Phones 4U Limited (in administration) v EE Limited & Ors

A concerted practice requires concertation, subsequent market conduct and a causal connection. Consensus remains necessary, although it may arise from tacit approval of a one-way disclosure. Whether silence amounts to approval depends on the context.

The presumption that participants took exchanged information into account may be rebutted by any sufficiently persuasive evidence. Public distancing or reporting to a competition authority is not the exclusive means of rebuttal.

A judge should not decide a case on an unpleaded or uncanvassed theory where that would cause prejudice. On an appeal from a seriously delayed judgment, the appellate court must examine the evidence and reasoning with special care. It must consider the judgment as a whole and determine whether the result remains safe.

Phones 4U Limited entered administration after three mobile network operators decided not to renew their supply arrangements with it. It alleged that the operators and certain parent companies had participated in bilateral or multilateral collusion to reduce their reliance on independent retailers. It claimed damages for infringement of Article 101(1) of the Treaty on the Functioning of the European Union and section 2 of the Competition Act 1998.

After an 11-week split trial, Roth J dismissed the competition, contractual and conspiracy claims in [2023] EWHC 2826 (Ch). The judgment was delivered 15 months after trial. Permission to appeal was refused in [2023] EWHC 3378 (Ch), but the Court of Appeal granted permission on six grounds.

The appeal concerned the meaning of concertation and consensus, the scope and rebuttal of the Anic presumption, reliance on an uncanvassed factual theory, appellate review following delayed judgment, alleged compartmentalisation of the evidence, and adverse inferences from a failure to preserve documents.

1. Appeal dismissed. The judge made no material error of law. Having reviewed his findings and the evidence as a whole, the Court of Appeal was satisfied that the judgment was safe. Falk LJ gave the judgment, with which Phillips LJ and the Chancellor agreed.

2. A concerted practice under Article 101(1) requires concertation, subsequent conduct on the market and a causal relationship between them. Concertation requires some consensus or practical co-operation. A one-way disclosure can suffice, but the recipient must request or at least accept the information. Acceptance means more than unwanted receipt and may consist of tacit approval. Whether silence conveys approval depends on the context. On the facts found, EE’s passive response communicated no support or information to O2 and reduced no uncertainty for it.

3. Information relied on for a restriction by object must be capable of reducing uncertainty about competitive conduct. Some strategic specificity is therefore required. The judge was entitled to find that the information conveyed at the Landmark lunch was too vague. These conclusions did not affect the result because EE had in any event rebutted the causal presumption.

4. The Anic presumption concerns the causal connection between concertation and later market conduct. It is distinct from the presumption that attendance without public distancing establishes participation in an anticompetitive meeting. Public distancing or reporting to competition authorities is not the only means of rebutting the Anic presumption, even where concertation occurred at a meeting. The judge was entitled to find the presumption rebutted by subsequent commercial conduct inconsistent with reliance on the alleged exchange.

5. A judge should not decide a case on a basis neither pleaded nor canvassed. The controlling consideration is justice, particularly whether the losing party lacked a fair opportunity to call evidence or make submissions. The judge should have invited submissions before suggesting that another retailer supplied confidential information to EE. However, that suggestion caused no material prejudice and was immaterial to the rejection of the pleaded allegation of earlier collusion.

6. A serious delay in giving judgment does not itself invalidate the decision. It requires special appellate scrutiny because the trial judge’s advantage may have diminished. The appellate court must consider the judgment and evidence as a whole, assess any possible connection between delay and error, and decide whether the result is safe. The same safety inquiry applies where compartmentalised reasoning is alleged.

7. Whether to infer facts from missing witnesses or documents is ordinarily a matter of common sense and context. The judge properly considered Telefónica’s serious preservation failures but was entitled, in light of the other evidence, to decline to draw the requested adverse inferences.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2025] EWCA Civ 869. The court upheld the dismissal of the competition claims and held that the delayed first-instance judgment remained safe.
2. High Court, Competition List: Roth J dismissed the claims in [2023] EWHC 2826 (Ch) after the liability stage of a split trial.
3. High Court, permission and consequential matters: Roth J refused permission to appeal and addressed interest and costs in [2023] EWHC 3378 (Ch). Permission on six grounds was subsequently granted on a renewed application to the Court of Appeal.