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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Phones 4U Ltd v EE Ltd & Ors [2020] EWHC 1994 (Ch) (24 July 2020) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2020/1994.html Cite as: [2020] EWHC 1994 (Ch) |
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BUSINESS AND PROPERTY COURTS
COMPETITION LIST (ChD)
7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
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PHONES 4U LIMITED (In Administration) |
Claimant |
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- and – |
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(1) EE LIMITED (1) (2) DEUTSCHE TELEKOM AG (3) ORANGE SA (4) VODAFONE LIMITED (5) VODAFONE GROUP PUBLIC LIMITED COMPANY (6) TELEFONICA UK LIMITED (7) TELEFÓNICA, S.A. (8) TELEFONICA O2 HOLDINGS LIMITED |
Defendants |
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Robert O'Donoghue QC and Hugo Leith (instructed by Covington & Burling LLP) for the Second Defendant
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Crown Copyright ©
Mr Justice Roth :
1. INTRODUCTION
2. THE PROCEEDINGS
"… P4U avers both as a primary fact based on the existence of the "commitments" and as a reasonable inference from the commitments and the other pleaded circumstances that the Defendants (or some of them) unlawfully colluded:
(i) to each cease trading with one or other of the retail intermediaries in the UK market (which intermediary, in the event, was P4U);
(ii) alternatively, to cease trading with P4U specifically; and/or
(iii) further or alternatively, to put P4U out of business and then to acquire the whole or parts of P4U's business and/or assets at a fraction of their value once P4U was placed into administration."
"In summary, the MNO Defendants acting without collusion and independently, would have concluded that, taking account of the risks involved, the likely behaviour of P4U, its customers, and competitors acting independently, any benefits of ceasing to supply P4U would be outweighed by the costs of doing so. In the circumstances, it is reasonably to be inferred that, absent unlawful anti-competitive concertation and/or commitments and/or conduct set out below, the MNO Defendants would have continued to supply P4U."
3. THE PLEADED CASE AGAINST DT
"P4U relies on a presumption that EE's decision to cease supplies to P4U and/or its decision to enter into exclusive arrangements with CPW was caused or at least influenced by the collusion."
Then, at para 137(g), it is stated:
"The presumption pleaded at subparagraph (d) above applies also to the conduct of [DT] and Orange (as constituent parts of a single undertaking with EE) in relation to supplies to P4U and/or retail intermediaries in the UK generally. Further or alternatively in this regard, it is to be inferred that the information obtained by EE as a result of unlawful contacts with O2 and/or the fact of its involvement in the collusion was communicated by EE to [DT] and/or Orange as its shareholders and joint controllers, and was thereafter acted upon by both [DT] and Orange, at least by the time that they decided to refuse to approve the extension of the EE Agreement…."
"The anti-competitive commitments and/or disclosures, of which Mr Dunne [the CEO of O2] informed Mr Whiting [of P4U], were made and received, and/or it is reasonably to be inferred were made and received, at the level of the parent companies of the Defendant MNOs (i.e. [DT] and/or Orange for EE, Vodafone Group for Vodafone and TelefÓnica for O2)."
"EE's decision not to extend the EE Agreement … was taken at the behest of and/or instruction of its parent shareholders, [DT] and Orange. Such decision was part of an agreement and/or understanding and/or as a result of informal concerted action or coordination among the Defendants (and/or some of them) to put P4U out of business and/or to reduce or eliminate their respective reliance on retail intermediaries in the UK…"
"It is to be inferred from the extent and seriousness of the anti-competitive approaches admitted by EE that [DT] was made aware of these matters by EE at or around the time."
The Reply proceeds to state that it does not appear that DT took any steps to publicly distance itself or EE from those collusive contacts.
"Does P4U allege that DT itself made anti-competitive commitments or disclosures? If so, please provide full particulars."
"P4U sets out in paras 64, 66, 137(e), 137(g) and 140 of the Particulars of Claim the matters on which, pending disclosure and witness evidence, it relies in averring that [DT] and Orange participated directly and actively in the infringement, in addition to forming part of the same undertaking as EE and exercising decisive influence over EE in relation to the subject matter of the collusion. Further, [DT] did not distance itself, publicly or otherwise, from the public statements pleaded at paras 64 and 66 of the Particulars of Claim.…"
As regards the first sentence of that response, it seems to me that paras 64 and 66 of the POC concern Orange and not DT, and para 137(e) simply refers back to paras 64 and 66.
"It is inherent to the secretive nature of the Defendants' unlawful conduct (as particularised in the Particulars of Claim) that P4U has incomplete information as to the precise content and timing of the unlawful agreements, understandings, concerted practices and instructions that it alleges. P4U relies on inferences that it contends should be drawn from the pleaded primary facts. P4U anticipates providing further and better particulars following disclosure and/or witness evidence. Without prejudice to the generality of the foregoing:…"
The response then proceeds to set out the inferences which it contends support its allegation "that DT made anti-competitive commitments and/or disclosures".
4. THE PRESENT APPLICATION
"… the information sought is essential for the Second Defendant to understand the case it is expected to meet, and is in particular necessary for the Second Defendant to be able to prepare witness evidence to respond to the specific case of direct participation advanced against the Second Defendant, which, as matters stand, remains wholly unparticularised. Providing such information would therefore be proportionate in the circumstances."