Ryanair v. Johnston

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This is the judgment of the Irish High Court in a case brought by Ryanair seeking the identities of pilots posting to a website under pseudonyms.

Transcript of Ryanair v. Johnston

THE HIGH COURT DUBLIN

Record: 2005/514P

RYANAIR LIMITED

Plaintiff

-and-

NEIL JOHNSTON, IRISH AIRLINE PILOTS ASSOCIATION (IALPA) AND BRITISH AIRLINE PILOTS ASSOCIATION (BALPA) Defendants

APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON WEDNESDAY, 12TH JULY 2006

I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

________________________

APPEARANCES

For the APPLICANT:

MR. R. LAW NESBITT SC MR. M. HAYDEN SC MR. MARK DUNNE BL

Instructed by:

MR. K. O'REILLY O'ROURKE REID MR. B. O'MOORE SC MR. R. HORAN SC MS. BOLGER BL DARACH CONNOLLY & CO. MR. M. CUSH SC MR. M. SCANAILL IVOR FITZPATRICK & CO.

For the 1ST & 2ND DEFENDANTS:

Instructed by: For the 3RD DEFENDANT:

Instructed by:

COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

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JUDGMENT OF MR. JUSTICE T. C. SMYTH DELIVERED ON WEDNESDAY, 12TH JULY 2006 MR. JUSTICE SMYTH: airline. The Plaintiff operates a European wide low cost It is structured so that planes fly from a The particular base where they are kept overnight and begin their outward journeys from such particular bases. two bases relevant in this case are one within the State at Dublin and the other abroad at Stansted in England. In or about 1998/1999 the Plaintiff decided to alter the planes it was using from Boeing 737-200s to a more a modern and capacious aircraft, the Boeing 737-800, both known colloquially as the 200s and 800s. The regulation of airline pilots requires them not merely to have a licence to fly but also to be certified to fly a particular type of aircraft. In Dublin the preponderant type of aircraft in 2004 was the 737-200, as the fleet was reaching the end of its appropriate life, it was intended to be phased out to be replaced by a fleet of 737-800s. The events that give rise to this litigation are stated to relate to what happened when the Plaintiff attempted to obtain crews to fly the new aircraft. In and about the time of this transformation of the fleet a website was established in September 2004, updated for some period thereafter, and known as the REPA website, i.e. the Ryanair European Pilots Association. 3Gwen Malone Stenography Services Ltd.

It was

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incorporated on the ".org" domain.

The website was set

up or established by BALPA whose address in the UK was the real world address for the website and jointly operated by IALPA and BALPA. The most important purpose and function was to provide to Ryanair pilots and captains a confidential method of communication between each other concerning matters of mutual interest to them as it affected them in their work and terms and conditions of employment and in a very particular way how they (and ultimately their families) could be affected by the intended changes in their work in qualifying to fly the 800s and the financial costs or implications for them. The Plaintiff was aware of the existence of the website but initially did not have access to it. To protect the confidentiality of the site an applicant had to satisfy the Moderator and/or controller that he/she was a Ryanair pilot, then such person was assigned or took a code name by which they identified themselves on the website. This afforded a type of anonymity to each The website in individual which facilitated a frankness in discussion that enhanced the confidentiality. effect was a bulletin board on or through which an accredited person could post whatever message or comment they cared to. The website was so designed so The as to permit other accredited users to respond or enter into a dialogue or discussion or conversation. extracts obtained by the Plaintiff (from some informer 4Gwen Malone Stenography Services Ltd.

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or traitor amongst the pilots themselves who made available a or the password to enter the system) indicate the dialogue was subject driven. printout extracts anonymously. The Plaintiffs said in evidence that they received the I cannot believe they were unaware of a pilot or person who was so disloyal to his colleagues that he furnished to the Plaintiff the password to the website. The Plaintiff's complaint was that notwithstanding the fact that they had printouts, they could not identify their known named pilots with the code names such persons used when communicating with each other on the website. The purpose of what was termed this 'sole discovery' action is to enable the Plaintiff to correlate the name(s) of their pilot(s) to the code name of those pilots on the website so as to enable the Plaintiff to investigate what it terms and alleges was bullying which the Plaintiff asserts they were required by law to investigate. The Plaintiff alleges that the behaviour of the airline pilots in their postings to the website was designed to intimidate, victimise, isolate and exclude by implied threats the people (other airline pilots) who would read such messages or postings and dissuade such persons from contemplating and/or accepting the terms which the plaintiff offered to those who might be minded to come to Dublin, in particular to retrain to obtain certification to fly the 800s. 5Gwen Malone Stenography Services Ltd.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 The Plaintiff produced the extracts they had received and called upon the Defendants and asked for the names of the real people to correlate to the code names for the alleged purpose of investigating the alleged intimidation et cetera. Not unnaturally the Defendants did not betray the confidences they had assured the pilots and the Plaintiff's enquiries remained unanswered. It was on this basis that the action was taken - to obtain sole discovery from the Defendants. 6Gwen Malone Stenography Services Ltd.

The Plaintiff's contention was that the purpose or agenda of those behind the website and those who appeared to be using it was to ensure that pilots would not become available to train to fly the new 800s from the Dublin base because it was contended that the pilots or one or more of the Defendants were of the view that they advocated or canvassed that this should only be done on terms that were outside what Ryanair was prepared to offer its pilots. If it were so absent of any intimidation, victimisation, exclusion or isolation, their actions would not be wrongful and could not be actionable. Plaintiff's case thus:"...certainly people using this website, join together to intimidate people from coming into Ireland to fly the planes, or certainly to victimise them, to try and exclude and isolate them and to intimidate and imply threats." Mr. Nesbitt SC put the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 A Mr. Warwick Brady was the Deputy Director to Flight Operations responsible for London Stansted and the pilots in the Flight Operations Department, which 7Gwen Malone Stenography Services Ltd.

The parties other than the first named have already been accounted for in the narrative thus far, he in fact is a trade union official in IALPA and at all material times a moderator for the REPA website in conjunction with another to whom I refer to later. is pleaded that he is improperly joined in the proceedings in that he is a trade union official in the service of the IMPACT Trade Union (the Union) and discharges his civil duties and functions on behalf of the Union and IALPA, which is a branch of the Union. The Union has a negotiating licence and is entitled to carry out negotiations in relation to the terms and conditions of employment on behalf of its members; it was contended that IALPA is not a trade union within the relevant legislation and therefore lacks legal personality and is improperly sued. Prior to action brought IALPA by letter dated 26th January 2005 made proposals to the Plaintiff to enable its concerns to be investigated within an independent forum such as the Labour Relations Commission or the High Court Inspector of the Irish Aviation Authority, but these were rejected by the Plaintiff. It

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encompassed the whole of Ryanair. the London Stansted base. Dublin.

He was based and ran

By 2004 all other Ryanair

bases had converted from 737-200s to 737-800s, except Ryanair "had committed not to put aeroplanes The transition in Dublin was that in until they changed the structure of Dublin Airport" [T.2 p.74 q.278]. all 737-200s would be replaced with a like number of 737-800s to which would be added one more additional 737-800. No evidence was given at any stage during the hearing as to the structure of Dublin Airport as referred to in the Plaintiff's evidence or what changes were necessary from the Plaintiff's point of view for the purpose of their conversion of the fleet from 737-200s to 737-800s. The Plaintiff maintained a communications module (known as CrewDoc) through which those interested in transferring from one base to another could express an interest or preference in the event of a vacancy arising at a base. Ryanair could move the pilots anywhere in the system contractually [T2 p.76 q.286] so that it was not necessarily a consensual process. There were no problems in crewing aircraft in Dublin up to the middle of 2004. The first of the 737-800s was based in Dublin in the Summer of 2004. There was no difficulty crewing that Mr. Brady contacted pilots for Those aircraft in particular.

the purpose of crewing the second 737-800. 8Gwen Malone Stenography Services Ltd.

