Emerald Supplies Ltd & Anor v British Airways Plc

CPR rule 19.6 permits representative proceedings only where the represented persons have the same interest when the claim is begun. The class must have a common interest and common grievance, and the relief must benefit all members in the same manner. A class cannot qualify where membership depends on proving that the claim succeeds. Nor is representation appropriate where individual liability or loss depends on differing positions in a distribution chain, including whether loss was absorbed or passed on. The large size or geographical spread of a class is not itself objectionable, but the wider the class, the more clearly the rule’s conditions must be satisfied. Where substantially similar individual claims exist, a group litigation order may provide the appropriate procedure.

The claimants, importers of cut flowers, brought proceedings against British Airways alleging participation in agreements and concerted practices fixing air freight prices. They sought damages for alleged infringements of Article 81(1) EC Treaty, Article 53 EEA Agreement and section 2 of the Competition Act 1998.

They also sought to act as representatives of all direct or indirect purchasers whose prices had allegedly been inflated, including purchasers from other airlines. British Airways applied under CPR rule 19.6 to strike out the representative element, contending that the class lacked the same interest and that the proposed relief would not benefit all members equally.

1. Application granted. The purported representative element of the claim was struck out, together with the other agreed consequential orders. It was unnecessary to determine the alternative application under CPR rule 19.6(2).
2. CPR rule 19.6 requires more than one person to have the same interest in the claim when the claim is begun. The existence of the relevant interest at judgment is necessary for enforcement, but is not sufficient if the condition was absent when the claim was issued.
3. The governing principles from Duke of Bedford v Ellis require a common interest, a common grievance and relief beneficial in its nature to all represented persons. The number or geographical spread of the class is not, by itself, a bar.
4. The proposed class failed because its membership was defined by whether purchasers had acquired services at prices inflated by the alleged cartel. That issue was part of the claimants’ case and could not identify the represented persons when proceedings began. The class therefore depended on the action succeeding.
5. The relief was also not equally beneficial. Damage was an ingredient of each individual cause of action, and entitlement depended on the purchaser’s position in the distribution chain and on whether the alleged overcharge had been absorbed or passed on. This created an inherent conflict between members of the proposed class.
6. The decisions concerning representative proceedings were read consistently with these principles. The convenience of avoiding multiple actions and the overriding objective could not justify representation of an unidentifiable class. Similar claims could instead be accommodated through a group litigation order under CPR rule 19.11.