The CMA served its written observations in relation to the appeal on 24 October 2024, and has since been granted permission by the Court of Appeal to make oral observations at the hearing. A copy of the CMA’s written observations (along with the Respondents’ skeleton arguments and P4U’s supplementary skeleton argument) will be made available at the time of the commencement of the public appeal hearing in May 2025.
On 22 August 2024, the Competition and Markets Authority (the “CMA”) confirmed its intention to intervene in P4U’s appeal. The CMA has the right to make written observations to the Court of Appeal on issues relating to the application of Chapter I or II of Part I of the Competition Act 1998. The CMA may also make oral observations at the hearing with the Court of Appeal’s permission. The appeal has been added to the CMA’s register of cases in which it has intervened, which can be found here.
As anticipated below, the Respondents served their skeleton arguments on 28 June 2024. P4U has subsequently obtained permission to rely on a supplementary skeleton argument, which it served on 23 September 2024. Copies of the Respondents’ skeleton arguments (and P4U’s supplementary skeleton argument, which makes reference to material in those documents) will be made available at the time of the commencement of the public appeal hearing in May 2025.
Following the order from the Court of Appeal, dated 26 March 2024, granting permission to appeal certain aspects of Mr Justice Roth’s decision, P4U filed its skeleton argument on 10 April 2024. That document can be found here.
The Respondents are due to file their skeleton arguments by 28 June 2024.
The appeal hearing has been listed to take place over five days during the fortnight commencing 19 May 2025.
As noted below, on 1 February 2024, P4U filed an application with the Court of Appeal for permission to appeal certain aspects of Mr Justice Roth’s decisions.
The principal documents filed in support of P4U’s application for permission to appeal are linked below:
On 15 February 2024, the Respondents filed submissions opposing P4U’s permission application as follows:
EE Limited, Orange SA and Vodafone Limited / Vodafone Group PLC
Telefonica UK Limited (O2) / Telefónica S.A. / Telefonica O2 Holdings Limited
On 26 March 2024, the Court of Appeal issued an order granting P4U permission to appeal on Grounds 1 to 5 and 7 (concerning, in broad terms, the competition law claims). Permission was denied in respect of Ground 6 (concerning the breach of contract claim against EE Limited) and Ground 8 (concerning the post-judgment interest rate applicable to certain Defendants’ costs). The order can be found here.
On 1 February 2024, P4U filed an application with the Court of Appeal for permission to appeal certain aspects of Mr Justice Roth’s decisions.
Following the issue of the judgment in the case on 10 November 2023, the consequential hearing took place on 19 December 2023 to consider: (i) P4U’s application for permission to appeal; (ii) the basis of costs and interest payable by P4U to the Defendants; and (iii) the Defendants’ applications for on-account payments.
The skeleton arguments for the consequential hearing are linked below:
The approved rulings relating to these matters, and the sealed orders of Mr Justice Roth dated 19 and 21 December 2023, and 12 January 2024 are linked below:
The unofficial transcript of the hearing can be found here.
Please note that:
The transcript is published in the form received from the transcriber; and
We are posting the transcript solely for the convenience of interested third parties and we make no representations as to the accuracy of such transcript nor accept any responsibility for any inaccuracies contained within it.
On 10 November 2023, Mr Justice Roth handed down his judgment, along with a short summary of it, as attached below:
All of Phones 4U’s claims were dismissed. Phones 4U is considering whether to appeal the judgment.
The first trial, covering liability and breach issues, commenced on 16/5/22 in Court 15 of the Rolls Building in London.
The opening submissions are as follows (further documents to be added as they become public):
The unofficial daily transcripts of the hearing can be found below. Please note that:
the transcripts are published in the form received from the transcriber; and
we are posting the 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 them.
Oral openings
Phones 4U witnesses
EE witnesses
DT witnesses
Orange witnesses
Vodafone witnesses
O2/Telefonica witnesses
Expert witnesses
Oral closings
The written closing submissions are as follows:
The pre-trial review (“PTR”) in the case was held on 23 March 2022. The PTR considered certain procedural aspects of the trial including:
the trial timetable, including allocations for factual witnesses from each party;
an application from the Defendants for the hearing to take place on a hybrid basis, such that interested parties may observe proceedings remotely;
an application from Telefónica, S.A. for one witness of fact to give evidence remotely;
arrangements for trial bundles, including availability in hard copy or electronically; and
arrangements for expert evidence, including an uncontested application for experts to supplement their reports with oral evidence.
The parties had made progress towards agreement of the timetable ahead of the PTR, with the main area of disagreement relating to the amount of time to be allocated for cross-examination of witnesses of fact for P4U and the Defendants respectively. The Court’s decision largely represents a “middle-ground” between the P4U proposal and that of the Defendants (set out in Appendix 1 to P4U’s skeleton arguments). The confirmed timetable is set out in the PTR order linked below, and includes a week of pre-reading from Monday 9 May, with opening arguments commencing on 16 May and oral closings during the week commencing 25 July.
