The Court of Appeal’s decision in Phones 4U Ltd (in administration) v EE Ltd & Others [2025] EWCA Civ 869 marks a significant moment in UK competition litigation.

The case, which spanned over a decade from the events in question to the Court of Appeal’s judgment, involved allegations of collusion among major mobile network operators (MNOs) and the collapse of Phones 4U (P4U), a once-dominant independent mobile phone retailer.

The Court of Appeal upheld the High Court’s dismissal of the claims, rejecting allegations of unlawful concerted practices under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and section 2 of the Competition Act 1998. However, the judgment provides a rich source of guidance on the boundaries of lawful competitor interaction, the application of the Anic presumption, and the practical steps executives must take to avoid the appearance of collusion.

This article explores the key findings, legal implications, and practical takeaways for senior executives and in-house counsel.

Background and allegations

P4U entered administration in September 2014 after EE, Vodafone, and O2 each decided not to renew their supply agreements. P4U alleged that these decisions were not independent but the result of a collusive scheme to eliminate it from the market, in breach of competition law.

The claims were brought against the MNOs and their parent companies. The core allegations included:

• A 2012 lunch meeting between O2’s CEO Ronan Dunne and EE’s CEO Olaf Swantee (the “Landmark lunch”), where Dunne allegedly sought to “de-risk” O2’s exit from P4U by securing EE’s tacit support.
• A similar approach by Dunne to Vodafone’s CEO, Guy Laurence.
• A 2013 meeting between Vodafone’s Philipp Humm and Telefónica’s Eva Castillo Sanz.
• A 2014 call between Humm and Orange’s Benoit Scheen, allegedly coordinating Vodafone and EE’s exits from P4U.

P4U argued that these interactions amounted to concerted practices with the object of restricting competition, and that the MNOs’ subsequent market conduct should be presumed to have been influenced by these exchanges under the Anic presumption.

The legal framework

The case turned on the interpretation and application of Article 101(1) TFEU and the domestic equivalent in section 2 of the Competition Act 1998. The focus was on whether the MNOs had engaged in “concerted practices”.

As summarised by the Court of Appeal (at [18]), a concerted practice requires:

• concertation (coordination or communication between competitors);
• subsequent market conduct; and
• a causal link between the two.

The third element is subject to the Anic presumption: if concertation is established, it is presumed that the parties took account of the information exchanged in determining their market conduct, unless they can prove otherwise.

Key findings

The Court of Appeal considered six grounds of appeal (out of the eight grounds that were sought):

• Ground 1: The judge erred in concluding that the exchange between Dunne and Swantee at the Landmark Lunch did not amount to concertation because he adopted too restrictive an approach to the concept (particularly the need for reciprocity and the effect of a passive response);
• Ground 2: The judge erred in relation to the scope and effect of the Anic presumption and the proper approach to related causation issues, including wrongly proceeding on the basis that the Anic presumption could be rebutted by anything other than public distancing or a report to the competition authorities;
• Ground 3: Regarding the alleged collusion between EE and Vodafone, the judge wrongly dismissed P4U’s case by relying on a factual theory of his own invention (one that had not been presented or examined during the trial);
• Grounds 4 and 5 related to areas of fact-finding, where the appellants said the judge erred. P4U claimed that the delay in handing down the judgment justified the application of a lower hurdle than is usually applied to challenges on appeal to findings of fact; and
• Ground 7: The judge erred in his approach to drawing adverse inferences from Telefónica’s failure to adopt appropriate document preservation measures, including by wrongly failing to conclude that the loss of documents was deliberate.

Ground 1: The Landmark Lunch and the limits of tacit approval

The most scrutinised event was the 2012 Landmark lunch. The High Court found that Dunne had indeed made an “invitation to collude”, suggesting O2 might “play some big cards” by reducing reliance on indirect retailers (see [36]). However, Swantee did not engage, remained passive, and later consulted EE’s General Counsel and external lawyers.

The Court of Appeal upheld the finding that this did not amount to concertation. Crucially, the court analysed whether Dunne’s comments were too vague to be capable of amounting to concertation, and whether there is an additional requirement for consensus (which goes beyond a passive reaction to an anti-competitive disclosure) [127].

