JUDGMENT of Mr. Justice Clarke delivered the 14th May, 2009
1. Introduction
1.1 This case, having been admitted in to the Commercial Court, has already been the subject of a number of contested procedural applications, some of which were the subject of a judgment delivered by me on the 29th January, 2009, (Ryanair Limited v. Bravofly Limited & Anor [2009] IEHC 41). For a general description of the proceedings reference should be made to that judgment (“the earlier judgment”). As pointed out at para. 1.3 of the earlier judgment, a number of other motions, not the subject of that judgment, relating to applications for further and better particulars and discovery were ruled on at or around the same time. The issue which has now arisen between the parties concerns the compliance by the defendant (“Bravofly”) with one of those orders being an order in which Bravofly was directed to provide further and better particulars of its defence and counterclaim.
1.2 The plaintiff (“Ryanair”) argues that Bravofly has failed to comply with the relevant court order and, on that basis, seeks to have certain aspects of Bravofly’s defence and counterclaim struck out on the basis of that alleged non-compliance. This judgment is directed to that application. In that context it is appropriate to turn first to the pleadings by reference to which the relevant order for further and better particulars was made.
2. The Relevant Pleadings
2.1 At a very general level there does not appear to be any significant factual dispute between the parties as to the service provided to its customers or users by Bravofly and the extent to which that service enables those customers to obtain information about and, if so desired, ultimately book flights with Ryanair. Bravofly’s customers, on accessing Bravofly’s website, can, it appears, cause a search to be conducted of any flights meeting specified criteria which the customer concerned may nominate. On that basis a Bravofly website user will be presented with a range of possible flights, or flight combinations, which may meet their needs. In addition, it would appear that, if the customer concerned then wishes to book one of the relevant options, this may also be achieved.
2.2 Against that background Ryanair pleads that the activities of Bravofly are wrongful in a number of respects but in particular:-
A. It is said that Bravofly accesses Ryanair’s website and, thus, is, it is alleged, bound by the terms and conditions of that website. It is said that the activities of Bravofly are in breach of those terms and conditions and are, therefore, in breach of contract;
B. For like reasons, a relatively novel assertion is made to the effect that the activities of Bravofly amount to a conversion of Ryanair’s website and databases to Bravofly’s own use;
C. It is said that the activities of Bravofly amount to a breach of copyright; and
D. That the same activities amount to a breach of the database rights conferred by the Copyright and Related Rights Act 2000.
2.3 In its defence and counterclaim Bravofly deny each of those allegations. A variety of bases for those denials, which are not relevant to the application which I now have to decide, are set out in the defence. However, in particular at paras. 51 and 52 of the defence and counterclaim, Bravofly set out what is said to be the sequence of events which occurs from the time that a user accesses the Bravofly website to the time when, on the assumption that a booking is made, a confirmation of a booked airline flight actually occurs. On the basis of that sequence it is said, at para. 52, that Bravofly does not access Ryanair’s website and that any contacts with Ryanair are said to be those between the user concerned and Ryanair.
2.4 On that basis it would appear that a significant feature of Bravofly’s defence is to assert that the manner in which the service which it offers actually operates does not amount to an access by it to Ryanair’s website such as might, arguably, give rise to a contract between Ryanair and Bravofly and/or might equally, arguably, and dependent on other factors being also established, give rise to circumstances where there might be said to be a breach of copyright or database rights. While there are many potential issues arising on the pleadings in this case, it is clear that one of the significant factual disputes between the parties will concern whether a proper characterisation of what actually happens in the interaction between Bravofly’s customer, Bravofly, certain other parties whose technology Bravofly uses, and Ryanair amounts to a sufficient use by Bravofly of Ryanair’s website so as to bring about the contractual and intellectual property rights and infringements which Ryanair asserts.
