and 21 January 2010 for the English court. The third step was to compare those dates to see which court was first seised, here the German court. The fourth step was for the English court, as the court not first seised, to compare the proceedings to see if they were related: see at [41]-[44]. On this last point he said (at [44]):

“In making the comparison the court looks at all the circumstances, not just at the circumstances at the date of the institution of the English Action, in order to see how closely related the actions are and whether there is a risk of irreconcilable judgments in separate proceedings. In this case it is agreed that the actions were related at the time of the issue and hearing of the application. There is a risk of irreconcilable judgments in these actions if the English courts decide that the Assignment Agreement is valid and the German courts decide that it is void (or vice versa).”

At [48] he said:

“Article 28, under which a stay is discretionary, looks to the current position and to matters that post-date the onset of the proceedings to consider the relationship between actions that are pending to see if they are related and if there is a risk of irreconcilable judgments.”

Rix LJ gave a detailed judgment of his own which reached the same conclusion, although he thought that one should first ask if two actions were related and then, if so, which court was first seised: see at [119]-[120], [125]. Wilson LJ agreed with both judgments, saying he did not see why the order in which the questions were asked mattered, but Rix LJ seemed to have the terminology on his side.

Mr O’Donoghue made two points by reference to FKI. First, by reference to the passages from Mummery LJ’s judgment that I have cited above, he submitted that what was significant was the current position at the date of the hearing, not what might be pleaded in the future. This seems to me a good example of the danger of taking statements out of a case and applying them to a different situation, something that Mummery LJ referred to in FKI itself at [40] where he said that “one should be cautious about placing too much weight on passages in authorities which, while in the same area of law and couched in general terms, are not directly in point.”

In FKI the point Mummery LJ was making was that it did not matter that the two actions were not related at the time that they were first issued; what mattered was whether they were related at the time of the hearing. He drew an explicit contrast with what was then Art 27 of Brussels I (now Art 29 of Brussels Recast) which does require one to look back to the outset of proceedings: see at [47]. He was simply not addressing the question that arises in the present case, which is whether in assessing if two actions are related one can have regard not only to the current pleadings but, if a defence has not yet been pleaded, to what is likely to be pleaded by way of defence. I therefore do not accept the submission that it follows from Mummery LJ’s statement in FKI at [48] that Art 28 “looks to the current position” that a prospective defence must be ignored.

Mr O’Donoghue’s second point was based on something said by Mummery LJ at [32] where he said:

“The judge rejected Stribog’s submission that the alleged invalidity of the Assignment Agreement, though not actually raised before 15 February 2010, was embryonic, inherent or intrinsic in the German Action from its inception.”

Mr O’Donoghue suggested that Stribog’s argument at first instance was therefore the same as that put forward here by Ryanair, namely that one could look not only at what was already in issue but what might be pleaded in the future, and that that had been rejected.

That seems to me to be a good example of another danger, which is trying to understand what happened in a case without reading the judgment. If one in fact looks up Burton J’s judgment (FKI Engineering Ltd v Stribog Ltd [2010] EWHC 1160 (Comm)), it is entirely clear that what he rejected was the factual submission that the invalidity of the assignment was intrinsic in the German proceedings from the outset: see at [26]-[28], and in particular at [28] where he said that it was “quite clear that invalidity of assignment had not … already been intrinsic within the German proceedings”. He did not say anything about what he thought the legal position would have been had he accepted the factual basis for the submission. In fact he made a comment at [27(i)] as follows:

“It is not the case that the German proceedings were an action in which a claimant is relying on an assignment for the purposes of his claim, when it may be anticipated, and, even if not anticipated, turns out to be the case, that a defendant alleges the assignment to be invalid.”

That suggests, if anything, that he was prepared to contemplate that the Court might have regard to a defence that had not yet been pleaded but could be anticipated.

There are a number of other suggestions to the like effect. First, in FKI itself, it was common ground that the two actions were related at the time of the hearing of the application. This was despite the fact that Stribog had not yet pleaded its defence in the English action, and so the issue as to the invalidity of the assignment was not yet raised on the pleadings in the English action. Although this was not disputed, none of the members of the Court of Appeal saw anything wrong with this, and Rix LJ explained the position at [68] as follows:

“As of the time of the current proceedings for a stay of the English action, Stribog had not yet filed a defence in the English action, but, in the light of the development mentioned immediately below in the German action [ie the February 2010 statement], it could be predicted that one at least of its defences would be that the assignment of DeWind GmbH’s claim under the BTA is void and thus ineffective.”