The Court of Appeal noted that there was a discrepancy between the High Court’s finding that Dunne’s comments were too vague to benefit EE and the conclusion that Swantee understood the thrust of Dunne’s remarks [131]. In any event, the Court of Appeal stated that “there must, at least to that extent, be specificity” such that the information provided is of a kind that is “capable of removing uncertainty.” [133] The Court of Appeal found that the High Court was entitled to conclude that the information was too vague to reduce uncertainty.

When considering the requirement for consensus, the Court of Appeal was clear:

“It requires some form of coordination, in the form of “practical co-operation”, between the participants…In short, it requires some form of collusive behaviour…whether the required consensus exists will depend on the context. It is entirely possible that passive behaviour will be treated as amounting to consensus, but…it will depend on the circumstances.” [140]-[141]

It is therefore possible, that one-way disclosure of information can amount to concertation if the recipient “requests or at least accepts it”. It is easier to see a consensus where the information is requested. However, it is more difficult when a party receives uninvited information. Whether there is tacit approval will depend on the facts, and “could be exhibited in a number of different ways. It is impossible to be prescriptive.” [143]

Ultimately the Court of Appeal rejected the argument that Swantee’s silence could be interpreted as tacit approval. However, a critical clarification to be aware of is: passivity alone does not equate to consensus. The mutual understanding or tacit approval which is required for concertation, must be assessed in context ([142]-[147]).

Ground 2: Rebutting the Anic Presumption without public distancing

P4U argued that the Anic presumption could only be rebutted by public distancing (i.e. by making clear to the other parties involved that it wishes to take no part in the actual or proposed anti-competitive behaviour) or reporting to competition authorities. The court rejected this, holding that:

“There is no principled reason why it should be impossible to rebut the Anic presumption by anything other than public distancing where there has been a meeting, however compelling the evidence is that there was in fact no causal effect” ([164]).

This is a significant development. While public distancing remains a powerful tool, the court confirmed that contemporaneous conduct inconsistent with collusion, such as EE signing a new three-year deal with P4U shortly after the Landmark lunch, can suffice to rebut the presumption [181].

Ground 3: No collusion between Vodafone and EE

P4U argued that the trial judge had improperly introduced a new factual theory, that another entity, rather than Vodafone, was the source of confidential information referenced in an internal EE email which stated that “…The expectation is that Voda are about to pull out…”. This was significant because P4U had alleged that Vodafone’s sharing of that information was evidence of collusion [198].

The Court of Appeal acknowledged that the judge had indeed suggested that there was an alternative source (i.e. Carphone Warehouse), which had not been put forward at trial. However, it concluded that this did not prejudice P4U and therefore did not warrant overruling the judge. The judge’s overall findings did not rely critically on the identity of the source of the information, and the broader evidential context supported his conclusions regardless. Ground 3 was therefore dismissed.

Grounds 4 and 5: Delay and the standard of appellate review

Grounds 4 and 5 related to fact-finding. P4U argued that the judge failed to take into account material evidence and adopted a “compartmentalised” approach whilst failing to consider the evidence in the round. Each of these challenges were dismissed. 

P4U also argued that the 15-month delay in handing down the High Court judgment warranted a lower threshold for appellate intervention. The Court of Appeal acknowledged the delay but found that the trial judge had taken exceptional care in delivering his judgment, including re-reading all relevant documents ([325]).

The court reaffirmed that delay alone does not justify overturning a judgment- “the extent to which a delay is prejudicial will depend on the circumstances.” [326]

The key question is whether the judgment is “safe” and in this case, it was ([321]).

The Court of Appeal found no evidence of improper compartmentalisation and concluded that the judge had evaluated the evidence in the round.

Ground 7: Telefónica’s failure to preserve documents

Ground 7 of the appeal concerned the failure by Telefónica to adopt appropriate document preservation measures when serious allegations of anti-competitive conduct were first made against it. P4U argued that the High Court judge erred by not drawing adverse inferences from the loss of potentially relevant documents, failing to conclude that the loss was deliberate, and allowing Telefónica to rely on the absence of internal documents to support its defence.

The Court of Appeal confirmed that the judge correctly applied the principles from Efobi v Royal Mail Group Ltd [2021] UKSC 33, which allow tribunals to use common sense when deciding whether to draw inferences from missing evidence, including documents.

