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01 December 2009
The High Court recently considered the question of whether, in the context of an application to add another party to a dispute, another court was already seized with jurisdiction. In doing so, the court 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 before it had on the question.
Ryanair Limited v Bravofly Limited(1) concerned allegations that 'screen scraping' from Ryanair's website had taken place (ie, material from Ryanair's website had been directly taken and used on other sites). Among other forms of relief, Ryanair sought a declaration that the terms and conditions of use on its website were lawful, valid and binding on Bravofly Limited. Ryanair also sought injunctive relief on the basis of breach of its trademark and use of information extracted from its website.
While the proceedings issued on March 14 2008 against the two named defendants, Ryanair subsequently claimed that Bravofly SA, a Swiss-based company, was actually conducting the alleged screen-scraping activities. Ryanair therefore applied to add Bravofly SA as a defendant to the proceedings which were already before the High Court. The application was resisted by Bravofly Limited – a related company of Bravofly SA – 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 due to proceedings brought by Bravofly SA in the District Magistrates Court of Lugano, Switzerland against Ryanair, which were commenced on June 10 2008. One such proceeding involved Bravofly SA seeking a declaration that it was not infringing Ryanair's website's terms and conditions or database rights. The other proceeding sought a declaration that certain of Ryanair's assertions regarding breach and infringement were unfair in accordance with Swiss competition law. Ryanair conceded that the first proceeding in Switzerland concerned the same cause of action as the Irish litigation and that, at the time of the application to add Bravofly SA 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 add Bravofly SA was in respect of proceedings commenced in March 2008, the Irish court was first seized with jurisdiction over the dispute.
The Irish court had to determine which of the two overlapping claims should properly be construed as the first in time for the purpose of determining which court should be deemed to be seized with jurisdiction.
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 Seventh 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 seized shall, of its own motion, stay its proceedings until such time as the jurisdiction of the other court is established. Where the jurisdiction of the first court seized is established, all other courts must decline jurisdiction in favour of that court.
In determining when, for the purposes of Irish litigation, in adding a party to proceedings either as a plaintiff or defendant, a set of proceedings is considered to have been commenced in respect of that party, the court considered Order 15, Rule 13 of the Rules of the Superior Courts, as interpreted by the courts. This rule provides that where a party is added to an action, the proceedings against the newly joined party are deemed to have begun only upon the making of the order to add such a party.
Taking these principles into account, the court held that on the basis of Order 15, Rule 13, since the proceedings in Ireland against Bravofly SA would not come into existence until an order was made adding Bravofly SA, the Swiss proceedings were first in time. In accordance with the Lugano Convention, therefore, the Swiss courts were first seized with jurisdicton and Ryanair's application was refused.
For further information on this topic please contact Gearoid Carey at Matheson Ormsby Prentice by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (firstname.lastname@example.org).
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