The opinion of the court was delivered by: GREENE
Laker Airways, a transatlantic air carrier now in liquidation, filed an action in this Court (C.A. No. 82-3362) on November 24, 1982, against six major airlines
and two other corporations,
charging them with a predatory scheme to drive it out of business, in violation of the Sherman and Clayton Anti-trust Acts, 15 U.S.C. §§ 1, 2, 15.
Two months later, on January 21, 1983, four of the defendants -- British Airways, British Caledonian Airways, Lufthansa, and Swissair -- without notice either to plaintiff or to this Court, and without having raised any issue in this Court regarding jurisdiction -- filed a suit in the High Court of Justice, Queen's Bench Division in England (hereinafter referred to as the "Queen's Bench") seeking to enjoin Laker from continuing its action in this Court. They also applied for and were immediately granted, ex parte, an injunction against any interference with the English proceedings.
Thereafter, Laker sought and, following full briefing and argument, this Court granted injunctions restraining those defendants which had not yet appeared in the English courts from securing orders similar to those which the Queen's Bench had issued on January 21, 1983. See Laker Airways Ltd. v. Pan American Airways, 559 F. Supp. 1124 (D.D.C. 1983).
The Court subsequently considered the issue of the appropriate forum for the dispute between the parties -- again with the benefit of full briefing and argument -- and it concluded, on the basis of generally accepted principles of forum non conveniens,5 that the controversy was properly triable in this Court. Laker Airways, Ltd. v. Pan American World Airways, 568 F. Supp. 811 (D.D.C. 1983).
In the meantime, British Airways, British Caledonian Airways, Lufthansa, and Swissair kept pressing their claim before the Queen's Bench that the controversy should be resolved in the English courts rather than those of this nation. However, on May 20, 1983, Mr. Justice Parker of the Queen's Bench issued a lengthy and thoughtful opinion in which he held that jurisdiction was properly laid in this Court, and that there was no basis for English judicial interference.
Accordingly, he proceeded to dissolve his earlier injunctive orders. The two British airlines took an appeal to the English Supreme Court of Judicature, Court of Appeal (hereinafter referred to as the "Court of Appeal"), and that tribunal first reinstated the injunctions on a temporary basis and ultimately, on July 26, 1983, granted the permanent relief requested by the airlines.
The Opinion of the Court of Appeal, authored by Sir John Donaldson, Master of the Rolls, duly acknowledged that this Court has jurisdiction of the instant controversy:
First let it be said, and said loud and clear, that no one has ever suggested that the United States District Court is without jurisdiction to try Lakers' complaint against the appellants both under the Sherman and Clayton Acts and in respect of the commission of an intentional tort. Both appellants carry on business in the United States of America sufficiently to make them amenable to the jurisdiction of its courts. If any such submission had been made, it would have been rejected out of hand.
Transcript of Proceedings of July 26, 1983, at p. 4.
The court went on candidly to acknowledge that "the reported authorities do not disclose any case in which consideration has ever been given to restraining the prosecution of proceedings in a foreign court when, as here, there is no alternative English forum before which the same, or substantially the same, right could be asserted," and that, accordingly, its decision was "the first occasion" upon which this had ever been done. Transcript of Proceedings, at pp. 5, 32.
Having said all that, and much more, the Court of Appeal issued an order flatly enjoining Laker from proceeding with its action in this Court against the British airlines or permitting anyone else to do so on its behalf.
The Court of Appeal judgment is broader even than this necessarily brief recitation suggests, in two respects.
First, by its reasoning and on the basis of the authority which is said to support it (see Part III infra), the decision applies not merely to Laker's lawsuit against the British companies; it also prohibits Laker from proceeding in this Court against non-British corporations, i.e., Lufthansa and Swissair.
Second, the decision provides for detailed involvement of the English tribunals in the conduct of the litigation here, albeit on a carefully selective basis, to the end that the English courts may, depending upon the tactical situation, allow Laker to file some pleadings in this Court and prohibit it from filing others. Thus, on October 19, 1983, the Queen's Bench issued an injunction, based upon the Court of Appeal judgment, restraining Laker from "taking any further steps" in this Court or "commencing or prosecuting any other proceedings" against Lufthansa or Swissair,
but it exempted from that prohibition one matter ...