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
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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}.
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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
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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. If 8 MR MACLEAN: As I have said, Phones 4u has already been 8 there is a problem -- if the court were to order them to 9 provided by Vodafone with a selection of these documents 9 produce these documents early, as we suggest 10 on a voluntary basis during the course of pre- action 10 your Lordship should, and there is a problem, well , 11 correspondence, but it hasn’t provided its whole 11 then, they can say, "We simply can’t send them all in 12 selection . We suggest respectfully that it ought to be 12 the time period your Lordship has indicated and they 13 asked to do so early so that we can see the -- 13 will be disclosed as part of disclosure -- part of 14 MR JUSTICE ROTH: Sorry, what did you get from Vodafone? 14 standard disclosure by 29 January"; adopting a similar 15 MR MACLEAN: We got a selection of documents relating to the 15 approach, as your Lordship indicated , in relation to the 16 decision -making. I can’t identify precisely what those 16 BC Partners sale documentation: if you can’t find it 17 were at the moment, but they were not -- they didn’ t 17 after a reasonable search ( inaudible ) well , then, it can 18 purport to be the full suite of board minutes, board 18 be disclosed later . 19 packs over the relevant period . 19 But, as I say, my primary point is there are likely 20 MR JUSTICE ROTH: Mm. 20 to be advantages in terms of enabling , I say, to focus 21 MR MACLEAN: Now, the documents that we’re seeking in 21 on the reasons which were given internally in these 22 relation to each of these defendants will inevitably 22 organisations for the decisions they took by the early 23 form part of the materials which we rely on in our 23 provision of these documents. 24 outstanding application for expert evidence relating to 24 MR JUSTICE ROTH: Well, you see, you have their reasoning 25 the economic rationality . We will see in the board 25 set out in the defences .
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1 MR MACLEAN: Yes. 1 that we suggest your Lordship should make relates to the 2 MR JUSTICE ROTH: It is of course possible that the board 2 external communications between the defendants and the 3 minutes are wholly inconsistent with what is said in the 3 other MNOs. Obviously external communications between 4 defences , but that does seem rather unlikely , doesn’t 4 these competitors are likely to be significant in terms 5 it , because one imagines anyone drafting a defence and 5 of the case which my client is pursuing against them. 6 the solicitors instructing them will have looked at this 6 Now, I showed your Lordship yesterday some of the 7 matter. 7 hit reports -- 8 So if it is a question of , you know, beginning to 8 MR JUSTICE ROTH: Yes. 9 think about your application for expert evidence , you 9 MR MACLEAN: -- which have been prepared. What one can see 10 have quite a lot of material to work on. I ’m not quite 10 from those hit reports is that there are an extremely 11 sure how this is really going to advance matters between 11 modest number of communications outgoing from each of 12 now and the end of January. 12 the organisations . 13 MR MACLEAN: Well, your Lordship makes the point that in 13 Now, so that your Lordship is not labouring under 14 order for these detailed defences to be pleaded it is 14 a mini-misapprehension as a result of my submission, the 15 likely that they looked at this material . As I have 15 hit reports show the outgoings. They don’t show 16 said , if they referred to these , which they didn’ t , in 16 incomings. So it would be fair for the defendants to 17 the pleading , we would have been making an application 17 say: well , it may be, for example, that EE has only 82 18 pursuant to Part 31, Rule 14. I know that’s not 18 emails outgoing to Vodafone (inaudible ) in total , but 19 a complete answer, but, as your Lordship indicated , if 19 that ’s not the complete picture . You’re after 20 they have looked at these documents and they have them 20 communications from the custodians going out to the 21 available , then there should be no problem in giving 21 other MNO... 22 early disclosure of them. 22 (Missing audio) 23 MR JUSTICE ROTH: Well, they will have lot of documents 23 MR MACLEAN: ... looks at the -- when one triangulates this , 24 available by this stage but that ’s not a reason that you 24 if I can put it that way, when one looks at the various 25 say everything that the solicitors have gathered should 25 outgoing hit reports , those must necessarily be balanced
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1 be handed over now. 1 at another MNO by an (inaudible), as a matter of 2 MR MACLEAN: We’re not asking for all the documents that the 2 logic -- 3 solicitors had. We’re asking for a limited , focused 3 MR JUSTICE ROTH: But what’s the justification for 4 search . 4 getting -- of course they’ re relevant , I don’t think 5 MR JUSTICE ROTH: Mm. 5 anyone disputes that -- but what’s the justification for 6 MR MACLEAN: And, in my submission, your Lordship should 6 getting these early ? 7 look at what EE is prepared to do and your Lordship 7 MR MACLEAN: Well, they are likely to be highly significant . 8 should take that as a good, objective indication as to 8 Obviously, they are being passed subject to the test for 9 what is possible with a bit of goodwill and co-operation 9 standard disclosure . 10 in relation to disclosure . 10 MR JUSTICE ROTH: Yes. 11 So, when the other defendants say it is all very 11 MR MACLEAN: I’m not asking for all of them. 12 difficult , and your Lordship has that assertion , 12 MR JUSTICE ROTH: Yes. 13 balanced against that you have what EE has done or is 13 MR MACLEAN: So they’re likely to throw considerable light 14 proposing to do. 14 on the nature of the communications between these MNOs 15 There can be no doubt that these will be important 15 during the course of the material period . I mean, if 16 documents. For those reasons , we do invite the court to 16 you take Orange, for example, they say there were only 17 make early disclosure in relation to those particular 17 three communications -- 18 defined categories of document. Your Lordship has seen 18 MR JUSTICE ROTH: But, sorry to interrupt you, you’re 19 the submissions we make in relation to this in the 19 addressing relevance and you’re saying they are highly 20 skeleton argument. 20 relevant . 21 MR JUSTICE ROTH: Yes. 21 MR MACLEAN: Yes. 22 MR MACLEAN: I have developed it as best I can orally and 22 MR JUSTICE ROTH: I accept that, but -- and you’re not 23 that ’s what I propose to say about that. 23 having to resist an argument that they shouldn’t be 24 MR JUSTICE ROTH: Yes. 24 disclosed . 25 MR MACLEAN: Now, the second category of early disclosure 25 MR MACLEAN: No.
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1 MR JUSTICE ROTH: You’re saying: it’s not good enough to get 1 MR JUSTICE ROTH: Yes. 2 them at the end of January, I want them at the end 2 MR MACLEAN: And the court will retain control over any 3 of July . 3 application ... 4 MR MACLEAN: Yes. 4 (Missing audio) 5 MR JUSTICE ROTH: And at the moment I don’t see -- the 5 MR MACLEAN: ... and in my respectful submission cry out for 6 previous category was to do with an application for 6 early disclosure , and which we don’t now have, is the 7 expert evidence . This isn ’ t , obviously . So I ’m just 7 famous iPad recording made by Mr Swantee of Mr Dunne’s 8 trying to understand what is the justification for 8 approaches to him in 2012, and that would have put 9 saying this should come early when we have not gone down 9 beyond any doubt exactly what it was Mr Dunne had 10 the route of having staged disclosure in this case -- 10 proposed or suggested to Mr Swantee. Your Lordship will 11 MR MACLEAN: No -- 11 appreciate that the Telefónica defendants, presumably on 12 MR JUSTICE ROTH: -- and the end of January is not that far 12 the basis of instructions taken from Mr Dunne as to what 13 off in the timetable for these proceedings . 13 conversations he had with Mr Swantee, continued to deny 14 MR MACLEAN: It’s not that far off, but this category of 14 that there was anything improper about any communication 15 documents is obviously a fairly -- it ’s potentially 15 that he had with Mr Swantee. 16 a discrete category of documents. Outgoing and incoming 16 MR JUSTICE ROTH: Yes. That recording, can you just remind 17 communications with respect to these custodians who have 17 me, the fact that it was recorded, is that in the answer 18 been identified . So it is a fairly discrete category 18 to the further information requests? 19 which could be done ( inaudible ). It will enable the 19 MR MACLEAN: No, my Lord, that comes -- Clifford Chance 20 defendants to see whether there is any further 20 revealed that in correspondence -- 21 disclosure which it is necessary to pursue. 21 MR JUSTICE ROTH: It was in correspondence. 22 Now, your Lordship’s reasoning yesterday in relation 22 MR MACLEAN: -- on 4 May. 23 to the BC Partners document was that that would enable 23 MR JUSTICE ROTH: Yes. Thank you. 24 EE to ask for further documentation in relation to 24 MR MACLEAN: Now, it is possible -- I can’t say, standing 25 BC Partners. These communications are likely , in my 25 here, I don’t know what’s in these documents, obviously.