2.5 It was against that background that one aspect of the particulars requested by Ryanair of the defence and counterclaim was sought. It should also be noted in passing that Bravofly had sought particulars of Ryanair’s claim, including details of precisely how it was alleged that Bravofly’s actions were said to amount to the wrongdoing asserted. Those requests for particulars had been answered in general terms but, at the hearing before me, Ryanair argued that it should not be required to give more detailed particulars until Ryanair had received particulars of precisely how the Bravofly system worked. It seemed to me that this was a reasonable position for Ryanair to adopt, and in that context, while directing that Ryanair should reply to the relevant particulars sought, I structured the order so that Ryanair would not be required to indicate the precise technical manner in which Ryanair said that there had been a breach of the various rights concerned until Ryanair had obtained from Bravofly particulars of how Bravofly’s system actually operated.
2.6 Against that background it is next appropriate to turn to the order for particulars made.
3. The Particulars Directed
3.1 The relevant order was made on the 8th February, 2009. As pointed out earlier it was one of a series of orders concerning particulars and discovery made on the occasion in question. Part of the order relating to particulars as against Bravofly was included under the heading “Particulars on Technical Matters”. I set out the text of that part of the order hereunder.
3.2 “9. Arising out of para. 33 of the defence and counterclaim (para. 38 of the amended defence and counterclaim) please give full detailed particulars of
c. the manner (including technical mode of operation) in which the first defendant “enabled” visitors to its site to search for and book flights.
10. Arising out of para. 34 of the defence and counterclaim (para. 39 of the amended defence and counterclaim) please give full and detailed particulars of
a. the manner in which the first defendant “managed information systems (inter alia server and software) that enabled it to operate its activities, making it possible for users that connected to its websites to use a search engine, compare various options and prices and verify routes, destinations and flight operators for the various destinations”…
c. the basis upon which the provides of the said system permitted the first defendant to ‘manage’ them and/or to make their functionality available to visitors to the defendant’s websites
d. the precise technical mode of operation of each of the said systems.
12. Arising out of para. 41 of the defence and counterclaim (para. 47 of the amended defence and counterclaim) please give full and detailed particulars of the technical activity relating to facilitating the purchase of the plaintiff’s flights referred to as being carried out from the “server farm” of Bravofly SA.
14. Arising out of para. 44 of the defence and counterclaim (para. 50 of the amended defence and counterclaim) please either confirm that the third party software applications referred to were made available by the first defendant to visitors to its site by licence or if that is not the case please give full and detailed particulars of the basis upon which the third party software applications referred to were made available by the first defendant to visitors to its site.
15. Arising out of para. 45(c) (para. 51(c) of the amended defence and counterclaim) of the defence and counterclaim please give full and detailed particulars of the precise technical mechanism by the which the Travelfusion software made available by the first defendant processes a search request for flight options for specific routes and specifically the technical mechanism by which the information requested is obtained from the target airline’s website.
16. Arising out of para. 45(d) of the defence and counterclaim (para. 51(d) of the amended defence and counterclaim) please identify each of the systems used to enable a visitor to the first defendant’s site to search for flight information and to view the results of the said search on the first defendant’s website.
17. Arising out of para. 45(e) of the defence and counterclaim (para. 51(e) of the amended defence and counterclaim) please outline the precise technical mechanisms and identify the servers and other equipment used in the flight reservation and purchase stage of the process.”
3.3 It is clear from the above that amongst the matters in respect of which particulars were required to be delivered was the precise technical way in which various aspects of Bravofly’s system operated. This is especially clear from particulars 9(c), 10(d), 12, 15, 16 and 17.
3.4 Some delay was experienced by Bravofly in providing the particulars sought. An extension of time was directed. When replies were ultimately furnished, the answer in respect of the relevant paragraphs was to make reference to a manual called “Software Requirement Specification Version 2.2 of 23rd September, 2008” (“the Specification”) together with a statement to the effect that the system at the material times operated for the defendant was “significantly the same as that to which the manual relates”. On that basis it seems that what Bravofly is saying is that while the manual provided was not operational at the specific time to which these proceedings relate, it is, nonetheless, substantially identical to that which was operating at those times.
3.5 A number of complaints are made about the relevant replies to particulars. It is necessary to turn to the case made in respect of the adequacy of those replies.
