One of the most important decisions on anti-trust damages actions was handed down by the UK Court of Appeal this week. Emerald Suppliers & Others v British Airways is a follow-on claim arising from the air cargo cartel; it involves more than 500 claimants with damages asserted of more than £1 billion. British Airways made a number of claims for contribution/indemnity from other airlines, meaning that there were a large number of CPR Part 20 defendant airlines. We represented two of the Part 20 airlines (and won).
There were two key issues before the Court:
Should claims for unlawful means conspiracy and interference with business by unlawful means be struck out? The Court decided that these claims should be struck out because neither BA nor any of the Part 20 airlines could have possessed the requisite intention to injure an identifiable claimant or class of claimants. Allowing economic torts of this sort to extend to unidentifiable persons would give rise to undesirable results and would dilute the concept of intention.
At the lower court, the claimants were successful in securing an order for the disclosure of the unredacted version of the EU Commission's cartel infringement decision. The Court of Appeal reversed that decision on the basis that such disclosure would infringe their Pergan rights: ie the rights of non-addressees of EU Commission decisions, but whose names appear in such decision, to the presumption of innocence and protection of their professional secrets.
As it now stands, the claimants' common law claims cannot continue and they must rely on statutory breach as a cause of action. The decision on Pergan rights will also tend to narrow the likely scope of defendants who are actively pursued. Permission to appeal will almost certainly be sought.
If you would like to discuss these issues please do not hesitate to contact us.