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1 submission, to be of at least equal significance to the 1 It is possible that we may find that there are other 2 material which your Lordship has said EE should have. 2 communications of a similar nature which certainly will 3 MR JUSTICE ROTH: Yes. 3 require further investigation and it is much better for 4 MR MACLEAN: And indeed -- 4 the conduct of this litigation , given the allegations 5 MR JUSTICE ROTH: But that was -- Mr MacLean, that was 5 which are made in it , that that be done sooner rather 6 because I refused any other disclosure -- 6 than later . 7 MR MACLEAN: Yes. 7 So, in our submission, at the end of the day there 8 MR JUSTICE ROTH: -- in that area. So that was why I said 8 is nothing really to be said against it other than, "Oh, 9 early , whereas here, inter -MNO communications is clearly 9 well , you will get it at the end of the day"; but it is 10 a category that has to be covered, looked at and gone 10 better , in our submission, that this discrete category 11 through. I ’m sure it is convenient to get the more 11 of documents be handed over now, rather than have to 12 relevant documents early. That’s true in all 12 wait. 13 litigation . 13 Let me move on now to the question of personal 14 MR MACLEAN: My learned friends say, for example: well, if 14 devices ( inaudible ). As your Lordship indicated in the 15 you receive these early , you’ ll simply start some hares 15 course of the previous case management conference, and 16 running. That may or may not be right, depending on 16 indeed as your Lordship’s opening remarks in this case 17 what these documents contain. They may be entirely 17 management conference suggested, there ought to be 18 irrelevant , in which case it is unlikely any hares will 18 intensive searches in relation to at least those who are 19 start to run. But they may not be. In our respectful 19 identified as custodians , given the nature of the 20 submission, if the position is that these hares may 20 allegations in the case. 21 start running, it is better that the starting gun be 21 One of the concerns that we have, given the 22 fired in July rather than we wait until the end of 22 information which we seek, is about the lack of 23 January 2021. 23 retention , which is fairly widespread. I don’t suggest 24 MR JUSTICE ROTH: Yes. 24 that nobody has retained anything because plainly they 25 MR MACLEAN: The costs of the exercise must be modest. 25 have. We know that Vodafone have retained at least some
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1 records of electronic communications. 1 write -- I see you are asking for an order . 2 But, given the possibility , which is exemplified in 2 MR MACLEAN: We are asking -- 3 spades by what we now know is missing from Mr Swantee’s 3 MR JUSTICE ROTH: Your draft order. 4 iPad, we’re seeking a very modest indication/order from 4 MR MACLEAN: We do press it in terms of an order. If they 5 the court that the defendants ought to take steps to 5 say "no way", obviously we want an order from the court . 6 secure access to personal mobile phone devices and 6 MR JUSTICE ROTH: Yes. 7 personal email accounts from their custodians . 7 MR MACLEAN: As I have said, the personal device, 8 Now, as I say, I don’t have this argument against 8 Mr Swantee’s iPad, provides a clear example of why it 9 Mr Pickford because Clifford Chance have said they will 9 isn ’ t necessarily possible when one is dealing with 10 investigate the practicalities and will revert . So 10 these electronic devices to draw a firm dividing line 11 essentially that argument between us has been parked. 11 between the personal and the official . It may have been 12 But all the other defendants -- 12 Mr Swantee’s personal iPad, he may have watched movies 13 MR JUSTICE ROTH: So you’re not seeking any order against 13 on it , whatever, but he made, it appears from what we’re 14 EE? 14 told , a very significant recording . 15 MR MACLEAN: No, my Lord, and I don’t actually need to seek 15 Now, in my submission, there is no harm in requiring 16 an order against any of the other defendants if 16 the defendants -- 17 your Lordship indicates that they ought to take steps , 17 MR JUSTICE ROTH: No, I understand the point. 18 proper steps , reasonable steps , to secure agreement by 18 MR MACLEAN: -- to do what we’re asking them to do. 19 their custodians to access to their personal devices . 19 MR JUSTICE ROTH: Yes. 20 All they need to do is write to them and say, "Will you 20 MR MACLEAN: They say it will put their existing employees 21 please give us access to your mobile phone and personal 21 in an invidious position . We don’t understand that. 22 email accounts for the purposes of conducting searches 22 MR JUSTICE ROTH: No, well, I don’t think you need address 23 in relation to the issues in this action?" Now, those 23 me further on it . 24 individuals can either say "yes" or "no", but if they 24 MR MACLEAN: In that context then, my Lord, that’s all 25 say "yes ", there isn ’ t a problem. If they say "no", 25 I want to say about that.
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1 well , then, we know what the position is . They won’t 1 MR JUSTICE ROTH: Mm. 2 give access . We know what has been asked of them and 2 MR MACLEAN: Can I then move on to the question of telephone 3 then we can decide whether we need to make any further 3 call records . This arises in this way: the Vodafone 4 form of application by way of third party disclosure . 4 defendants, who have indicated that certain mobile phone 5 MR JUSTICE ROTH: They may not be entitled to say "no", 5 data -- work mobile phone data may no longer be 6 depending on the terms of their contracts of employment. 6 available , have agreed to carry out searches of mobile 7 MR MACLEAN: Yes. We simply don’t know. 7 phone bills of their custodians , certain of their 8 MR JUSTICE ROTH: You’re not asking at the moment for the 8 custodians , against mobile phone numbers from other 9 contracts of employment? 9 MNOs. 10 MR MACLEAN: No, my Lord. 10 So you can see , for example, just taking an example, 11 MR JUSTICE ROTH: But -- I don’t know, but it is not unknown 11 if Mr Colao was calling up Mr Swantee on his mobile 12 for a contract to contain a clause that you have to 12 phone number, that will be revealed . 13 co-operate with the employer -- 13 Now, it is true that the mobile phone bills search 14 MR MACLEAN: Yes, indeed. 14 showing calls to and duration of calls to other MNOs’ 15 MR JUSTICE ROTH: -- when facing litigation or third party 15 numbers is not a good substitute for a record of the 16 claims and that might include a right to access . 16 call , but if there isn ’ t a record of the call that ’s the 17 MR MACLEAN: It might. We haven’t sought to investigate 17 best that one can do. 18 that . We’re still at the first stage of simply 18 MR JUSTICE ROTH: You’re now talking, to be clear, this is 19 saying : we want you to do this . They for the most part 19 now the -- not personal devices . 20 have not agreed. EE has taken steps to investigate 20 MR MACLEAN: These are work devices. 21 practicalities . 21 MR JUSTICE ROTH: Work devices. 22 MR JUSTICE ROTH: Yes. 22 MR MACLEAN: So it may well be important, where there are no 23 MR MACLEAN: We don’t need an order of the court if 23 underlying records , to identify who had conversations 24 your Lordship indicates -- ( inaudible - overspeaking) 24 with whom at the other MNOs. It may, for example, 25 MR JUSTICE ROTH: Well, if they say they don’t want to 25 permit an inference of co-ordinated or concerted
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1 decision -making. Your Lordship will know from the 1 MR MACLEAN: Vodafone have given two of those (inaudible), 2 pleadings that there is an assertion that towards the 2 and that appears -- and Mr McQuater raised his eyebrows. 3 end of the life of the contract between Phones 4u and 3 That appears in a letter of 1 July -- 4 the other MNOs, there appeared to be a co-ordinated 4 MR JUSTICE ROTH: Yes. I thought Vodafone have -- they’ve 5 approach towards telling Phones 4u that they were out, 5 agreed, I thought, to carry out -- 6 and that decisions appear to have been made, to an 6 MR MACLEAN: They have agreed to give two. They haven’t 7 objective observer , in a co-ordinated fashion . 7 agreed to give in respect of all of them. 8 Now, if there are mobile phone bills which show 8 MR MCQUATER: No, my Lord, we have agreed to give four. To 9 calls passing between these various MNOs, then that may 9 be clear , it is itemised phone bills , work phones. 10 be highly significant . 10 MR JUSTICE ROTH: Yes. 11 MR JUSTICE ROTH: And to be quite clear what you’re asking 11 MR MCQUATER: Colao, Humm, Jeroen Hoencamp and Cindy Rose. 12 for on this -- 12 My Lord the reason why we did that, and we’re very clear 13 MR MACLEAN: Yes. 13 about that, is because in the case of -- it ’s to make up 14 MR JUSTICE ROTH: -- is it spelled out in the draft order? 14 for data loss . It relates to the data loss issue 15 MR MACLEAN: My Lord, it may not be in as clear terms as 15 because that , in the case of Mr Colao and Mr Humm, it 16 your Lordship would like to see . It ’s not in the order , 16 would have been available on the data that was lost . 17 my Lord. 17 MR JUSTICE ROTH: Yes. 18 MR JUSTICE ROTH: It’s not in the order at all . Is it in 18 MR MCQUATER: In the case of Rose and Hoencamp, their call 19 the applications ? 19 log data was incomplete on the phones that we had. It 20 MR MACLEAN: I had thought it was in, but ... 20 was because of that ( inaudible ) that gap. We have not 21 It ’s fair to say that -- it ’s not in the order , but 21 made an offer to go wider than that and we say wider 22 it ’s fair to say this has been prompted by Vodafone’s 22 than that is disproportionate . 23 offer to do it for a limited number of their custodians . 23 MR JUSTICE ROTH: Yes, well -- 24 Our position is : well , if Vodafone are going to do it , 24 MS DEMETRIOU: My Lord, can I just complete the picture for 25 it ought to be done by all of the defendants in relation 25 Orange.
