On 2 February 2021, the Court of Appeal rejected an appeal by several mobile network operators (MNOs) to overturn disclosure orders that the MNOs’ executives’ personal devices and communications be examined by independent IT experts. Phones4U entered administration in 2014, following the termination of its contracts with several important commercial partners, including the defendant MNOs, from January 2013 onwards. Phones4U’s administrators filed a damages claim against the MNOs in 2018, seeking £1 billion in damages. They allege that the defendant MNOs engaged in anti-competitive collusion “to injure [Phones4U] by unlawful means”, whilst the MNOs argue that the contracts were allowed to expire or were not renewed for commercial reasons.
The Court of Appeal ruled that IT experts may examine the devices, subject to “comprehensive undertakings”, to check for any information indicating that the defendant MNOs had engaged in anti-competitive collusion to the detriment of Phones4U. The Court acknowledged that in anti-competitive conduct cases, sensitive communications between individuals may take place away from work devices or work communications channels. The Court of Appeal’s judgment provides guidance on the approach to disclosure where competition and privacy law considerations are relevant. The trial is expected to take place in 2022.