Phones 4U Ltd v EE Ltd & Ors

An application for further factual particulars may be premature where the claimant alleges covert collusion and faces substantial information asymmetry. The court may defer the issue until disclosure has been reviewed. The claimant must then reconsider whether it can provide better particulars and should not simply wait for witness evidence in the hope that it will reveal a helpful case. The same conclusion may follow whether the application is considered under Civil Procedure Rules 1998 Part 18 or the general case-management power in rule 3.1(2)(m).

Phones 4U Limited, in administration, brought competition and related claims concerning the termination of its supply arrangements with mobile network operators. Deutsche Telekom AG applied for an order requiring Phones 4U to provide further specific factual particulars of its allegation that Deutsche Telekom had directly participated in unlawful collusion.

The application was made under CPR Part 18 and rule 3.1(2)(m). The court had previously required Phones 4U to provide the best specific factual particulars it could. After receiving its response, Deutsche Telekom sought a further order to be complied with after disclosure. The issue was whether that order should be made at that stage and in the form sought.

1. Application dismissed. It was premature to order further particulars 42 days after disclosure, and inappropriate to make the order in the form sought.

2. Where a claimant alleges covert unlawful collusion and has limited information, the court must recognise the resulting information asymmetry. Nevertheless, the defendant must at some stage understand the specific case it has to meet, including whether the allegation rests entirely on inference or also on particular instances of alleged participation.

3. Given the seriousness of the allegations, Phones 4U was required to reconsider its position after reviewing the defendants’ disclosure. If it could then particularise the allegations against Deutsche Telekom more effectively, it should do so. It was not satisfactory to wait until witness evidence was served in the hope that it would produce useful material.

4. The timing of any further request had to remain sensitive to the circumstances. Issues concerning the adequacy or scale of disclosure might make six weeks insufficient. Deutsche Telekom could first request further particulars by correspondence, and any formal application could then be considered in light of the actual circumstances.

5. The result was the same whether the matter was analysed under Civil Procedure Rules 1998 rule 3.1(2)(m), concerning case management and the overriding objective, or rule 18.1, concerning further information.