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No U.S.-Style Class Actions in the U.K. … Yet
Insurance Law Update
English High Court
A recent decision of the English High Court continues to resist the “creep” toward U.S.-style class actions. The claimants in Emerald Supplies Ltd & Anr v. British Airways plc [2009] EWHC 741 (Ch) imported cut flowers, using the services of British Airways (BA) and other international airlines. Relying on convictions in the U.S. for price-fixing and investigations of similar allegations underway in Europe, the claimants sued BA on their own behalf and on behalf of “all other direct or indirect purchasers of air freight services the prices for which were so inflated by the agreements or concerted practices.” Three categories of damages were claimed:
• the inflated element of the price paid by claimants,
• loss of sales volume insofar as the inflated price caused claimants’ prices to be similarly inflated, and
• loss of sales volumes of other products as a result of brand damage.
BA successfully applied to strike the representative element of the claim. The court noted that Civil Procedure Rule 19.6 allowed claims to be brought “by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.” Consequently, members of a purported class must be identifiable when the action is brought; however, this was impossible in the present case, as the criteria could not be satisfied until the action succeeded. It also noted the inherent conflict between claimants who had absorbed the purported inflated price and those to whom it had been passed on. Accordingly, although the matter might lend itself to a Group Litigation Order under rule 19.11, it could not be a representative action under rule 19.6.
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