Although the point was not argued, that seems to me inconsistent with Mr O’Donoghue’s submissions, and entirely on all fours with Mr Kennelly’s submission that where no defence has yet been pleaded but the Court can confidently predict what it will be, the Court can take account of it in deciding whether there is a risk of irreconcilable judgments.

Second, Rix LJ refers to an earlier decision of the Court of Appeal in The Happy Fellow [1998] 1 Ll Rep 13. I was not referred to this case, but it is apparent from Rix LJ’s judgment in FKI that both Longmore J at first instance and Saville LJ giving the leading judgment in the Court of Appeal proceeded on the basis that a French court would regard itself as seised of the issue of limitation (in a marine collision sense) despite the fact that it did not appear to have been explicitly raised in those proceedings. That is not quite the same point, but it does suggest that in applying the “broad commonsense approach” enjoined by Lord Saville in Sarrio, the Court is not confined to issues explicitly raised in the proceedings but can have regard to what each court is in fact likely to resolve.

Third, in Nomura International plc v Banca Monte dei Paschi Di Siena SpA [2013] EWHC 31897 (Comm) (“Nomura”) the defendant to English proceedings applied for a stay of them under what was then Art 28 of Brussels I on the grounds that they were related to Italian proceedings, the Italian court being first seised. The defendant had not yet served a defence in the English proceedings but counsel acting for it confirmed in the course of the hearing that if the English action continued it was likely that the defendant would oppose the declarations sought and that it would seek to rely on all the matters pleaded that it had raised in the Italian proceedings: see at [40]. Eder J held (at [71]) that since the question whether actions are related is answered not just by looking at the claims alone but by looking at the claims and defences:

“it seems to me that in the context of article 28(3), I must proceed on the basis of the indication given by Mr Nash … viz that if the present proceedings were to continue in England, the defendant is likely to oppose the declarations sought and that it would seek to rely on all matters which have already been raised in the Italian proceedings.”

Mr O’Donoghue said that FKI was not cited in Nomura, there does not seem to have been any argument on the point, and the decision was obiter anyway as although Eder J held that the actions were related he declined to grant a stay as a matter of discretion. All of that may be right, but for the reasons I have attempted to give, I do not think that citing FKI would or should have made any difference, and Eder J’s decision does seem to me consistent with the explanation given in FKI by Rix LJ at [68].

Although none of these indications is a binding decision on the point they do give considerable support to Mr Kennelly’s submission. Moreover this seems more in accord with the purpose of Art 30, and the broad commonsense approach, eschewing an oversophisticated analysis, required by Sarrio. As Mr Kennelly suggested, it is no doubt often the case that a defendant will apply for a stay under Art 30 at the earliest possible stage of the second action as the whole point of doing so is to avoid having to engage with those proceedings, and hence that a defendant will often make an application before pleading a defence. But the Court hearing such an application is required by Art 30(3) to assess whether the two actions are so closely connected that it is expedient for them to be heard together to avoid the risk of irreconcilable judgments, which necessarily requires the Court to look forward to those future judgments with a view to considering whether they are likely to be dealing with the same issues. What those issues will be will depend not only on the claims, but also on the defences. Where the Court can see from the material before it what the defences are likely to be, it seems unnecessarily restrictive – and out of line with the broad commonsense approach – for it to ignore those matters simply because they have not yet been formally pleaded.

In my judgment therefore 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. That may be (as in Nomura) because the defendant has confirmed that that is what it intends to do, or (as in FKI) because it is obvious, or (as in the present case) because the inference that that is what it will do is compelling.

On the question of principle therefore I accept Mr Kennelly’s submission. But Mr O’Donoghue had another submission on the particular facts of this case which is 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.