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1 to all of their custodians . 1 MR JUSTICE ROTH: Yes. 2 MR JUSTICE ROTH: So this is -- 2 MS DEMETRIOU: The claimants confirmed in correspondence, 3 MR O’DONOGHUE: (inaudible) but we were told in a letter of 3 and you will see this at {C/627/2}, at paragraph 4.2, 4 29 June, paragraph 8. It ’s at C62 ... 4 that they’ re not pursuing this application against us. 5 (Missing audio) 5 MR JUSTICE ROTH: Well, I think, Mr Maclean, you should 6 MR O’DONOGHUE: ... make sure that that’s the position. 6 consider this -- 7 MR MCQUATER: My Lord, Deutsche is in the same boat. 7 MR MACLEAN: I will, my Lord. 8 MR MACLEAN: I’m sorry if I’m making a submission which has 8 MR JUSTICE ROTH: -- and issue an application so we know -- 9 been undercut by correspondence I ’m not aware of. My 9 MR MACLEAN: Certainly, my Lord. 10 understanding as far as Telefónica is concerned ... 10 MR JUSTICE ROTH: -- (a) it’s not in the application , (b) as 11 (Missing audio) 11 against whom -- 12 MR MACLEAN: ... we’re taking that under advisement. 12 MR MACLEAN: And I’m sorry -- 13 MR JUSTICE ROTH: But isn’t it better that there is actually 13 MR JUSTICE ROTH: I can say, if that helps, that where there 14 an application for this , so that we can be clear against 14 has been data loss , as in the case of Vodafone, I am 15 who? 15 sympathetic in principle to what you are seeking because 16 MR MACLEAN: Yes. 16 it is a second-best and I hope that may secure some 17 MR JUSTICE ROTH: Because at the moment -- 17 agreement from the various defendants, but I think we 18 MR MACLEAN: I’m happy to come back with an application that 18 should park that . 19 we can get that on by the end of terms, as your Lordship 19 MR MACLEAN: I apologise -- 20 suggested. 20 MR JUSTICE ROTH: There seems to be rather confusion. 21 MR JUSTICE ROTH: Yes, well, you can, but at the moment it’s 21 MR MACLEAN: -- if I have rather stumbled over this in terms 22 not quite clear against -- you said it ’s not as against 22 of not quite carrying in my head -- 23 Vodaphone. I think -- 23 MR JUSTICE ROTH: Well, there’s a lot to deal with. But 24 MR MACLEAN: It is against Vodafone, yes. 24 I think we’ ll park that . 25 MR JUSTICE ROTH: It is against Vodafone? 25 MR MACLEAN: In connection with data that has or has not
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1 been retained , I want to address your Lordship on the 1 a fortiori , we would say, this is a prime candidate 2 Vodafone spreadsheet that we discussed yesterday . 2 ( inaudible ) and which may enable further searches to be 3 Your Lordship will recollect that steps were taken to 3 conducted in good time for standard disclosure . So we 4 preserve data and specifically text messages. Those 4 ought to have that document and there ought to be no 5 were saved into a hard drive which went missing. 5 argument about it. Given the unfortunate history of the 6 MR JUSTICE ROTH: Yes. 6 apparent data loss , it would be better if that 7 MR MACLEAN: Mr McQuater told you yesterday that Vodafone 7 information was shared with us in its entirety now. 8 had successfully "hacked" the spreadsheet of the data, 8 Now, the remaining issue that I have with regard to 9 which was password-protected, and was proposing to 9 the defendants’ disclosure relates to issues of 10 disclose that on 29 January. 10 unfiltered searches . Now, your Lordship may say -- I ’m 11 MR JUSTICE ROTH: Mm. 11 not inviting your Lordship to say this -- this is 12 MR MACLEAN: Now, we say that that particular document, that 12 a matter which can be put off for further debate in 13 spreadsheet , is a particularly good candidate for 13 correspondence and further debate in front of the Master 14 disclosure now. It apparently contains text messages 14 or before the court at a later date, but can I explain 15 passing between senior individuals at Vodafone to other 15 to your Lordship what the issue is . 16 MNO members. It is likely to be a very material 16 MR JUSTICE ROTH: Mm. 17 document and there can be no problem whatsoever, in our 17 MR MACLEAN: And taking Vodafone as an example, the first 18 submission, to Vodafone making that document available 18 category of unfiltered searches we seek, and that is 19 now. 19 searches which don’t apply keywords but simply require 20 We understand from the correspondence that Vodafone 20 the reviewer to review all of the documents which fall 21 have said that they need to review the content of these 21 into the category -- 22 messages, but these messages are messages which 22 MR JUSTICE ROTH: Yes. 23 presumably passed between the individuals at these 23 MR MACLEAN: -- are documents between the Vodafone 24 organisations , high- level individuals , prior to 2015, 24 custodians . There are 17 of them, as Mr McQuater told 25 because that ’s when, apparently , they were preserved . 25 your Lordship yesterday , and all of the email addresses
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1 MR JUSTICE ROTH: Yes. 1 within the first to third and sixth to eighth 2 MR MACLEAN: And they’re highly likely to represent material 2 defendants. So that’s EE, its parents and the 3 information in relation to this case. 3 Telefónica defendants. 4 Now, it is difficult to see what form of redaction 4 So we are saying that those communications should be 5 would be necessary in relation to text messages passing 5 reviewed without keywords. As one has seen from the 6 between senior individuals at these various 6 disclosure of the hit reports , there are only 618 of 7 organisations . 7 these documents. That is not an onerous task -- 8 MR JUSTICE ROTH: Well, they might be relevant to this case. 8 MR JUSTICE ROTH: Yes. 9 MR MACLEAN: They might be -- 9 MR MACLEAN: -- to conduct. Given the nature of the 10 MR JUSTICE ROTH: They might be about 5G development. 10 allegations in this case and the importance of such 11 MR MACLEAN: They might be about 5G development. 11 documents, they ought to be subject to unfiltered 12 MR JUSTICE ROTH: Who knows. 12 review . 13 MR MACLEAN: The fact of a communication itself may be 13 MR JUSTICE ROTH: Yes. 14 relevant , never mind the content. The fact that these 14 MR MACLEAN: That’s the sort of issue that I’m addressing 15 individuals communicate on an informal basis may be 15 under the heading of unfiltered review . Does 16 highly relevant . 16 your Lordship wish me to continue, because there are -- 17 MR JUSTICE ROTH: Yes. 17 there ’s a sort of scale of these . That’s an easy one to 18 MR MACLEAN: So we -- 18 explain . 19 MR JUSTICE ROTH: Well, this goes back to your early 19 MR JUSTICE ROTH: Yes. 20 disclosure application . 20 MR MACLEAN: The others are slightly more complicated. 21 MR MACLEAN: It does. 21 MR JUSTICE ROTH: Well, if disclosure is going to start -- 22 MR JUSTICE ROTH: Yes. 22 the exercise of disclosure is going to start now, it 23 MR MACLEAN: This is a prime candidate for early disclosure . 23 will be important to establish what has to be done. 24 With great respect , my Lord, if it is appropriate to 24 MR MACLEAN: Exactly, the parameters. 25 order early disclosure of the BC Partners document, 25 MR JUSTICE ROTH: So I would have thought, if there’s quite
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1 a difference between the filtered search and unfiltered 1 it was from the custodians to anything with that email 2 search , I don’t know how broad the categories of 2 address -- 3 unfiltered search are that you are seeking . 3 MR MACLEAN: That’s right. That’s what the spreadsheet 4 MR MACLEAN: They are essentially -- 4 shows. 5 MR JUSTICE ROTH: But it may be helpful at least for me to 5 MR JUSTICE ROTH: Yes. And the Telefónica spreadsheet you 6 understand what they are . 6 get -- 7 MR MACLEAN: Yes. 7 MR MACLEAN: I haven’t shown you the Telefónica spreadsheet. 8 MR JUSTICE ROTH: I appreciate it is probably in your 8 MR JUSTICE ROTH: No. Do we have that? 9 skeleton and I may have not focused on it -- 9 MR MACLEAN: It’s rather more complicated, the Telefónica 10 MR MACLEAN: No, no. 10 spreadsheet , in terms of its presentation , but the 11 MR JUSTICE ROTH: -- sufficiently, but the -- then we can 11 underlying data shows that there are , again, a very 12 see where to take it . 12 limited number, a couple of hundred communications 13 MR MACLEAN: Fine. So you have -- against Vodafone -- 13 between Telefónica and the other MNO defendants. 14 MR JUSTICE ROTH: Yes. 14 MR JUSTICE ROTH: From the Telefónica custodians and the 15 MR MACLEAN: And this question only arises, my Lord, as 15 other -- 16 I understand it , as between Vodafone and us and 16 MR MACLEAN: Correct, yes. 17 Telefónica and us, because agreement has been reached 17 MR JUSTICE ROTH: Yes. 18 between EE, Orange and Deutsche, so far as unfiltered 18 MR MACLEAN: Telefónica is -- the unfiltered searches I ’m 19 searches are concerned. So we’re only concerned with 19 seeking against Telefónica are different . They’re not 20 the searches by Vodafone and Telefónica. 20 the same as this . They have agreed to equivalent 21 So the first category that we seek an unfiltered 21 searches . They have agreed to two unfiltered searches . 22 review of , as between the Vodafone defendants and the 22 I ’m just talking about Vodafone at the moment. This is 23 other email addresses of the other defendants, are the 23 a specific Vodafone-focused -- 24 external communications -- 24 MR JUSTICE ROTH: Sorry, I misunderstood that. I thought it 25 MR JUSTICE ROTH: It’s the email ... 25 was -- so this is just Vodafone?
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1 (Missing audio) 1 MR MACLEAN: This is just Vodafone. 2 MR MACLEAN: ... first to third and 6 to 8. 2 MR JUSTICE ROTH: Yes. Yes, I understand. 3 MR JUSTICE ROTH: Sorry, first -- I thought it -- does it 3 MR MACLEAN: Let’s get up the spreadsheet. 4 include the second and third , is the question? 4 MR JUSTICE ROTH: I think I have it. 5 MR MACLEAN: Yes. 5 MR MACLEAN: It’s at {C/610.1/1}. That shows the outgoings 6 MR JUSTICE ROTH: You want the pair? 6 from custodians at Vodafone to all the other domain 7 MR MACLEAN: Yes. 7 names. When one looks in the various tabs, Mr Colao’s 8 MR JUSTICE ROTH: So it is all the other defendants, yes . 8 tab, Mr Humm’s tab -- 9 MR MACLEAN: Yes. I mean, if it helps your Lordship to look 9 MR JUSTICE ROTH: C/610? 10 again at the spreadsheet , you’ ll see ( inaudible ) your 10 MR MACLEAN: {C/610.1/1}. 11 Lordship ( inaudible ). 11 MR JUSTICE ROTH: Just pause. (Pause) 12 MR JUSTICE ROTH: Yes. No, I remember that. 12 Yes. 13 MR MACLEAN: So, as I say, there were only about 600 13 MR MACLEAN: Right. There your Lordship has it. 14 communications revealed; 618, in fact . That’s entirely 14 MR JUSTICE ROTH: Yes. 15 manageable for an unfiltered view. 15 MR MACLEAN: A grand total of 618 communications between the 16 MR JUSTICE ROTH: But 618, that is Vodafone or both? 16 Vodafone custodians, of whom there are 17, to all the 17 MR MACLEAN: That’s Vodafone to all the other domain names. 17 domain names. 18 MR MCQUATER: (inaudible) other custodians. That’s other 18 MR JUSTICE ROTH: Yes, and a significant proportion are from 19 defendants. 19 one individual ; yes . 20 MR JUSTICE ROTH: I mean, that’s -- 20 MR MACLEAN: Yes. The various tabs, which come after 21 MR MACLEAN: No, that’s not right. 21 "Hits ", "Colao", for example, show you with whom Colao 22 MR JUSTICE ROTH: Well, can I just be clear. Is it - can we 22 was communicating by sending emails. I have already 23 go to -- 23 shown your Lordship examples of that . 24 MR MCQUATER: I’ll check that. 24 MR JUSTICE ROTH: Yes. I understand. 25 MR JUSTICE ROTH: Yes (inaudible - overspeaking). I think 25 MR MACLEAN: So it is not simply custodian to custodian; it
