Air Canada and Others (Third Parties/ Appellants) Singapore Airlines Cargo Pte Ltd and Others (Fourth Parties/Appellants) Korean Air Lines Company Ltd and Others (Non-Parties/Appellants) v Air New Zealand Ltd and Others Emerald Supplies Ltd and Others

JurisdictionEngland & Wales
JudgeLord Justice Elias
Judgment Date14 October 2015
Neutral Citation[2015] EWCA Civ 1024
Docket NumberCase No: A3/2014/2690, 2692, 2693, 2694, 2695, 2696, 2706, 2707, 2708, 2709, 2710, 2711, 2894, 2895, 3575, 3576, 3582, 3583, 3587, 3590, 3591, 3593, 3998, 4000, 4029, 4030, 4031, 4033, 4055
CourtCourt of Appeal (Civil Division)
Date14 October 2015
Air Canada
Air France-Klm
Cargolux Airlines International SA
Cathay Pacific Airways Limited
KLM NV
Martinair Holland NV
SAS AB
SAS Cargo Group A/S
Scandinavian Airlines System Denmark-Norway-Sweden
Third Parties/ Appellants
Singapore Airlines Cargo Pte Ltd
Singapore Airlines Limited
Société Air France
Fourth Parties/Appellants

and

Korean Air Lines Co. Limited
Thai Airways International Public Company Limited
Polar Air Cargo Llc
Non-Parties/Appellants
and
Air New Zealand Limited
All Nippon Airways Co Limited
Emirates
Hong Kong Dragon Airlines Limited
Malaysia Airlines
Saudi Arabian Airlines
British Airways Plc ("BA")
Defendant

and

Emerald Supplies Limited & Ors
Claimants/Respondents
Between:
British Airways Plc
Appellant/Defendant
and
Emerald Supplies Limited & Ors
Respondents/Claimants

and

Air Canada
Air France-KLM
Cargolux Airlines International SA
Cathay Pacific Airways Limited
KLM NV
Martinair Holland NV
Polar Air Cargo LLC
Singapore Airlines Limited
Singapore Airlines Cargo PTE LTD
SociéTé Air France
Appellants/together "the non-BA strike-Out Appellants"

[2015] EWCA Civ 1024

Before:

Lord Justice Elias

Lady Justice Gloster

and

Sir Bernard Rix

Case No: A3/2014/2690, 2692, 2693, 2694, 2695, 2696, 2706, 2707, 2708, 2709, 2710, 2711, 2894, 2895, 3575, 3576, 3582, 3583, 3587, 3590, 3591, 3593, 3998, 4000, 4029, 4030, 4031, 4033, 4055

Case No: A3/2014/3581, 3678, 3707, 3736, 3738, 3739, 3740, 4184

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

THE HONOURABLE MR JUSTICE PETER SMITH

HC08C02648

Royal Courts of Justice

Strand, London, WC2A 2LL

Daniel Beard QC and Thomas Sebastian (instructed by Hogan Lovells International LLP for Air Canada, Linklaters LLP for Air France-KLM, KLM NV, Martinair Holland NV and Société Air France, Shearman & Sterling (London) LLP for Cargolux Airlines International SA, Squire Paton Boggs (UK) LLP for Cathay Pacific Airways Limited, Shepherd and Wedderburn LLP for Scandinavian Airline System Denmark-Norway-Sweden, SAS AB and SAS Cargo Group A/S and Latham & Watkins LLP for Singapore Airlines Limited and Singapore Airlines Cargo Pte Ltd) for the Addressee Airlines

Jon Turner QC (instructed by Slaughter & May) for BA

Sarah Ford (instructed by Wragge Lawrence Graham & Co LLP) for the Non-Addressee Airlines

Iain Milligan QC, Paul Harris QC, Ben Rayment and Anneliese Blackwood (instructed by Hausfeld & Co LLP) for Emerald Supplies Limited and 564 Others.

Daniel Beard QC and Thomas Sebastian (instructed by Hogan Lovells International LLP for Air Canada, Linklaters LLP for Air France-KLM, KLM NV, Martinair Holland NV and Société Air France, Shearman & Sterling (London) LLP for Cargolux Airlines International SA, Squire Paton Boggs (UK) LLP for Cathay Pacific Airways Limited, Bird & Bird LLP for Polar Air Cargo LLC and Latham & Watkins LLP for Singapore Airlines Limited and Singapore Airlines Cargo Pte Ltd) for the Non BA strike-out Applicants

Hearing dates: Tuesday 12 May, Wednesday 13 May and Thursday 14 May 2015.

Lord Justice Elias

Introduction

1

This is the judgment of the court to which all members have contributed. Gloster LJ is principally responsible for the section dealing with the Pergan appeals and Elias LJ is principally responsible for the section dealing with the strikeout appeals.

