The Court of Appeal has rejected claims by Quinn Emanuel client Phones 4U that Britain’s largest phone operators colluded to drive it out of business, following an appeal partly founded on a 15-month delay in the handing down of the High Court judgment.
The appeal, heard in May, led the court to elaborate on the impact of delayed judgments on appeals, ruling that the three-month rule for judges to deliver a judgment “cannot be an inviolable deadline in all cases”.
It followed a 2023 Chancery Division ruling in favour of EE and other networks after a nine-week trial, in a claim worth £1bn, with the Competition and Markets Authority unusually intervening in the appeal process. This was the first time that the CMA had done so in an appellate private litigation case.
The administrators of Phones 4U, which collapsed in 2014, had claimed senior business executives from EE, O2, Vodafone, and EE’s former parent companies, Orange and Deutsche Telekom, conspired to end contracts supplying it with consumer mobile connections, thus squeezing it out of the UK market.
Mr Justice Roth concluded: “[While] the defendants had a common interest to reduce their reliance on indirect distribution… that does not remotely suggest that they engaged in collusive conduct to achieve that objective.”
In its appeal, Phones 4U argued that Roth’s original ruling had misapplied the law, including in relation to claims that the networks had unlawfully restricted competition. It also challenged Roth’s findings on whether sharing sensitive business information between networks could be regarded as unlawful collusion.
The appellants also argued that Roth ignored important evidence due to delays in delivering his judgment, a claim the Court of Appeal considered in light of a 15-month delay between the end of the trial and Roth’s judgment being delivered.
The appeal was heard by the Chancellor of the High Court, Sir Julian Flaux, Lord Justice Phillips and Lady Justice Falk, who gave the leading judgment.
The challenges, along with others based on wide-ranging grounds of appeal, were dismissed by Falk, who noted that Roth had dealt with this issue of collusion “in exhaustive detail”, and “concluded that no collusion had occurred” while examining the legal tests for finding so afresh.
She stated: “The judge made no material error of law and… I am satisfied that the judgment is safe.”
The court clarified that while it would allow an appeal for delay alongside the standard test against factual challenges where the judge was “plainly wrong”, it also emphasised that such a test did not give litigants an unlimited ability to challenge facts they disagreed with.
Falk said: “It is critical that the additional level of scrutiny required of a delayed judgment is not permitted to become a means of enabling disappointed litigants to benefit from a focus on specific points that they wish to challenge, without a proper regard to the judge’s findings on all the evidence.”
Falk made it clear that the test was whether the judgment was safe, in considering the whole of the judgment carefully, rather than “island-hopping” on specific issues of fact within the judgment.
She added that the three-month rule for judges to deliver a judgment “cannot be an inviolable deadline in all cases”, given that “an inadequate, rushed judgment may well also deny justice”, and added “the level of care taken by the judge in this case is obvious”.
Clifford Chance represented EE, while Covington & Burling represented Deutsche Telekom; Norton Rose Fulbright represented Orange; Hogan Lovells represented Vodafone; and Telefonica was represented by Mishcon de Reya and Pallas Partners.
The various parties were represented by 16 barristers, including six silks, drawn from Monckton Chambers, One Essex Court, Brick Court and others. All the law firms instructed declined to comment.
Email your news and story ideas to: [email protected]
