Blow to UK collective actions as BA, Slaughters beat Hausfeld in Court of Appeal

An attempt to bring a US-style class action through the Court of Appeal has been thrown out after Lord Justice Mummery said the case was “fatally flawed”.

An attempt to bring a US-style class action through the Court of Appeal has been thrown out after Lord Justice Mummery said the case was “fatally flawed”.

Hausfeld partner Anthony Maton instructed 20 Essex Street’s Iain Milligan QC to represent flower shippers, Emerald Supplies and Southern Glass House Produce, in their claim against British Airways.

The airline brought in heavyweights Slaughter and May, with senior associate Justin McClelland instructing One Essex Court’s Kenneth Maclean QC.

The claimants had attempted to bring a representative action against BA, seeking damages in respect of losses they claimed to have suffered as a result of an alleged cartel in the provision of airfreight services.

The claimants sought to act as representatives of all “direct and indirect purchasers of airfreight services, the prices for which were inflated by the agreements or concerted practices”, in essence seeking to extend the number of potential claimants to an almost limitless number.

Mummery LJ upheld the first instance ruling and rejected the claim stating: “Emerald’s case for a representative action, whether as originally pleaded or as proposed to be amended, is fatally flawed.

“The fundamental requirement for a representative action is that those represented in the action have “the same interest” in it.

“At all stages of the proceedings, and not just at the date of judgment at the end, it must be possible to say of any particular person whether or not they qualify for membership of the represented class of persons by virtue of having “the same interest” as Emerald.”

Ashurst litigation partner Arundel McDougall said the decision “has shut the lid firmly closed on the adoption of US style class actions in competition litigation in this jurisdiction.

“The message is that our collective procedures are fit for the purpose. Changes may emerge via European competition policy, but this is unclear.”

Edwin Coe partner David Greene said the ruling was “disappointing but not surprising.”

He added: “The judgment reflects the great difficulty for consumers or other large groups to bring a collective action in this jurisdiction which restricts their access to the court to secure redress.” 

Mummery LJ chaired a panel of three which included Lord Justices Toulson and RImer who concurred with the decision.katy