Phones 4U Ltd v EE Ltd & Ors

The Court of Appeal held that a judge has jurisdiction under CPR Part 31 to direct how standard disclosure is to be given by ordering a defendant to request that present or former employees or agents ("Custodians") voluntarily make personal devices and work-related emails stored on them available for inspection. The court treated such directions as falling within the court's power under CPR Part 31.5(8) to give directions "as to how disclosure is to be given" and emphasised that documents stored on personal devices may, in some circumstances, be within a party's control for the purposes of CPR Part 31.8.

The court also held that the judge should not have stated in his reasons (but had not included in his order) that defendants ought not to tell Custodians they were entitled to refuse the request. Finally, the court found that the mechanism the judge devised — voluntary production to IT consultants acting under undertakings and limited to a small number of custodians — was an appropriate and proportionate way to balance disclosure needs against the Custodians' Article 8 privacy rights, subject to implied liberty to apply for further directions.

The claimant, Phones 4U (in administration), brought a standalone competition claim against multiple mobile network operators alleging anti-competitive arrangements in breach of section 2 of the Competition Act 1998 and, previously, Article 101 TFEU. Phones 4U sought damages and disclosure of work-related communications that various senior officers and ex-employees (Custodians) may have sent or received on personal electronic devices.

Procedural posture: This was an appeal from an order made by Mr Justice Roth in the High Court (Business and Property Courts, Competition List) directing that the 2nd to 8th defendants write to specified Custodians requesting voluntary access to personal devices and emails, and that defendants' instructed IT consultants search those devices under court undertakings.

Relief sought: disclosure of work-related documents and communications held on Custodians' personal devices and emails.

Issues before the court:

• whether the judge had jurisdiction to direct a party to request third-party Custodians to produce personal devices and emails (the "jurisdiction issue");
• whether the judge was justified in commenting that defendants should not tell Custodians they were entitled to refuse the request (the "rider issue"); and
• whether the ordered mechanism (voluntary production to IT consultants with undertakings and limits on numbers of custodians) was appropriate and proportionate, having regard to CPR, PD 31C and Article 8 ECHR (the "proportionality issue").

Court's reasoning: The court recognised the broad and practical purpose of disclosure under CPR Part 31 and accepted that CPR Part 31.5(8) permits directions about how disclosure is to be given, including where relevant documents may be in the hands of servants or agents. The court did not decide definitively whether the physical devices themselves are always within a party's control but held that, as a matter of principle, the judge had jurisdiction to direct a defendant to request voluntary access to Custodians' devices as part of the mechanism for identifying documents within the defendant's control under CPR Part 31.8.

On proportionality, the court balanced the administration of justice against the Custodians' Article 8 rights and considered the judge's approach — limiting custodians to four per defendant, requiring IT consultants to give undertakings, and voluntary production — to be a pragmatic, proportionate solution. The court criticised the judge's extraneous remark that defendants should not tell Custodians they could refuse the request, but treated that as an observation outside the operative order. The court also noted that data protection concerns under the GDPR and the Data Protection Act 2018 were addressed by reliance on Custodian consent and legal bases for processing.

Conclusion: The Court of Appeal dismissed the defendants' appeals, upholding the judge's order in substance while noting that it would have been preferable to record explicitly in the order that Custodians and affected third parties have liberty to apply for directions.

Appeal dismissed. The Court of Appeal held that the judge had jurisdiction under CPR Part 31 to direct a party to request that Custodians voluntarily produce personal devices and emails as part of directions about how disclosure is to be given; the judge should not have said in his reasons that defendants ought not to tell Custodians they could refuse the request; and the mechanism ordering voluntary production to IT consultants under undertakings and subject to limits was an appropriate and proportionate means of reconciling disclosure obligations with Article 8 privacy rights, with implied liberty to apply for further directions.

Appeal from an order of Mr Justice Roth in the High Court of Justice, Business and Property Courts, Competition List (order made 11 August 2020). The Court of Appeal (Civil Division) delivered judgment [2021] EWCA Civ 116 dismissing the substantive appeals.