Admittedly with some hesitation I think Mr O’Donoghue is right about this. I have concluded that the Court can have regard to a defence that has not yet been pleaded if it can confidently predict that it is likely to be. The Court will no doubt normally assume when asked to stay the second action that if no stay is granted both actions will continue to trial. That is what gives rise to the risk of irreconcilable judgments. It is in that context that I consider that the Court can properly take account of defences that are likely to be raised even though they have not yet been. But the present case is not like that. I 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. I must therefore proceed on the basis that there is at the lowest a real prospect that the motion might succeed, and the Irish OTB proceedings be dismissed. Mr O’Donoghue is obviously right that in those circumstances OTB never will plead a competition defence, or indeed any defence, in that action. He is also right, it seems to me, that that means that as matters stand, I cannot be sure, or indeed have any degree of confidence, that any competition issues will ever be raised in Ireland. But it is the prospect that OTB’s competition case will be pleaded in Ireland that makes the cases closely connected.

I have not overlooked the fact that Ryanair intends to plead its business model and the like in support of its defence in England that its conduct is not abusive, or is objectively justified. But 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.

I have come to the conclusion therefore that in the unusual circumstances of this case the current position is that the Irish OTB proceedings and these proceedings are not related, and that they may never become related because there is a real prospect that the Irish OTB proceedings will come to an end before any competition issues are ever raised in it. That means that no question of the exercise of the discretion to grant a stay under Art 30 arises. But I will go on to consider how I would have exercised it in case I am wrong on relatedness.

I will assume for these purposes that I am wrong on the question of relatedness. It is convenient to consider the question of discretion by reference to the three factors identified in Owens Bank Ltd v Bracco (paragraph 28 above).

The first is the degree of relatedness between the two actions and the risk of mutually irreconcilable judgments. Even if I am wrong that OTB’s motion to dismiss means that the two actions are not currently and may never become related, it seems to me that it is still relevant to the exercise of discretion. In the normal case, as I have said, the Court second seised will no doubt assume that if a stay is refused both actions will proceed to trial. But in the present case that is quite uncertain. In deciding “the extent of the relatedness between the actions and the risk of mutually irreconcilable decisions” I think it is a relevant consideration that the Irish action may well never come to trial at all. When asking to what extent it is expedient to hear the English action together with the Irish action, or to what extent there is a risk of irreconcilable decisions, the fact that it is currently entirely unclear if the Irish case will be heard at all or if there will ever be a judgment in it to my mind necessarily weakens both the desirability of hearing the English action with the Irish one and the likelihood of inconsistent judgments.

But let me assume that is wrong too, and that the comparison that should be made is between the issues that are likely to be raised in Ireland and England respectively on the assumption that both cases proceed to trial. On that assumption, then I accept that the Irish OTB proceedings and these proceedings would be very closely related – indeed, they are likely to be almost mirror images of each other – and the risk of mutually irreconcilable judgments is high.

The second factor is the stage reached in each set of proceedings. Here Mr O’Donoghue places particular reliance on the delay in the Irish OTB proceedings. It is indeed quite striking that in proceedings issued as long ago as 2010, they have not yet progressed to the stage of pleadings being closed. Some of that is of course due to OTB’s own decision to challenge the jurisdiction and appeal that question to the Supreme Court, but that only accounts for the first 4½ years or so. Some of the remaining delay would seem to be undoubtedly down to Ryanair, most obviously the 2½ years between OTB declining to consent to the amendment to the Statement of Claim and Ryanair’s notice of intention to proceed, but also perhaps the length of time taken to answer OTB’s Notice for Particulars and the lack of active steps being taken after the notice of intention to proceed (see paragraph 12(3)-(6) above).

Mr Kennelly said that the past delay was explicable because Ryanair, rather than progressing all the cases, was hoping that the Vola proceedings, which were progressing quickly, would come to trial first and act as a kind of test case for the others. What was important he said was not what had happened in the past but what would be likely to happen in the future. Ryanair was now attempting to move the Irish OTB proceedings on: it had applied, albeit unsuccessfully, for it to be case-managed together with the Vola proceedings, and it had applied for leave to amend. Allen J’s judgment showed that he was open to case management of the Irish OTB proceedings once the motion to dismiss had been dealt with.

