Court of Appeal strikes out economic torts claims

Emerald Supplies Ltd and ors v British Airways plc and ors [2015] EWCA Civ 1024

The Court of Appeal upholds British Airways’ appeal against Peter Smith J’s refusal to strike out claims by some 565 claimant companies against BA. The case arises out of the claimants’ contention that an alleged unlawful cartel operated between 1999 and 2007 with the object of co-ordinating and fixing prices on air freight and in particular as respects fuel and security surcharges.

The Court of Appeal confirmed it is bound by the prior decision in Newson Holding Ltd v IMI plc [2013] EWCA 1377 as respects the economic torts of conspiracy to injure using unlawful means and the tort of interference with business by unlawful means. The case turned on the necessary deliberate intention to injure the claimants. BA’s argument was that the claimants (shippers) contracted with freight forwarders, who in turn contracted with BA. BA therefore would not know and would be in any event indifferent to where any loss fell. Accordingly the Court struck out those aspects of the claims which pleaded economic torts.


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