A HIGH Court judge has given Ryanair chief executive Michael O’Leary until tomorrow to explain why the court was not told last month of an important letter to him from Noel Dempsey.
The letter last January said the Minister for Transport would set up a panel to hear Ryanair’s appeal against proposed new charges at Dublin airport, the court heard.
The fate of Ryanair’s judicial review challenge to the proposed new charges could depend on Mr O’Leary’s response, Mr Justice Peter Kelly indicated yesterday.
This was “a very serious state of affairs” and “a big problem” which Ryanair had to address, he said. The “misleading” of the court raised an issue whether Ryanair could bring its challenge at all.
The court should be entitled to expect that a public limited company which regularly carried on litigation should not submit sworn affidavits which misrepresented the true position and contained misleading averments, he added.
A solicitor and Ryanair’s head of legal affairs, who had sworn the two affidavits referred to by the judge, said they were unaware of the existence of Mr Dempsey’s letter to Mr O’Leary and had not been informed of that letter. Both men apologised to the court.
Only Mr O’Leary could provide an explanation. It was for Ryanair to decide if it wished to call evidence from him and the court would allow until tomorrow to decide that. The judge adjourned to 2pm tomorrow an application by the aviation commissioner, supported by the Dublin Airport Authority, for directions whether and/or how Ryanair’s litigation should proceed given the non-disclosure.
The issue arose after the commissioner last month sought to fast- track in the Commercial Court Ryanair’s challenge to his December 4th decision fixing the maximum charges the DAA may levy at Dublin airport over a five-year period to 2014.
Ryanair is seeking to judicially review the charging decision and also to appeal it to a panel set up by the Minister.
When the case was before the Commercial Court last month, Mr Justice Kelly fixed April 15th to hear Ryanair’s leave application and a further application by the airline to adjourn the judicial review pending the outcome of the appeal to the ministerial panel. Ryanair’s affidavits at that time indicated the Minister had yet to decide whether to set up an appeal panel.
It also complained of an “inordinate delay” establishing the panel.
Counsel for the commissioner told the judge yesterday those affidavits were “plainly incorrect and misleading”. Mr Dempsey wrote to Mr O’Leary on January 19th informing him that he would set up an appeal panel but only when the statutory three-month period for such appeals had expired. Mr Dempsey told Mr O’Leary his standard practice was to set up one appeal panel.
Aer Lingus and the DAA have since also appealed against the commissioner’s decision.
Frank Beatty for Ryanair said the Minister’s letter should have been disclosed and he apologised for that, but there was no intention, he added, to mislead the court by Mr O’Leary or anyone else.
It was Ryanair’s case that no material omission arose.
Mr Beatty said the solicitor who swore the affidavit which failed to include the letter was acting at the last minute and on instructions from Ryanair’s head of legal affairs, who was himself also unaware of the Minister’s letter.
