Judgment not to be entered for airport against airline where an arguable defence had been raised

McGuinness J (nem diss): Summary judgment - appeal from grant of summary judgment in High Court - claim by airport against airline - landing charges and passenger load charges - judgment granted in the sum of IR£356K, with interest and costs - Section 39 of the Air Navigation and Transport (Amendment) Act, 1998 - whether a "fair or reasonable probability of it having a real or bona fide defence" - discount scheme operated by airport -

"Thus it is for this Court to decide whether in the instant case the defence set out in the affidavits of Mr O’Leary, together with the documents exhibited therewith, is credible, or in other words, whether there is a fair or reasonable probability of the Defendant having a real or bona fide defence. Since there had been no oral hearing and neither deponent has been cross-examined on his affidavit, it was not for the learned High Court judge to weigh the affidavit evidence of Mr O’Leary and Mr Byrne or to attempt to resolve the factual contradictions contained in it. Still less is it for this Court to attempt any such task.
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It is clear that there are considerable weaknesses in the defence proffered by Mr O’Leary in his affidavits. As pointed out by Mr McDonald no detail whatever is provided as to the date, time, location or circumstances of the alleged agreement to vary the discount scheme. The correspondence exhibited, is to say the least, lacking in clarity, and may be open to the interpretation placed on it by the learned High Court judge. Nevertheless in my view the probability remains open, on the affidavit evidence now before the Court, that the Defendant has a real or bona fide defence, or that what is put forward by the Defendant is credible. In my view the matters which are so acutely at issue between the parties require to be resolved in a full hearing."

Hardiman J (concurring): Appeal from grant of liberty to enter final judgment - Order 37 of the Rules of the Superior Courts - whether any serious conflict as to matter of fact or difficulty as to matter of law.

"Indeed, at the start of the hearing of the present appeal Counsel assured us that there was agreement between them that the test set out in the judgment of this Court in First National Commercial Bank plc v. Anglin [1996] 1 IR 95 was the correct test to apply. However, it transpired in the course of the argument that Counsel were no means agreed on what this test meant: each advanced an interpretation of it which, if accepted, would dictate a resolution of the present appeal in favour of his own client."

"In light of these authorities, I believe that the test for obtaining summary judgment has not changed since the early days of the procedure in the late nineteenth and early twentieth centuries. The formulation used in Anglin and the cases cited in that judgment are useful and enlightening expressions of the test, but I do not believe that this formulation expresses an altered criterion which is more favourable to a Plaintiff than that derived from the other cases cited. The “fair and reasonable probability of the Defendants having a real or bona fide defence” , is not the same thing as a defence which will probably succeed, or even a defence whose success is not improbable."

"In my view, the fundamental question be posed on an application such as this remains: is it “very clear” that the Defendant has no case?; is there either no issue to be tried or only issues which are simple and easily determined?; do the Defendant’s affidavits fail to disclose even an arguable defence?"

"The Plaintiff set up a scheme of charges and discounts which it says was unaltered and on the basis of which, applied to undisputed traffic figures, its claim can be readily computed in the amount stated. The defence is that the scheme was varied in discussions between the Defendant’s Chief Executive Mr. O’Leary and the Plaintiff’s representative Mr. Byrne, or alternatively that the said discussions constitute an estoppel against the Plaintiff. The terms of these discussions are set out in considerable detail in the Defendant’s affidavits and are rejected in very strong terms in a replying affidavit on behalf of the Plaintiff."

"On the face of it, this case turns on a stark conflict of factual evidence. The alleged crippling implausibility which each side says afflicts the others account depends on the view taken of extremely complex dealings and background facts, some of which are themselves in dispute."

"The length of time and volume of paper required by the Plaintiff to seek to demonstrate that the case is a clear one in itself suggests that it is not sufficiently clear for summary judgment. Reading the affidavits and listening to the case argued with considerable intensity on both sides has led me to the view that one cannot be confident where the justice of the case lies without hearing oral evidence and cross-examination. To me, at least, it is not “very clear indeed” that the Defendant has no case. It is clear in my view, that the issues are not “simple and capable of being easily determined”. "