This case is an appeal by the Respondent (Erick Besancon, Pilot) of the decision of the High Court to the Court of Appeal where it was ordered that the Plaintiff/Appellant, (“Ryanair”) is to produce the SAIR Base Investigation Final Report to the Respondent’s Solicitors, subject to certain redactions.

The background to these proceedings was that a Ryanair passenger flight was involved in an incident on its approach to Memmingen Airport in Germany in September 2012. On the approach to Memmingen Airport, the flight crew asked to move from runway 6 to runway 24.  That request was granted.  They also requested permission to make a visual approach to the runway, rather than using a technically guided procedure.  That request was also granted.  As the plane was approaching the runway, an early warning system known as E.G.P.W.S. generated the warning “caution terrain”.  Two seconds later the warning system generated a further warning of “terrain, terrain, pull up, pull up”.  The crew conducted a missed approach procedure and went around, and a short time later landed uneventfully at Memmingen Airport on runway 24.

In 2012, the Respondent was employed as a pilot by Ryanair. On the 9th and 10th of December 2012, he made two postings on a website known as the Professional Pilots Rumour Network. He stated the following: “Ryanair should investigate what internal procedures led a crew trying to make up for lost time by impromptu change of plan that nearly went south.  The crew screwed up, no doubt about it. However: it’s also about company’s culture - Crews being under pressure to make up lost time”.

In August 2013, the Respondent was dismissed from his position of employment with Ryanair and Ryanair commenced proceedings against him for damages for defamation.  As part of the discovering process the Respondent sought documentation relating to the incident – the Ryanair Base Investigation Report (B.I. report).  The Respondent contended in the High Court that the B.I. Report is highly relevant to the issues that will arise for determination at the trial of the action and that it was necessary for him to be furnished with a copy in advance of the hearing.

Ryanair resisted production on the basis that it is a confidential report, and further that it is protected from disclosure by domestic and EU aviation legislation. Ryanair contended that if the court carried out the correct balancing exercise whereby it balances the advantage to the Respondent by production of the report, as against the adverse consequences to the investigation of incidents involving aircraft with the resultant negative effects on airline safety generally, the balance tips in favour of withholding production of the document.

Ryanair also suggested that the discovery sought was not “necessary” because the Respondent already has the BFU Report and can rely on his own personal experience as a pilot. However, the court was satisfied that not only is it relevant but that its discovery was “necessary” for disposing fairly of the proceedings in the sense that it may give an advantage to the Respondent in defending the proceedings.

The Court of Appeal held that the onus was on Ryanair to establish not just that the trial judge erred in law or fact, or in the application of the law to the facts, but also, insofar as he exercised his discretion  to order inspection, that Ryanair would suffer “real injustice” if the B.I. Report were to be inspected in the less redacted version directed by the High Court.

Accordingly, the court held that Ryanair had failed to satisfy the court that the trial judge erred in law or in fact in any respect in his determination that the unredacted B.I. Report is both relevant and necessary and should therefore be produced for inspection.   
https://www.courts.ie/view/judgments/068f9c2c-902d-4f80-af6c-7f81da72457a/9c75cb09-3f1d-45e8-9286-43dc950ba2c4/2021_IECA_110%20(Unapproved).pdf/pdf