Although no decision was sought at the PTR, P4U’s skeleton arguments also referred to ongoing correspondence with the Defendants regarding disclosure of their competition compliance policies. This was noted by Mr Justice Roth at the PTR. P4U subsequently served a further application for disclosure on 25 March 2022, and later entered into arrangements providing for the Defendants to provide the relevant documents by consent.
P4U did not object to the Defendants’ application for the hybrid trial, but flagged a concern regarding the ability of witnesses and/or legal advisers (to persons other than the parties to the proceedings) to attend remotely, including from outside the jurisdiction. In light of the number of representatives involved, including senior executives outside England & Wales, and the ongoing situation with respect to Covid-19, Mr Justice Roth granted the order for a hybrid trial.
The unofficial transcript of the hearing can be found here.
Please note that:
The transcript is published in the form received from the transcriber; and
We are posting the transcript solely for the convenience of interested third parties and we make no representations as to the accuracy of such transcript nor accept any responsibility for any inaccuracies contained within it.
The skeleton arguments for the hearing are linked below:
The sealed orders of Mr Justice Roth relating to the hybrid trial arrangements and the other PTR matters, including the trial timetable, are linked below:
On 24 February 2022, P4U filed re-amended particulars of claim, following review of the Defendants’ factual witness statements and additional documents disclosed in December 2021. The re-amended particulars of claim can be found here. On 7 March 2022, re-amended defences were filed by certain Defendants – these are linked below:
On 16 November 2021, P4U filed its amended replies to the mobile network operators’ amended defences. The amended replies are linked below:
On 26 October 2021, EE, Orange and Telefonica filed their amended defences in response to P4U’s amended particulars of claim dated 19 October 2021, and on 2 November 2021, Deutsche Telekom and Vodafone filed their amended defences. In accordance with the order of Mr Justice Roth dated 27 October 2021, the Defendants had until 9 November 2021 to file any further amendments to their defences in respect of the amendments made by P4U in paragraph 68C(c) (and paragraph 70C, only to the extent it relates to paragraph 68C(c)) of the amended particulars of claim. No such re-amended defences were submitted.
The amended defences are linked below:
P4U is required to file its amended responses to the amended defences by 16 November 2021.
A third case management conference was held on 13, 14 and 18 October 2021 to hear P4U’s applications to: (i) adduce expert evidence of an economist in respect of certain matters that arise on the case (the “Expert Application”); (ii) amend its particulars of claim following receipt of over 185,000 documents from the Defendants and through correspondence thereafter (the “Amendment Application”); and (iii) request that the second Defendant conduct specific additional searches in connection with the scope of its disclosure (the “Disclosure Application”). In addition, the hearing considered submissions regarding key dates in the timetable to trial.
All Defendants opposed the Expert Application and presented arguments on this issue and the timetable proposed by P4U.
The proposed amendments to the particulars of claim were served on the Defendants on 30 July 2021 and all but Deutsche Telekom and Vodafone provided their consent during the month of September. An amendment was agreed with Vodafone in respect of a specific matter and their objection was therefore withdrawn shortly before the hearing (but after skeleton arguments had been filed). Deutsche Telekom was therefore the only party that appeared in respect of the Amendment Application and the Disclosure Application.
Unofficial transcripts of the hearing are linked below:
Please note that:
The transcripts are published in the form received from the transcriber; and
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 them.
The skeleton arguments for the hearing are linked below:
The approved judgments relating to the three applications, and the sealed order of Mr Justice Roth dated 27 October 2021, are linked below:
A copy of the amended particulars of claim served on 19 October 2021 can be found here.
On 19-20 January 2021, the Court of Appeal heard arguments from certain of the Defendants regarding their appeal of part of the Disclosure and Directions Order dated 11 August 2020. The substantive points in the Disclosure and Directions Order were upheld by the decision of Sir Geoffrey Vos, Master of the Rolls, Lady Justice Aplin and Lord Justice Green.
The skeleton arguments for the appeal are linked below:
The approved judgement and sealed order of the Court of Appeal, both dated 2 February 2021, are linked below:
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:
Please note that:
The transcript is published in the form received from the transcriber; and
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:
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:
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:
Phones 4U’s brief submissions regarding Vodafone’s application for PTA
Phones 4U’s brief submissions regarding Telefonica’s application for PTA
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:
On 2 and 3 July 2020, the second Case Management Conference occurred.
Unofficial transcripts of the hearing are linked below:
Please note that:
The transcripts are published in the form received from the transcriber; and
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:
The judgments and order issued by Mr Justice Roth are linked below:
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.