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1 is custodian at Vodafone, outward-going. 1 came back and said, well , that will cover thousands of 2 MR JUSTICE ROTH: Understood. 2 emails . 3 MR MACLEAN: We want an order that they review those and 3 MR JUSTICE ROTH: Yes. 4 disclose relevant documents from that pool. 4 MR MACLEAN: So it’s too extensive. And so we’ve come back 5 MR JUSTICE ROTH: Yes. 5 and made a proposal, which is at C636, pages 6 to 8, of 6 MR MACLEAN: Now, if there was a proportionality concern 6 a more narrowed search, and we’re now proposing 1 7 about this , which there isn ’ t , we would obviously listen 7 October 2013 to 31 October ... 8 to any sensible proposal , but Vodafone say: it doesn’t 8 (Missing audio) 9 matter how many documents there are, we’re not doing 9 MR JUSTICE ROTH: Because these people are within the 10 this search because this is all speculative . 10 organisation dealing with each other ... 11 Well, that , in our submission, isn ’ t an answer in 11 (Missing audio) 12 relation to these particular emails . 12 MR JUSTICE ROTH: ... your first one. 13 MR JUSTICE ROTH: Yes, right. That’s that one. 13 MR MACLEAN: I accept it is. I accept that it ’s broader. 14 MR MACLEAN: Right. The next category as regards Vodafone 14 MR JUSTICE ROTH: I mean, I don’t find that, I have to say, 15 relates to internal emails . That’s between Vodafone 15 very attractive . You’re going to get -- they’ re going 16 custodians . So ... 16 to be searched using keywords. You’ve had all your 17 (Missing audio) 17 exchanges about keywords and you can add and discuss and 18 MR MACLEAN: ... now we’re looking at internal unfiltered 18 whatever, which presumably will cover Phones 4u, 19 emails . 19 CarphoneWarehouse and so on. So you’ll in the first 20 MR JUSTICE ROTH: Between custodians? 20 instance pick up quite a lot . You’ ll read those, and 21 MR MACLEAN: Between custodians. And, as your Lordship 21 you’ ll then get a pretty clear sense of whether there 22 knows, as far as my clients are concerned, Phones 4u, 22 seem to be things missing . 23 search 4, we have agreed to conduct very extensive 23 MR MACLEAN: Yes. 24 searches as between our own custodians, an unfiltered 24 MR JUSTICE ROTH: And I really think, I have to say, without 25 email review in respect of the new custodians. That’s 25 even hearing from the defendants, that this is
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1 search 4 that we’ve agreed to carry out. 1 premature. To look at -- people send, as we all know, 2 MR JUSTICE ROTH: Mm. 2 within an organisation these days -- and "these days" I 3 MR MACLEAN: Now, we originally proposed some broad internal 3 include 2014 -- an almost uncontrollable number of 4 email searches in relation to Vodafone custodians and 4 emails , and I think that really is disproportionate . 5 those have been narrowed in correspondence. The first 5 MR MACLEAN: Can I make just two points in response to what 6 proposal relates to emails passing between Cindy Rose 6 your Lordship has just said . What is particularly 7 and Jeroen Hoencamp. We originally proposed that they 7 important about these communications comes from what 8 should carry out a review of internal emails between 8 your Lordship has just said : the unguarded nature of -- 9 those two individuals between 1 June 2012 and 9 MR JUSTICE ROTH: Yes, well, I see that, but that will 10 31 October 2014. 10 emerge, I think , on the searches , because it ’s 11 Now, I don’t know if your Lordship wants me to show 11 unguarded. They’re not going to be so careful as when 12 you, but Ms Rose and Mr Hoencamp feature heavily in the 12 dealing with people in external organisations . But if 13 pleadings . 13 they are , you will start to see that something is 14 MR JUSTICE ROTH: Yes. 14 incomplete, or raises questions when you get the 15 MR MACLEAN: I can show your Lordship the pleadings if you 15 keyword-searched emails . 16 wish me to, but if your Lordship will take it from me 16 MR MACLEAN: Yes. 17 that they do feature heavily ... 17 MR JUSTICE ROTH: So I think that’s -- and bear in mind, I 18 (Missing audio) 18 am sympathetic to your position as a claimant with a 19 MR MACLEAN: ... and so they obviously had internal 19 total asymmetry of information. I ’ve got all that on 20 communications about this and about their position 20 board. Nonetheless, we’ve got to behave proportionately 21 vis -a- vis CarphoneWarehouse. So we’re seeking 21 and indeed we’re under an express direction through a 22 unfiltered emails between those two key ... 22 special Practice Direction for competition claims that 23 (Missing audio) 23 emphasises the need for proportionality . So I really 24 MR MACLEAN: ... essentially the ( inaudible ) date range 1 24 think this is premature. 25 June to ( inaudible ) October 12 to October 14. Vodafone 25 MR MACLEAN: I’m not going to say any more.
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1 MR JUSTICE ROTH: And I really don’t need to hear from 1 understand at this stage why that is likely , why on 2 anyone else . 2 earth people communicating internally won’t, as it were, 3 MR MACLEAN: Right, now, the second unfiltered search that 3 call a spade a spade and will -- 4 we propose is across a very narrow field . 4 MR MACLEAN: Yes. That’s all I want to say about that. 5 MR JUSTICE ROTH: A third, I think, because that was the 5 MR JUSTICE ROTH: Yes. Any other category? 6 second. The third , yes . 6 MR MACLEAN: Yes. We seek a very narrow time range of 7 MR MACLEAN: Across a very narrow field. On 7 1 August to 15 October 2014 in relation to 8 12 September 2012 to 31 October 2012 between 8 communications with Mr Hoencamp, Ms Rose, Mr Tubb and 9 Mr Guy Laurence, who was the former chief executive 9 Mr Robertson. Tubb and Robertson were the two most 10 officer of Vodafone UK, and Justine Campbell, who, as 10 prominent members of the team which dealt with Phones 4u 11 I understand it , was a general counsel ... 11 on a day-to-day basis . 12 (Missing audio) 12 MR JUSTICE ROTH: Sorry, can you just remind me, they’re all 13 MR MACLEAN: ... This arises, my Lord, out of the 13 at which company? 14 revelations -- 14 MR MACLEAN: Vodafone. 15 MR JUSTICE ROTH: Sorry, just give me a moment. I’ll make 15 MR JUSTICE ROTH: They’re also Vodafone. 16 sure -- yes , 12 September to 31 October. 16 MR MACLEAN: Yes. 17 MR MACLEAN: Yes. 17 MR JUSTICE ROTH: Yes. 18 MR JUSTICE ROTH: Yes. 18 MR MACLEAN: We’re still focused on internal Vodafone 19 MR MACLEAN: Now, this arises out of the revelations by EE 19 searches . 20 in its defence or the approach which EE alleges 20 MR JUSTICE ROTH: Yes. 21 Mr Laurence of Vodafone made to Mr Swantee, I think, on 21 MR MACLEAN: These two were the -- Tubb and Robertson were 22 about 10 October 2012 in order to discuss prices in 22 the most prominent members of the commercial team that 23 relation to 4G. I think the suggestion is that 23 dealt with Phones 4u. In the final few weeks when they 24 Mr Laurence had a call from Mr Swantee in order to 24 were proposing to terminate the relationship and give 25 discuss . 25 notice to Phones 4u of the contract , there are likely to
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1 So we also are told by EE’s defence that Mr Blendis, 1 have been communications between these key people which 2 in -house legal counsel for EE, protested the approaches 2 we say ought to be reviewed on an unfiltered basis , 3 which had been made by Mr Laurence amongst others -- 3 rather than with any keyword search. The period is very 4 MR JUSTICE ROTH: Yes. 4 short and ... 5 MR MACLEAN: -- at O2. So it is likely , if one conducts 5 (Missing audio) 6 a narrow, focused search of Vodafone’s documents in 6 MR MACLEAN: ... searches, whether it may or may not, in 7 relation to that period , that one will pick up the 7 order to avoid any debates at a later date, it ’s better 8 important and relevant documents. 8 to conduct it in an unfiltered way. 9 MR JUSTICE ROTH: Why will that not be picked up on 9 The final category of unfiltered between Vodafone 10 a filtered search? 10 custodians relates to Mr Colao and Mr Humm, the two 11 MR MACLEAN: Well, Mr Laurence’s approach was oral. One 11 alleged recipients of the communications and the 12 doesn’t know whether he had discussed that approach with 12 commitments from Telefónica. And we say that if those 13 anyone before he went. 13 commitments were given, inferentially they were given in 14 MR JUSTICE ROTH: Yes. 14 response to something passing the other way from 15 MR MACLEAN: And we don’t know whether it is right that 15 Vodafone. There would have been a quid for the quo. 16 Mr Blendis protests as he said he did . We have to take 16 And given the importance of those individuals , a search 17 that at the moment on face value. 17 ought to be conducted on an unfiltered basis as between 18 MR JUSTICE ROTH: Mm. 18 those individuals for the period 1 June 2012 to 19 MR MACLEAN: We don’t know whether O2 has ... 19 31 October 2014. 20 (Missing audio) 20 Now, sitting here I can’t tell you how many emails 21 MR JUSTICE ROTH: ... narrow, unfiltered? 21 might be produced. It may be a lot , it may not be. 22 MR MACLEAN: Unfiltered search. 22 But, given their importance in the story , our submission 23 MR JUSTICE ROTH: But I’m not sure why you won’t see if you 23 is that , given the possibility for the use of 24 get a filtered search . You’re assuming that the names 24 euphemisms, these should be subject to unfiltered 25 you use will not lead to the relevant email. I don’t 25 review . That’s as far as it goes.
