Emerald Supplies Ltd & Ors v British Airways Plc & Ors

Applications for strike-out or summary judgment should not determine difficult, fact-sensitive issues prematurely where the relevant evidence is substantially within the defendants’ knowledge and disclosure has not occurred. In complex cartel litigation, a pleading may disclose an arguable claim despite lacking particulars of the defendants’ intention, particularly where secrecy makes those particulars dependent on disclosure. The appropriate procedural response may be to seek clarification or adjourn the application. The court should avoid a mini-trial and should not pre-empt issues reserved for trial. The court left open whether foreign unlawful acts can constitute unlawful means in an English conspiracy, and whether loss suffered in one country can be recovered where the breached law is that of another country.

The claimants, numerous purchasers of air-cargo services, alleged a worldwide airline cartel and brought claims against British Airways in unlawful means conspiracy and unlawful interference, relying in part on breaches of foreign law. British Airways applied under CPR 3.4(2)(a) and CPR 24 to strike out or obtain summary judgment, principally arguing that the pleadings did not establish an intention to injure the claimants. The claimants sought declarations that foreign unlawful acts could found an English conspiracy and that loss outside the country whose law was breached could be recovered.

The court considered whether either application could properly be determined before pleadings had closed, disclosure had occurred and evidence had been served.

1. Applications adjourned. British Airways’ application was adjourned until, at the earliest, after disclosure. The claimants’ application was adjourned with liberty to restore at an appropriate time, probably at trial.
2. The summary judgment and strike-out powers are discretionary. A respondent need show only a real, rather than fanciful or imaginary, prospect of success. The court should avoid a mini-trial and should hesitate before finally deciding a case where fuller factual investigation may add to or alter the evidence.
3. The claimants’ pleading was inadequate in detail but disclosed an arguable conspiracy and unlawful interference claim. It alleged that the defendants intended to cause loss by overcharging purchasers of air-cargo services. British Airways could have sought further particulars. In a secret cartel case, evidence of intention was likely to be found in internal documents held by the defendants, co-conspirators or relevant non-parties.
4. The court applied the procedural approach reflected in the authorities concerning clandestine competition arrangements: before disclosure, a more generous approach to pleadings may be appropriate where the missing information is peculiarly within the defendants’ knowledge. That did not determine the ultimate merits or create a general rule that disclosure always prevents summary judgment.
5. The court analysed the intention requirement in OBG Ltd v Allan and the observations in WH Newson Holding Ltd v IMI Plc. It considered it arguable that a defendant may intend to injure a particular class, with only those members who actually suffer loss having a claim. It expressly declined to reach a concluded view because the factual basis concerning the passing-on or absorption of surcharges was incomplete.
6. The questions whether foreign unlawful acts can found an English unlawful means conspiracy, and whether loss in country B can be recovered for breach of law in country A, were important and unresolved questions. The court declined to determine them summarily and left them open for trial or later determination.