Court Of Appeal Sets Aside Order For Disclosure Of Unredacted Commission Decision And Orders Strike Out Of Economic Tort-Based Claims

On 14 October 2015 the Court of Appeal (CoA) handed down its judgment on appeals against orders made by Peter Smith J arising out of an alleged cartel for airfreight services. First, the CoA said the High Court was not entitled to disclose the Commission's unredacted decision even into a confidentiality ring if the decision contained so called "Pergan" material. Second, the CoA struck out claims on economic torts amounting to approximately 60% of the claim. The CoA's reasoning will make it very difficult, if not impossible, for claimants to bring such claims in the future, substantially reducing potential damages in cartel damages claims.

Background

The CoA's judgment concerns appeals against orders made by Peter Smith J in proceedings brought by some 565 claimants against British Airways plc ("BA").

The action brought by the claimants comprises the following: (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") and/or Article 53 of the Agreement on the European Economic Area based on the European Commission's Airfreight Decision;1 (2) a claim based on the tort of unlawful interference; and (3) a claim based on the tort of conspiracy.

Whilst the claimants have only sued BA, BA has brought CPR Part 20 claims against all of the other addressee airlines as well as against some of the non-addressee airlines.2

At the time that the orders at issue were made the Airfreight Decision had not been published. In fact, the Commission only published the provisional version of the Decision on 8 May 2015.

The Appeals

The CoA addressed the following:

an appeal against orders directing that an "unredacted" version3 of the Airfreight Decision should be disclosed into a confidentiality ring ("the Pergan appeal"); and an appeal against an order refusing to strike out claims based on the torts of conspiracy and unlawful interference and instead ordering that such application "should be adjourned until at the earliest after disclosure has taken place" ("the strikeout appeal"). The Pergan Appeal

The Airfreight Decision contains allusions to infringements by addressee and non-addressee airlines which are not part of the "operative part" of the decision4 and, hence, cannot be appealed to the EU courts. Pursuant to the judgment of the General Court in Pergan,5 there is an obligation on the Commission not to make those parts of the Decision available.

The CoA held that a national court must give the same "absolute" protection...