By Alexandra Luchian

In 2010, the European Commission found that 11 airlines were culpable of price fixing[1]. The alleged cartel was said to have operated between 1999 and 2007. The Commission decision gave rise to a number of cartel damages actions, including proceedings in the English courts; the English proceedings are some of the largest actions to be heard in this jurisdiction.

Three important judgments were handed down in recent months, two in the Court of Appeal and one in the High Court, that are likely to have a significant impact on future cases brought in England and Wales, and on ongoing parallel proceedings in the Netherlands and in Germany.

  1. Presumption of innocence (Court of Appeal)[2]: the airlines successfully argued that disclosure of material in the original Commission decision would infringe the airlines’ absolute right to the presumption of innocence. The judgment limits claimants’ ability to seek disclosure of material contained in the non-operative part of Commission decisions.
  2. Economic torts (Court of Appeal): the Court of Appeal struck out claims based on the “economic” torts of unlawful means conspiracy and unlawful interference with trade on the basis that no “intention to injure” was demonstrated. The judgment limits claimants’ ability to rely on economic torts in an effort to extend their damages claims beyond the geographical and temporal scope of EU law.
  3. Authority to bring claims (High Court): the Court struck out 64,000 claims allegedly brought by Chinese claimants due to their solicitors’ lack of authority to sign statements of truth on behalf of those claimants. The judgment highlights that solicitors must identify proper causes of action before signing the claim form.

If you found this interesting, you may also want to read our client alert Court of Appeal and English High Court Reshape Cartel Damages Litigation Landscape in Air Cargo for further analysis.

 

[1] This decision was annulled by the EU General Court on 16th December 2015 but the judgment of the General Court may be appealed.

[2] Air Canada & Ors v Emerald Supplies Limited [2015] EWCA Civ 1024.