A High Court judge has said he has been driven to conclude “the truth and Ryanair are uncomfortable bedfellows” in light of Ryanair’s conduct in challenging proposed new charges at Dublin airport for the five years up to 2014.
Factual misstatements in affidavits put by Ryanair before the court had “misled the court in a material way”, Mr Justice Peter Kelly said today.
He said Ryanair chief executive Michael O’Leary had, in a letter to Mr Dempsey last February, “seriously misrepresented” the position of the judge. A later letter to the Minister from Ryanair’s head of legal affairs, Juliusz Komorek, was “to like effect”. Mr O’Leary had also made “a pathetic attempt” to try and justify the untruth in his letter.
“These are grave matters and fall far below the standards that the court is entitled to expect,” Mr Justice Kelly said.
He made the remarks in a judgment today refusing Ryanair leave to bring a judicial review challenge to a determination by the Commission for Aviation Regulation of December 4th last fixing maximum charges for Dublin airport over the years 2010-2014.
Ryanair has also appealed against the decision to an Appeals Panel set up by the Minister for Transport and both the CAR and Dublin Aviation Authority argued Ryanair should be refused leave because it had itself said the appeal panel could address its grievances with the CAR decision more speedily and more cost effectively.
The CAR and DAA also argued Ryanair’s grounds for judicial review all related to the merits of the decision when judicial review can only address whether there was illegality of unfairness in how a decision was reached, not its merits. It was further claimed Ryanair’s “misconduct” of the proceedings was a factor the court should take into account in exercising its discretion whether to grant leave.
Ryanair rejected those arguments and insisted, while favouring an appeal, it was also entitled to pursue judicial review. One of Ryanair’s difficulties was the appeal panel’s decision was not binding on the CAR, it said.
In his judgment, Mr Justice Kelly refused leave for judicial review because of Ryanair’s own clear statement an appeal against the charges was its preferred course and provided a “cost efficient, quick and satisfactory forum” for addressing its grievances. “Rarely, if ever, does one find a party to litigation making such a comprehensive case - against itself!” he said.
The judge also observed he did not regard the grounds advanced for leave as substantial.
Given his finding Ryanair has a remedy via the appeal process, the judge said he did not have to decide whether Ryanair’s conduct was such as should disentitle it to leave.
Noting he had been invited by the DAA to find there was an “ingrained culture of disrespect” for process, including court process, within Ryanair, the judge said, given the untruths he had referred to, he had to conclude the airline and the truth were uncomfortable bedfellows.
Ryanair has until Tuesday next to decide if it will seek permission from the judge for leave to appeal his refusal to the Supreme Court.
In earlier hearings, Mr O’Leary and Mr Komorek apologised unreservedly over two letters written by them to the Minister on February 25th and March 12th last which misrepresented remarks made by the judge. The judge also required Mr O’Leary to write a letter of apology to the Minister and to give that letter in advance to the judge to be “vetted” before it was sent on to the Minister.
Mr O’Leary on March 26th last apologised in court over the “lie” in his own letter to Mr Dempsey alleging the judge publicly criticised the Minister over “inexcusable” delays setting up the appeal panel.
The Minister had told Mr O’Leary in a letter of January 10th he would be setting up a panel but would await expiry of the three month period within which appeals might be brought so that a single panel could deal with ll appeals. Three appeals, including Ryanair’s, were ultimately heard.
Ryanair had on a number of occasions misrepresented the Minister’s position on the appeal panel, Mr Justice Kelly noted. It had misrepresented the position in a “gratuitously offensive” and “not factually accurate” press release describing the Minister as “dozy” and “dolittle Dempsey” and also did so in letters to the Minister and in material put before the court.
In a statement after the court ruling, Stephen McNamara of Ryanair said the company “is considering appealing this judgment with its lawyers particularly since the Aviation Appeals Panel has ruled that the CAR’s charges determination for Dublin Airport for 2010-2014 was flawed”.
“Whereas the Court has refused Ryanair the right to appeal this determination the Appeals Panel has ordered the CAR to review the original flawed determination, which approved price increases of up to 40 per cent upon consumers at Dublin Airport in 2010,” he said.
