The Court of Appeal has allowed an appeal by British Airways against the refusal of Mr Justice Peter Smith to strike out or summarily dismiss claims by 565 claimants in unlawful means conspiracy and the tort of interference with business by unlawful means. The Court of Appeal’s judgment contains an authoritative analysis of the requirement for an intention to injure in those torts.
The appeal arises in large-scale proceedings arising from an alleged cartel between airlines concerning certain surcharges on air freight. The proceedings were being presided over by Mr Justice Peter Smith until he recused himself at a hearing in July 2015. They have subsequently been assigned to Mrs Justice Rose.
The appeal concerned the claimants’ contention that they could plead claims in the economic torts so as to recover overcharges on air freight allegedly suffered by them on routes outside the EU/EEA. BA applied to strike out or obtain summary dismissal of the economic tort claims on the basis that the claimants had no realistic prospect of establishing the necessary intention to injure on the ground that BA could not have known that the claimants (who are said to be shippers of goods) would necessarily suffer loss as a result of the alleged cartel. Mr Justice Peter Smith declined to rule on the application in advance of disclosure and ordered BA to pay costs on the indemnity basis. In overturning his decision, the Court of Appeal (Elias and Gloster LJJ and Sir Bernard Rix) has unanimously held that it is bound by its own previous decision in Newson Holding Ltd v IMI plc [2013] EWCA 1377 and in any event that Newson correctly applies the reasoning of the House of Lords in OBG v Allan [2007] UKHL 21.
The Court of Appeal also upheld a separate appeal against an order of Mr Justice Peter Smith ordering disclosure of the Decision of the European Commission into a confidentiality ring.
Conall Patton and Gideon Cohen appeared for BA, led by Jon Turner QC of Monckton Chambers. They are instructed by Slaughter and May.
The full text of the Court of Appeal’s judgment can be found here.