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1 MR JUSTICE ROTH: Yes. 1 So they have agreed to conduct a search of those 2 MR MACLEAN: We say that they fall into a special category 2 emails . 3 so far as Vodafone are concerned as the recipients and 3 Now, as far as the remaining unfiltered searches 4 inferentially the givers of ( inaudible ). 4 that we seek from them and they resist , we press for 5 MR JUSTICE ROTH: So are you saying the unfiltered search of 5 emails between Mr Dunne and Mr Mackle. The reason we 6 those two gentlemen -- 6 seek Mr Dunne is obvious, because he seems to play an 7 MR MACLEAN: Yes. 7 important role in approaching other MNOs and in 8 MR JUSTICE ROTH: -- between 1 June 2012 and 8 informing us of commitments which have been made at 9 31 October 2014 -- of what? 9 a higher level . 10 MR MACLEAN: Communications between them. 10 Can I explain why we seek communications with him 11 MR JUSTICE ROTH: Between the two of them? 11 and Mr Mackle -- 12 MR MACLEAN: Yes. Internal communications between the two. 12 MR JUSTICE ROTH: Sorry, I may have misheard. What was 13 I mean, if Vodafone come back and say, well, that means 13 agreed to in the first category , you said emails between 14 10,000 documents or 5,000 documents or 2,000 and it ’s 14 Dunne/Smith -- 15 not manageable, then we’ ll listen to them. 15 MR MACLEAN: Mackle. 16 Now, that amounts to the position so far as Vodafone 16 MR JUSTICE ROTH: Dunne/Mackle? 17 is concerned. 17 MR MACLEAN: Yes. 18 So far as Telefónica is concerned, I hope I can take 18 MR JUSTICE ROTH: So what are you now asking for? 19 that more quickly . They have, as I understand it , 19 MR MACLEAN: This relates to a broader period, my Lord. The 20 agreed to two unfiltered searches . We’re proposing two 20 period -- 21 further . 21 MR JUSTICE ROTH: Ah, that was just in January. So the same 22 Can I tell you what the agreed searches are , first 22 two but a longer period is what you are saying? 23 of all . Mr Hoskins will correct me if I ’m wrong about 23 MR MACLEAN: Yes. 24 this . They have agreed an unfiltered search across the 24 MR JUSTICE ROTH: Yes, I see. 25 period 1 January 2014 to 31 January of all emails 25 MR MACLEAN: They had agreed to give us January 2014 to
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1 passing between any of Mr Dunne, Mr Mackle, Mr Smith, 1 31 January. 2 Mr Bridgett and Mr Evans. 2 MR JUSTICE ROTH: Yes. So you are wanting it for which 3 Now, that period, 1 January 2014 to 31 January 2014, 3 period? 4 focuses on the period during which Mr Dunne informed, we 4 MR MACLEAN: We wanted it for 1 September 2012 to 5 say, Mr Swantee of the commitments which had been given 5 31 December 2012, a period of -- 6 by Telefónica to Vodafone Group. We say it is important 6 MR HOSKINS: This one, I think you’re looking for 7 to conduct an unfiltered search of those communications 7 1 September 2011 to 15 September 2014. 8 between those individuals , and Telefónica has agreed to 8 MR MACLEAN: Yes, but that is what they rejected, and this 9 do that . 9 is what we are asking . 10 Equally , Telefónica has agreed to conduct a search 10 MR JUSTICE ROTH: So you have narrowed ... 11 at the level of the parent companies. It is a search 11 MR MACLEAN: This is what we’re proposing now. 12 across the default range of all emails between 12 MR HOSKINS: Can you tell me again? 13 Mr Alierta and Ms Sanz. Those are the individuals who 13 MR MACLEAN: 1 September 2012 to 31 December 2012. 14 are mentioned at paragraph 54 of the particulars as 14 MR JUSTICE ROTH: Would -- 15 having respectively given commitments to Mr Colao of 15 MR MACLEAN: That is the period in which -- 16 Vodafone and Mr Humm of Vodafone. As I say, that is 16 MR JUSTICE ROTH: Would it not be sensible, as it looks -- 17 a search which Telefónica has agreed to perform. 17 I get the impression that this has been the subject of 18 MR JUSTICE ROTH: Over what period? 18 recent correspondence. 19 MR MACLEAN: Over the default period, which is 2011 -- 19 MR MACLEAN: I’m not sure, to be fair to my learned friend , 20 I think it starts in 2011. Mr Hoskins probably has the 20 that this has. I had understood that it had been. 21 default period . It is a broad range: September 2011 to 21 MR JUSTICE ROTH: Yes, but this has been a moving feast over 22 31 October 2014. 22 the past few weeks. 23 MR HOSKINS: It is actually from January 12. It is 23 MR MACLEAN: Very much so. 24 a different default range for the Tef SA/Tef Europe -- 24 MR JUSTICE ROTH: And there’s been, very sensibly, some give 25 MR MACLEAN: I am grateful for that correction. 25 and take on both sides .
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1 MR MACLEAN: Yes. 1 CarphoneWarehouse personnel. Now, you can see the 2 MR JUSTICE ROTH: We should park these points so that, as 2 details of what had been sought. If we can please bring 3 regards particularly Telefónica , who have agreed to 3 up the Quinn Emanuel letter of 29 June 2020, 4 a certain extent , you now want to seek some more, but 4 paragraph 7.3, which is {C/622/3} -- 5 you had sought more, they had refused , you are now 5 MR MACLEAN: My Lord, I’m sorry to interrupt my friend. My 6 seeking rather less in addition , they haven’t had 6 understanding is that there was correspondence on 1 July 7 a chance to respond, so that you can pursue that out of 7 from my learned friend ’s solicitors explaining the 8 court and, if necessary , come back on it. 8 problem with the large number of hits . 9 MR MACLEAN: I had understood, my Lord, that this had been 9 MR JUSTICE ROTH: Yes. 10 the subject of finalisation in correspondence. I ’m very 10 MR MACLEAN: We are considering that. This one falls under 11 happy to park that -- 11 the advisement. We are considering that . I ’m not going 12 MR JUSTICE ROTH: Yes, I think so. 12 to pursue it today but I ’m not abandoning it. 13 MR MACLEAN: -- on that basis. 13 MR JUSTICE ROTH: Yes. 14 I think , my Lord, that represents the entirety , as 14 MR MACLEAN: It depends whether we can reach some 15 I understand it , of what -- 15 sensible -- 16 MR HOSKINS: Sorry, you said there were two unfiltered 16 MR JUSTICE ROTH: I think, Mr Hoskins, this does therefore 17 applications against us, and that was one, but there is 17 come in the category , if it is not being pursued today, 18 a second one which we are keen to actually have resolved 18 if the claimant seeks to pursue it -- we take your point 19 today because it is quite substantial . 19 and I ’m sure they, having heard it , appreciate it , that 20 MR JUSTICE ROTH: I see. Right. 20 if it is going to be pursued it should be pursued soon 21 MR HOSKINS: So even if Mr MacLean on his feet decides not 21 and resolved by the end of this month. 22 to do it , I actually want him to make this application . 22 MR HOSKINS: I would be grateful if that ’s the position . 23 MR JUSTICE ROTH: Well, I would rather -- he decided not to 23 MR JUSTICE ROTH: That can be sorted out and, if necessary, 24 do it on some pressure from me, I think . 24 it can be the subject of a short application . 25 MR HOSKINS: No, this is a different one. This is a second 25 MR MACLEAN: Of course.
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1 one. 1 MR HOSKINS: I am very happy for that, by the end of this 2 MR JUSTICE ROTH: Yes, but -- 2 month, if it can be -- 3 MR HOSKINS: So this is our search A, which is searches of 3 MR JUSTICE ROTH: Yes. 4 communications concerning external parties . Now, 4 MR MACLEAN: And that, subject to anyone else telling me 5 keywords are used to identify which are the relevant 5 I ’ve forgotten any other of my applications , is what 6 individuals but then no further substantive keywords are 6 I have to say about disclosure . 7 used. So it is unfiltered to that substantive extent . 7 Would that be a convenient moment? 8 So, keywords to identify the relevant parties but then 8 MR JUSTICE ROTH: Yes. So you have finished, and if we are 9 completely unfiltered . 9 going to take a short break that will be a sensible time 10 MR JUSTICE ROTH: Yes. 10 to -- I think we’re all right on time, from what I see , 11 MR HOSKINS: And we have agreed search A, except for our 11 so we’ ll have a short break until , let ’s say, 11.25. 12 communications with CarphoneWarehouse personnel. That 12 (11.14 am) 13 would add over 20,000 hits to our task out of a total of 13 (Short Break) 14 about 84,000-odd hits for all the searches agreed to. 14 (11.25 am) 15 So you’ ll see that ’s a very substantial issue . My Lord, 15 MR JUSTICE ROTH: Yes, Ms Demetriou. 16 echoing your statement that if disclosure is to be done 16 Submissions by MS DEMETRIOU 17 in seven months people need to know what they need to 17 MS DEMETRIOU: May it please your Lordship, Ms Demetriou for 18 do, obviously we need to know whether that is pursued 18 Orange. I ’m going to be dealing with the custodians 19 and if it is pursued we oppose it , and we need to know 19 points that are made against Orange. 20 whether we are going to be ordered to do it because it 20 MR JUSTICE ROTH: Yes. 21 will affect the disclosure process quite substantially . 21 MS DEMETRIOU: Your Lordship will have seen that Orange has 22 MR JUSTICE ROTH: And this is Telefónica UK or -- 22 identified four custodians . Of course, it should go 23 MR HOSKINS: This is -- if you want to see what is being 23 without saying that my instructing solicitors and 24 sought, it is a direction that TUK search for 24 clients have very , very carefully and conscientiously 25 communications between TUK custodians and key 25 considered who are the custodians who are likely to hold
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1 relevant documents in this case. 1 concluding that a particular custodian is likely to hold 2 The basis for selecting these four custodians has 2 relevant documents. 3 been explained on a number of occasions now to the 3 Your Lordship heard Mr MacLean yesterday. There was 4 claimant and it may be that we can take this most 4 really no other basis that was put forward. It was the 5 quickly from our skeleton argument, which summarises the 5 hit reports and the document hold. 6 position at paragraph 29. So that’s at {E3/4/12}. 6 MR JUSTICE ROTH: Well, I think it was also your pleading. 7 So the position as far as we are concerned is 7 MS DEMETRIOU: I’m so sorry? 8 summarised there. At paragraph 29.1 you see the basis 8 MR JUSTICE ROTH: It was also your pleading. 9 on which the four custodians have been selected . So 9 MS DEMETRIOU: Yes, my Lord, in respect of the pleading, the 10 mainly they comprise the board members, as well as -- 10 only point being made at that part of the pleading was 11 the EE board members, as well as a fourth individual , 11 that in monitoring the investment and in exercising the 12 Mr Naulleau, who regularly attended board meetings, even 12 voting rights on the EE board, that was done without 13 though he was not himself a director of EE. 13 collusion . So that was done -- the point we’re making 14 MR JUSTICE ROTH: Yes. 14 there is that of course there was no collusion when 15 MS DEMETRIOU: The key point here is that you can see from 15 Orange decided how its members should vote on the EE 16 subparagraph 3 {E3/4/13} that, apart from those 16 board. Of course, the EE board members who are Orange 17 individuals , the Orange EE board members, no one else 17 personnel are custodians . 18 within Orange had decision-making power or voting rights 18 MR JUSTICE ROTH: Yes. 19 in respect of EE during the relevant period . 19 MS DEMETRIOU: So, my Lord, as regards the hit reports, 20 Then you’ ll see , at subparagraph 5 -- we’re now on 20 Mr MacLean took you, first , to EE’s hit reports and, as 21 page 13 -- that of course, because Orange was the 50% 21 he acknowledged, it is unsurprising , wholly unsurprising 22 parent company of EE, of course Orange monitored their 22 in our submission -- 23 investment in EE. So there are an additional and were 23 MR JUSTICE ROTH: Just one moment. 24 an additional number of persons within Orange, teams and 24 MS DEMETRIOU: Yes. 25 individuals , who were involved in that process of 25 (Pause)
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1 monitoring and reporting on Orange’s investment in EE 1 MR JUSTICE ROTH: But what you say in the defence is that 2 during the relevant period . 2 Orange made assessments of what would be in EE’s 3 But the key point is that those teams reported to 3 commercial best interests . 4 Mr Pellissier , who was the chief financial officer of 4 MS DEMETRIOU: Can you remind me of the paragraph? 5 Orange, who of course is one of the custodians . So, 5 MR JUSTICE ROTH: It is paragraph 60, subparagraph 5, which 6 insofar as those monitoring activities are relevant , 6 is {A/5/39}. 7 then anything relevant will have been sent to him and he 7 MS DEMETRIOU: My Lord, yes. So what we’re saying there is 8 was on the EE board. 8 that of course Orange is the 50% parent company -- 9 Now, the claimant has -- and I should say that in 9 parent owner of EE. As we say -- and I pointed you to 10 relation to the discussion that we’ve just been having 10 the subparagraph in our skeleton argument, 11 about unfiltered and filtered searches , my clients have 11 subparagraph 5, which explains the position . Of course, 12 agreed to conduct unfiltered searches in respect of the 12 as the 50% owner, Orange was careful to monitor the 13 emails of these four custodians . 13 investment and to ensure that when the board 14 Now, the claimant has apparently taken the view that 14 members that Orange provided on the EE board voted, they 15 there are further custodians , or there might be further 15 did so in a way which protected the investment. 16 custodians , who are likely to hold relevant documents, 16 MR JUSTICE ROTH: Yes. So that there would have been 17 and presumably also that it would be proportionate to 17 discussions within Orange about what to do and what its 18 conduct searches of their documents. We disagree. It 18 strategy should be through EE. 19 is notable that the claimant’s approach has 19 MS DEMETRIOU: My Lord, there may well have been discussions 20 conspicuously been a moving feast and wholly 20 within Orange, but our point is that those discussions 21 unscientific . 21 would then have filtered -- would have gone then to the 22 It has based its requests on, first of all , the hit 22 custodians , who were the persons who could actually take 23 reports and, secondly , the document holds imposed by 23 decisions -- 24 Orange before the start of this litigation . We say that 24 MR JUSTICE ROTH: Well, the result of them would have gone 25 neither of these things provide a sound basis for 25 but they may not have been directly involved in all the