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contracted were Mr. John Gale, Mr. Andrew Walters, Mr. Mark Sartini, all of whom gave evidence, Mr. Ray Jordan and Mr. Kevin Slyne (the latter after a request for aid from the court to ensure his attendance) was not called as a witness - I draw no inference of any kind from this fact. This action seeking sole discovery is referable to the REPA website - as this was not set up until September 2004 [T.5 p.86 q.359] events in that year prior to that date are irrelevant. Equally irrelevant are a series The of telephone calls dealt with in the course of the evidence between identifiable known persons. website. Captain John Gale had been a pilot with the Plaintiff since 1997. It was clear from his evidence that he was He was transferred at one very much a family man and his priority would be for his family [T.4 p.45 q.225]. rank of Captain. stage to Stansted and with this came promotion to the His preference was to be based at all He had a sense of the issues that material times in Dublin and his choice in this regard had never changed. concerned pilots who might be minded to have their base in Dublin in the context of the transfers from the 737-200s to the 737-800s. He came by this knowledge through contacts with colleagues and meetings of IALPA and in Stansted where these matters in a general way 9Gwen Malone Stenography Services Ltd.

fulcrum of the complaint of the Plaintiff concerns the

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were being discussed. On Monday, 29th November 2004 Captain Gale first became aware of an offer to him by Mr. Brady of a posting to Dublin. While undoubtedly Captain Gale wished to be He He based in Dublin the 'take it or leave it' manner of the offer left him with a real sense of being bullied. had a wife and family, home, car and the usual family/domestic concerns such a person might have. his mind. Captain Gale said in evidence (and he was was given two-and-a-half days within which to make up the Plaintiff's witness) that he enquired what would happen if he did not accept the contract and he was told by Mr. Brady in no uncertain terms that he would never get back to Dublin. Where the evidence of Mr. Brady and Captain Gale differ I prefer as more reliable on all material matters that of Captain Gale, whom I found to be a truthful witness. I find as a fact that Captain Gale had no worries about industrial relations in going back to Dublin where he had been based in the past [T.4 p.56 q.293]. He did establish contact prior to accepting a new contract and transfer with pilots who had been offered the jobs in Dublin but refused to accept on the terms then being offered, this he did as a matter of courtesy as he had trained with them years earlier. I am satisfied and find as a fact that the evidence of Mr. Brady referring to Captain Gale in the following terms:-

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"However, he had received warnings not to go back to Dublin to fly and be based there. These warnings were issued to John Goss by telephone to John Gale." I consider that to be false evidence as was his answer at T.4 p.91 q.6. Mr. Gale may be a mild mannered and even slightly diffident man, but as a person he was very clear and firm and exact in his evidence. contemporaneous notes. In respect of meetings and phone calls he had very pertinent and concise I am satisfied and find as a fact that Captain Gale was in no way cold shouldered or intimidated by Dublin pilots as a result of his decision to go back to Dublin and furthermore I am satisfied and find as a fact that he told Mr. Brady that he, Mr. Gale, had received no intimidation but if he did he would let Mr. Brady know [T.4 p.90 q.386/7]. Furthermore, Captain Gale was not nervous of going back to Dublin. He may well have conveyed a sense of nervousness to Mr. Brady derived from what I think I can reasonably infer was the somewhat vindictive response received by Captain Gale from Mr. Brady on Captain Gale's reasonable enquiries as to what if he did not take up the offer in the two-and-a-half days given to him to decide and sign the contract for the transfer to the Dublin base. I am satisfied that whoever suggested, alleged or set in train a rumour that Captain Gale was in some way responsible for 11Gwen Malone Stenography Services Ltd.

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accusing Mr. John Goss of disloyalty to Ryanair or acting in any way against its interest or intimidating, bullying or otherwise acting in an adverse fashion towards any other person did so without any basis whatsoever on the evidence adduced in court. Whoever did so act acted unjustly, without any sense of responsibility and it was a most reprehensible action. Captain Gale was the Plaintiff's witness and his clear, unequivocal evidence was that he was never warned or threatened in relation to his return to Dublin by Captain John Goss or any other person [T.4 p.119/120 q.543/544]. evidence. Another witness for the Plaintiff was Captain Sartini who in September 2004 was anxious to be transferred to Dublin. He spoke to Mr. David O'Brien and was told He spoke to Mr. Brady and that the chances of a transfer to Dublin would be about two-and-a-half years away. back to Dublin. he was informed simply that he was not going to get The witness accepted that on a conversion from 737-200s to 737-800s the pilots in Dublin would have first choice to be Dublin based. Based on the foregoing and relying particularly on what had been stated to him by Mr. Brady, Captain Sartini made a lifestyle decision and applied to be based at Shannon (his wife was from Tipperary and they had in the past built a house near Nenagh at Portroe). Realising that the possibilities of a transfer to 12Gwen Malone Stenography Services Ltd.

I find the facts in accordance with his

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Dublin were remote, Captain Sartini indicated a preference for transfer to Shannon in November 2004 [T.4 p.130 q.610]. The witness was not aware (before his discussion with Mr. O'Brien and Mr. Brady) on 3rd October when he was still interested in a transfer to Dublin of this fact. Captain Sartini I find as a fact made his decision to seek a transfer to Shannon wholly independent of any issue in these proceedings and for his own family reasons [T.4 p.134 q.634]. Captain Sartini was not a member of IALPA as of 8th October 2004 and did not receive or know of a letter of that date written by Captain Cullen. I am satisfied that by 12th November 2004, (the date on which an offer to individual pilots in Dublin for conversion to 737-800s was made) Captain Sartini had through CrewDoc indicated that he wished as a first preference to go to Shannon, which he did on 10th November and that by 3rd December his decision was absolutely emphatic. No question of industrial unrest influenced Captain Sartini's decision to go to Shannon. Again Captain Sartini was the Plaintiff's witness and in no way assists in any way in supporting the allegations made in these proceedings against the Defendants or any of them or of their servants or agents. The Plaintiff called in evidence Captain Andrew Walters who was a native of Dublin and who in the year 2004 was based at Stansted from which he was flying 737-800s. 13Gwen Malone Stenography Services Ltd.

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He had posted on CrewDoc a preference for a transfer to Dublin - but having been certified to fly the 737-800s he did not wish to return to fly the 737-200s. His flying duties had been flying from Stansted (where he lived with his family) to Dublin on a regular basis. In October/November 2004 he knew from rumours heard at work that some pilots were going to be offered places in Dublin. Without any forewarning he was summoned by Mr. Brady and asked if he would like to go to Dublin, he was surprised by the suddenness of the offer. Captain Walters indicated that the timing was not great (ideal) and enquired if it would be possible to defer acceptance for six months or a year. He said in evidence that there was obvious turmoil brewing in Dublin with threatening court cases and general breakdown in communication between the company and the pilots in Dublin - this was his general understanding. Not unnaturally he wished his working environment to be harmonious and he did not wish to walk into the middle of a legal fight. At no time prior to the offer to transfer to Dublin had he been asked by anyone at all not to take up an offer if one was made to him, nor did such occur after the offer was made to him. He discussed the offer with his wife and, having weighed up the pros and cons, signed the contract and within a few days returned the contract. The witness thought there was only about two weeks interval between the returning of the signed 14Gwen Malone Stenography Services Ltd.

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contract and his beginning to work from Dublin.

There

was no delay in Captain Walters returning to Dublin just before Christmas 2004 (on 19th December 2004). This witness became aware of an investigation into the conduct of Captain John Goss, either through the newspapers or general conversation. I am satisfied and find as a fact that Captain Walters did not have any conversation on the telephone or otherwise with Captain Goss in relation to the matters with which this action is concerned or any that are touching upon the same. Furthermore, where the evidence of Captain Bagnall and Captain Walters conflicts, I unhesitatingly prefer that of Captain Walters which I believe to be truthful and reliable. This witness said that he never felt threatened or intimidated or harassed or bullied or isolated or excluded as a result of taking up his post in Dublin (T.4 p.37/38 q.92) nor did any such occur before his coming to Dublin. Plaintiff. I find the facts to be in accordance with this witness' evidence for the While this witness did not believe that he had any telephone conversations with any other captains or pilots about the issue of the conversion from the 737-200s to the 737-800s at Dublin, it was possible he conceded that he might have had conversations with other pilots on the issue. When this answer was given the matter was not pursued and certainly no other matter pertaining to the issues in the action were pursued arising from that answer.

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Captain John Bagnall joined Ryanair in 1997 and in January of 2004 he became the Base Captain at the Ryanair base in Rome. At one time during the period 1997-2004 he was a member (for three years) of the ERC (Employee Representative Committee) and the Ryanair representative to the BALPA Committee and the intermediary between BALPA and IALPA for a period of about twelve months. The Base Captain is the Chief Pilot's designate at a Ryanair base whose responsibilities are to oversee the implementation of all Ryanair policies and administer those policies and operational procedures at a local level and to report on a regular basis to both the Director of Flight Operations and the Chief Pilot. In the summer of 2004 his understanding of the situation at the Dublin base, which consisted of nine 737-200s was to be augmented with two 737-800s initially on a trial basis due to commercial restrictions in the airport and the policies of the commercial department (of Ryanair) (T.3 p.157 q.643). There was no date given in evidence as to when the commercial restrictions (whatever they were) were removed. Mr. Wilson, who gave evidence for the Plaintiff, said there were ten 737-200s based in Dublin in 2004 which were to be replaced by 737-800s (T.2 p.41 q.169). Captain Bagnall said in evidence that Ryanair had a very publicly stated policy at the time that they 16Gwen Malone Stenography Services Ltd.

