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British Airways Board V. Laker Airways Notes

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RITISH AIRWAYS BOARD V. LAKER AIRWAYS B

FACTS From 1977 the rights of British and American airlines to operate transatlantic air
services between the United Kingdom and the United States were regulated and
controlled by a treaty between the two governments known as "Bermuda 2" under
which each country had the right to designate airlines of its own nationality to fly
particular routes. British airlines were subject to control by the United Kingdom Civil
Aviation Authority ("C.A.A."), which regulated their fares. The corresponding body
for United States airlines was the United States Civil Aviation Board ("C.A.B.").
Article 12 of Bermuda 2 provided for the fixing of the tariffs of designated airlines,
which were to be subject to the approval of the C.A.A. and the C.A.B., who had to try
to ensure that the designated airlines conformed to the agreed tariffs. Both the
plaintiffs, B.A. and B.C., and the defendants, Laker, were United Kingdom
designated airlines licensed on terms that they charged fares approved by the C.A.A.
and were only authorised to fly into United States airspace if those fares were
approved by the C.A.B. In 1977, Laker obtained permission to operate "Skytrain,"
which was a low­cost scheduled transatlantic service. Lakers later encountered
financial difficulties and went into liquidation.
The other airlines operating scheduled services (as distinct from charter flights) across
the North Atlantic between the United States and the United Kingdom and other
destinations in Western Europe, including B.A. and B.C., were members of the
International Air Transport Association ("I.A.T.A."). Between airlines that are
members of I.A.T.A. ("I.A.T.A. airlines") there exist elaborate arrangements for co­
operation, involving through­bookings for carriage by different airlines,
interchangeability of tickets, co­ordination of time tables, uniform fares for various
classes of travel providing differing standards of amenity and the like, with which air
travellers are familiar. Laker, upon becoming a designated British airline for the New York­London route,
did not become a member of I.A.T.A. It did not conform to the I.A.T.A. fare
structure or participate in any of its arrangements for collaboration between I.A.T.A.
airlines. Laker was so successful in attracting passengers that by the time of its collapse, in
February 1982, Laker was carrying one­seventh of all passengers by air across the
Atlantic between the United Kingdom and the United States. Reduction in prices by IATA airlines: To meet what they regarded as the threat to
the maintenance of payloads to which they were exposed by the lower fares charged by
Laker under the Skytrain policy, the I.A.T.A. airlines introduced

fares substantially

lower than their uniform standard fares for the lowest class of travel, and
approximately matching those charged by Laker. These new cheap fares were available
on "stand­by" terms, depending on the availability of a seat, or were subject to
compliance with requirements as to advanced booking; but, it is alleged by Laker, they
were inclusive of "in­flight" amenities, for which extra charges were made under
Laker's Skytrain policy.

By the beginning of 1982, Laker's finances had become overstretched, and disaster
struck. The causes for this are not, in my view, a matter for your Lordships. Attempts
at a rescue operation for re­financing Laker were made, but to no avail. The causes for
their failure are also not a matter for your Lordships. On 5 February 1982 Laker
ceased trading and on 17 February it went into liquidation in Jersey. Action before American courts: The American action was started by a complaint,
dated 24 November 1982, against a number of I.A.T.A. airlines: two of them,
T.W.A. and Pan­Am, being U.S. airlines; two of them, B.A. and B.C., being British
and the respective plaintiffs in the two English civil actions. The allegations under the US complaint were two fold: (1) that the IATA Airlines
colluded to ensure lower prices which they expected would drive Laker out of
business (2) that when Laker was contemplating winding up, there were several
entities that were willing to extend financial support - they were forced to withdraw
from such scheme by the IATA companies. Claims under the American Action: it alleges two causes of action ("counts"). The
first is brought under section 4 of a United States Act of Congress, the Clayton Act
(15 U.S.C. 12), and claims threefold damages for injury caused to Laker by unlawful
combination and conspiracy between the defendants in restraint of and to monopolise
trade or commerce contrary to sections 1 and 2 of the U.S. Act of Congress, the
Sherman Act; the second count, based on the same facts, is described as "intentional
tort."
HOLDING LORD DIPLOCK Two Circumstances when ASI may be granted This, being said in the context of an application for a Mareva injunction, omitted to
mention the type of case that is of comparatively rare occurrence in the English courts
in which the plaintiff seeks against a person amenable to the jurisdiction of the
English High Court an injunction to restrain the defendant from bringing suit against
him in a foreign court upon the ground that the plaintiff is entitled under English
law to a legal or equitable right not to be sued in that foreign court by that person
upon the cause of action that is the subject of such proceedings. A right not to be sued
upon a particular cause of action in a particular foreign court by the person against
whom the injunction is sought may be contractual in origin. A common example of
this is an exclusive jurisdiction clause in a contract. Furthermore, if under English
law a defence would be available to the injunction­seeker, that defence may be given
anticipatory effect as a right not to be sued that is enforceable by injunction in an
action for a declaration of non­liability. Of such defences it is not difficult to point
to a number of examples most of them equitable in historical origin, such as estoppel
in pais (which was also a defence at common law), promissory estoppel, election,
waiver, standing by, laches, blowing hot and cold ­ to all of which the generic
description of conduct that is "unconscionable" in the eye of English law may be
given.

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