COMPETITION BULLETIN

Ever since Johnson v Moreton [1980] AC 37 (61E-G per Lord Hailsham: ‘we should have to adopt the carefree attitude of the Mikado…’), references to Gilbert and Sullivan have been gaining ground in the judgments of our higher Courts. When last year Arden LJ rejected the argument, advanced by the claimant victim of a cartel, that it suffices to establish the intention requirement for the tort of unlawful means conspiracy that the claimant forms part of a class of persons against whom a cartelist’s wrongful acts were targeted, she did so by reference to The Gondoliers:

‘it deprives the requirement of intent to injure of any substantial content. It is tantamount to saying it is sufficient that the conspirators must have intended to injure anyone who might suffer loss from their agreement. If I might say so, the submission is reminiscent of the circularity of words in the Gondoliers that “when everyone is somebody, then nobody is anybody”’.

(See W.H. Newson [2013] EWCA Civ 1377 at [41], blogged here by Andrew Scott).

However, in a recent judgment in the Air Cargo litigation, the proposition for which Arden LJ invoked The Gondoliers has encountered judicial disapproval: Emerald Supplies Ltd v British Airways plc and others [2014] EWHC 3514 (Ch) (not to be confused with the judgment on confidentiality issues in the same case handed down on the same day, the subject of this blog post by Eesvan Krishnan). Refusing to accede to BA’s pre-disclosure strike-out application of the air cargo operators’ claim in unlawful means conspiracy, Peter Smith J confessed that he found Arden LJ’s reasoning difficult to follow, perhaps for ‘my lack of knowledge of Gilbert & Sullivan operettas (save the song “I am an Englishman”)’: [76]-[77].

Peter Smith J could not see how it would deprive the requirement of intent to injure of substantial content to accept the “targeted class of persons” argument that had been advanced in Newson, and considered Arden LJ’s remarks an unnecessary gloss on the principles established in OBG v Allan [2007] UKHL 21: see his judgment at [78]. Newson, he suggested, could be distinguished on its facts, and in any event he considered Arden LJ’s observations to be strictly obiter: [80]-[81].

It is unclear whether the judge’s reference to HMS Pinafore (‘in spite of all temptations/ To belong to other nations,/ He remains an Englishman!’) is intended as a nod to a Eurosceptic trend among our senior judiciary. But if Newson seemed to raise the bar for competition litigants running good old common law claims, Emerald appears to lower it – and marginally to increase the chances of a future judgment of the High Court featuring the following exchange between The Grand Duke’s Julia and Ludwig:

‘JUL. Bah! Lots of people eat sausage-rolls who are not conspirators.
LUD. Then they shouldn’t. It’s bad form. It’s not the game.’