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were not initiating any route or base development or expansion in Dublin until Ryanair received more favourable terms from the airport or the airport authority (T.3 p.157 q.644). of the reception. Captain Bagnall gave very detailed evidence of a conversation he said he had in November 2004 quite by accident with Captain Walters during which Captain Walters told Captain Bagnall that he (Walters) had received a telephone call on his mobile phone from Captain Goss who spent the duration of the call trying to influence him (Walters) not to take up a position at the Dublin base (T.3 p.160 q.652-654). Captain Walters was categorical in his evidence in denial of any such conversation in this regard or any conversation with Captain Goss. In accepting the evidence of Captain Walters in preference to that of Captain Bagnall, I do so because I believe Captain Walters gave very truthful evidence. Captain Bagnall agreed that although the conversation took place on a casual encounter in the crew room at Stansted, it was a confidential conversation. At the time of the stated conversation Captain Bagnall was aware that Captain Goss (with others) had raised issues with the Director of Operations in Ryanair about the training on or for the 737-800s. No evidence was given as to when such terms were received or the circumstances

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This stated conversation in the crew room at Stansted, if it occurred at all, or in the terms stated by Captain Bagnall, had very serious consequences, yet at no time was Captain Bagnall requested by Ryanair to provide a statement or prcis of the conversation in writing. While Mr. Brady said he made a note of these matters as told to him by Captain Bagnall, such note appears to have been lost or disappeared and was certainly not available for the hearing. his conclusion as follows:"I advised him as soon as he had explained the situation to me that the matter had to be reported to senior Ryanair flight operations management, and Warwick Brady at the time was the Senior Flight Operations Manager in London Stansted. Andrew explained to me that he didn't really feel like taking the issue to Warwick Brady because it would only exacerbate a potential unpleasant environment if he decided to move back to Dublin. So I explained to him there and then that if that was his decision, that I would have to forward this information to Warwick Brady and he was content with the fact that I would forward it." Captain Bagnall said that on his perception of the incident he determined it would have been a breach of personnel regulations. It would appear he perceived what he stated in evidence, which I consider can be characterised, to have been a moral lapse of some description by either Captain Walters and/or Captain Goss. If he was scandalised, he had clearly forgotten 18Gwen Malone Stenography Services Ltd.

Captain

Bagnall in direct evidence on this meeting referred to

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Wilde's epigram; "scandal is gossip made tedious by morality" (Lady Windermere's Fan, Act III) (Cecil Graham). Captain Bagnall agreed in evidence that this conversation if it ever occurred, at least in part according to Mr. Brady, was the basis of his informing Mr. O'Brien of certain matters as a result of which Captain Goss, an exemplary member of staff, became the subject of investigation. I found great difficulty with Captain Bagnall's evidence and its detail - it indicates (if the conversation occurred as sworn to by Captain Bagnall):(a) (b) A breach of confidence by Captain Bagnall in his. dealings with Captain Walters. It seems most improbable, taking the evidence of Captain Walters into account, that he would have been content to acquiesce in Captain bagnall's alacrity into confessional mode. (c) That so important a conversation upon which Captain Bagnall took a "principled" position was not recorded by him, nor sought by his superiors, if they were going to act on same. (d) There is no reference whatsoever to the alleged conversation with Captain Walters in any of the affidavits sworn by Mr. Wilson. A few months later in April 2005, by which date Captain 19Gwen Malone Stenography Services Ltd.

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Bagnall had become Base Captain in Dublin, Ryanair and Captain Goss were in the throes of litigation. Captain Bagnall visited the Four Courts and with abject timidity feared to open the door of a courtroom to see for himself part of the drama he had with Jansenistic zealotry set in motion. His evidence that he waited outside the courtroom for 40 minutes and because of decorum refrained from entering or seeking to enter the courtroom is not an issue I have to try. However, on the matter of credit, I find great difficulty in accepting the context in which that visit occurred that when he met Mr. O'Brien, they did not speak about the court case and the issues touching upon it. I did not believe this witness - his supercilious attitude in giving his evidence and his tendentious manner of replying to cross-examining Counsel created a most unfavourable impression that he was being honest in his answers. q.37): Even the detail of court attendance (T.4 p.11 "I attended one afternoon some time after April When further

2005" (T.4 p.12 q.43) - and: "The morning that I was here I think I may have met Mr. O'Brien." cross-examined by Mr. Moore for IALPA, Captain Bagnall said he only spoke to Mr. O'Brien briefly but not about the Goss case. When asked what he did talk to Mr. O'Brien about, his answer was:"Very little actually. I spoke to him briefly. As it happened, on the morning that I attended the court proceedings were in train when I arrived, I did not enter the courtroom and I left some time before the court 20Gwen Malone Stenography Services Ltd.

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proceedings finally finished for the day." [T.4 p.12 q.46] The Plaintiff's case was that there was information in the management of Ryanair from discussions with workers - which Mr. Brady received in the course of his employment from employees he had to interact with which gave rise to a need for investigation. The five captains (earlier referred to in this judgment) were stated to be the persons to say what happened in conversations that caused Mr. Brady to act in his capacity as Base Captain and as a man concerned with staffing the new 737-800s in Dublin. One of the five persons who were stated to have had an interaction with Mr. Brady that in some way caused him to consider an investigation was warranted was a Mr. or Captain Ray Jordan. It would appear from the printout of the CrewDoc applications he had opted for a Dublin Base and had both on 7th September 2004 and 12th October 2004 indicated Dublin as his first preference as a location for transfer. His second The choice as of 12th October 2004 was Stansted.

printout document indicates that on 4th December 2004 (this document produced by Mr. Wilson in evidence and on first reading might appear in some way to support the Plaintiff's case because it notes that Captain Jordan refused to go to Dublin on 4th October 2004), however, it emerged that by that date Captain Jordan was offered a posting in Dublin - he had asked for time 21Gwen Malone Stenography Services Ltd.

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to consider it because of the arrival of a new baby and was not anxious to take a transfer at that time (T.2 p.93; T.3 p.135). There was no evidence whatsoever of him being in any way intimidated or threatened or harassed or otherwise victimised or cajoled or being persuaded not to transfer to Dublin or any of the other matters complained of by the Plaintiff in these proceedings. The document to which I have just referred was also the subject of evidence through Mr. O'Brien and it is quite clear that it is a derivative document and cannot be relied totally for veracity of the commentary that appears at its foot. During the evidence of Mr. Brady a ruling was given on hearsay evidence. In the case of Captain Slyne - he was available in court to the Plaintiff who decided not to call him and this of necessity limits Mr. Brady's evidence in this regard (T.2 p.94 et seq). Mr. Brady did say that Captain Slyne was not explicit in his reasoning for declining to transfer to Dublin and that the industrial issues and the unrest and the then current environment were known to Mr. Brady and as a matter of probability to Captain Slyne. case of intimidation et cetera. Mr. Brady said he was very surprised at the sort of attitude of the people who signalled a preference to go back to Dublin once offered. 22Gwen Malone Stenography Services Ltd.

Even if all

these things were said, none sustain the Plaintiff's

I wondered at his

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surprise in the light of the sneering disregard of the tone of the letter of 30th June 2004 addressed to the pilots seen, in my opinion, wholly inappropriate to the discourse of industrial relations [T.2 p.109/110]. It indeed might have a resonance to the terms of inquiry of the police officers in the questioning in the play Assinamali. I am satisfied on the evidence of Mr. Brady that he had no personal knowledge or knowledge from any of the supposed 'threatened or intimidated et cetera' pilots or of any threats of intimidation et cetera such as to support the case pleaded or presented to the Court. However, Mr. O'Brien's evidence was that his letter of 10th December 2004 to Captain Goss was based on information given to him by Mr. Brady. The activating agent in this litigation (altogether from the admitted wish of the Union to represent the pilots through their statutorily recognised negotiating licence and the resolution of Ryanair not to negotiate with staff through the Union) was a telephone conversation undated and of which there was no documentary evidence in support of its existence or content made by Captain Bagnall and Mr. Brady. Mr. Brady's evidence was that Captain bagnall had told him (Mr. Brady) that pilots (although Captain Bagnall only identified one - Captain Walters in his evidence) "were being threatened" (although this was an interpretation of Captain Bagnall of what he says he 23Gwen Malone Stenography Services Ltd.

