English Cartel Damages Claim Takes an Extraordinary Turn

A View from Constantine Cannon’s London Office

by Richard Pike

Those in need of some light relief before heading off on vacation could do worse than read the latest judgment in the never-ending saga that is the English air cargo litigation.  We on the European side of the Atlantic have been known to indulge in some schadenfreude about the antics of the lesser members of the US judiciary.  We don’t get to see judges pulling out guns in our courtrooms or using the sound of a flushing toilet to indicate their displeasure with submissions.  English judges are typically just a bit too staid to provide a good source of amusement.  But not any more.  Now we have the spectacle of the great “disappearing luggage” conspiracy.

We should start, though, with a little context. The case we are talking about here is not some little spat in a regional backwater.  It is, in fact, arguably the largest cartel damages claim in English legal history, and the judge involved is a long-standing judge of the High Court in London.  The litigation has been going on in one form or another for seven years and there are literally thousands of named parties.  Astonishingly, despite the passage of seven years, the case has not even got as far as discovery yet.  Part of the reason for this slow progress is the delay in release of the European Commission’s decision finding an infringement.  The judge in the action already had a (well-deserved) rant about that.  It seems, though, that the final straw has been something altogether more mundane: lost luggage.  Although, it is the judge’s lost luggage.  And his wife’s.

It all started when the judge decided to book a trip to the beautiful Renaissance city of Florence earlier this year.  For whatever reason, he decided to fly there using the very airline that is the number one defendant in the case he has been handling for so long.  On the way back, earlier this month, his flight was delayed and his luggage went missing.  Apparently the luggage was delayed for all the passengers on the same flight.  So far, so annoying.  Most of us would be a bit irritated.  Even the most mild-mannered of us might lose our cool with the customer services department.  But the judge went several times better.  He emailed the Chairman of the airline and pointedly mentioned the fact that he was trying a case against the firm.  He then hauled the lawyers before him in court and demanded that they explain what had happened to his luggage.  Finally, he penned this extraordinary judgment last week.  It seems this wasn’t just a mishap with luggage.  Oh no.  It was a conspiracy.  A conspiracy to carry valuable freight instead of passenger luggage.  A conspiracy “strikingly similar” to the global cartel at issue in the case.

I must resist the urge to editorialize any more.  Suffice it to say that the judge, very reluctantly, decided that he had to recuse himself from the litigation.  Not, you must understand, on the grounds that a reasonable observer might suspect bias, but only to avoid it becoming an unnecessary distraction.

This is not the first time that this particular judge has found himself in the public eye.  Back in 2006, the same judge found himself in the international media spotlight after he hid a coded message in a judgment over whether Dan Brown had copied somebody else’s story in the writing of the Da Vinci Code.  Then, in 2007, the judge got criticized by the Court of Appeal and picked up a judicial reprimand for continuing to hear a case despite having recently discussed taking employment with a law firm associated with one of the parties.  In short, this judge did have some form.  The latest judgment is still quite extraordinary though.  Indeed, it seems the judicial conduct authorities think so as well since it has been announced he is now under investigation for misconduct (again).

There are, of course, some serious issues beyond the levity.  The litigants in the case could be forgiven for feeling distinctly non-plussed about how this litigation has progressed.  Whilst it is often suggested that defendants want to delay cartel damages claims – not least so that limitation periods expire before others are tempted to claim – no-one enjoys being mired in litigation that follows a “one speed molasses approach” (to borrow one of the judge’s colourful phrases).  To borrow another cliché, but one that is nevertheless true, justice delayed really is justice denied.  Even before the latest luggage-related woes, the defendants had previously expressed concerns about whether this particular judge was the best person to hear the case on the grounds that he had no antitrust experience.  He had been appointed a judge for a specialist competition tribunal but had never heard a single case there in the four years for which he had been appointed.  It was suggested that perhaps a more specialist judge might have been able to move things along a little more efficiently.  The replacement who has been appointed this week is someone with a lot more experience in the antitrust arena, having sat many times in the tribunal where her predecessor never got to hear any submissions.  Looking to the future, it may be that one of the lasting legacies from this case will be a shift in claimant tactics towards more use of the specialist tribunal, the Competition Appeals Tribunal or “CAT,” rather than the more generalist High Court.  Practitioners have traditionally been wary of the CAT because there were various features of its jurisdiction that made it a risky choice, but those issues should have been fixed by legislation passed earlier this year.  If so, a Tribunal staffed with specialist competition lawyers and economists may come to be seen as a rightly attractive option.

— Edited by Ankur Kapoor