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Mishcon de Reya successfully defends O2 in £1 billion claim for collusion

Posted on 17 November 2023

Major mobile networks cleared of all anti-competitive conduct in Phones 4u collusion claim

Judgment has now been handed down in one of The Lawyer top 20 cases of 2022: Phones 4u v EE and Others.  Nicola Bridge and Tom Roberts acted for Telefonica UK Limited ("O2") in its successful defence to claims made by the administrators of Phones 4u for breach of UK and EU competition law. The administrators of Phones 4u sought damages in excess of £1 billion from O2, EE and Vodafone, collectively. Following a 35-day trial in the summer of 2022, Mr Justice Roth found that none of the Defendants were in breach of UK or EU competition law and that the claim failed in its entirety.

After going into administration in Autumn 2014, Phones 4u brought proceedings against the UK mobile network operators (MNOs) O2, EE, Vodafone and their respective parent companies at the time, alleging that they had colluded to terminate their agreements with Phones 4u, which collusion had resulted in the administration of Phones 4u.  It was alleged that no commercially rational MNO would have taken the decision to leave Phones 4u, acting independently, and so it should be inferred that the MNOs colluded, each giving and receiving commitments in relation to their future conduct in respect of Phones 4u. However, the Court found that although the defendants had a common interest to reduce their reliance on indirect distribution... that does not remotely suggest that they engaged in collusive conduct to achieve that objective.

It was specifically alleged by Phones 4u that commitments were given by O2 to EE in late 2012 and, separately, to Vodafone in mid to late 2013. The Court held that there was no breach of competition law by O2 in its dealings with EE and that there was no evidence to support a claim of collusion by O2 and Vodafone, describing the latter as pure speculation.

An O2 spokesperson said: From the outset, we have strongly refuted all allegations of collusion or anti-competitive conduct in relation to the decision to let our agreements with Phones 4u expire. We are pleased that the court supports our position and has ruled in our favour.

Working with the VMO2 Litigation and Competition teams, Nicola Bridge led the Mishcon de Reya team alongside Partner Tom Roberts, supported by Managing Associate Richard Stopford and Associates Oliver Steeple, Lydia Boateng and Victoria Hirst.

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