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was told by Captain Walters) "to stop them trying to influence Andrew in his decision [T.3 p.160 q.652 l.7-8]; or told by Captain Goss that Walters "should consider it, the impropriety of the timing of the move with regard to the environment and the situation in which the Dublin pilots found themselves," [T.3 p.162 q.555 l.15-18] "from going back to Dublin, specific threats to pilots who I had identified to go back to Dublin. So I asked who was that person and they said it was John Goss." (My emphasis) The sequence of communication was that then Mr. Brady telephoned his superior, Mr. David O'Brien, to say to him that there have been threats (only one ever identified by interpretation by Captain Bagnall) by a pilot in Dublin against the pilots which he had identified to go back to Dublin (we know in court of only five) and this was made to ensure that they did not return to Dublin. Mr. Brady's evidence was that if he remembered well Mr. O'Brien said: "Don't provide me [with] names but we will instigate an investigation immediately." When Mr. O'Brien gave his evidence, he However, Mr. O'Brien did disagreed with this evidence.

agree that he had said to Mr. Brady: "I don't need to know the name of the person who told you this, but we will launch an investigation." In the events Captain Goss was identified by Captain Bagnall as the person supposed to have threatened pilots.

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The time from which Mr. Brady said he was experiencing diminishing success in finding "volunteers" to transfer to Dublin is in or about December 2004 and thereafter. About this time he said he began receiving from an anonymous source - of whom he had a good idea, but was not absolutely sure - if he ever made appropriate enquiries (and there was no evidence either way) his source was not disclosed to the court, e-mails and REPA literature which was received regularly. reasonably regular basis. Pprune. He brought all documentation received in Stansted to Dublin on a He knew of both the REPA website and a BALPA website and a website called Mr. Brady's impression at the time was that there was industrial unrest about conversions in Dublin but it was much more sinister than a normal industrial issue. He had a concern at the beginning of 2005 that he could not get enough pilots to transfer to Dublin voluntarily and that they were having to use management and some contract pilots. When asked in direct examination if there was any interference other than pilot shortages (which was not explicitly quantified in the evidence) or were there problems in relation to plane deliveries (T.2 p.102/103 q.340) no reply was given to this question - the response was to refer to the logistical challenge relating to having crews available for planes as they became available. The context in which the tension between the Plaintiff and the captains/pilots (in Dublin) or who may have 25Gwen Malone Stenography Services Ltd.

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wished to be transferred to Dublin to fly the 737-800s was that the only terms which Ryanair would tolerate were their own (not such as might have been consensually agreed between the company and the individual pilots). These dictated or non-negotiable terms were set out in the letter dated 12th November 2004 addressed to the pilots:"Dear ... We are pleased to offer you a place on a conversion training course for a Boeing 737-800. This offer is conditional on your understanding and acceptance of the following conditions: 1. A position on the B737-800 based in Dublin will only be offered after you have successfully completed the conversion training programme and the relevant regulatory authority has endorsed your pilot's licence. The cost of this training programme is 10,000 (15,000) and payment of these training costs is required prior to commencement of training. Since your gross total remuneration from Ryanair is over [ ] (putting you in the top two percent earners in Ireland) this training cost in modest in the context of your substantial income. 3. However Ryanair proposes to defer payment of training costs for a period of five years from commencement of conversion training. Payment will become due immediately if either of the following two conditions materialises before the end of the five year period; (a) You leave Ryanair's employment within five years of commencement of your conversion training then you will be liable to repay the full training costs, which amount to Stg10,000 (15,000). Repayment will not apply to pilots who reach normal retirement during the five year period. 26Gwen Malone Stenography Services Ltd.

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(b) It has been Ryanair's policy - for so long as our people deal directly with the company - that pay will be better, pay increases higher, and training costs shall be met by the company. We wish to remind you that should this policy be altered and Ryanair be compelled to engage in collective bargaining with any pilot association or trade union within five years of commencement of your conversion training, then you will be liable to repay the full training costs. Naturally this does not and will not affect your right to freely join any trade union or association of your choice. 4. Ryanair will write off this debt in full at the end of this five year period provided that neither of the events specified at 3(a) and 3(b) have materialised. 5. If you decline this offer of conversion, then you will continue to operate on the B737-200 fleet. However, it is envisaged that the 200 fleet will be phased out over the next number of years, and if there is no suitable alternative work available at that time such as 737-800 series flying at one of our other bases then you will be given notice of redundancy. 6. This offer is available for acceptance by you for a seven day period. The offer automatically lapses at 17:30 on 19th November 2004. You may confirm your acceptance of this offer, by signing this document and returning the original by hand to the undersigned before 17:30 on Friday, 19th November next. Finally, congratulations on your selection for conversion training and we look forward to working with you. David O'Brien, Director of Operations." 27Gwen Malone Stenography Services Ltd.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 While there can be little dispute that if Ryanair had paid for the retraining of its own pilots at 15,000 each, it would be objectively unfair and commercially foolish that they should do so for the benefit of a competitor if a trained pilot left their employment within a certain given period, such as would fairly recompense Ryanair for undergoing the expense of the retraining. However, it seems both irrational and unjust that the actions of third parties when a trained pilot could not control their actions should in effect 28Gwen Malone Stenography Services Ltd.

In short the pilots not only were given a Hobson's choice, but in respect of condition 3(b) a pilot through no act or default on his part could suffer the loss of 15,000. The letter is evidence as to its being written and its contents but not necessarily the veracity of the contents and in particular I had no evidence as to whether the reference to the gross total of remuneration referred to in paragraph 2 is comparable to a base information. It may be that in certain categories the gross total of remuneration for certain Ryanair pilots may exceed that in other airlines, I am not aware of the fact either way but even if it does, evidence as to its true worth as to whether sums have to be allowed for meals, uniforms, periodic in-service training, meals away from home allowances, et cetera. However, it is not an issue that requires determination in this case.

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be penalised by an alteration by Ryanair engaging at a future date in collective bargaining "with any pilot association or trade union." oppression. In my judgment this is a most onerous condition and bears all the hallmarks of It was to such a rgime that "the eight It most senior Ryanair pilots" objected in their letter dated 19th November 2004 addressed to Mr. O'Brien. letter of 12th November 2004 from the Union to the Labour Relations Commission or of 25th November 2004 from the "eight most senior Ryanair pilots" addressed to Mr. O'Brien. What emerged in the evidence was that while Mr. Brady was aware of the fact of industrial unrest in Dublin, he did not have any detailed knowledge of it (T.2 p.118 q.412). He appears to have been informed on a need to know basis determined by those in higher authority in respect of which no reason was adduced in evidence. Likewise Mr. Brady, to whom it would appear, was the person entrusted with the task of securing a proper complement of pilots to fly the 737-800s from Dublin was not at the meeting on 23rd November 2004 between Mr. O'Brien and the "eight most senior Ryanair pilots in Dublin." It would I hope be a fair summary of Mr. Brady's evidence that he had a broad understanding of the industrial unrest in Dublin in November 2004 - but was lacking a detailed knowledge thereof. Mr. Brady accepted that as a probability of his 29Gwen Malone Stenography Services Ltd.

is clear to me that Mr. Brady had not seen either the

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communication with Mr. O'Brien arising from Captain Bagnall's telephone call that this set in train Mr. O'Brien's letter of 10th December 2004 to Captain Goss, that that could have given rise to Mr. O'Brien's use of the plural of a number of complaints from pilots and the telephone calls to dissuade colleagues was never explained to me. I think to say that the investigation and the institutional proceedings that followed is a matter of opinion as to whether such was likely to create industrial unrest, is to live in an unreal world or despotic indifference to the consequences of the actions that proceeded from such letter. Mr. Hughes who was based at Stansted had an appreciation in hindsight (T.3 p.141 q.578) at least and was realistic in his understanding of what was afoot. 2004. Further, he did not notice anything unusual or Captain Gale may have returned his completed Even out of the ordinary among the crews in Stansted in late contract to Mr. Hughes but has no recollection of doing so or of the conversation sworn to by Mr. Hughes. the substance of Captain Gale's evidence. if Mr. Hughes is correct, it does not in any way affect I think that in context Captain Gale might well have surmised as to how he would be received in Dublin in the light of the then existing industrial unrest that existed. there might still in some persons be a sense of 30Gwen Malone Stenography Services Ltd.

