15/10/2015

Spreading the wings of economic torts? Air Cargo [2015] EWCA Civ 1024

Yesterday’s Court of Appeal decision in Emerald Supplies v British Airways provides an interesting basis to consider the scope of the English court’s jurisdiction to hear claims for damages based on infringements of foreign competition law.

In this case, shippers of various goods who had purchased air freight space, brought actions for damages against British Airways (BA) following on from the Commission’s decision in 2010 that certain airlines had participated in a global cartel to inflate air freight prices.   As well as bringing conventional claims for breach of statutory duty, the claimants made allegations that BA had committed two economic torts: interfering with business by unlawful means and conspiracy to injure using unlawful means.

The bulk of the Court of Appeal’s judgment is concerned with the degree of intention required for these economic torts (it is discussed in more detail in my briefing note).  Interestingly from a jurisdictional point of view, however, the Court of Appeal highlighted the fact that the concept of “unlawful means” has a wider meaning in the conspiracy tort than in the tort of interfering with business.   As a result it may be possible to rely on breach of foreign competition laws in a conspiracy to injure claim even if the foreign law itself does not confer a right of action or if the action is otherwise statute barred.

It may be some time, however, before this proposition is tested given that the Court of Appeal’s findings on the intent required by each tort severely restrict the factual circumstances in which a successful claim could be made.

Note added on 17.12.15 – On 16 December 2015, the General Court annulled the Commission’s infringement decision.