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1 discussions , because they’ re quite senior people, and 1 relation to these two, which we say is -- 2 they would have been -- they might have had the decision 2 MR JUSTICE ROTH: Well, yes, that’s what I need to focus on. 3 of how to vote and what should actually be decided and 3 MS DEMETRIOU: -- inadequate. Yes. 4 no doubt they would have received certain material , but 4 But, my Lord, just in terms of where I ’m heading, 5 there would have been others involved as between 5 what we say about these two individuals and indeed the 6 themselves in some discussions . 6 need for any additional custodians in terms of 7 MS DEMETRIOU: My Lord, in relation to that, of course one 7 proportionality is this : of course, Orange’s position , 8 of Mr MacLean’s points was that, well , these people are 8 like DT in this litigation , is different to that of the 9 very senior and there may have been less senior people 9 other MNOs. 10 involved in discussions . 10 MR JUSTICE ROTH: Yes. 11 MR JUSTICE ROTH: Mm. 11 MS DEMETRIOU: But essentially, not entirely, but 12 MS DEMETRIOU: Well, of course, the two custodians that he’s 12 essentially , the case against Orange is one based on 13 now pursuing are themselves very senior people. One of 13 decisive influence and being part of the same single 14 them is the chief executive officer of Orange. 14 economic entity . Not entirely , because they raise what 15 MR JUSTICE ROTH: Yes. 15 is a very thin , at the moment, stand-alone, if I can put 16 MS DEMETRIOU: So -- 16 it that way, case of collusion against Orange itself , 17 MR JUSTICE ROTH: And who had communicated with Mr Swantee. 17 which is wholly unparticularised , apart from one comment 18 MS DEMETRIOU: My Lord, I’m going to come to that point. 18 Mr Pellissier made in the press about not liking 19 MR JUSTICE ROTH: Yes. There are only two people we’re 19 intermediaries generally , which is an extremely 20 talking about, I think . 20 wafer- thin basis on which to advance a case of 21 MS DEMETRIOU: My Lord, two people, yes, but essentially our 21 independent collusion against Orange. 22 submission in relation to those two people is 22 Now, so, the gravitas of the case -- the gravamen of 23 this : there is no proper basis on which to extract those 23 the case is against Orange qua parent company. My Lord, 24 two people and say that they were in any different 24 they’ re getting a huge amount of disclosure from EE, 25 position to the many other people who were operating 25 which is the undertaking which they say is actually
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1 within teams in Orange to monitor the EE investment. 1 involved in the collusion . 2 Those two people are likely to have huge numbers of 2 MR JUSTICE ROTH: Yes. 3 documents, given their positions , most of which are 3 MS DEMETRIOU: So, my Lord, where I’m heading with this in 4 entirely irrelevant , but, my Lord -- 4 terms of proportionality is to say that we have 5 MR JUSTICE ROTH: But so will Mr Pellissier, won’t he; he 5 anxiously considered who are the appropriate custodians ; 6 will have huge numbers that are irrelevant . 6 that , as my Lord indicated yesterday and again today, it 7 MS DEMETRIOU: My Lord, that’s right. 7 is very important to retain a proportionate approach to 8 MR JUSTICE ROTH: They will all have huge numbers that are 8 disclosure in this case. My Lord, if having received 9 irrelevant . 9 and reviewed the disclosure from EE and the substantial 10 MS DEMETRIOU: My Lord, that’s right, but what one has to 10 disclosure which we’re proposing to give , which amounts 11 assess at this stage is the likelihood that these two 11 to some 25,000 documents, it becomes apparent to the 12 other custodians who are being pursued have relevant 12 claimant that either of these two custodians or indeed 13 documents, as compared to the many other people within 13 anyone else within Orange may have relevant documents -- 14 Orange who are monitoring the EE investments. So what 14 and they can put forward -- at that stage they would be 15 marks them out? No adequate explanation has been given 15 able to put forward a far more solid justification for 16 to us. 16 disclosure -- then of course they can apply at that 17 MR JUSTICE ROTH: Well, they’re not seeking everyone because 17 stage . That’s the proportionate approach we say that 18 that would go too far , so they have narrowed it down to 18 should be taken here. 19 say just two. They have explained why. No doubt one 19 Now, my Lord, just going back to the issue which you 20 could start having arguments about others, but that ’s 20 just indicated is the one you really need to focus on, 21 not before the court . 21 which is what explanations have they given , Mr MacLean 22 MS DEMETRIOU: Well, my Lord, can I just explain to you how 22 took you, first of all , to EE’s hit reports . Of course, 23 we’ve got -- in a moment I’d like to explain to you how 23 as he acknowledged, very fairly , these are not very 24 we have got to this position and why it is said , what 24 informative because it is entirely unsurprising that 25 the explanation that they have actually given in 25 communications between a parent and a subsidiary should
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1 take place . So this tells us nothing as to whether 1 in any way at all . 2 these communications are relevant to the issues in this 2 My Lord, the other basis of course was document 3 case. 3 holds . In relation to that , we say that there are two 4 Nor, indeed, do the EE hit reports tell you whether 4 points . The first is that of course document holds are 5 the people involved were actively involved in the 5 unlikely to be informative . You will see that we did 6 communication or just cc’d to another exchange, and they 6 provide the list of names of people that received 7 don’t tell you how any emails involved a particular 7 document holds -- 8 person. 8 MR JUSTICE ROTH: Yes. 9 So where Mr MacLean highlighted Mr Richard 9 MS DEMETRIOU: -- because they’re imposed on a precautionary 10 corresponding with Mr Swantee -- and pausing there , the 10 basis . But, my Lord, in respect of Mr Richard, no hold 11 EE hit reports show a large number of Orange 11 was placed on Mr Richard’s documents at all . We say 12 individuals , as one would expect, communicating with EE 12 that that is revealing because the view has consistently 13 personnel . This could have been a single email in which 13 been taken within Orange that he is unlikely to hold 14 Mr Richard was cc’d and so we say that this in itself 14 relevant documents. 15 shows nothing. 15 So, even though you saw from the correspondence 16 Now, turning to the Vodafone hit reports , and 16 yesterday that there were a large number, a sizeable 17 perhaps we could turn this up, this is at {C/610.1/1}. 17 number of document holds, including a number of persons 18 Perhaps we can download the Excel spreadsheet . 18 who are not being pursued now, Mr Richard was not one of 19 So you will recall yesterday that this is where 19 them. 20 Mr MacLean went next. He alighted on Mr Colao, who is 20 Now, my Lord, we can see -- it is informative , in 21 in row number 10, and said: look, there are 13 or 14 21 our respectful submission, to look at the way in which 22 communications or hits vis -à- vis Orange. 22 the claimant’s position has evolved because this sheds 23 Then he asked you to look at -- if we go to the tab at the 23 light on whether they now have any good reason for 24 bottom with Mr Colao’s name, he asked you to look at 24 seeking the inclusion of these two custodians . 25 Mr Colao’s hits . So what you see there , my Lord, is that , 25 The position is summarised in my solicitors ’ letter
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1 yes , there is a match with Mr Richard. You see that at row 1 of 1 July , which is at {C/637/2}. If you could take it , 2 15. 2 please , from paragraph 7, you’ ll see that once we served 3 MR JUSTICE ROTH: Yes. 3 Orange’s disclosure schedule , the claimant proposed that 4 MS DEMETRIOU: But, equally, there are matches with other 4 six further Orange individuals be added as custodians . 5 people from Orange. So there ’s no indication here that 5 There was a justification about them being copied in to 6 Mr Richard is any more likely to have relevant documents 6 a particular email that had been provided. 7 than any of these other people. 7 MR JUSTICE ROTH: Yes. 8 Now, the other thing that Mr MacLean relied on, of 8 MS DEMETRIOU: Then an explanation was provided and five of 9 course, apart from the hit reports , were document holds. 9 those requests were then dropped. 10 MR JUSTICE ROTH: Mr Richard had -- there was 10 We then had a letter of 22 June in which the 11 a communication between Mr Richard and Mr Swantee, was 11 claimant proposed that a further 13 individuals be added 12 there not? Is that what emerges here? 12 as custodians , and these were the list -- these 13 MS DEMETRIOU: My Lord, yes, but Mr Swantee’s in EE and this 13 corresponded with the list of individuals to whom Orange 14 is the Vodafone. 14 had sent disclosure hold notices and the information set 15 MR JUSTICE ROTH: Yes. 15 out in EE’s participant hit reports . 16 MS DEMETRIOU: Would you like to go back to the EE report? 16 Then, following correspondence, 10 out of 13 of 17 MR JUSTICE ROTH: No. 17 those proposed custodians were dropped, and yesterday 18 MS DEMETRIOU: But the point there, my Lord, is that 18 the claimant confirmed that of the three remaining 19 Mr Swantee, of course, was the chief executive of EE and 19 persons it was dropping a further one. So the claimant 20 there are large numbers of hits between various people 20 has now abandoned 11 of the 13 candidates that it 21 at Orange and various people at EE, including 21 proposed in its letter of 22 June. 22 Mr Swantee, and the point there is that that ’s entirely 22 Perhaps we can turn that up. That’s at {C/593/5}. 23 unremarkable. 23 So what you see here, looking at paragraph 24 at the 24 MR JUSTICE ROTH: Yes, because it is the parent. 24 bottom, you see their justification for adding the 13: 25 MS DEMETRIOU: Exactly. So that doesn’t mark Mr Richard out 25 "We have carefully considered the information you
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1 have provided in the hold notice list , and cross -checked 1 all , the likelihood of persons holding relevant 2 those names against the metadata ... in EE’s ... Hit 2 documents and, secondly, proportionality , the more 3 Report." 3 limited role that Orange has in these proceedings and 4 So it is the same basis that Mr MacLean is relying 4 the fact that EE is providing a vast amount of 5 on now. 5 disclosure and the fact that the allegation that Orange 6 MR JUSTICE ROTH: Yes. 6 itself colluded is vanishingly slender . 7 MS DEMETRIOU: "having undertaken that analysis, along with 7 Recalling yesterday Mr MacLean’s submission about 8 considering the publicly available information ... we 8 the broad categories of disclosure that they’ re seeking , 9 have identified the following individuals ..." 9 so they say -- well , first of all , they’ re seeking 10 Then if we go over the page, you see there four 10 communications between the MNOs which might shed light 11 individuals at 24.4. Then at 25: {C/593/6} 11 on collusion and, secondly , they want internal documents 12 "EE’s Participant Hit Report has revealed that EE’s 12 revealing why the contracts with Phones 4u were 13 Key Custodians, unsurprisingly [so there ’s the 13 terminated, and then transposing those areas which we 14 acknowledgement there], corresponded with a large number 14 can see are -- that ’s an accurate reflection of the 15 of individuals at Orange." 15 broad categories of disclosure they want to these 16 Then they say: 16 individual custodians . Well, as regards Mr Richard, he 17 "Whilst recognising that Orange was a parent company 17 wasn’t the subject of the document hold, which, as 18 of EE, nonetheless on the basis of publicly available 18 I have said , is in itself revealing . 19 information , we have carefully considered the 148 new 19 MR JUSTICE ROTH: Yes. 20 such individuals , who had email addresses ... that had 20 MS DEMETRIOU: And we have explained that as regards 21 not been previously identified in our disclosure 21 Orange’s internal thinking about termination by EE of 22 discussions ." 22 the Phones 4u contract, Mr Richard is highly unlikely to 23 Then if it could be scrolled -- thank you: 23 hold any relevant documents, certainly none that won’t 24 "Of those individuals , we have identified the 24 also have been in the possession of the four custodians . 25 following persons, who are either senior Orange 25 We have explained that in a letter at {C/637/3}.
