EE loses £24.6m claim against Virgin Mobile over 5G exclusivity dispute

EE this week lost a claim against Virgin Mobile over the exclusivity of the supply of 5G which led Virgin Mobile used to use Vodafone as host network.

EE was seeking damages of £24,635,684 for loss of revenue claiming Virgin Mobile broke an Exclusivity Clause and that EE had been “deprived of revenue that it would otherwise have earned”

Justice Joanna Smith DBE, ruled in Virgin Media’s favour. A summary judgment is made if the Court considers a claim has no real prospect of succeeding. They can negate the need for an expensive and lengthy trial and it is unusual for them to be successful in complex commercial litigation cases such as the EE and Virgin Mobile dispute.

The judge said EE “has not advanced a consistent case” and described it as “fanciful” to suggest evidence presented “provides a real prospect of success”.

Virgin Mobile denied t hat it has acted in breach of the Exclusivity Clause or any breach was reckless or wilful and disagreed with EE’s calculation of any revenue loss

Justice Joanna Smith DBE ruled in favour of a summary judgement applied for by Virgin Media saying EE’s allegation of the breach of contract.was “fanciful” and had “no real prospect of succeeding”.

A summary judgement means a case to be determined at an early stage and at a short hearing, rather than proceeding to a full trial.

The dispute was over a former agreement with BT/EE that, if EE launched 5G services and could not agree with Virgin Media about supplying Virgin customers with 5G (which it didn’t), then Virgin Media was permitted to seek 5G services from an alternative supplier. Virgin Media did this through its agreement with Vodafone in 2019. The agreement also allowed customers provided with 5G services to receive 2G, 3G and 4G services

The only requirement was that the customer be provided with a 5G service. This was done by sending them a 5G -enabled SIM card. Virgin Media argued it could control which customers received a 5G SIM. But it could not control if a customer used the SIM in a 5G device or removed it.

A statement from Virgin Mobile explained:

‘At no time prior to the expiry of the agreement period were any Virgin Mobile customers migrated to the O2 network. Virgin Media O2 did launch its “Volt” bundles in October 2021 but this was a new product and service that any consumer could take by combining Virgin Media broadband and O2 mobile services. No customers were moved to these services, it would have been their choice to take them under a new contract. This is the same scenario as a customer choosing to switch from Virgin Mobile to another rival MNO or MVNO. We’ve always been very clear that we fully honoured our former mobile agreement with BT while giving our customers access to 5G as soon as possible. We’re pleased that the court has ruled in our favour and summarily dismissed EE’s claim against us.”

Read the full judgment HERE: