Introduction

The Irish High Court recently considered the question of whether, in the context of an application to add another party to a dispute before it, another Court was already seised with jurisdiction. In doing so, it had to consider whether the same cause of action was involved and, if so, what impact the dates of the respective proceedings and the application now before it had on the question.

Factual Background

In Ryanair Limited v. Bravofly Limited and Travelfusion Limited [2009] IEHC 386, the case concerned an alleged practice of “screen-scraping” from Ryanair’s website and is a form of directly taking material from one website and using it on another. Amongst other reliefs, Ryanair sought a declaration that the terms and conditions of use of its website were lawful, valid and binding on Bravofly Limited and Ryanair also sought injunctive relief, on the basis of breach of its trademark and use of information extracted from its website.

Whilst those proceedings issued on 14 March 2008 against the two named defendants, Ryanair subsequently claimed that Bravofly S.A., a Swiss based company, was actually conducting the screen-scraping activities complained of. Ryanair therefore applied to join Bravofly S.A to the proceedings as an extra defendant to the proceedings which were already in existence before the Irish High Court. The application was resisted by the first named defendant, Bravofly Limited, a related company of Bravofly S.A. on the basis that, if joined, the proceedings would be subject to an immediate mandatory stay by the Court of its own motion pursuant to Article 21 of the Lugano Convention.

This was because of proceedings brought by Bravofly S.A. in the District Magistrates Court of Lugano, Switzerland against Ryanair, which were commenced on 10 June 2008. One such set of proceedings involved Bravofly S.A. seeking a declaration that it was not infringing Ryanair’s website’s terms and conditions or database rights. The other proceedings sought a declaration that certain assertions regarding breach and infringement made by Ryanair were unfair in accordance with Swiss unfair competition law. Ryanair conceded that the first set of proceedings in Switzerland concerned the same cause of action as the Irish litigation involved and that, at the time of the application to join Bravofly S.A. to the Irish litigation, there were overlapping pending proceedings in Switzerland. However, for the purpose of the application before the Irish Court, Ryanair contended that, since the application to join Bravofly S.A. is in respect of proceedings commenced in March 2008, the Irish Court was first seised with jurisdiction over the dispute.

Given that there were two overlapping claims, it was necessary for the Irish Court to determine, which of them should properly be construed as the first in time for the purpose of determining which Court should be deemed seised with jurisdiction.

The Applicable Legal Principles

The basic question of which court should determine a dispute which is being pursued in two jurisdictions is, in this instance, resolved by the Lugano Convention (as transposed into Irish law by the 7th Schedule to the Jurisdiction of Courts and Enforcement of Judgement Acts 1998). Article 21 of the Convention states that where proceedings involving the same cause of action are brought by parties of different Contracting States, any other court other than the court first seised shall, of its own motion, stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the first court seised is established, any other court than the court first seised shall decline jurisdiction in favour of that court.

In determining when, for the purposes of Irish litigation, in adding a party to proceedings, whether as a plaintiff or defendant, a set of proceedings is considered to have been commenced in respect of that party, the Court needed to consider Order 15, rule 13 of the Rules of the Superior Courts, as interpreted by the Courts. That provides that, where a party is added to an action, the proceedings against the newly joined party are only deemed to have began on the making of the order adding such party.

Taking those principles into account, the Irish High Court held that, on the basis of Order 15, rule 13, since the proceedings in Ireland against Bravofly S.A. would not come into existence until an order was made adding Bravofly S.A., the Swiss proceedings were first in time. In accordance with the Lugano Convention, therefore, the Swiss courts were first seised and Ryanair’s application was refused.