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1 executives (or executives of related entities ) and/or 1 MR JUSTICE ROTH: I think I have the general point. 2 senior Orange lawyers ( including those who held 2 MS DEMETRIOU: You have that. And then -- 3 regulatory and/or competition roles ), that our client 3 MR JUSTICE ROTH: Otherwise we’ll spend a lot of time going 4 proposes should be added ..." 4 in great detail . 5 Then over the page, please , so page 7 {C/593/7}. 5 MS DEMETRIOU: My Lord, yes. So that’s the key point. 6 You then have a number of other individuals with the 6 As regard the second category , which is 7 proposed reasons . 7 communications between the MNOs, then there’s absolutely 8 My Lord, the point here is that essentially what is 8 nothing to suggest that he’s in any different position . 9 being relied on are the EE hit reports which they 9 All that ’s relied on against him is one hit in the 10 acknowledge themselves are not a safe basis for 10 Vodafone hit report , which doesn’t mark him out, and 11 concluding that someone is likely to hold relevant 11 a communication with Mr Swantee, which equally doesn’t 12 documents, and the document hold. What we see is that 12 mark him out at all , and is readily explicable on the 13 by abandoning their position in relation to most of 13 fact that it is a parent/ subsidiary relationship . 14 these people, that demonstrates, amply demonstrates in 14 MR JUSTICE ROTH: Yes. Then there’s the other one. 15 our submission, that hit reports and hold notices are 15 MS DEMETRIOU: Then there’s Ms Pottier. So she provided 16 not a sound basis on which to identify custodians . 16 legal support to the EE board members in advance of the 17 There’s nothing here, nothing in the analysis that 17 EE board meetings. So anything she sent them will be in 18 has been offered , which separates out Mr Richard and 18 their documents. 19 Ms Pottier from any of the other individuals who have 19 You see that my solicitors have addressed this in 20 been now abandoned. 20 their letter of 3 June, which is at {C/558/2-3}. 21 MR JUSTICE ROTH: Yes. 21 Ms Pottier is dealt with at the end of that page. She 22 MS DEMETRIOU: So we say, by contrast, our clients have 22 was: 23 anxiously considered and carefully considered who is 23 "... Head of the International Legal Department 24 likely to hold relevant documents. As I have said , it 24 during the Relevant Period, and typically provided 25 is important to bear in mind in considering , first of 25 corporate legal support account to EE Board members in
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1 advance of ... meetings. Her role involved reviewing 1 MR JUSTICE ROTH: -- that means that in fact the emails 2 the EE board packs to ensure ... that the requisite 2 between the directors , the board directors , and others 3 formalities under the [ joint venture agreement] were 3 within Orange will not be captured. 4 met ... {C/558/3} In this role , Ms Pottier had no bearing 4 MS DEMETRIOU: Yes. 5 on Orange or EE’s commercial strategy . She was not 5 MR JUSTICE ROTH: And as I understood your point, in 6 a member of the EE Board, did not attend its meetings 6 resisting additional custodians , it is that anything 7 and was not capable of exercising any voting power or 7 that is relevant from within Orange will go to those 8 making decisions ..." 8 board directors . 9 MR JUSTICE ROTH: Yes. 9 MS DEMETRIOU: My Lord, I see that -- 10 MS DEMETRIOU: So the key point is that she was not involved 10 MR JUSTICE ROTH: If you now cut out the internal -- 11 in its commercial strategy . She was exercising a legal 11 MS DEMETRIOU: My Lord, we see that point so we’re content 12 role to make sure that what went on at the board 12 to stick with our original -- 13 meetings didn’ t exceed or wasn’t in -- didn’ t exceed -- 13 MR JUSTICE ROTH: I think you -- yes. 14 largely didn’ t exceed the JV agreement. 14 MS DEMETRIOU: And we say that that should provide 15 So we say that it ’s not reasonable or proportionate 15 a sufficient safeguard and certainly what that would do, 16 to search her documents and, as I have said , the 16 and there can’t be any doubt about this , is give the 17 proportionate response here, in circumstances where the 17 basis , if there is any, to the claimants to come back 18 claimants have not adequately explained why these two 18 for further requests . My Lord, I see that . 19 individuals are any different to the others they have 19 MR JUSTICE ROTH: Yes. 20 dropped, is to proceed with the custodians that we 20 MS DEMETRIOU: My Lord, that’s all I wanted to say. I’m 21 consider -- that Orange considers to be appropriate , to 21 grateful . 22 review that disclosure and indeed the sizeable 22 MR JUSTICE ROTH: And you’re not, I think -- are you an 23 disclosure provided by EE and the other defendants, and 23 addressee of any of the other -- 24 to come back, if there is then a proper basis for 24 MS DEMETRIOU: Yes, but we’ve -- 25 pursuing an application , in respect of these two persons 25 MR JUSTICE ROTH: Have you allocated who is going to deal
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1 or indeed anyone else . 1 with that? 2 MR JUSTICE ROTH: Yes, thank you. 2 MS DEMETRIOU: Yes. 3 MS DEMETRIOU: My Lord, there’s one more point which is not 3 MR JUSTICE ROTH: Yes, that’s very sensible. 4 relating to custodians but the extent of the search . 4 MR MACLEAN: My Lord, shall I respond on that point or 5 I don’t know if this is being pursued by Mr MacLean, but 5 should Mr O’Donoghue go next? 6 can I just say what it is . 6 MR JUSTICE ROTH: I think it might be sensible for 7 So, as I indicated , Orange has agreed in respect of 7 Mr O’Donoghue to go next because that’s the other parent 8 emails to conduct unfiltered searches . Now, in 8 and there are some similar issues . Maybe then you can 9 a letter , in a previous letter , Orange had said that it 9 respond. 10 was willing to conduct searches of all emails in 10 Submissions by MR O’DONOGHUE 11 relation to the custodians . What the claimant has now 11 MR O’DONOGHUE: My Lord, I am grateful. I have two points: 12 agreed with all of the other defendants is that those 12 one, custodians , four sought in the case of 13 searches should be limited to emails between the 13 Deutsche Telekom, and a specific point on custodian date 14 custodians and emails with external personnel . We say 14 ranges. 15 that ’s eminently sensible and that our searches should 15 MR JUSTICE ROTH: Yes. 16 be limited in the same way, because otherwise they are 16 MR O’DONOGHUE: My Lord, just a bit of flesh on what has 17 going to be apt to throw up vast numbers of irrelevant 17 been outlined by Ms Demetriou. Deutsche Telekom is 18 documents. 18 a former financial investor in EE. That investment has 19 MR JUSTICE ROTH: Between custodians and -- 19 been relinquished . 20 MS DEMETRIOU: And also between the custodians and external 20 MR JUSTICE ROTH: Yes. 21 people in the other defendants. So that’s what’s been 21 MR O’DONOGHUE: Just to put a bit of fabric on this point, 22 agreed with all the other defendants. 22 EE proposes to disclose up to 214,000 documents. For 23 MR JUSTICE ROTH: Yes, but you’re in a slightly different 23 your Lordship’s reference , that is {C/641/1}, 24 position because if I ’m with you on the first point -- 24 paragraph 3. I should emphasise that excludes document 25 MS DEMETRIOU: Yes. 25 family items and therefore the total number of documents
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1 could be even higher . 1 implications of that concession . 2 We propose as matters stand to disclose circa 50,000 2 My Lord, turning concretely to the custodians , it 3 documents. I wasn’t clear from Ms Demetriou whether her 3 was suggested in Mr MacLean’s skeleton that 4 25,000 was hits or de- duplicated , but I understood their 4 Deutsche Telekom has refused to provide Phones 4u with 5 disclosure would be of a similar magnitude. 5 information regarding the management structures, 6 MS DEMETRIOU: My Lord, that’s quite right. The 25,000 6 paragraph 67; and at 68, we have failed to provide any 7 I gave you was an underestimate because it was based on 7 meaningful co-operation aimed at identifying further 8 the narrow search , which I ’ve now conceded we should be 8 potential disclosure custodians , paragraph 68. This is 9 conducting the wider search , so in fact it ’s many more. 9 an astonishing claim which in my submission should be 10 MR JUSTICE ROTH: Yes. 10 withdrawn entirely . 11 MR O’DONOGHUE: My Lord, the practical point is that by the 11 I ’m going to take your Lordship to one letter , 12 end of January the claimant will have hundreds of 12 I want to take briskly , but there are up to a dozen 13 thousands of documents on the practical functioning of 13 individual documents typically letters where we have 14 what they claim is a single economic entity . We do 14 engaged conscientiously and comprehensively and 15 therefore start and in some ways end with the point that 15 carefully with Phones 4u on custodians in particular . 16 that will give an enormously detailed and granular 16 So it is {C/191/1}; {C/228/1}; the disclosure report at 17 insight into how this JV at the time functioned . And at 17 {B/18/1} -- 18 that stage it would be manifest, in my submission, if 18 MR JUSTICE ROTH: Sorry, C/191. 19 there are any material gaps and scope to come back to 19 MR O’DONOGHUE: {C/228/1}. B/18 is the disclosure report 20 your Lordship with a focused request . 20 itself , which contains a lot of information . 21 So, of the defendant groups, this is likely at this 21 MR JUSTICE ROTH: Well, let’s look at the disclosure report . 22 stage , as matters stand, to be an extremely 22 MR O’DONOGHUE: My Lord, I’m in your hands. What I had 23 comprehensive, perhaps the most comprehensive, 23 hoped to do was just to take up one recent letter which 24 disclosure proposal . So that’s the starting point . 24 essentially crystallises everything . 25 MR JUSTICE ROTH: Yes. 25 MR JUSTICE ROTH: Well, then, let’s go to that one.