Mr O’Donoghue invited me to consider the suggestion that matters are now being actively progressed with a healthy degree of scepticism given the history of the Irish OTB proceedings to date. Moreover, nothing would happen in those proceedings until judgment was given on the motion to dismiss, and there was then a realistic possibility of an appeal which would take a certain amount of time. I accept that an appeal is a reasonable likelihood, and notice that Allen J, who is likely to have a better idea than me, said that he would not be in the least surprised if, whatever the outcome, the disappointed party were to appeal. I have no formal evidence before me as to how long such an appeal might take to be heard and disposed of, but I accept that I can get some indication from the appeal against the refusal of an interlocutory injunction in the Skyscanner proceedings, which I would have thought to be fairly comparable, where it appears that the appeal was heard about 15 months after the judgment of Twomey J, and judgment on the appeal was delivered about 4 months later (paragraph 15(5) above). That is no doubt a slender basis on which to form any view, but I think I can reasonably assume that an appeal might take between 1 and 2 years.

Moreover, as Mr O’Donoghue pointed out, Mr Phillips’ evidence is that Ryanair expects the outcome of the Vola and Skyscanner proceedings to have a substantial impact on, if not resolve, many of the issues in the Irish proceedings. Mr O’Donoghue submitted that that can only mean that Ryanair expects the Vola proceedings to be resolved before the Irish OTB proceedings; and indeed Allen J refused to case manage them together saying that he could not see how a case that was the subject of a motion to dismiss could be sensibly case-managed with a case in which the pleadings were closed and the parameters of discovery decided at least as to one module. But Vola itself would not be resolved for some time to come: the competition issues were in the second module where there had not yet been discovery, and trial of the second module was some way off yet. On the basis that the Irish OTB proceedings would be resolved after that, it was obvious, he said, that they would not be resolved for many years.

I accept Mr O’Donoghue’s submissions. I should make it clear that I do not intend to suggest that there is any systemic delay in Irish proceedings, or seek to criticise the Irish courts. But on the facts of this case it does seem to me a reasonable inference that it will take some considerable time before the Irish OTB proceedings are likely to come to trial.

That means that although both the English and Irish actions are procedurally at much the same stage – in that claims have been pleaded but not yet defences – if they both continue there is likely to be more progress more quickly in the English action than in the Irish one where there is in practice a de facto stay pending resolution of the motion to dismiss, and the Statement of Claim is not yet in final form. In the English action, by contrast, if I refuse a stay on the present application there is no reason why the action should not progress in the usual way. I accept this and conclude that if both actions continue, the English action is likely to be ready for trial first, and by some distance.

Mr O’Donoghue said that that was a material consideration in deciding whether to grant or refuse a stay of the English proceedings: see eg Centro Internationale at 893 per Rix J, Cooper Tire & Rubber Co v Shell Chemicals UK Ltd [2009] EWHC 2609 (Comm) at [113]-[114] per Teare J and on appeal sub nom Cooper Tire & Rubber Co Europe Ltd v Bayer Public Co Ltd [2010] EWCA Civ 864 at [54]-[57] per Longmore LJ. Mr O’Donoghue cited numerous other examples, but it is not necessary to detail them all as I did not understand the principle to be disputed. Mr O’Donoghue also made the point that OTB is not just complaining of a historic wrong but of an ongoing course of conduct by Ryanair which it says is causing it continuing difficulties, and that the longer it goes on the more damaging it is. OTB therefore wishes matters to be resolved sooner rather than later. There seems to me to be considerable force in that, and, other things being equal, I think I should be slow to drive it away from a jurisdiction where it can take the initiative in progressing the action to one where it is less in control and where it fears that Ryanair’s interests lie in not progressing the litigation, or at any rate the competition aspects of it, quickly.

In summary the second factor seems to me to point strongly in favour of refusing a stay.

The third factor is the proximity of the courts to the subject matter of the case. I can deal with this quite shortly as I regard it as neutral overall. OTB is an English company that for relevant purposes sells holidays to UK consumers and complains of abuse by Ryanair of a dominant position in those (UK) markets. Its claim in this action is clearly a thoroughly English claim, and the torts it complains of are English law torts. On the other hand Ryanair’s claim is that OTB has acted in breach of the terms of use of its website, a contract governed by Irish law with an exclusive jurisdiction clause in Ireland; and its proposed defence of objective justification to the competition claim will require evidence from Ryanair of the benefits to consumers from its business model, all of which Mr Kennelly told me was in Ireland. In those circumstances I do not think that either court can be said to have significantly greater proximity to the subject matter of the case.

