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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Emerald Supplies Ltd & Anor v British Airways Plc  EWCA Civ 1284 (18 November 2010)
Cite as:  UKCLR 20,  CP Rep 14,  EWCA Civ 1284,  2 WLR 203,  Ch 345
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE CHANCELLOR OF THE HIGH COURT (The Rt Hon Sir Andrew Morritt CVO)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE RIMER
| EMERALD SUPPLIES LIMITED
SOUTHERN GLASS HOUSE PRODUCE LIMITED
|- and -
|BRITISH AIRWAYS PLC
MR KENNETH MacLEAN QC and MR ROBERT O'DONOGHUE (instructed by Slaughter & May) for the Respondent
Hearing dates: 17th December 2009 & 8th March 2010
Crown Copyright ©
Lord Justice Mummery :
"12.22 There is no limit to the number of persons who can be claimants or defendants to an action. There is therefore no impediment to a large number of claimants suing together or to a large number of defendants being sued together, but the multiplicity of parties, all of whom exercise their right to participate in the proceedings, may hinder the effective resolution of a dispute by causing duplication and confusion. Yet, it might be equally inefficient if each of a multitude of claimants with similar cases were required to establish their claims independently of each other, because it would require the court to deal with identical issues many times over. As Uff observed, two different sorts of interest may arise in the multi-party proceedings context. One is the true collective interest, where all those concerned share a single common interest (e.g. pollution; anti-discrimination). The second arises where individual substantive rights happen to be shared by several persons relating to a single event or similar transactions (e.g. personal injury claims following mass disasters; product liability claims). The procedural process suitable for administering one such sort of claim is not necessarily suitable or most appropriate for administering the other. Accordingly CPR 19 provides two principal devices for handling multi-party actions. One is the representative action. The other is the group litigation order…"
"(1) Where more than one person has the same interest in a claim-
(a) the claim may be begun; or
(b) the court may order that the claim be continued,
by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.
(2) The court may direct that a person may not act as a representative.
(3) Any party may apply to the court for an order under paragraph (2).
(4) Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule –
(a) is binding on all persons represented in the claim; but
(b) may only be enforced by or against a person who is not a party to the claim with the permission of the court."
Adjournment for amendment application
Basic facts pleaded
Judgment on strike out
"35. In my view, this distinction demonstrates that r19.6 does not authorise these claimants to represent the class described in the particulars of claim. The simple reason is that it is impossible to say of any given person that he was a member of the class at the time the claim form was issued. It is not that the class consists of a fluctuating body of persons but that the criteria for inclusion in the class cannot be satisfied at the time the action is brought because they depend on the action succeeding."
"36. It is not disputed that damage is a necessary element in the cause of action of individual members of the class. Whether or not an individual member of the class can establish that necessary ingredient will depend on where in the chain of distribution he came and who if anyone in that chain had absorbed or passed on the alleged inflated price. Given the nature of the cause of action and the market in which the relevant transactions took place, there is an inevitable conflict between the claims of different members of the class."
" 38. …It is not conducive to justice that actions should be pursued on behalf of persons who cannot be identified before judgment in the action and perhaps not even then. Further the avoidance of multiple actions based on the same or similar facts can equally well be achieved by a Group Litigation Order made under CPR r19.11. The existing 178 additional claimants and any others who seek to join in after the publication of the European Commission's investigation are more conveniently accommodated under that procedure. The statements in, for example, the Duke of Bedford must be read in the light of the fact that Group Litigation Orders were not available until 2000."
Draft proposed amendments (as indicated in italics)
"8. The Claimants were direct or indirect purchasers or both of air freight services from the Defendant and also from one or more of the undertakings identified in paragraph 4 above between December 1999 and March 2006. As such they are representative of all other direct or indirect purchasers of air freight services from the Defendant and also from those undertakings between December 1999 and March 2006."
"By virtue of the inflated prices, the direct or indirect purchasers, including the Claimants, have suffered losses, including losses, under one or more of the following three heads:
(1) the inflated element of the price, in so far as it was passed on to them [and not passed on by them],[ and/or]
(2) loss of sales volumes in so far as the inflated price was passed on by them to their own buyers, and
(3) loss of sales volumes of other products as a result of brand damage."
"10. In the circumstances the Claimants claim on their own behalf and on behalf of all direct or indirect purchasers of air freight services from the Defendant and from the undertakings identified in paragraph 4 above between December 1999 and March 2006 a declaration
(1)that the Defendant was a party to the agreements or practices described in paragraph ;
(2) that the object or effect of those agreements or practices was as described in paragraph 3;
(3) that the agreements or practices spanned the period between December 1999 and March 2006, as described in paragraph 4;
(4) that the agreements or practices involved one or more of the undertakings identified in paragraph 4;
(5) that the object or effect of the agreements or practices was to inflate the prices at which airfreight services were supplied to purchasers above those which would have prevailed had there been no such agreements or practices, as described in paragraph 6;
(6) that the agreements or concerted practices constituted infringements of Article 81(1) EC (Now Article 101 of the Treaty on the functioning of the European Union), Article 53 of the EEA Agreement and section 2 of the Competition Act 1998, as described in paragraph 7; and
(7) that damages are recoverable in principle from the Defendant by those purchasers in respect of each of the three types of loss described in paragraph 9."
(1) Size of class
(2) Lack of identification.
(3) The authorities discussed
"… Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent."
"…as requiring three conditions to be fulfilled. First, the parties must have the same interest in the proceedings; secondly, they must have a common grievance; thirdly, the relief sought must be beneficial to all."
(4) Critical date.
(6) Not equally beneficial/ passing on defence.
Lord Justice Toulson:
Lord Justice Rimer: