Phones 4U v EE & Others ([2025] EWCA Civ 869)
The Court of Appeal’s “Holistic Review” Standard for Delayed Judgments and the Limits of Adverse-Inference Doctrine

1. Introduction

This appeal arose from the spectacular administration of Phones 4U Ltd (P4u) in 2014 following each UK Mobile Network Operator (MNO) - EE, Vodafone and O2 – terminating or refusing to renew supply contracts. P4u claimed a clandestine “exit pact”, amounting to a by-object infringement of Article 101 TFEU / Chapter I Competition Act 1998, plus contractual and conspiracy wrongs. Roth J dismissed all claims after an 11-week liability trial. The judgment was delivered 15 months after closing submissions. On renewed application the Court of Appeal (Phillips, Popplewell & Zacaroli LJJ) granted permission on six competition grounds, but ultimately upheld the dismissal.

Besides an exhaustive evaluation of cartel allegations, the Court has laid down authoritative guidance on:

• How appellate courts should scrutinise fact-heavy judgments delayed beyond the conventional three-month yard-stick.
• The interaction between the Anic presumption of market effect, the Aalborg Portland participation presumption, and “public distancing”.
• When and how adverse inferences may (or may not) be drawn from failed document-preservation exercises.

2. Summary of the Judgment

1. The appeal on all six grounds was dismissed.
2. The alleged collusive contacts – the Landmark Hotel lunch (O2/EE), CEO-to-CEO exchanges (O2/Vodafone), a Telefónica–Vodafone Europe meeting, the EE–Vodafone shareholder call, and later modelling documents – did not satisfy the elements of concerted practice.
3. Even where anticompetitive invitations were made (Mr Dunne’s overture to Mr Swantee), the first Anic limb (concertation) failed because there was no consensus; alternatively the third limb (causal link) was rebutted by EE’s post-meeting conduct (signing an expanded contract with P4u).
4. The Court crystallised an appellate methodology for seriously delayed first-instance judgments – dubbed here the “holistic review” standard – blending:
    • the usual “plainly wrong” test (Henderson),
    • the Bond v Dunster gloss for long-delayed findings, and
    • a self-standing enquiry whether the judgment remains “safe” when read in the round.
5. No adverse inference was drawn from Telefónica’s “arrogant disregard” of preservation duties; the Court endorsed a fact-sensitive common-sense approach (Efobi).

3. In-Depth Analysis

3.1 Principal Authorities Relied On

• Commission v Anic Partecipazioni – source of the presumption that undertakings take account of exchanged information in later market conduct.
• Aalborg Portland – “participation presumption” and the doctrine of public distancing.
• Eturas – distinguishes the two presumptions; recognises “tacit approval” as possible consensus.
• Solvay, T-Mobile – exacting standard for rebutting Anic (“no influence whatsoever”).
• NatWest v Bilta, Bank St Petersburg, Bond v Dunster – appellate treatment of delayed judgments.
• Efobi v Royal Mail, Volpi v Volpi – drawing inferences from absent witnesses/documents.

3.2 Court’s Legal Reasoning

a) Concerted-Practice Matrix

The Court reaffirmed the classic three-limb test:

1. Concertation (contact + at least tacit consensus).
2. Subsequent market conduct.
3. Causal link (presumed via Anic unless rebutted).

Passive reception ≠ automatic consensus. Although concertation can be “one-way”, Popplewell LJ emphasised that context determines whether silent acquiescence amounts to tacit approval. Here, Mr Swantee’s guarded silence and immediate legal escalation did not signal cooperation.

b) Rebutting the Anic Presumption

The Court rejected Phones 4U’s submission that public distancing is the route to rebuttal whenever contact occurs at a meeting. Eturas para 46 was confined to the separate “participation” presumption. Thus, concrete evidence (e.g. EE’s immediate renewal and up-scaling of its P4u contract) can suffice to neutralise limb 3. The Judgment offers a helpful diagrammatic distinction:

c) Appellate Review after Serious Delay – “Holistic Review”

The Court accepted that the 15-month delay engaged heightened scrutiny, but cautioned against “island-hopping” through the evidence. The appellate exercise is:

1. Apply the normal “plainly wrong” test (Henderson).
2. Add the Bond v Dunster gloss: if a material mis-recollection might be attributable to delay, interrogate safety of the finding.
3. Read the judgment as a whole to determine whether, despite any omission, it remains safe.

On that approach each alleged factual omission (Landmark lunch record, modelling spreadsheets, missing Board minutes, etc.) was held either immaterial or fully addressed elsewhere in the 200-page judgment.

d) Adverse Inferences & Lost Documents

Even egregious preservation failures do not trigger automatic presumptions. Following Efobi:

• Inference depends on context – availability of other evidence, significance of the missing material, credibility of alternative explanations.
• It is an evaluative exercise: the court may but need not draw negative conclusions.
  – Here, documentary and viva voce evidence from Vodafone and EE was so inconsistent with collusion that missing Telefónica emails could not upset the balance.

3.3 Practical & Doctrinal Impact

1. Competition Litigation
   • Parties should not assume that unilateral, vague “fishing” for reassurance will ground an Article 101 claim.
   • Silence can be safe if commercial conduct later contradicts collusive intent.
2. Corporate Compliance
   • The Judgment portrays how quickly informal CEO chats turn toxic; firms must refresh C-suite training and documentary hygiene.
3. Litigation Strategy: Delayed Judgments
   • The “holistic review” rubric gives appellants a road-map but also a warning: highlight genuinely material gaps, not scatter-shot challenges.
4. Document Preservation
   • Failure to preserve will harm credibility; yet claimants cannot rely on it as a free-standing silver bullet – they must still establish liability on extant proof.

4. Complex Concepts Simplified

Concerted Practice

Any form of coordination between firms that knowingly substitutes cooperation for competition without needing a formal contract.

Anic Presumption

Once concertation is proved, the law presumes (unless rebutted) that the recipient used the information exchanged when deciding its marketplace behaviour.

Public Distancing

Clear, unambiguous signal to other participants that you reject the illicit proposal (e.g., objecting on the record, or reporting to a regulator).

Participation Presumption

If you attend an unlawful meeting and say nothing, you are presumed part of the cartel unless you publicly distance.

‘Holistic Review’ Standard

Appellate court’s duty, where first-instance judgment is seriously delayed, to examine the whole evidential seascape rather than leap between isolated “islands” of alleged error.

5. Conclusion – Key Takeaways

• No carte blanche for “passive” cartel allegations – The Court drew a principled line: silence is not self-incriminating unless the factual matrix shows it conveyed reliable comfort to rivals.
• Anic v. Aalborg clarified – Two presumptions, two rationales; public distancing is indispensable for the “participation” presumption but not the only way to rebut Anic.
• Delay does not equal defeat – Excessive reserve judgments will attract rigorous appellate focus, yet only genuinely material omissions will upset the result.
• Adverse inference is discretionary – Even flagrant preservation breaches will not rescue a weak merits case.
• Practical compliance pointer – Senior executives must avoid opaque “testing the water” chats; contemporaneous recording and immediate legal advice may later prove decisive.

Phones 4U v EE thus serves a dual legacy: doctrinal clarity on concerted-practice dogma, and a road-map for appellate courts navigating the treacherous waters of long-delayed, evidence-dense judgments.