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Emerald Supplies Ltd v British Airways Plc [2017] EWHC 2420 (Ch)

The ongoing 'Air Cargo' litigation involves claims for damage allegedly caused by airlines' anti-competitive agreements concerning cargo surcharges. In her latest judgment in that litigation, Mrs Justice Rose has severely circumscribed the temporal scope of the claims. 

The alleged damage resulted from flights both within the EU/EEA, and between the EU/EEA and third countries. Mrs Justice Rose decided that no claims could be brought for damage allegedly resulting from flights between the EU/EEA and third countries which took place before 1 May 2004 (for the EU) or 19 May 2005 (for the EEA). She accepted BA's submission that, prior to the coming into effect of the Modernisation Regulation on these dates, it was not possible to bring a private damages claim based on the relevant EU Treaty provisions. She also rejected the Claimants' contention that the Modernisation Regulation ought to be given retroactive effect.    

This constitutes the latest victory for BA in this litigation. It has previously struck out economic tort claims ([2015] EWCA Civ 1024), and a related separate claim brought by Chinese claimants ([2015] EWHC 3071). Conall Patton and Gideon Cohen, led by Jon Turner QC, acted for BA.  You can view the full judgment here