Even in

an non-contentious, harmonious or congenial atmosphere,

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apprehension as to how might one get on at the new venue or with new work colleagues. The comments, if made by captain Gale, made no initial impact on Mr. Hughes - I think it reasonable to infer that when he reflected on the facts existing in Dublin he put a possible construction on Captain Gale's comment. evidence. Mr. Eddie Wilson is the Director of Personnel and In-Flight for Ryanair. His functions under the latter Each aircraft he term meant that he had a specific operational role for cabin crew (which includes pilots). First Officer) [T.2 p.39 q.158]. was that:"You needed a minimum of eight pilots, that is four captains and four co-pilots. The ideal would be five captains and five first officers. The ideal would be five, but we basically ran to a minimum crew to keep the costs down." [T.2 p.78 p.296 l.12-15]. Mr. Wilson stated that he had a schedule of expected delivery of the new 737-800s - but this information, number or dates was not given to the Court. His evidence was that: "We would have sold tickets for those routes" (again no firm evidence that this was actually done in respect of specific ex Dublin routes flying or to fly 737-800s). 31Gwen Malone Stenography Services Ltd.

In my

judgment nothing turns on this particular piece of

said requires five crews (comprising a Captain and Mr. Brady's evidence

If tickets were sold in

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the hope or expectation of aircraft and/or crew being in fact available, consequences, not the subject of this case, might well ensue. In 2000 a five year agreement was made with the pilots - in the case of the Stansted pilots the agreement was made in late 2000. As a result of 9/11, it became possible to acquire earlier than expected 737-800s from Boeing because of the economic state of the aircraft industry. Bases other than Dublin had over a period of time converted to 737-800s but by 2004 Dublin was the last base at which conversion had not taken place. earlier referred to. In the year 2004 all Captains who were based abroad who expressed a preference to work from the Dublin base between March and November 2004 accepted positions in Dublin. This witness said that after almost a year of zero applications for transfer to Dublin, applications began again in either August 2005 [T.3 p.50 q.8] or September 2005 [T.2 p.56 q.224]. The litigation This between John Goss and Ryanair (earlier referred to in this judgment) was settled on 8th June 2005. witness' explanation for the lack of applications (from December 2004 (because the second 737-800 was crewed by 19th December 2004) to September 2005) was: "... that people felt that they shouldn't come to Dublin, that there 32Gwen Malone Stenography Services Ltd.

The CrewDoc

system permitted for the interaction possibilities

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were extreme difficulties there in that they would, that there was, I don't know, there was an air of intimidation about coming to Dublin. [T.2 p.58 q.233] A considerable part of the evidence of this witness and that of Mr. O'Brien was related to an investigation into the conduct of Captain John Goss. The process (by whatever name called) "was to enquire into establishing the facts as to whether there were allegations that John Goss had made telephone calls to one or more pilots in Stansted who were at that time offered contracts of employment to come back to Dublin." [T.2 p.14 q.6]. Captain John Goss and Ryanair went to law It in the High Court (Record No. 2005/593P) and that action was settled on terms signed by both parties. is stated to be:"In full and final settlement of all disputes, claims and causes of action, howsoever arising between Captain Goss (CG) and Ryanair (R), Michael O'Leary (MOL), David O'Brien (DOB), Michael Horgan (MH) and Ray Conway (RC) it is agreed as follows: 2. In respect of all outstanding disciplinary proceedings commenced against the Plaintiff (CG) on 10th December 2004, the Plaintiff (CG) hereby confirms that he has made full disclosure of all his contracts with any other pilots concerning the Defendant's conversion from the 737-200 aircraft to 737-800 aircraft in Dublin and on that basis the Defendant agrees that the process be closed with no adverse finding."

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The agreement was received by the Court. Mr. Wilson's physical position in Dublin Airport permitted of easy access between Ryanair employees (captains and pilots in particular) and him. In evidence he said that: "In short people stopped talking to me completely," and appeared to avoid speaking to or meeting with him and he: "Began to work it out pretty quickly that they were either told not to speak to members of management, were afraid that if they were seen talking that they may be giving information or that somehow or other they would not be, you know, people just did not walk by you, people were actually afraid to be seen talking to you. understood the situation to be." That is what I [T.3 p.38 q.24].

Having observed this witness in the restricted confines of the witness box, when he did not hesitate to correct cross-examining Counsel on at least four occasions for the improper use of a word or term, notwithstanding that the substance of the inquiry could easily be understood from the context of the question and in the light of his own evidence and that of Mr. O'Brien which followed concerning the process of Captain Goss. From 10th December 2004 onward, I could well understand staff avoiding both these witnesses (on any point of difference - even absent any of the matters alleged in this action) as probable. Mr. Wilson in his evidence on the Ryanair Rough Guide 34Gwen Malone Stenography Services Ltd.

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(which in general terms deals with how the company does its business, things employees would need to know, Bullying and Harassment At Work Policy), the company is concerned that those working in critical activities (e.g. the pilots) do so in an atmosphere free of bullying or harassment such as "might compromise safety, might stop people doing certain things with their jobs or doing certain parts of their jobs" [T.3 p.47 q.63]. The logjam between December 2004 and August 2005 was released on the evidence of this witness when the conversion training commenced. Notwithstanding the evidence of Captains Gale and Walters, whom I took to be the two individuals referred to by Mr. Wilson in his answer at T.3 p.52 q.90, it was never put to them or suggested by either Mr. Brady or Captain Bagnall that the supposed threats or intimidation "could have compromised safety" [T.3 p.53 q.92 l.16]. false. I reject this evidence as baseless and The pleaded concern and invocation of the

statutory duties arising from Safety Health & Welfare at Work Acts 1989-2005 and the regulations and statutory instruments made thereunder, and the Code of Practice detailing procedures for addressing bullying in the workplace was to lend a facade of concern on non-issues in what was essentially a reaction by the Plaintiff against the want of an immediate and unequivocal acceptance of non-negotiable terms and conditions laid down to the Defendant by the Plaintiff referable to retraining. 35Gwen Malone Stenography Services Ltd.

The real as opposed to the

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putative purpose of any investigation was to break whatever resolve there might have been amongst the captains to seek better terms and, in particular, a very reasonable and justifiable concern over Condition 3(b) and the matter of pensions in particular. In my judgment on the evidence before the Court, there was no warrant for the seeking assistance from An Garda Siochna, this seemed to me to have all the hallmarks of action in terrorem. While this reality was not put directly to either Mr. O'Brien or Mr. Wilson or any other evidence called on behalf of the Plaintiff, the matter was clearly inferred from much if not most elements of the cross-examination. In cross-examination Mr. Wilson accepted that certain changes in the conditions of a number of pilots at Dublin were adverse to them in 2004. made unilaterally by the Plaintiff. Some changes were I am satisfied and

find as a fact as a matter of probability that these were the matters that gave rise to understandable industrial unrest in late 2004 and well into the following year. While, as earlier noted, the specific timescale for transferring from 737-200s to 737-800s was never given, Mr. Wilson agreed that the changeover or transfer took place in accordance with plan and that the last of the 737-200s left Dublin in December 2005. As if regretting giving the answer on plan compliance, 36Gwen Malone Stenography Services Ltd.

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Mr. Wilson then said: "We would have preferred to do it earlier" [T.3 p.80 q.252]. I had no evidence either way as to whether the actual aircraft were available earlier than the unspecified date to which the plan related. Mr. Wilson through some Iscariot or Iago had a password to the REPA website and this secured access to it since in or about 10th/14th December 2004, and Ryanair have been able to monitor it to date on whatever frequency is chosen. It was the wish of the Plaintiff that the anonymity of the informer of the password be protected (a marked contrast in attitude to the supposed disloyalty to the company of those who used the website) - it was not an issue and is not an issue that I have to decide and I did not insist on an answer to the enquiry. his desk. Like Mr. Brady, Mr. Wilson too swore that he did not know who left excerpts from the website on I have great difficulty in believing this evidence from either. When Mr. Wilson came to give evidence on what Mr. O'Brien's reputed response to a phone call from Mr. Brady concerning the alleged threats was, there is not only a difference as between Mr. O'Brien and Mr. Brady, but also between Mr. Wilson and Mr. O'Brien. I find it impossible to know who is telling the truth on the stated/reputed response of "don't provide me with names but we will instigate an investigation 37Gwen Malone Stenography Services Ltd.

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immediately."

