Phones 4U Limited (In Administration) V EE Limited and Others
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Phones 4u Limited (In Administration) v EE Limited and others Day 2 July 3, 2020 Opus 2 - Official Court Reporters Phone: +44 (0)20 3008 5900 Email: [email protected] Website: https://www.opus2.com July 3, 2020 Phones 4u Limited (In Administration) v EE Limited and others Day 2 1 Friday , 3 June 2020 1 in the debate which I ’ve raised concerning custodians , 2 (10.00 am) 2 or whether your Lordship would simply like me to plough 3 Submissions by MR MACLEAN (continued) 3 on in relation to the remaining matters? 4 MR JUSTICE ROTH: Good morning. I’ve had a message from the 4 The remaining matters that I have are early 5 transcribers asking that counsel should please speak 5 disclosure , personal devices -- mobile phones, 6 closer to the microphone or tilt your microphone closer 6 essentially , which is almost a subset of that -- and 7 towards you. Apparently they have been missing some of 7 unfiltered searches . As I say, I am very happy to 8 what is said . 8 plough on in relation to all of those matters. It is 9 MR MACLEAN: I’m the prime offender, I imagine, my Lord. 9 a matter for your Lordship. 10 I received some messages during the course of the day 10 MR JUSTICE ROTH: What you have covered, I think, is the hit 11 and I ’ ll try to do better today. 11 reports , the hold notices and the custodians . 12 My Lord, before we proceed, can I mention two 12 MR MACLEAN: That’s right. 13 matters to your Lordship. First of all is that 13 MR JUSTICE ROTH: Those three matters. I think -- 14 yesterday during the course of the day we received 14 MR MACLEAN: And the custodian date range, so far as 15 a request from a journalist , I believe at something 15 Mr O’Donoghue is concerned. 16 called Global Competition Review, asking for a copy of 16 MR JUSTICE ROTH: And the date range, yes. 17 our skeleton . As this hearing was in open court, we 17 MR MACLEAN: Your Lordship will recollect that Deutsche are 18 don’t see an objection to that , but I thought I should 18 not proposing to give a default date range in respect of 19 raise it through your Lordship in case any of my friends 19 their custodians , but only for the period during which 20 have an objection on the grounds of confidentiality 20 those individuals were members of the EE board. 21 given the confidentiality concerns. I don’t believe 21 MR JUSTICE ROTH: Well, they were on the board, yes. 22 there is any such concern relating to our skeleton 22 MR MACLEAN: That’s the buffer date. 23 argument, but I thought, before we handed it over, 23 MR JUSTICE ROTH: I think go on. 24 I should raise that with the court . 24 MR MACLEAN: I’m happy to do that, my Lord. 25 MR JUSTICE ROTH: Well, none of the skeletons were marked, 25 As your Lordship knows, as against all of the 1 3 1 as far as I was concerned, as confidential , or 1 defendants, apart from EE, because EE have agreed to do 2 containing any confidential information . I think on 2 this , we’re seeking early provision of certain important 3 that basis it is now well established that anyone who 3 categories of documents. The only outstanding item, as 4 wants a copy should be able to have one. 4 I understand it , against EE, and I had a brief 5 MR MACLEAN: I entirely agree. Thank you, my Lord. 5 discussion with my learned friend Mr Pickford for EE 6 The second point is a personal point from the 6 this morning, relates to early disclosure of external 7 position of the Bar. Your Lordship will have noticed it 7 communications. That’s the only aspect of this debate 8 was extremely hot yesterday and is rather tropical even 8 in which he is interested . 9 today, and we wondered... 9 But stepping back a stage we also invite the court 10 (Missing audio) 10 to make an order for early disclosure of board 11 MR JUSTICE ROTH: ... hardly the problem today. I think 11 documents. Those are board minutes and the board 12 it ’s too many screens perhaps that ’s causing it , but 12 presentations and board packs, which we say must exist 13 there is an underlying problem with this particular 13 and we know do exist, so that we can see what the 14 courtroom. 