The trial of four senior British Airways executives over price-fixing allegations with Virgin Atlantic collapsed today after prosecutors offered no evidence.
Richard Latham, QC, prosecuting for the Office of Fair Trading, told the judge and jury at Southwark Crown Court in London he will offer "no evidence".
BA's one-time commercial director Martin George, sales and marketing director Andrew Crawley, former head of communications Iain Burns, and Alan Burnett, who led sales in the UK and Ireland, all denied a cartel offence under the Enterprise Act 2002.
Mr Latham told the jury the issue of disclosure, and in particular obtaining material from Virgin Atlantic and its legal advisers, was "contentious".
"What became apparent last Wednesday was that there remained some relevant material in the hands of Virgin Atlantic which was, as yet, undisclosed to the defence," Mr Latham said.
He said those documents would have had an "appreciable impact" on the evidence of key prosecution witness Paul Moore, Virgin's director of corporate affairs who was controversially granted immunity by the OfT in return for giving evidence against BA.
In particular, one email dated March 21 2005 showed that Virgin increased its fuel surcharge to £6 instead of £5 before speaking to BA, suggesting no price-fixing took place on that occasion.
Mr Latham said 70,000 emails were found last week which had not been disclosed, some 12,000 of which were sent or received by Mr Moore, "the central plank of the prosecution case".
The court was told the missing emails were in corrupted files which had been dismissed as irrelevant during the initial investigation.
But last week it emerged the corrupted files could be repaired and contained the "large quantity" of emails.
Mr Latham told the jury of eight men and four women the judge ruled last week that all the documents, even those not deemed relevant, needed to be disclosed by today.
"We needed to satisfy a negative," Mr Latham said.
He said prosecutors realised this was not "logistically possible" in the timeframe given by the judge "when the full scale of the necessary exercise became apparent".
Mr Latham went on: "We have been driven to accept that it would be wholly unsatisfactory to call Mr Moore today or in the immediate future."
OfT director John Fingleton and OfT's director of cartels, Ali Nikpay, "must shoulder the personal responsibility for this fiasco", Ben Emmerson QC, defending BA's former head of communications, Iain Burns, said.
The part of the OfT responsible was "not fit for purpose", he added.
The OfT and prosecutors were "guilty of incompetence on a monumental scale", he said.
"The amount of public money that must have been wasted within the OfT itself, and the amount of money that's going to have to be spent on the costs of the defence, with the fact that they have, for a period of time, ruined the lives of these four men by mounting and then insisting on a ludicrous prosecution which was doomed to fail from the start."