In many other cases such differences on

such a detail might be of little account, but in the instant case it is a matter of importance for it is the point from which the 'Goss investigation' begins in earnest. Altogether from reflecting no credit on the "open culture" said by Mr. Wilson to exist and which Ryanair is imbued [T.3 p.47 q.63 l.6], it betokens a mindset with a predisposition to subject Captain Goss to an investigation without any fair or reasonable bases. If industrial relations in Ryanair had become fraught in late November/early December 2004 and thereafter, its origins, appear to me, are unburdened by integrity. Mr. David O'Brien was since late 2004 (and to date) the Director of Flight and Ground Operations. staffing of the Ryanair fleet. His ultimate responsibility is for the recruitment of pilots and the Contrary to what Mr. Wilson stated about having the printouts and access to the REPA website in January, Mr. O'Brien was appraised of what was contained in a run of printouts some time in the middle of December or early December (T.5 p.31 q.139-140]. In the light of the capacity of both management and pilots over time to have exchanges described by Mr. Cush as robust, and the Defendants just stopping short of describing the 'Goss investigation' as a witch hunt, I found the professed delicacy of feeling and sense of refined disturbance by some of the messages on the website as expressed by 38Gwen Malone Stenography Services Ltd.

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Mr. O'Brien as well short of sincere.

I accept that

the depth of frustration and discontent by some of the users of the website was hotheaded and intemperate but even though wildest of these "ihateryanair" with its two messages on 6th December 2004 at 22:56 and 22:58, these were clearly reflected on with the advice of the Moderator at 23:37 that night, and he had calmed down by 00:41a.m. on 7th December 2004 and by 11:56a.m. on that day made apologies to all. When "cantfly-wontfly" becomes involved on 7th December 2004 at 15:44, it is by way of a joke in poor taste - or on a fair reading with weak adolescent street humour, and "I hate slashing tyres gets lawyers involved, try letting air out instead." By 16:09p.m. on 7th December "ihateryanair" had disowned this foolish notion. If Mr. O'Brien's stated refined sensibilities were offended by the printouts, it betokens in my judgment a total underestimation of the level of discontent that events generated by the 'take it or leave it offer' published by Ryanair in their letter of offer - it is no cause of concern of the Court to appraise the offer, but simply to try and understand how both sides to the controversy perceived the facts and to ascertain if the person seeking sole discovery is an injured party and whether if the Defendants used unlawful means to achieve what may to them seem to be perceived as an unlawful end or purpose.

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While I am satisfied that there were no threats or intimidation of the type contended for by the Plaintiff, it is of interest that the only evidence that even approaches explaining the plan for the takeover/conversion is that given by Mr. O'Brien who stated: "Our intention thereafter (November 2004) was to begin probably on eight or ten month long process of converting our original Dublin 200 pilots, the first bunch crewing the second aircraft" (T.5 p.6 q.11 l.13-17]. training. I understand and accept that not all Dublin This was reasonably to be carried out over Even accepting this as correct, there is Even if it was so known, The anonymity of the based Captains could be absent together for 737-800 some period.

no evidence that this was expressly stated or made known to the captains. Mr. Wilson agreed that the changeover or transfer took place in accordance with plan. site is objected to, yet the preservation of the anonymity of the informant of the REPA website password is pleaded for. I realise the circumstances differ, It is little wonder but integrity and a sense of fair play are not the bedfellows of double standards. that the users of the REPA website may have resorted to communicating with each other by e-mail and telephone when they realised that there was a traitor in their midst. If the information sought by Mr. Wilson was The "noise" that reasonably refused, that is not an offence - this is not a confessional state. Mr. Nesbitt SC for the Plaintiff conceded existed about 40Gwen Malone Stenography Services Ltd.

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the case cannot on either side be determinative of its outcome. In real truth this action is part of the ongoing conflict between Union recognition at Ryanair and the company's determination to resist this and I express no view on either party's position. The "sole discovery" action it appears to me forms part of a war of attrition that the captains are to be dissuaded by legal battle from having the temerity to try to achieve their aim if it be such. [T.5 p.15 q.60]. other. I do not accept Mr. O'Brien's evidence that the investigation intended was bona fide It is a feigned exercise and designed to divide those in IALPA from loyalty towards each Nonetheless, the Plaintiff is entitled to loyalty from its work force, but not supine deference. Between August-December 2005 the stated logjam that existed since late December 2004 was resolved. I am not satisfied that the alleged threats or harassment etc., even if they might have been perceived as such by Ryanair, played any part or any significant role in any alleged disruption to the Plaintiff or its business or staff. The letter of 17th January 2005 from Ryanair seeks the identity of REPAI (Captain P. Phillips, a most impressive and truthful witness, whose evidence I found both clear and helpful, indicated his role as Moderator which I am satisfied and find as a be fact he carried out with scrupulous care and prudence and whose deletions were in my judgment warranted and timely and none of which were for the avoidance of having evidence 41Gwen Malone Stenography Services Ltd.

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available for court purposes or to improperly deny the Plaintiff information which they have had access to since early December 2004 other than the co-related real persons to code names) and the "ihateryanair" and upon whom objectively I consider to have been 'a poor player who struts his hour upon the stage and then is heard no more, he was full of sound and fury signifying nothing' (but a huge sense of frustration). I find as a fact that the state of the art and technology can reconstruct or decipher the deletions that may have taken place on the website and further that such deletions as did take place were because of their inappropriate nature and that the Moderator acted with reason and good sense and that there was no sinister or ulterior motive in the deletions which were made to avoid possible scrutiny through or by the legal process. If there was a deletion beyond recall carried out by the Defendants or any of them or any of their servants or agents, I accept that the deletion was for the reasons given by Captain Phillips which were valid reasons and to protect the confidentiality upon which the users contracted into the system. I accept Mr. Keary's evidence that it would be unethical to get into or access the website (T.2 p.24 q.79-83] (as the Plaintiff it would appear indirectly did) in the absence of credentials. 42Gwen Malone Stenography Services Ltd.

It is unnecessary

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for me to undertake an analysis between general and special ethics or under which heading the "anonymous" printout or access to the REPA website may come to be determined. Mr. O'Brien in the course of cross-examination by Mr. O'Moore - in the context of "the Goss investigation" when it was suggested to the witness that fairness demanded that the information that lay behind the case being put to Mr. Goss could and should be given to Captain Goss's solicitor to enable him to deal with issues of alleged threats - the response was:"I didn't think it necessary, I don't think 'fair' is an appropriate phrase in this instance." [T.5 p.35 q.167 l.16-17]. Regrettably, but without hesitation, I find as a fact that on a conspectus view of the evidence as a whole in this case "fairness" did not seem to come into the reckoning of the Plaintiff in its dealings with the Defendants on the issues raised in and by this case. In summary, in the words of Isabella in Measure for Measure Act II.2: giant." The Law and Legal Submissions "Oh, it is excellent to have a giant's strength; but it is tyrannous to use it like a

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1.

The Action for "Sole Discovery"

In broad terms it can be said to have its origins in the development of the common law through the decision some thirty-odd years ago in the House of Lords in Norwich Pharmacal Company -v- Customs and Excise Commissioners [1971] A.C 133. It was there decided that where a person, albeit innocently and without incurring any personal liability, became involved in the tortious acts of others, he came under a duty to assist the one injured by those acts by giving him full information by way of discovery and disclosing the identities of the wrongdoers, and for that purpose it mattered not that such involvement was the result of voluntary action or the consequence of a duty, statutory or otherwise. If there is no overriding public policy reason for not making the order for discovery, it should be an order that is granted rather than refused. The entitlement is limited to the one injured - thus in the instant case where the stated concern of the Plaintiff is to investigate alleged bullying, of which there was no evidence against any of the Defendants, does not give rise to the entitlement to seek the order. If there were any evidence of intimidation, victimisation, exclusion, threatening or isolation of which there was none, the person or persons who may have had an entitlement to seek the relief if they had been victimised, intimidated, et cetera, would be such 44Gwen Malone Stenography Services Ltd.

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persons if they could prove they had been injured. prove they had been injured in that context.

The

Plaintiff may come within such a category if they could The duty articulated in the speech of Lord Reid in Norwich Pharmacal is "a duty to assist the person who has been wronged" (my emphasis) - not anyone else. This requires the plaintiff applicant to prove in the hearing that they have suffered a legal wrong - if they fail to do so, the remedy of sole discovery is not available. I accept that a plaintiff on such an application need only be in a position to assert that (the importers) or whoever they are must have been infringers and therefore wrongdoers, and by analogy likewise in this case. This assertion only has force The or meaning when the plaintiff applicant first establishes in court that it is the one injured. Court can only assist through the 'sole discovery' order in the identification of the person or persons who have caused the actual injury proved by the plaintiff to have been inflicted. If the Court is satisfied that a plaintiff is injured, it may in appropriate circumstances assist through the sole discovery order in enabling the plaintiff to bring an action for the injury suffered against the person or persons responsible for inflicting it. 2. The Irish Experience

The authority of Norwich Pharmacal was considered in Ireland by the Supreme Court in the decision of 45Gwen Malone Stenography Services Ltd.

