Court of Appeal dismisses appeal in collapse of Phones 4U

14/07/25

In a lengthy judgment delivered on Friday, the Court of Appeal has rejected an appeal by the administrators of Phones 4U against a judgment of Mr Justice Roth which dismissed Phones 4U’s claims that multiple mobile network operators and their parent companies colluded or engaged in tortious wrongdoing to bring about its demise in 2014.

Phones 4U contended that Mr Justice Roth had (i) erred in law in finding that there was no concerted practice between O2 and EE and in his application of the so-called ‘Anic presumption’; (ii) impermissibly rejected part of Phones 4U’s claim based on a factual theory of his own; (iii) failed to refer to certain evidence and/or consider the evidence in the round which, in light of a 15-month period between the end of trial and the handing down of Mr Justice Roth’s judgment, rendered the judgment unsafe; and (iv) wrongly failed to draw adverse inferences from one of the Defendant’s failures to take adequate document preservation measures. Each of those grounds failed.

Lady Justice Falk’s judgment contains important observations on the scope of the concept of a concerted practice under Article 101(1) TFEU and section 2 of the Competition Act 1998, on the nature and effect of the ‘Anic presumption’ and its relationship to the domestic law on causation. The judgment also contains a thoughtful examination of the principles that apply to factual challenges to delayed judgments and reiterates the dangers of “island hopping” by the Court of Appeal in such appeals. The judgment will therefore be of interest to litigators generally, including competition practitioners.

The Court of Appeal’s judgment is available here.