Emerald Supplies Ltd and Others v British Airways Plc Air Canada and Others (Third Parties) Japan Airlines Company Ltd and Others (Fourth Parties)
| Jurisdiction | England & Wales |
| Judge | Peter Smith J |
| Judgment Date | 28 October 2014 |
| Neutral Citation | [2014] EWHC 3513 (Ch) |
| Docket Number | Case No: HC08C02648 HC13C01155, HC13F02027, HC13A02809 & HC13B0315 |
| Court | Chancery Division |
| Date | 28 October 2014 |
[2014] EWHC 3513 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Honourable Mr Justice Peter Smith
Case No: HC08C02648 HC13C01155, HC13F02027, HC13A02809 & HC13B0315
and
Mr P Harris QC & Mr B Rayment (instructed by Hausfeld & Co LLP) for the Claimants
Mr C Patton & Mr M Armitage (instructed by Slaughter & May) for the Defendants
Mr A Rodger (instructed by Steptoe & Johnson) for the Fourth Parties (Japan Airlines Co Ltd)
Mr D Beard QC & Mr T Sebastian (instructed by Hogan Lovells International LLP, Squire Patton Boggs (UK) LLP and Latham & Watkins LLP) for the Third Parties (Air Canada, Cathay Pacific Airways Ltd and Singapore Airlines Ltd/Singapore Airlines Cargo PTE Ltd)
Ms M Demetriou (instructed by Crowell & Moring) for the Third Parties (Scandinavian Airlines, System Denmark-Norway-Sweden, SAS AB, SAS Cargo Group A/S)
Ms K Bacon QC (instructed by Wilmer Cutler Pickering Hale and Dorr LLP) for the Third Parties (Swiss International Air Lines AG, Lufhansa Cargo AG and Deutsche Lufthansa AG)
Miss K Smith QC (instructed by Shearman & Sterling (London) LLP) for the Third Parties (Cargolux Airlines International SA)
Ms M Lester (instructed by Hogan Lovells International LLP, Wragge & Co LLP, Freshfields Bruckhaus Deringer LLP, Bird & Bird LLP, Field Fisher Waterhouse LLP, Dechert LLP, Allen & Overy LLP and Enyo Law LLP) for the Third Parties, Fourth Parties and Others (Korean Airlines Co Ltd, Thai Airways International Public Co Ltd, Emirates, Aeromexico, Air New Zealand, ANA, Egypt Air, El-Al Israel Airlines Ltd, Malaysia Airlines, Nippon Cargo Airlines and Saudi Arabian Airlines)
Mr C West (instructed by Linklaters LLP) for the Third Parties (Air France-KLM)
Mr B Kennelly (instructed by Bird & Bird LLP) for the Fourth Parties (Polar Air Cargo LLP)
Hearing dates: 31 st July 2014
INTRODUCTION
This judgment arises out of a hearing on 31 st July 2014 of an Application Notice dated 22 nd July 2014 whereby the Claimants requested the Court to review (with such judicial assistance as might be necessary) the appropriateness/lawfulness of the redactions made by the Defendant airline ("BA") and other airlines to the European Commission ("the EC") decision of 9 th November 2010 in Case/Comp/99258 Air Freight ("the Decision").
In order to understand the application and why it was made I need to set out the background in detail.
Nevertheless it must be appreciated that the necessity for the application arises solely from the one speed molasses like approach of the EC in relation to its determinations. It is a matter of great concern to me that this action has been stymied for many years because of the EC's failure to proceed with anything like reasonable time for making its decisions. Further it is a matter of even greater concern that despite the fact that there have been considerable delays the EC in communications with me have indicated that there is no procedure whereby the matter can at least be expedited in an attempt to overcome the delays which have occurred or any attempt to address the situation.
BACKGROUND
The Claimants (and there are 565 of them) claim damages in respect of loss that they allege was caused to each of them by the unlawful conduct of BA in connection with a cartel in the market for air freight services ("the Cartel").
The Claimants base that claim on 3 bases:-
1) Interference with the Claimants' businesses by unlawful means;
2) Involvement in a conspiracy to injure the Claimants by unlawful means;
3) Breach of statutory duty and/or directly effective rights by BA's infringement of Article 101 of the Treaty on the Functioning of the European Union ("TFEU") and Article 53 of the European Economic Area Agreement ("EEA").