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Megaleasing UK Ltd. -v- Barrett [1993] ILRM 497 in which the plaintiffs were a group of interrelated companies engaged in multinational trade in computer equipment and accessories. They alleged that four invoices were raised by some of the defendants and that no satisfactory explanation of any value for goods or services provided by the defendants to whom these payments were made could be found on investigation. It was in those circumstances that the plaintiffs alleged that the defendants had either wittingly or unwittingly become involved in the tortious acts of others so as to facilitate the wrongdoing of wrongdoers and were therefore under a duty to assist the plaintiffs by giving them full information in relation to the events surrounding the wrong doing so as to enable the plaintiffs to proceed against the wrongdoers. for discovery. The plaintiffs issued a Plenary Summons seeking an order The Trial Judge ordered the defendants The to answer broad enquiries about the invoices. order was overturned on appeal. Central to all decisions in this jurisdiction has been the clear and unambiguous establishment of a wrongdoing. wrongdoing. It is clear that "sole discovery" will I am satisfied and find as a fact upon any only be ordered when there is clear establishment of a analysis of the materials and postings highlighted by the Plaintiff in these proceedings on which they rely that no such evidence of wrongdoing can be established. 46Gwen Malone Stenography Services Ltd.

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The contents of the postings singularly fail to satisfy the necessary legal definitions for the tortious matters complained of by the Plaintiff. The Supreme Court in Megaleasing emphasised that the remedy was only available on the clear establishment of a wrongdoing:"What does seem clear is that in the Norwich Pharmacal case considerable stress was laid upon the very clear and unambiguous establishment of a wrong doing. Counsel...were unable to identify any case in which upon a claim of prima facie proof as to the probability of the commission of a wrong relief by way of discovery was granted." In coming to the conclusion that Norwich Pharmacal stressed the establishment of wrongdoing, the Chief Justice in Megaleasing cited a number of pages of judgments of the House of Lords in the Norwich Pharmacal case and went on to hold that p.504 of Megaleasing as follows:"I am accordingly driven to the conclusion that the existing authorities ... do in fact confine the remedy to cases where a very clear proof of wrong doing exists, and possibly, so far as applies to an action for discovery alone prior to the institution of any other proceedings, to cases where what is really sought are the means and identities of the wrong doers, rather than factual information concerning the wrong." The Chief Justice then went on to consider on the facts of the particular case whether the plaintiffs had 47Gwen Malone Stenography Services Ltd.

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clearly established wrong doing.

The plaintiffs there

had based their assertion that a wrong doing had occurred on the basis that they could not find on the investigation of documents a satisfactory reason for the payments concerned. judgment as follows:"I am satisfied that such a case falls very far short indeed of the clear establishment of a wrongdoing. Although a wrongdoing may possibly have occurred, which seems to be the basis of the jurisdiction in such cases as the Norwich Pharmacal case, I am not satisfied, therefore, that, having regard to that fact, and having regard to the breadth and scope of the inquiries which the plaintiffs seek and which they obtained in the High Court, that it is an appropriate development of this discretion, which I am satisfied does exist in the courts, to apply it to the facts of this particular case." O'Flaherty J. concurring with the Chief Justice, who gave the leading judgment, also emphasised the need to establish wrongdoing on the part of the person to be identified before discovery would be ordered. said:"Historically the action for discovery has been confined to ascertaining the names of wrongdoers and where wrongdoing has been established." [p.506] He then went on to cite the decision in Orr -v- Diaper [1876] 4 Ch D 92, and further stated:48Gwen Malone Stenography Services Ltd.

Finlay C.J. continued in his

He

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 "In this case the plaintiffs do not know, and can not discover who the persons are who have invaded their rights, and who may be said to have abstracted their property. Their proceedings have come to a deadlock, and it would be a denial of justice if means could not be found in this Court to assist the plaintiffs. The demurrer must be overruled..." However Finlay C.J. pointed out that the decision in Orr -v- Diaper was "based on the assumption of the establishment of the wrong." The doctrine or remedy was further consider in Doyle -v- The Commissioner An 49Gwen Malone Stenography Services Ltd.

"The act of looking for discovery is of ancient origin and there is no doubt that it may prove to be a valuable instrument in the search for justice. I would, for the present, confine it to a requirement to disclose names where the wrongdoing is established." [p.507] The decision of Orr -v- Diaper earlier referred to is an earlier authority regarding the action for "sole discovery" which was considered also by the House of Lords in Norwich Pharmacal and by the Supreme Court in Megaleasing. That case involved owners of a trade mark They did having their rights as such owners invaded.

not know who the infringers were but they did know that the defendants had been shipping goods bearing counterfeits of the plaintiff's marks. They applied to the defendant for the names of the shippers but the defendants declined to give the information sought and an action for discovery was brought.

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Garda Siochna [1999] 1 I.R. 249 where the plaintiff sought discovery of documents relating to the Dublin and Monaghan bombings from the defendant for the purpose of using these documents in an action against the Government of the United Kingdom before the European Court of Human Rights. Both the High Court and the Supreme Court in their decisions emphasised that the relief in an action for sole discovery only arises where there is clear evidence of wrongdoing. the High Court Laffoy J. concluded that the Court did not have jurisdiction to grant the reliefs sought by the plaintiff. She considered the crucial question as to the existence and extent of the Court's inherent jurisdiction to order discovery against a party against whom no other relief was sought. In citing the decision of the Supreme Court in Megaleasing (at p.261), she identified (a) what triggers the exercise of the jurisdiction, and (b) the extent of the jurisdiction, thus:"The decision of the Supreme Court in Megaleasing unequivocally lays down the jurisdiction of the Court to grant that relief in an action for discovery only arises where there is very clear proof of the existence of wrongdoing. The early authorities culminating in Norwich Pharmacal, in which the jurisdiction was successfully invoked, generally involved a clearly established infringement of an intellectual property right, for example, infringement of a patent in Norwich Pharmacal, where the identity of the perpetrator of the infringement was unknown to the property owning plaintiff but was known to the defendant in the action for discovery 50Gwen Malone Stenography Services Ltd.

In

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through whose hands the infringing goods had passed, albeit innocently. The rationale underlying the jurisdiction, which was equitable in origin, was that justice required the defendant in the discovery action, who had been caught up in the tortious act, to assist in righting the wrong. The obiter dicta in Megaleasing suggest that the relief which the court can afford to a plaintiff in an action for discovery is limited to compelling disclosure of the names and identities of the wrong doers..." The learned Judge pointed out that in that case the identity of the alleged wrongdoer was known, that the purpose of the proceedings was to overcome the evidential difficulty that the UK Government had failed to investigate the killings. her judgment as follows:"The plaintiff has not adduced any proof, let alone clear proof, of a violation of Article 2 of the European Convention (on Human Rights) in this court. Accordingly, on the authority of Megaleasing Limited -v- Barrett [1993] ILRM 497, the inherent jurisdiction of this court does not extend to granting the remedy sought by the plaintiff. Moreover, even if the plaintiff had adduced very clear proof of such a violation, it is doubtful on the authority of the decision of the Supreme Court in Megaleasing whether this court's inherent jurisdiction would extend to making the order sought by the plaintiff which is aimed at obtaining disclosure of factual information concerning the alleged wrong." In the Supreme Court O'Flaherty and Denham J.J. concurred with the judgment delivered by Barrington J. who stated (at p.266) as follows:51Gwen Malone Stenography Services Ltd.

She stated at p.262 of

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 "Those cases contemplated a situation where the plaintiff had established the wrong but could not identify the wrongdoer who was not therefore in a position to institute proceedings. In the present case the plaintiff has made a complaint to the European Court of Human Rights. He alleges that the wrongdoer is a sovereign government over which this court has no jurisdiction. Moreover, it is necessary to emphasise that the action for sole discovery is a plenary action. It is not like an interlocutory motion for discovery which can rely on assertions or hearsay. It must proceed on the basis of evidence or agreed facts. No evidence has been produced in this case to show that the United Kingdom has been guilty of any wrongdoing or to support the actions of the plaintiff. This therefore is not an appropriate case for sole discovery." [p.267] In Doyle's case the only evidence of wrongdoing adduced by the plaintiff were an outline of assertions 52Gwen Malone Stenography Services Ltd.