2

These are appeals against certain case management and other orders made by Peter Smith J ("the judge") in proceedings ("the action") brought by some 565 claimant companies ("the claimants") against British Airways plc ("BA"), arising out of an alleged unlawful cartel said to have operated worldwide between 1999 and 2007. The claimants are shippers of air freight who purchased air freight services in various territories worldwide, in virtually all cases acquiring those services indirectly through freight forwarders who contracted directly with the airline concerned. The object of the cartel, it is alleged, was to co-ordinate and fix prices for air cargo services, especially with respect to fuel and security surcharges, thereby distorting competition and inflating prices for those acquiring the services.

3

In the action the claimants have brought three claims against BA: (1) a claim for breach of statutory duties owed to the claimants under Article 101 of the Treaty on the Functioning of the European Union ("TFEU") 1 and/or Article 53 of the Agreement on the European Economic Area; (2) a claim that BA has committed the tort of unlawful interference with the claimants' businesses by unlawful means; and (3) a claim that BA has committed the tort of conspiracy to injure the claimants by unlawful means.

4

In bringing their claims, the claimants seek to rely inter alia upon a decision of the European Commission ("the Commission") issued on 9 November 2010 in which the Commission made findings that in case Comp/39258- AirFreight certain airlines including BA and other airlines addressed in the operative part of that decision ("the addressee airlines") had infringed Article 101 TFEU at particular times by participating in a cartel on a global scale in respect of air freight services ("the Commission Decision"). In the Commission's public press release (IP/10/1487 dated 9 November 2010), which summarised that decision, the Commission announced its findings that:

i) BA had combined with 11 other identified air carriers in a cartel which had run in the period December 1999 to 14 February 2006, the object of which was to coordinate prices for Air Cargo Services, and in particular in relation to Fuel and Security Surcharges;

ii) BA thereby infringed Article 101 TFEU; and

iii) BA was accordingly fined €104,040,000. 2

5

As well as the addressee airlines who were identified in the operative parts of the Commission Decision as having infringed Article 101, certain other airlines were also mentioned in that decision, although not identified as infringers ("the non-addressee airlines"). Whilst the claimants have only sued BA, BA in turn has brought CPR Part 20

claims under the Civil Liability (Contribution) Act 1978 against "19" of the addressee airlines 3 as well as against four, but not all, of the non-addressee airlines 4 seeking an indemnity and/or contribution in respect of any liability that BA is found to owe to the claimants
6

At the date of the hearings before the judge, neither the complete, nor a non-confidential, version of the Commission Decision had been published by the Commission. The claimants sought disclosure of the unredacted version of the Commission Decision held by BA. This was objected to by certain of the addressee and non-addressee airlines on the grounds that they were entitled to redaction of certain materials on the basis that they were protected by EU law pursuant to the judgment of the General Court in Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse GmbH v Commission [2007] ECR II-4225 (" Pergan").

7

Separately BA also sought to strike out certain paragraphs of the Particulars of Claim, in particular those relating to the claims based on the torts of conspiracy and economic interference.

8

It is relevant to note for the purposes of these appeals that other proceedings are also pending, both in this and other jurisdictions, against members and alleged members of the cartel. In particular, a claim 5 was issued against BA in the High Court on 8 May 2014 by approximately 64,000 Chinese corporate claimants who are all members of the China Chamber of International Commerce, and a further claim was issued against BA on 28 November 2013 by Hyundai Industries Industires & Others v British Airways Plc (HC13E05164) arising out of the same alleged conduct. The claimants' solicitors, Hausfeld & Co LLP, are apparently acting for the claimants in these other proceedings. We were also told that a further claim has been issued in the Netherlands by the Chinese Chamber of International Commerce against BA, KLM and Martinair. Finally, we were told that there are extant proceedings in the Court for the Eastern District of New York, ( Re Air Cargo Shipping Services Antitrust Litigation, 06-MD-01775 (EDNY)). The claimants' solicitors associated US firm, Hausfeld LLP, are apparently acting for the claimants in some of these other proceedings.

9

Although we refer in this judgment to "the cartel", since BA and other addressee airlines are appealing against the Commission Decision, any such reference should be regarded as a reference to an alleged cartel.

The appeals

10

In summary, the appeals consist of:

i) an appeal by the Addressee Airlines 6 and by the Non-Addressee Airlines 7 against orders made by the judge on 31 July 2014, 12 August 2014 and 28 October 2014 ("the contested Pergan orders") whereby he directed that an unredacted version of the Commission Decision should be disclosed to members of a confidentiality ring which included the claimants' legal representatives and economic advisers ("the Pergan appeals"); the reasons for these orders were contained principally in his judgment dated 28 October 2014 addressing the Pergan applications ("the redactions judgment");

ii) an appeal by BA and certain, but not all, of the Addressee Airlines and Non-Addressee Airlines ("the non-BA strike-out appellants") against paragraph 4 of the judge's order dated 28 October 2014, whereby he refused to accede to BA's application that parts of the claimants' pleaded case should be struck out or summarily dismissed and instead ordered that such application "should be adjourned until at the earliest after disclosure has...

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