4. The Adequacy of the Replies
4.1 The core allegation made by Ryanair is that an analysis of the specification reveals that it contains a specification for the software which a company in Bravofly’s position needs to put together in order that it may be able to inter-phase with specialist software provided by companies who would appear to market software designed to facilitate so called screen scrapping. In that context it is important to note that it would appear that Bravofly does not, and did not at the time to which these proceedings relates, provide the relevant technology for screen scrapping itself. Rather, as is indicated in the defence and counterclaim, it would appear that the services provided by Bravofly to its users are facilitated through the making available to those users of a software application which Bravofly had the use of as a result of a licensing arrangement with a company called Travelfusion Limited. That latter company was a defendant in these proceedings but, for the reasons which I set out in the earlier judgment, it was determined that there was no jurisdiction to try the case as against Travelfusion Ltd in Ireland.
4.2 It would also appear that there may be other companies in the market which provide software similar to that which Travelfusion provided to Bravofly.
4.3 The specification is an extremely complex document. Ryanair referred the specification to an expert in the area, being a Mr. Christopher Dickson, a principal technologist with Charterist Plc. A report of Mr. Dickson on the specification concerned was exhibited in the evidence presented on this motion. No evidence was produced to suggest that Mr. Dickson’s conclusions were inaccurate. Amongst the conclusions reached by Mr. Dickson were:-
A. That the specification is solely concerned with the method by which Bravofly’s own software should be written so that it can properly inter-phase with the software actually used for screen scrapping provided by firms such as Travelfusion; and
B. The specification itself relates to an inter-phase not with Travelfusion’s software, but with the software of an entity called Hitchhiker which, it would appear, also provides software of a similar variety. However, it is indicated by Mr. Dickson, in comments attributed to him as deposed to in an affidavit sworn by Ryanair’s solicitor, that there can be significant differences between the software provided by the various companies operating in this field.
4.4 On that basis it seems to me to be clear, as a matter of fact, that the specification does not set out the matters which the order for particulars requires. It does not, to take but one example, comply with the obligation to set out, as per particular 12, “full and detailed particulars of the technical activity relating to facilitate in the purchase of the plaintiff’s flights referred to as being carried out from the ‘server farm’ of Bravofly SA”. Similar comments could be made about each of the other particulars in question.
4.5 It seems to me that I must, therefore, conclude that Bravofly has not complied with the order of the 18th February, 2009. On that basis it is next necessary to turn to what action I should take. In that context, it is appropriate to turn to Bravofly’s position.
5. Bravofly’s Position
5.1 In essence the argument put forward by Bravofly can be simply put. It is said that the precise technical manner in which companies such as Travelfusion operate their software is not known to Bravofly. It is, thus, said that the relevant details can only be obtained from third parties, whether experts appointed by Bravofly to engage with Travelfusion (who are, as has been pointed out, no longer a party to these proceedings) or from companies in the field. Thus, it is said, Bravofly is not currently in a position to provide any further particulars, but may become so when the inquiries, which it would appear have been put in train, have been completed.
5.2 In those circumstances it seems to me that the justice of the case requires that Bravofly be given some realistic opportunity to now comply with the order for particulars. It would, in my view, be disproportionate to strike out the relevant portions of Bravofly’s defence and counterclaim when Bravofly has, at least, encountered some difficulty in being able to supply the relevant information, and may be in a position to mend its hand. The striking out of a pleading or a material part of a pleading is a significant measure to adopt. Such a measure should be a last resort to be resorted to only where there has been persistent and culpable failure to deliver particulars. While there is some dispute over just how much difficulty Bravofly actually should have in formulating the replies concerned I am not, at present, satisfied that any degree of culpability would warrant the striking out of pleadings.
5.3 In making an allowance in favour of Bravofly it is, however, important that I point out that there is already in being a court order requiring the relevant particulars to be delivered. It does not seem to me to be appropriate to re-visit that issue at this stage. To that extent it does not seem to me that any material weight should be attached to the argument put forward on behalf of Bravofly to the effect that, prior to the coming into operation of the Commercial Court Rules, a blanket traverse on the part of Bravofly might have sufficed. It is precisely to avoid complex cases such as this going to trial with no further pleadings than a bare assertion and a bare traverse that the more elaborate case management procedures adopted in the Rules of the Superior Courts applicable to the Commercial Court have been brought into being. However this matter is dealt with, it would be totally unacceptable if Bravofly were to be permitted to run a positive defence based on evidence from which it might be inferred that the precise way in which the relevant technology operates does not give rise to contractual relations or a potential breach of copyright or database rights, without having to specify, well in advance, the manner in which that case would be sought to be made out. Either Bravofly is going to be in a position at some stage to so specify the case, or it is not. If it is not, then the consequences of that failure need to be dealt with sooner rather than later. However, it is the fact that there appears to be at least some reasonable prospect that Bravofly will become in a position to specify the relevant matters that has led me to the view that some latitude should be given at this stage.
