Claimants in a UK air cargo damages dispute are close to settling with British Airways, as a Court of Appeal judge accused the parties of wasting time.
In a hearing on 16 October at the Court of Appeal of England and Wales, Master of the Rolls Lord Justice Terence Etherton agreed to postpone the claimants’ appeal against a High Court judgment that limited the scope of the claims.
Several groups of companies are suing British Airways for damages caused by the air cargo cartel from 2001 to 2010. British Airways in turn has brought multiple other airlines into the lawsuit through contributory proceedings.
In 2017, the European Commission’s Directorate-General for Competition adopted a new decision against the members of the air cargo cartel, because the EU’s General Court had overturned its previous 2010 decision on procedural grounds.
The court was due to hear the Emerald, Kodak and La Gaitana groups of claimants’ appeal against Mrs Justice Vivian Rose’s judgment, which ruled that victims of the cartel cannot claim damages for conduct that affected certain routes before EU Regulation 1/2003 became effective in 2004.
All the parties to the proceedings agreed that an adjournment of the hearing was the most suitable step to press ahead with settlement discussions, and asked the court to adjourn the case until next spring, which is the next possible date for the court to re-list the case.
At the Court of Appeal hearing last week, counsel for the contribution claim defendant airlines Daniel Beard QC said he thought a settlement in principle with the Emerald and Kodak claimants was “very close”. However, he said the position is different in relation to the La Gaitana claimants.
Counsel to La Gaitana Fergus Randolph QC agreed that his clients were at a different stage in terms of reaching a settlement and “it is not right to say we are anywhere near as close as [the Emerald and Kodak claimants] are”.
If the case was stood down until next spring, Randolph said, it would give “everyone the opportunity, both the Emerald appellants and my clients, the opportunity to settle this case once and for all”.
However, Lord Justice Etherton accused the companies of wasting the court’s time and was keen to avoid the case being re-listed.
“You have three senior Court of Appeal judges – [including Lord Justice David Bean and Lord Justice Julian Flaux] – whose time is now wasted for two days when we could be dealing with other urgent cases. I know everybody here is representing important concerns but everybody's case is important to them,” he said.
There have been years to settle the case and “it looks as though it is the existence of today’s fixture which has focussed people’s minds,” Lord Justice Etherton said.
Beard reminded the judge that an extensive mediation process had taken place in the summer, following an order from Mrs Justice Rose in March to attempt to reach a settlement. In a situation where it looks like a settlement is close, Beard said he does not oppose an adjournment of the hearing but admitted that he cannot say with any confidence that La Gaitana will settle.
“No doubt, La Gaitana will be closely considering its position rather urgently in the light of the position now adopted by Emerald and Kodak, but I can say no more than that in relation to those matters,” he said.
Counsel to British Airways Jon Turner QC said he did not oppose an application for adjournment and said all parties consider that it would advance the final resolution of a “huge and costly dispute”.