14 decisions that were taken at that level were and it is 15 MR MACLEAN: I think also, from my experience, my Lord, 15 one of the most important aspects of this case: what 16 there is a problem with the court below, court 26. That 16 were the reasons that these defendants decided to 17 seems to suffer also from the ( inaudible ). 17 terminate their relationship with Phones 4u and to 18 MR JUSTICE ROTH: Yes. I mean, at some point perhaps 18 contract on essentially an exclusive basis with 19 someone will look into that . But yes, if you would like 19 CarphoneWarehouse. 20 to remove your jackets , you may do so. 20 As I have said , EE has agreed to provide early 21 MR MACLEAN: We are grateful, my Lord. 21 disclosure of key documents. Perhaps if I can show 22 Now, I hadn’t finished with the issues that we were 22 your Lordship Mr Pickford’s skeleton argument so you can 23 raising on disclosure . I was moving on to a new topic. 23 see what they have agreed to supply. That is between 24 It ’s a matter for your Lordship whether your Lordship 24 paragraphs 58 to 60 {E3/2/17}. The wrong page, 25 wishes to hear from my learned friends who are engaged 25 obviously -- no, that is the right page, {E3/2/17}. 2 4 Opus 2 [email protected] Official Court Reporters +44 (0)20 3008 5900 July 3, 2020 Phones 4u Limited (In Administration) v EE Limited and others Day 2 1 Your Lordship will see that EE says it : 1 minutes what is said , one hopes, the decisions , the 2 "... will review and provide disclosure of documents 2 basis of the decisions . 3 which meet the test for standard disclosure in the 3 Now, your Lordship has suggested, and we accepted 4 following categories by 31 July 2020: 4 your Lordship’s suggestion at the previous case 5 "i . EE Board meeting minutes, resolutions and 5 management conference, that in respect of that 6 supporting documents; 6 application , if it is to be made, it should be made 7 " ii . EE Business Review meeting minutes and 7 following disclosure ; but the provision of these 8 supporting documents; and 8 documents will have the benefit , in our submission, of 9 " iii . EE Senior Management Team meeting minutes." 9 being able to prepare and progress that application so 10 Now, EE has agreed to do that. There was a dispute 10 that we are in good stead for it when we come to make it 11 about -- between ( inaudible ) about some supporting 11 next year , hopefully , soon after disclosure has been 12 documents, but we have accepted EE’s proposal that the 12 given . 13 documents that they found difficulty in locating could 13 Now, there is no evidence from any of the defendants 14 be given by 29 January as standard disclosure . 14 in relation to this that the provision of these 15 MR JUSTICE ROTH: I mean, they say they are not 15 documents would present any real difficulty . It would 16 straightforwardly accessible . 16 be surprising if defendants of a size and maturity of 17 MR MACLEAN: Yes. 17 these organisations weren’t able to readily access these 18 MR JUSTICE ROTH: That I suspect is more to do with 18 documents. 19 subcategories ( ii ) and ( iii ) -- 19 MR JUSTICE ROTH: There is -- I thought some of the 20 MR MACLEAN: Yes. 20 skeletons -- you’re right to say there is no evidence , 21 MR JUSTICE ROTH: -- as opposed to main board meeting 21 but perhaps a slightly technical approach; some of the 22 minutes, which one imagines are readily accessible . 22 skeletons do suggest that they’ re not all kept readily 23 MR MACLEAN: Yes. But the benefits -- so apart from EE, the 23 available in one place . I think -- 24 other defendants have refused to provide such disclosure 24 MR MACLEAN: What does that mean, they’re not kept readily 25 at all , early . EE’s documents, as I said , provide the 25 available in one place? I mean, how difficult is it 5 7 1 foundation of the argument that there was a legitimate 1 really going to be to track down the board minutes? 2 and independent reason for supplying Phones 4u. 2 MR JUSTICE ROTH: Well, board minutes I can see, but the 3 A slightly more expansive or open approach to the 3 board minutes are unlikely , from my experience of board 4 pleadings would have seen these minutes expressly 4 minutes, seen in various cases , to be hugely 5 referred to. If they had been, they would have been 5 illuminating . It is probably going to be the underlying 6 disclosable pursuant to Part 31, Rule 14. 6 background papers and so on that you want. 7 MR JUSTICE ROTH: Mm. 7 MR MACLEAN: I’m sure your Lordship is right about that.