On 5 October 2020, the Court heard arguments regarding the issue of whether the trial should be split and, if so, on what basis, following the strong preference for a split trial expressed by Mr Justice Roth at the second CMC. 

The unofficial transcript of the hearing is linked below:

• Split Trial Hearing Transcript

Please note that:

1. The transcript is published in the form received from the transcriber; and

2. We are posting the transcript solely for the convenience of interested third parties and we make no representation as to its accuracy and do not accept any responsibility for any errors or omissions in it. 

Following the hearing, Mr Justice Roth made an order for a split trial. The first trial will determine issues of infringement and breach, and the second will determine issues of causation and quantum. The first trial is listed to commence on 11 May 2022. 

The submissions of the parties, the approved ruling and order of Mr Justice Roth are linked below:

1. Phones 4U Limited

2. EE Limited

3. Deutsche Telekom AG

4. Orange SA

5. Vodafone Limited / Vodafone Group PLC

6. Telefonica UK Limited (O2) / Telefónica S.A. / Telefonica O2 Holdings Limited

7. Approved Ruling of Mr Justice Roth regarding Split Trial

8. Sealed Directions Order of Mr Justice Roth regarding Split Trial

On 17 July 2020, Orange SA (“Orange”) and Deutsche Telekom AG (“Deutsche Telekom”) requested permission to appeal against part of the judgment of Mr Justice Roth regarding disclosure, which was handed down subsequent to the CMC on 2 and 3 July 2020 (para 63 (ix)), as follows:

“each of Orange, DT, Vodafone and Telefonica should write to four of its custodians, to be selected by P4U, to request access, under the terms and upon the undertakings set out above, to their personal mobile telephones and emails for the purpose of searching for work related communications over the relevant period relevant to the issues in this case; and provide to P4U copies of their letters and any replies.”

The requests for permission to appeal are linked below:

• Orange

• Deutsche Telekom

On 3 August 2020, Mr Justice Roth gave permission to appeal. The reasons for allowing permission to appeal are here.

On 7 August 2020, Vodafone and O2 filed applications with the Court of Appeal for permission to appeal the same part of the disclosure judgment, and these were granted by Lord Justice Lewison on 17 September 2020. The relevant part of the order issued by Mr Justice Roth following the second CMC has been stayed pending the resolution of these appeals. The stay orders as granted by Mr Justice Roth are linked here (for Vodafone) and here (for Phones 4U, with regards to its related obligations seeking access to personal devices).

Links to the applications for permission to appeal, Phones 4U’s brief submissions on the further appeals by Vodafone and Telefonica, and the orders of Lord Justice Lewison can be found below:

1. Vodafone’s permission to appeal (PTA) application

2. Telefonica’s permission to appeal (PTA) application

3. Phones 4U’s brief submissions regarding Vodafone’s application for PTA

4. Phones 4U’s brief submissions regarding Telefonica’s application for PTA

5. Order of Lord Justice Lewison in respect of Vodafone

6. Order of Lord Justice Lewison in respect of Telefonica

The hearing of the appeals is scheduled to be held in the Court of Appeal on 19 January 2021, and is estimated to last for 1 - 1.5 days.

Following Phones 4U’s earlier response (linked below in the update dated 23 March 2020) to a Request for Further Information made by Deutsche Telekom AG (“Deutsche Telekom”), Deutsche Telekom made an application seeking an order that Phones 4U provide further factual particulars of certain elements of its claim after the date for standard disclosure (29 January 2021). Mr Justice Roth dismissed Deutsche Telekom’s “premature” application, on the basis that the order sought was unnecessary ahead of the parties provision of standard disclosure.

Mr Justice Roth’s judgment dated 24 July 2020 dismissing Deutsche Telekom’s application is linked here.

Further to Mr Justice Roth’s judgment dated 20 July 2020, dismissing EE, DT and Orange’s applications that Phones 4U be ordered to provide security for costs on an indemnity basis (linked here), a ruling was handed down on 13 October 2020.  This awarded Phones 4U reasonable costs of DT’s and Orange’s applications, in the amount of £10,865 each.  Separately, EE reached agreement with Phones 4U whereby EE paid £11,500 for the costs of its application.

The ruling, as well as Mr Justice Roth’s order dated 11 November 2020, are linked below:

1. Costs ruling

2. Security for costs order (costs)

On 2 and 3 July 2020, the second Case Management Conference occurred.

Unofficial transcripts of the hearing are linked below:

• Day 1

• Day 2

Please note that:

1. The transcripts are published in the form received from the transcriber; and

2. We are posting such transcripts solely for the convenience of interested third parties and we make no representations as to the accuracy of such transcripts nor accept any responsibility for any inaccuracies contained within it.

