On 10 November 2023, Mr Justice Roth handed down judgment in Phones 4U Ltd (in administration) v EE Ltd & Ors  EWHC 2826 (Ch), following a nine-week trial between May and July 2022 in one of The Lawyer’s Top 20 Cases of 2022.
Phones 4U alleged that senior executives from each of the major mobile network operators active in the market in 2014 – EE, O2, Vodafone, together with EE’s former parent companies, Orange and Deutsche Telekom – colluded on various occasions between 2012 and 2014 to terminate their contracts to supply Phones 4U with consumer connections to mobile networks in the UK and so remove it from the market. Phones 4U separately alleged against EE that it breached express or implied contractual good faith obligations it owed by informing Phones 4U that it would not renew its agreement to supply connections shortly before EE entered into administration on 15 September 2014. Phones 4U also alleged that EE’s parent companies had procured EE’s alleged breach of contract or conspired to injure Phones 4U. Phones 4U claimed damages in an amount said to exceed £1bn.
The Court rejected all of Phones 4U’s claims. It held that EE did not infringe competition law and that even if it had done so, that infringement did not affect the conduct of either O2 or EE as regard Phones 4U. It also rejected Phones 4U’s contractual claim against EE in its entirety, concluding that (i) no general duty of good faith arose under the agreement between EE and Phones 4U; and (ii) even if there was such an obligation, EE did not breach it by informing Phones 4U that it would not renew the agreement even though EE knew that the consequence was likely to be the collapse of Phones 4U. Since Phones 4U’s claims in tort against EE’s former parent companies were dependent on the success of the contractual claim, those claims also fell away.