PHONES 4U LIMITED (In Administration) v EE LIMITED

Interest on costs incurred in a foreign currency should ordinarily reflect the borrowing cost in that currency. For euro costs, the appropriate benchmark was the European Central Bank main refinancing operations rate, with a conventional uplift reflecting commercial borrowing. Where costs are awarded in a currency other than sterling, Administration of Judgments Act 1970 s 44A gives the court discretion over post-judgment interest. The discretion must principally serve compensation, but may take account of unjustified disparities between parties. The Anic presumption is evidential and may be rebutted by evidence beyond public distancing or reporting to competition authorities. It does not automatically establish causation for a private damages claim. Permission to appeal requires a ground with a real prospect of success or another compelling reason.

The ruling followed a judgment on preliminary issues in which all claims by Phones 4u against the defendants were dismissed: [2023] EWHC 2826 (Ch). The court had refused permission to appeal orally and reserved two matters: the interest rates applicable to costs paid in euros and the written reasons for refusing permission.

The issues were whether euro costs should attract the same rate as sterling costs, which ECB rate and uplift were appropriate, whether post-judgment interest was governed by the statutory sterling rate or the discretionary regime for foreign-currency judgments, and whether any of Phones 4u’s eight proposed grounds of appeal had a real prospect of success or raised another compelling reason.

1. Euro costs. The relevant rate for pre-judgment interest was the borrowing rate in euros. The ECB main refinancing operations rate was preferable to the deposit facility rate because it represented borrowing and the latter had been negative during part of the relevant period. Orange and Deutsche Telekom were first-class borrowers, but the commercial lending rate would exceed the ECB borrowing rate. Pre-judgment interest was therefore awarded at the MRO rate plus 1.5%.
2. Post-judgment interest. Administration of Judgments Act 1970 s 44A applied because the costs would be determined and recovered in euros. The statutory sterling rate did not apply automatically. Although compensation was the starting point, the court could avoid an unjustified divergence between euro and sterling awards. Post-judgment interest was therefore set at the MRO rate plus 2.5%.
3. Competition-law grounds. A concerted practice required concertation, market conduct pursuant to it, and causation. Information exchange need not be reciprocal, but the particular disclosure had to reduce uncertainty in its factual context. Silence could amount to tacit approval only where the circumstances made it reasonable to infer consensus; the evidence did not establish that here.
4. The Anic presumption was an evidential presumption. It was not legally confined to rebuttal by public distancing or reporting to authorities. The presumption applied to the recipient of qualifying information, not automatically to the discloser, and did not itself establish causation of the commercial decision relied on in a private damages claim.
5. The remaining grounds challenged factual findings, the assessment of documentary evidence, the objective bad-faith analysis and the discretionary decision not to draw adverse inferences. None disclosed an arguable error with a real prospect of success. Permission to appeal was refused under CPR rule 52.6.

The ruling concerned permission to appeal from the court’s own preliminary-issues judgment, in which all claims were dismissed: [2023] EWHC 2826 (Ch). Permission to appeal was refused.