ON THE BEACH LTD v RYANAIR UK LTD & ANOR.

For the purposes of Art 30 of Brussels Recast, related proceedings are assessed broadly and practically. The court may consider a defence which has not been pleaded where it can confidently predict its substance. However, it should not assume that such a defence will arise where there is a real prospect that the earlier proceedings will be dismissed before any defence is served.

In exercising the stay discretion, the court considers the degree of relatedness and risk of irreconcilable judgments, the procedural stage of each action, and the proximity of the courts to the dispute. Where proceedings cannot be consolidated, that is ordinarily a compelling reason to refuse a stay unless a strong countervailing factor exists.

On The Beach Ltd brought proceedings in England alleging that Ryanair had abused a dominant position contrary to section 18 of the Competition Act 1998 and had caused loss by unlawful means.

Ryanair applied under Art 30 of Brussels Recast for a stay because of three related proceedings in Ireland. The Irish proceedings concerned Ryanair’s claims regarding screen-scraping, contractual restrictions, intellectual property rights and related causes of action. In the Irish proceedings against On The Beach, an application to dismiss for want of prosecution had been heard but judgment was reserved.

The central questions were whether the English and Irish proceedings were related, and, if so, whether a stay should be ordered.

1. Ryanair’s application was dismissed. The alternative application for a stay under the court’s general case management powers was also refused.

2. Article 30 requires a threshold assessment of relatedness followed, if necessary, by a discretionary stay decision. Relatedness is wider than identical parties and causes of action. It requires a broad, commonsense assessment of the connection between the proceedings and whether hearing them together would in principle be expedient to avoid irreconcilable judgments.

3. Where a defence has not yet been pleaded, the court may consider its substance if it can confidently predict that the defence is likely to be served. That approach accords with the purpose of Art 30 and avoids an over-sophisticated focus on the current pleadings alone.

4. On the Irish proceedings brought against On The Beach, however, there was a real prospect that the dismissal application would succeed before any competition defence was pleaded. The court could not confidently assume that the competition issues would ever arise in Ireland. The proceedings were therefore not presently related for Art 30 purposes.

5. Even assuming relatedness, the stay would have been refused. The English action was likely to progress substantially faster, the Irish proceedings had been delayed and might be subject to an appeal, and On The Beach had an interest in pursuing an ongoing competition claim promptly. The courts’ proximity to the subject matter was neutral.

6. The Vola and Skyscanner proceedings could not be consolidated with the English action. That was a compelling reason against a stay, and no strong countervailing factor existed. Their eventual decisions would not determine all issues in the English proceedings and would not bind On The Beach on factual or legal issues.