Taking all these factors into account, however, if I had a discretion to exercise in relation to a stay by reference to the Irish OTB proceedings, I would refuse to grant a stay.

I can deal with the other Irish proceedings very briefly. Mr Kennelly expressly disavowed any suggestion that the English action could be consolidated with them. On the authority of Kolomoisky (paragraph 30 above), it follows that, even assuming they are related to the English action, there needs to be some strong countervailing factor to displace what would otherwise be a compelling reason to refuse a stay. I do not think there is any such strong countervailing factor.

Mr Kennelly relied on the same matters as he did with the Irish OTB proceedings, but none of them seems to me to point strongly in favour of a stay. There is a dispute between the parties as to how closely related the Vola and Skyscanner proceedings are to the English proceedings. I suspect that largely turns on the different perspectives from which the parties view the dispute. From Ryanair’s point of view the case is primarily about preventing screen-scraping and sale of flights in breach of its website’s terms of use and in defiance of its intellectual property rights, and, insofar as it concerns competition, about its ability to justify any prima facie abusive behaviour by pointing to the benefits to consumers of its business model. All of those matters are likely to be common to the Vola proceedings and the OTB proceedings as they do not really turn on whether the particular Ryanair flights in issue are those sold by OTB in the UK (flights to and from the UK) or those sold by Vola to Romanian consumers (which may include flights to and from the UK). The same is true of the Skyscanner proceedings. Although Skyscanner is, or claims to be, a price comparison website not a travel agent, Ryanair’s complaint is much the same, namely that it is unlawfully engaging in screen-scraping and facilitating sales by online travel agents, including sales to and from the UK.

From OTB’s perspective however the case is primarily about Ryanair’s abuse of a dominant position. For that the starting point is the definition of the relevant market, and since the market for flights for each “city pair” (London to Corfu say) is a separate market, the markets in issue in each set of proceedings will be different, and whether Ryanair has a dominant position, and what may be an unlawful abuse of it, and the effects on competition of Ryanair’s conduct, may vary from one market to another. I notice that Allen J said in the case management motions that he was not persuaded that there was any commonality in the competition claims which had been made (viz in the Vola and/or Skyscanner proceedings) and which might later be made (viz in the Irish OTB proceedings). Mr Kennelly described that as surprising, but I tend to agree with him.

I accept therefore that there will be some, but very far from complete, overlap, between the Vola and Skyscanner proceedings on the one hand and the English proceedings on the other. But I still do not see that that constitutes sufficient of a countervailing factor, let alone a strong countervailing factor, to displace what would normally be a compelling reason to refuse a stay. Since it is accepted that OTB’s claims could not be brought in the Vola proceedings or Skyscanner proceedings, it would mean that OTB’s claims would be put on hold for what could be quite a number of years to await the resolution of the Irish proceedings. But for what benefit? The decisions of the Irish courts in those cases could not determine all the issues in the OTB proceedings: indeed their decisions on the facts would not even be admissible under the well-known rule in Hollington v Hewthorn [1943] KB 587, and their conclusions on the legal effect of the facts would not be binding on OTB: Ward v Savill [2021] EWCA Civ 1378 at [81], [86] per Flaux C. No doubt their decisions on pure questions of law might be of some persuasive effect, although of course not binding, but that seems quite a slight potential benefit. Mr Kennelly also said that if there were a decision in the Vola or Skyscanner proceedings on such matters as the objective justification for Ryanair’s conduct, then it might as a matter of practicality encourage settlement in the English OTB proceedings. I can see that it might, but it might not and either Ryanair or OTB might want to have another go in the English proceedings. Overall I do not see that there is here any strong countervailing factor that would justify holding up OTB’s English proceedings to await a decision in cases between different parties with which they could not be consolidated.

In those circumstances I do not think it appropriate in the exercise of the discretion to order a stay even assuming the claims are sufficiently related, something which I do not need to decide.

As referred to above, Ryanair’s application asks in the alternative for a stay under the Court’s general case management powers. No separate argument was addressed to me on this, and given the conclusions I have come to, I am not persuaded that there is any more reason to grant a stay on this basis than under Art 30.

For the reasons I have given I will dismiss Ryanair’s application. I am very grateful to counsel for their most helpful and comprehensive submissions.