The judge considered whether to draw an adverse inference as regards the failure to implement document preservation measures, but decided not to. The Court of Appeal confirmed that that decision was open to him. [317]

The Court of Appeal therefore dismissed Ground 7, finding that the High Court judge had not erred in his approach to Telefónica’s document preservation failures and that his decision was safe and supported by the evidence.

Implications for senior executives

Passive listening is not risk-free

While the court confirmed that silence does not automatically amount to collusion, executives should not assume that passivity is always safe. The context matters. If a competitor discloses sensitive information, and the recipient does not object or report it, there is a risk that regulators or courts may infer tacit approval, particularly if subsequent conduct aligns with the information received.

Executives must be alert to the risk that inaction may be interpreted as complicity, especially where the communication is more explicit or the relationship more established.

Public distancing is not always required, but it helps

The judgment clarifies that public distancing is not the only way to rebut the Anic presumption. However, it remains good practice, especially where the communication is ambiguous or the recipient is concerned about how their silence might be interpreted.

As EE’s General Counsel (James Blendis) advised Swantee in 2012:

“We have since considered whether you should have taken further steps to rebut those proposals… and whether we should now do so, informally or formally” ([34]). Blendis continued to list the options available, which included:

• an informal conversation with all parties to express concerns and to rebut any notion of complicity;
• a more formal meeting, possibly with lawyers to clarify the position;
• disclosure to the competition authorities; or
• documenting the conversations and monitoring of the behaviour with a more robust response should any conversations occur again.

This advice remains sound. Executives should consider documenting any anti-competitive approaches and their response, consulting legal counsel immediately, and avoid further one-to-one meetings with competitors without legal or compliance presence.

Agendas, records, and document preservation

At various points throughout the judgment, the Court of Appeal noted how the High Court had relied upon contemporaneous documents when considering the evidence of allegations, highlighting the importance of accurate record keeping and documentation.

The High Court also criticised the “scant regard” paid by some senior executives to competition law precautions, such as agreeing agendas and keeping accurate records ([94]–[95]).

The Court of Appeal further noted the High Court’s finding that Telefónica had “arrogant disregard” for the seriousness of the allegations made and had failed to adopt appropriate document preservation procedures when the allegations were first made. The Court of Appeal did not disturb this finding.

In light of these findings, we recommend that companies and their executives ensure that:

• agendas are agreed in advance for any competitor meetings;
• minutes are taken and reviewed by legal teams;
• accurate records of discussions (both internal and external, commercial and legal) are maintained;
• executives are trained to recognise and respond to anti-competitive overtures;
• all disclosure obligations are taken seriously, including document preservation measures from the moment litigation is first contemplated, in accordance with the Civil Procedure Rules (CPR) (CPR 31).

Breaching the duty to preserve documents, even unintentionally or due to miscommunication, can have serious consequences, including costs penalties, adverse factual inferences, procedural sanctions, and even most seriously, criminal charges for obstructing or perverting the course of justice.

Obtain legal advice early

The disclosure of the crucial exchange of legal advice between Swantee and Blendis (EE’s General Counsel), and between Blendis and EE’s external lawyers highlights the importance of obtaining legal advice if there is any doubt or concern about anti-competitive behaviour.

EE waived privilege in relation to the legal advice, presumably to demonstrate Swantee’s uneasiness about Dunne’s comments. The High Court found that in recording his discussions, and seeking legal advice, Dunne demonstrated a lack of acquiescence to anti-competitive conduct: “…that is not the conduct of someone who is prepared to go along with an anti-competitive proposal.” [38]

Therefore, whilst the fact of seeking legal advice in itself will not necessarily be determinative of a lack of consensus (and legal advice will usually remain privileged), seeking legal advice will at the very least provide crucial guidance to a senior executive or a company at a critical time to assist them in deciding how best to handle a complex situation, and to prevent matters escalating.

Conclusion

The P4U litigation is a cautionary tale for both claimants and corporate executives. For claimants, it illustrates the high evidentiary bar for proving collusion, especially where decisions can be explained by commercial rationale. For executives, it is a reminder that informal conversations with competitors, even vague or one-sided ones, can carry significant legal risk.

The judgment provides welcome clarity on the application of the Anic presumption and the limits of tacit approval. But it also reinforces the importance of proactive compliance, legal oversight, and clear distancing from any suggestion of anti-competitive coordination.