Phones 4U LtD v EE Ltd & Ors

In competition proceedings, disclosure must be proportionate but may address the information asymmetry inherent in allegations of covert collusion. A company’s disclosure duty can extend to work-related emails and messages held on employees’ personal devices where the company has a right to require production. The court may direct reasonable steps to identify such documents, including requests for access through an independent IT consultant. Privacy under article 8 of the Convention requires safeguards limiting searches to relevant work communications. Disclosure from personal devices should also be confined to a proportionate selection of custodians and protected by undertakings.

Phones 4U, in administration, brought stand-alone competition and related claims against mobile network operators and their parent companies. It alleged that the defendants had colluded in deciding to cease supplying it, causing its financial collapse. At a second case management conference, the claimant sought directions concerning hold-notice lists, email hit reports, custodians, early disclosure, unfiltered searches and personal devices. The central issue was how far proportionate disclosure could extend where evidence of alleged collusion might be held by senior employees on personal devices.

1. Disclosure framework. The proceedings were competition claims governed by PD 31C. Disclosure had to be proportionate, taking account of the factors in article 5(3) of the Damages Directive. The information asymmetry in a stand-alone collusion claim was a relevant consideration.
2. Targeted disclosure. Lists of recipients of hold notices and relevant email hit reports could assist in identifying likely sources of evidence. They were ordered where the information was relevant and not shown to be burdensome. Additional custodians and early disclosure were refused where the requests were disproportionate or speculative. Vodafone was required to conduct unfiltered searches of communications between its custodians and personnel at other defendants, but not broad unfiltered searches of internal communications.
3. Personal devices. Under CPR Part 31, documents relating to a company’s business sent or received by an employee or agent on a personal device may be within the company’s control. Following Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886, the employer may have a right to require production even after termination of employment or agency. The order sought was a direction as to how disclosure should be given under CPR rule 31.5(8), rather than an order for third-party disclosure.
4. Safeguards and outcome. Access had to be through an independent IT consultant, subject to undertakings restricting searches and disclosure to relevant work communications and requiring return of the devices. The order was limited to four custodians per defendant or defendant group. The applications were granted in part and otherwise dismissed or refused, with the detailed directions set out in paragraph 63.