"There is no doubt that the High Court has jurisdiction in common law to entertain an action for sole discovery such as the present one. But the authorities establish that this is a jurisdiction to be exercised sparingly and it has been exercised only in cases where the plaintiff was in a position to prove that he had suffered a wrong but he was not, and the defendant was in a position of the wrongdoer." (Emphasis added) Further, Barrington J. went on to consider and distinguish the cases of Orr and Norwich Pharmacal as follows:-

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contained in a TV documentary about the bombings which Laffoy J. in the High Court had regarded as being "hearsay, this testimony was inadmissible and of no evidential value whatsoever." In that case the plaintiff in his submissions had attempted to distinguish his case from the decision in Megaleasing on the basis that he sought, not the identity of the wrongdoer, but the aid of the Irish courts to obtain the evidence to prove the wrong to the satisfaction of the European Court. On that basis he argued that there However, the could be no question about the jurisdiction of the Irish courts to make the order sought. Supreme Court held per Barrington J. (p.268) said:"But Megaleasing UK -v- Barrett [1993] ILRM 497 did not turn upon want of jurisdiction. It turned on self-restraint which the court should observe in exercising a jurisdiction which could have very far fetched implications and which might, unless exercised with restraint, result in injustice. There is no reason why the court should not observe equal restraint in exercising its jurisdiction under Article 34.3.1 of the Constitution. In particular, the court should insist on evidence that a wrong has been established before making an order for sole discovery ... The plaintiff has in fact produced no evidence admissible in an Irish court, to establish in a prima facie case that the United Kingdom Government has been guilty of any wrong doing." (Emphasis added) The decision in Doyle has been the subject of commentary by legal writers (see Delaney & McGrath, Civil Procedure in the Superior Courts, Roundhall, 53Gwen Malone Stenography Services Ltd.

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Sweet & Maxwell) who observe that it shows:"A definite disinclination on the part of the courts to extend the circumstances in which an action for sole discovery may be permitted." A more recent Irish judgment on the application of Norwich Pharmacal type order is the decision in EMI Records (Ireland) Limited -v- Eircom Ltd. (unreported High Court 8th July 2005 - Kelly J. ex tempore). Kelly J. cited the judgment in the Norwich Pharmacal and the principle it had established stating that such order required "disclosure and identity and other information held by the third party concerning the alleged wrongdoer to the wronged person." He then cited the decision in Megaleasing in which the jurisdiction to make such orders had been accepted in the jurisdiction and cited with approval the dicta of Finlay C.J.: "That the remedy should be confined to cases where very clear evidence of a wrong doing exists." The EMI Records case involved infringement of intellectual property rights. useful in that field. The learned Judge stated that Norwich Pharmacal type orders were particularly He cited the Canadian decision The Canadian of BMG Canada Incorporated -v- Doe, Canadian Federal Court of Appeal, with which he agreed. judgment stressed the importance of intellectual property law and stressed that modern technology such 54Gwen Malone Stenography Services Ltd.

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as the internet must not be allowed to erode those personal property rights which society has deemed so important. In the Canadian decision Sexton J.A. stated as follows:"...in my view in cases where the plaintiffs show they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing the action. However, caution must be exercised by the courts in ordering such disclosure to make sure that privacy rights are invaded in the most minimal way." The EMI case involved an alleged infringement of copyright and Kelly J. emphasised that a full investigation had been carried out and the fruits of the investigation were before the court by way of sworn testimony. Crucially he was:-

"... satisfied that as a result of the expert evidence that has been put before me that certain computers connected to the internet via the defendant's facilities have been used to make available to the public a significant volume of sound recordings, the copyright of which has been exclusively licensed to the plaintiffs. It has been possible to download from these computers sample recordings so to identify the internet protocol addresses which have been allocated by the defendants to the computers in question." The Judge then was in a position to state as follows:"On the evidence before me I am satisfied that there is prima facie 55Gwen Malone Stenography Services Ltd.

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demonstration of wrongful activity, namely infringement of the plaintiff's copyright." The decision of Kelly J. in no way dilutes the rationale of Megaleasing and his judgment that he was satisfied there was "prima facie demonstration of wrongful activity" does not amount in any way to a departure from the rationale in Megaleasing. or prima facie evidence of wrongdoing. In the instant case I am satisfied that there is no evidence In my judgment there has been no dilution of the very clear position stated by the Supreme Court in Megaleasing that very clear and unambiguous establishment of wrongdoing must be present. Indeed, in the opening of the case it was contended on behalf of the Plaintiff that the website postings highlighted by them resulted in the "drying up" of applications from pilots seeking a transfer to the Dublin base, whereas it is undoubtedly clear from the evidence during the hearing that the delay which the Plaintiff encountered in commencing the conversion of training pilots from the 737-200s to 737-800s arose as a result of a variety of industrial and related disputes that were ongoing between the Plaintiffs and various other parties at or about the time and none of the factual evidence introduced by the Plaintiff has made an allegation to the effect that the website postings played any part whatsoever in the commencement of this training programme. I am satisfied they do not constitute clear unambiguous 56Gwen Malone Stenography Services Ltd.

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evidence of wrongdoing, nor do they amount to prima facie evidence of wrongdoing. In my judgment the Plaintiff's claim for sole discovery must fail. 3. The Issue of Wrong Doing in Recent English

Authorities Current English case law has been summarised by Matthews & Malek "Disclosure" (London Sweet & Maxwell (2000) p.27):"In seeking disclosure it is not necessary that the wrong complained of be criminal in character, it may simply be a tort with no criminal counterpart, in breach of contract or confidence, a copyright or trademark, infringement or a breach of trust or other equitable wrong." The line of authorities in England derived from Norwich Pharmacal is Societe Romanaise de la Chaussure S.A -vBritish Shoe Corporation Limited [1991] FSR 1 where an order was granted to allow the plaintiff to determine if it was worthwhile to pursue a wrongdoer in another jurisdiction. There the plaintiff sued the defendant The plaintiff sought for importing footwear which it was alleged was an infringement of its copyright. disclosure of the identity of the Italian manufacturer of the infringing shoes since it did not wish necessarily to pursue the Italian manufacturer, but to do so only if there was a good reason for thinking that it would suffer injury if it did not obtain injunctive relief against the Italian manufacturer. 57Gwen Malone Stenography Services Ltd.

It would

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appear that the defendants therein would plead that they were innocent importers of goods already in circulation in the European Community. It was held that the plaintiffs would be entitled to the information sought in any event at a later stage by way of interrogatories. rather than later. The case turned on the issue as to With regard to the Norwich whether the information should be supplied sooner Pharmacal order it was argued there was no evidence of wrongdoing on the part of the manufacturer since there was no evidence of Italian law. Millet J. stated:-

"I would have thought that the manufacture and distribution of infringing copies would be some kind of wrong under any advanced civilised sytem of law." This decision was followed some years later by P. -vT. Ltd. [1997] 1 W.L.R. 1309 which was heavily relied upon in the instant case by the Plaintiff. had been made against him. In that case the plaintiff had been dismissed and allegations He did not know what the His employer The plaintiff allegations were or who had made them. not tell him what the allegations were.

dismissed him on the basis of the allegations but would sought to clear his good name and he applied to his employer for details of what was said about him. Scott V. C. at p.1318 stated as follows:"...his position is not the same as that of the plaintiff in the Norwich 58Gwen Malone Stenography Services Ltd.

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Pharmacal [1974] A.C.C. 133. In the Norwich Pharmacal case the plaintiff was able to demonstrate that tortious infringements of patent rights were being committed. It did not know by whom. It did not know whom to sue. But that there was a tortious conduct against it was not in question. In the present case it is in question whether a tort has been committed against the plaintiff. He believes that it has. The purpose of any order that I make, as I suppose of any order a judge ever makes, is to try to enable justice to be done. It seems to me that in the circumstances of the present case justice demands that the plaintiff be placed in a position to clear his name if the allegations made against him are without foundation. It seems to me intolerable that an individual in his position should be stained by serious allegations, the content of which he has no means of discovering and of which he has no means of meeting other than with the assistance of the order of discovery which he now seeks from me. It seems to me the principles expressed in the Norwich Pharmacal case, although they have not been previously applied so far as I know to a case in which the question whether there has been a tort has clearly been answered, ought to be applicable to a case such as the present." Over the years the developing case law shows very little if any shift from the minimum requirements specified in Norwich Pharmacal of the establishment of clear and unambiguous evidence of wrongdoing. case of P. -v- T. Ltd. as a departure from such requirement, it should be noted that the third named defendant submitted that prior to coming to such a conclusion certain fundamental observations required to be made in respect of that decision. 59Gwen Malone Stenography Services Ltd.

Where

the plaintiff seeks in the instant case to rely on the

It is clear that

1 2