The hearing took place on 31 st July 2014. Separately there was an application by BA to strike out the conspiracy and unlawful means claims and a cross application by the Claimants for negative declaratory relief to the effect that such economic torts could be founded on foreign misconduct. I heard that application on 1 st October and over a number of days and reserved the judgment on it. The judgment is to be delivered at the same time as the present one.
During the course of that hearing I was informed that a further action (being the third) had been issued in May 2014 with the same legal team representing them as the Claimants in this one by no less than 65,000 Claimants all of whom are apparently traders in China.
The Claimants in the present action range from Chinese fruit and vegetable packers to East African flower growers (Claimants 154–156).
The Claimants have identified 31 airlines that allegedly took part in the global Cartel (Consolidated Particulars of Claim "CPOC") paragraph 3 and Annex (A). BA has commenced Part 20 proceedings against the majority (23) of those airlines.
The claims relate to overcharges on air routes between large numbers of territories across the entire world. The EU/EEA routes where one or both of the origin/destination are within the EU/EEA are listed at Annex (E) CPOC and there are 1,362 such routes.
Separately being the subject matter of the attack by BA are a further 885 routes where neither a point of origin nor a point of destination is within the EU/EEA. The Claimants contend that around 60% of all recorded spend covered by their claims concerns these foreign routes.
The aggregate amount of the claims is summarised in CPOC Annex (O) and is in excess of £1bn. The overcharge claims outside the EU/EEA amount to in excess of £500m. The period covered by the alleged wrongdoing is at least 1999–2007. The proceedings were commenced in September 2008 by 2 Claimants alleged to be representative of the others for damages said to be representative of a large number of Claimants for breach of EU and UK competition law. At that time there was no allegation of common law conspiracy or wrongful interference.
By a ruling of the Chancellor dated 8 th April 2009 (upheld on appeal) the representative element of the claim was struck out leaving only claims by the two named Claimants. As a result of that ruling a large number of additional Claimants joined in leaving a claim which without some form of surgery will self-evidently become completely unmanageable.
STATUTORY BREACHES
The question of infringement of the statutory breaches has been considered by the EU and it made an infringement decision on 9 th November 2010 against BA and eleven other airline groups.
The EC found the addressees of its decision had variously breached the above mentioned Articles and a further one in relation to the Swiss/European Community Air Transport Agreement. The period covered by the determination of the EC is the period between December 1999 and February 2006.
On 30 th July 2013 the Claimants added claims under common law for unlawful means conspiracy/interference by unlawful means.
REGULATORY DECISIONS
In support of their case the Claimants seek to rely upon a number of decisions of foreign competition authorities/regulatory courts against BA as well as admissions in proceedings before such regulators and courts as set out in the CPOC at Annexes (B) and (C).
BA contends such decisions are inadmissible in these proceedings.
Subject to annulment actions pursuant to Article 263 TFEU brought by BA and other addressees of the Commission Decision dated 9 th November 2010 BA has admitted various infringements of the statutory duties.
It has further admitted that its participation in the Cartel infringed a number of foreign competition laws identified in Annex (M) of the CPOC as particularised in Annex A of its Defence.
PROCEDURAL HISTORY
On 10 th February 2014 the Claimants issued an application to inspect the Commission's Decision together with a separate application for there to be a trial of various preliminary issues. That application was supported by the first witness statement of Boris Bronfentrinker as solicitor and partner in the firm of Hausfeld & Co LLP ("Hausfeld"). As set out in that witness statement the Commission Decision was issued on 9 th November 2010 with a press release on the same day confirming it had fined 11 Air Carriers including BA for operating a worldwide Cartel. BA as an addressee of the Decision has a copy of it in its possession. The Claimants have not seen the Decision in its entirety.
Despite the Decision having been issued merely (sic) 4 years ago the Commission has been unable to agree what part or parts of the Decision should be made public. There are obviously a large number of airlines affected in addition to BA. Some are apparently identified in the Decision and allegations or findings are made against them. Others are identified but no findings are made against them. These two categories feature as Part 20 Defendants to a claim brought by BA. Thus some of them have seen the Decision and are in the process of making representations about the wording of the published version. Others have not...
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