5.4 I should also deal with two other matters. Firstly, complaint is made that the reply to particulars (by simply referring to the specification) is inadequate as not being expressed in clear terms. I am mindful of the fact that the relevant particulars relate to potentially highly technical questions concerning the precise way in which various software operates. It seems unlikely that any proper reply to the particulars concerned could be, as Ryanair seems to suggest, “clear English”. The replies will necessarily have to be highly technical in nature, precisely because it is only with such degree of specific technical reference that the true nature of what actually goes on in the process of facilitating Bravofly’s customers, vis-à-vis Ryanair flights can be understood. To that extent Ryanair’s complaint as to the format of the replies is not, in my view, well founded. If the specification would make clear to a competent expert precisely how the entire operation works, then it would seem to me that an answer which says that the technical detail is to be found in that specification would, prima facie, be adequate. I should, however, emphasise that what is required is an answer to the particulars. Any technical document relied on as such a reply needs to address, in terms understandable to a relevant expert, the issues raised in the particulars. Care needs to be exercised to ensure that a document produced for some purpose other than as a reply to the particulars concerned actually does answer the necessary questions.
5.5 Secondly, I should deal with the fact that the specification appears to be referable to Hitchhiker software rather than Travelfusion software. That is so appears to be the case. However, it must be remembered that what is being engaged in at the moment is an exercise in pleading. Bravofly assert that the software actually in use at the material time to which these proceedings relate was “substantially the same” as that set out in the manual. It may or may not be that the relevant Travelfusion software is the same as the Hitchhiker software which the specification appears to relate to. That is an issue of fact for the trial. However, the assertion by Bravofly that the system identified by reference to the specification is substantially the same as that which was operated at the material time is, in my view, sufficient for pleading purposes. It is the case which Bravofly makes. It is for Ryanair to defend that case. If, when the case goes to trial, the evidence turns out to be different from the case which Bravofly now makes by reference to the specification in question, then that may well have its consequences for Bravofly’s position. However, that is a matter for the trial.
5.6 I am not, therefore, satisfied that there is any legitimate complaint arising out the fact that the particulars were replied to by reference to a specification simpliciter or by virtue of the fact that the specification appears to relate to Hitchhiker rather than Travelfusion software . I am satisfied that the complaint as to the adequacy of the particulars concerned is well made out because the specification does not describe the process which was at the heart of the particulars which the court directed had to be answered. It is that matter that needs to be remedied. It is to that matter that I propose giving Bravofly some additional time to reply.
5.7 In the circumstances, I propose putting this matter back in for further consideration on Wednesday the 17th June. By that time I would expect Bravofly to have provided particulars conforming with the order for particulars to which I have referred. If it remains the case that it is asserted that it is impossible for Bravofly to provide some or all of those particulars, then I will require that there is clear sworn evidence before the court, deposed to by persons who can speak of their own knowledge (and not deposed to by solicitors speaking from instructions), which will allow an assessment to be made as to the efforts made by Bravofly to put itself in a position to deliver the relevant particulars, the likelihood of any such particulars becoming available in the future, and the extent to which it is anticipated that any material evidence concerning the technical issues concerned is likely to be led at the trial. In the latter context, a clear explanation as to the source from which it is anticipated that any such additional evidence might be forthcoming should be set out together with a likely timescale within which such information is expected to become available.
5.8 In the light of events as they have developed by then (including a consideration of any evidence of the type to which I have just referred), I will consider the precise action which needs to be taken arising out of the undoubted fact that Bravofly has not complied with the relevant portions of the order of the 18th February, 2009.