The skeleton arguments.are linked below:

1. Phones 4U Limited

2. EE Limited

3. Deutsche Telekom AG

4. Orange SA

5. Vodafone Limited / Vodafone Group PLC

6. Telefonica UK Limited (O2) / Telefónica S.A. / Telefonica O2 Holdings Limited

The judgments and order issued by Mr Justice Roth are linked below:

1. Disclosure

2. Security for costs

3. Request for Further Information from Deutsche Telekom AG

4. Disclosure and Directions Order

At the Case Management Conference on 4 March 2020, Phones 4U was ordered by the Court to respond to a Request for Further Information from Deutsche Telekom AG. On 18 March 2020, the response was submitted to Court and is linked here.

On 2 March 2020, the first Case Management Conference (“CMC”) commenced. The first day of the CMC was for reading, followed by a two-day hearing.

Unofficial transcripts of the hearing are linked below.

• Day 1

• Day 2

Please note that:

1. The transcripts are published in the form received from the transcriber; and

2. We are posting such transcripts solely for the convenience of interested third parties and we make no representations as to the accuracy of such transcripts nor accept any responsibility for any inaccuracies contained within it.

The skeleton arguments and orders for Phones4U and the Defendants are linked below:

1. Skeleton argument - Phones 4U

2. Annex 1 - Electronic Documents Disclosure Summary

3. Annex 2 - Agreed Directions

4. Annex 3 - Comparison of Draft Directions

5. Skeleton argument - EE Limited

6. Skeleton argument - Deutsche Telekom AG

7. Skeleton argument - Orange SA

8. Skeleton argument - Vodafone Limited / Vodafone Group PLC

9. Skeleton argument - Telefonica UK Limited (O2) / Telefónica S.A. / Telefonica O2 Holdings Limited

10. Sealed order of Mr Justice Roth regarding the Request for Further Information from Deutsche Telekom AG

On 22 November 2019, Deutsche Telekom AG and Orange SA separately submitted Requests for Further Information. On 15 January 2020, Phones 4U responded. The responses are linked below:

• Deutsche Telekom AG

• Orange SA

On 24 October 2019, Phones 4U filed its replies in Court to the mobile network operators’ defences to Phones 4U’s claims. The replies are linked below:

• EE Limited

• Deutsche Telekom AG

• Orange SA

• Vodafone Limited / Vodafone Group PLC

• Telefonica UK Limited (O2) / Telefonica SA / Telefonica Europe PLC

Over the course of April 2019 and May 2019, the mobile network operators submitted their defences to Phones 4U’s claims which were filed on 18 December 2018 in the English High Court. The defences are linked below:

• EE Limited

• Deutsche Telekom AG

• Orange SA

• Vodafone Limited / Vodafone Group PLC

• Telefonica UK Limited (O2) / Telefonica SA / Telefonica Europe PLC

On 18 December 2018, Phones 4U Limited (in administration - “Phones 4U”) issued proceedings in the English High Court against:

• EE Limited

• Deutsche Telekom AG

• Orange SA

• Vodafone Limited

• Vodafone Group PLC

• Telefonica UK Limited (O2)

• Telefonica SA

• Telefonica Europe PLC

In the proceedings, Phones 4U advances three claims:

• first, that EE, Vodafone and O2 (and/or their respective parent or group companies) were parties to an agreement and/or concerted practice in breach of EU and English competition law;

• second, breach of contract against EE, relying on express and/or implied terms as to good faith; and

• third, that Deutsche Telekom and Orange procured and induced the breach of EE’s contract with Phones 4U, and/or for common law conspiracy.

A copy of the Particulars of Claim can be found here. Further updates will be posted as the litigation progresses.

Paul Copley, Concurrent Administrator of Phones 4U Limited (in administration)

On 23 November 2018, Paul Copley was appointed as a concurrent administrator of Phones 4U Limited (“Phones 4U”) to investigate the facts and circumstances that prompted the administration of Phones 4U, specifically as they relate to any potential breach of competition law by third parties.

The other administrators of Phones 4U are Ian David Green, Robert John Moran and David James Kelly, partners of PricewaterhouseCoopers LLP. They retain control of all other matters in respect of the administration and their contact details are at http://www.pwc.co.uk/phones4u

A copy of the Court Order appointing Paul Copley is here.

Regulatory disclaimer:

Paul David Copley has been appointed as concurrent administrator of Phones 4U Limited as its agent and he acts without personal liability. He is licensed in the United Kingdom to act as an insolvency practitioner by the Institute of Chartered Accountants in England and Wales. Paul David Copley may act as a controller of personal data as defined by the UK data protection law depending upon the specific processing activities undertaken. Aldan Management Limited may act as a data processor on his instructions. Personal data will be kept secure and processed only for matters relating to the administration. Paul David Copley is bound by the Insolvency Code of Ethics which can be found at: https://www.gov.uk/government/publications/insolvency-practitioner-code-of-ethics