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1 MR O’DONOGHUE: One more point, my Lord, before I come to 1 MR O’DONOGHUE: My Lord, it is {C/554/1}, This is 2 the actual custodians . I ’m anxious to deal with this as 2 a 17-page letter of 2 June. 3 briskly as I can. Just so your Lordship is in no doubt 3 MR JUSTICE ROTH: Yes. 4 as to what we’re actually proposing to do, we were, 4 MR O’DONOGHUE: My Lord, you’ll see on page 8 it starts with 5 I think , the first or among the first of the defendants 5 custodians . Paragraph 12. {C/554/8}. 6 to put forward unfiltered searches , both internally and 6 MR JUSTICE ROTH: Yes. 7 externally , so that they will not be subject to 7 MR O’DONOGHUE: I’m not going to read this out at length, 8 keywords. We will apply keywords only to electronic 8 but I ’ ll just give your Lordship the gist of what 9 documents. There will be a manual review of hard copy 9 terrain is covered. 10 files held in Bonn or Berlin . We have a global date 10 So you’ ll see the point again repeated: lack of 11 range of two and a half years and we have the full 11 adequate explanation . We say this is surprising in the 12 corpus of directors on the EE board for the entirety of 12 context of your client ’s continued refusal to engage 13 the period plus two months either side , a point I ’ ll 13 with the actual explanations provided by our client as 14 come back to. 14 to its custodian selection , including most recently 15 So that is how and why we get to circa 50,000 15 5 May. 16 potential documents. 16 MR JUSTICE ROTH: Without sort of debating whether things 17 I ’m sure your Lordship has the point , but of course 17 were given or not, what I need to concentrate , as with 18 one consequence of unfiltered searches is that if , say, 18 Orange, is on the four particular individuals . So where 19 custodians were simply copied or even blind -copied on an 19 is the explanation of what Mr Wolfgang Kniese does in 20 email, that is a potential hit . So the lack of 20 Deutsche Telekom? 21 filtration , which was a concession to the claimant, does 21 MR O’DONOGHUE: My Lord, if I can take this in two stages. 22 open up a rather large vista . 22 MR JUSTICE ROTH: Yes. 23 MR JUSTICE ROTH: Yes. 23 MR O’DONOGHUE: I mean, one of the difficulties with the 24 MR O’DONOGHUE: It is a concession we are content to make, 24 four custodians we have now on the table is that most of 25 but I want the court to be in no doubt as to the 25 them were mentioned only a week ago for the first time.
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1 MR JUSTICE ROTH: Yes. 1 capacity . So he is likely , is he not, therefore , to 2 MR O’DONOGHUE: In the meantime, quite a lot of custodians 2 have documents concerning EE? They may overlap, 3 have been jettisoned . 3 I ’m sure many of them will , but it ’s possible they don’t 4 MR JUSTICE ROTH: Yes. 4 all . So that’s Mr Gerlach. If we go down to Mr Kniese 5 MR O’DONOGHUE: That is relevant to my submission to 5 who -- 6 a scattergun approach, which is relevant -- 6 MR O’DONOGHUE: He’s also area manager, my Lord. 7 MR JUSTICE ROTH: Well, it’s less scattergun than it was, 7 MR JUSTICE ROTH: Where is he in -- 8 clearly , but, as I say, I need to concentrate on that -- 8 MR O’DONOGHUE: My Lord, he isn’t in this letter, because, 9 MR O’DONOGHUE: My Lord, I appreciate that. 9 as I said , that is a new proposal. 10 MR JUSTICE ROTH: -- and we have limited time. 10 MR JUSTICE ROTH: Is that new proposal, is it? 11 MR O’DONOGHUE: If your Lordship will bear with me for 11 MR O’DONOGHUE: My Lord, so Mr Gerlach and Mr Kniese are 12 two minutes -- 12 area managers, so -- 13 MR JUSTICE ROTH: -- so if you can hold -- if we start with 13 MR JUSTICE ROTH: Yes. I thought Mr Kniese has a particular 14 Mr Kniese ( inaudible ). 14 responsibility for the UK; is that right ? 15 MR O’DONOGHUE: Can I just make one point on the basis of 15 MR O’DONOGHUE: In the context of area management. 16 this letter , if I may. It ’s important. So, my Lord, 16 MR JUSTICE ROTH: Yes, so he covers the UK. 17 you will see at 17 of this letter , paragraph 17, 17 MR O’DONOGHUE: Among other countries. 18 page 11 -- 18 MR JUSTICE ROTH: Among other places. So Deutsche Telekom 19 MR JUSTICE ROTH: Just a minute. Just a minute. Page 11? 19 is concerned with how it will develop on the UK 20 MR O’DONOGHUE: Page 11, my Lord, paragraph 17. So we have 20 market -- whether to use third - party intermediaries or 21 set out on the basis of the joint agreement, which is 21 not; if so, which -- he is likely to be involved . 22 a 130-page agreement, how the joint venture operated. 22 MR O’DONOGHUE: Well, my Lord, the point is picked up at 23 Then you’ ll see over the page at 18 we explain the 23 19(a). So there ’s a number of points. First of all , 24 practical implications that flow from the joint venture 24 area management is an informal grouping. It ’s not 25 agreement in terms of the operation of the JV. You’ ll 25 something which is created by the JVA. The first point .
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1 see the five points listed at 18(a), (b), (c), (d) and 1 Second, their attendance at meetings was therefore 2 (e). Then at 19 we deal with what at that stage were 2 ad hoc. 3 each and every one of the individuals who had been 3 MR JUSTICE ROTH: But I thought it is -- sorry to interrupt 4 raised , and we deal with them individually . 4 you -- I thought area management is something within 5 Now, your Lordship will have picked up from the 5 Deutsche Telekom, nothing to do with the joint venture. 6 skeleton , at 19(b), (c), (d) and (e) what they had 6 MR O’DONOGHUE: My Lord, yes, but it is nonetheless 7 identified was a bunch of secretaries -- 7 an informal -- 8 MR JUSTICE ROTH: Yes. 8 MR JUSTICE ROTH: That may be. 9 MR O’DONOGHUE: -- or administrative staff. And that has 9 MR O’DONOGHUE: -- grouping. 10 quite rightly been withdrawn entirely , and that is 10 MR JUSTICE ROTH: Well, so what? They don’t have to be 11 a very vivid illustration of Ms Demetriou’s point that 11 formal. I mean, that’s the area he was concerned with. 12 the hit report , it may well be objective data, but in 12 MR O’DONOGHUE: My Lord, indeed, but if there were something 13 many respects it is objectively useless or at least 13 formal within the JVA -- 14 misleading , because that is where these people came 14 MR JUSTICE ROTH: Outside the JVA. 15 from. But in terms of to the custodians , my Lord, 15 MR O’DONOGHUE: Well, my Lord, but interfacing with the 16 they’ re picked up, at least in terms of substance, at 16 joint venture. That is the point . 17 19(a). 17 My Lord, the critical point is the last one, which 18 MR JUSTICE ROTH: Yes. 18 is , insofar as there was material or information 19 MR O’DONOGHUE: So that is the area management -- 19 emanating from area management, by practical necessity 20 MR JUSTICE ROTH: If we look at the first one, he attended 20 it had to be filtered through the four custodians . So 21 certain EE board and EE business review meetings. So 21 we have not died on the ditch -- 22 the fact he didn’ t have decision -making powers, but he 22 MR JUSTICE ROTH: But could not Deutsche Telekom take a view 23 was involved -- clearly , or he wouldn’t turn up, he’s no 23 of the UK markets and how it’s all -- its corporate 24 doubt a busy man -- meetings concerning EE. So he’s had 24 interest in the UK market, beyond the scope of the joint 25 some involvement with EE, albeit not in a decisional 25 venture?
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1 MR O’DONOGHUE: Well, my Lord, who knows? But the practical 1 Mr Kniese and Mr Gerlach. 2 point we’re making -- 2 MR JUSTICE ROTH: Yes. 3 MR JUSTICE ROTH: Is there a clause in the joint venture 3 MR O’DONOGHUE: The third person is Dr Kühbacher, who’s 4 saying that you shall keep out of the UK for the next 4 an in -house lawyer . He specialised in M&A litigation 5 X years , as it were, and you’ ll work exclusively , joint 5 and competition, and this is one of the people has only 6 venture -- 6 come on the radar very recently . The suggestion that 7 MR O’DONOGHUE: I don’t know offhand. I can check that over 7 an in -house lawyer with his role was somehow involved in 8 the short break. 8 secret collusion is both unpleaded and, in my 9 MR JUSTICE ROTH: Well, that might be relevant, but it’s not 9 submission, absurd. 10 relied on. 10 MR JUSTICE ROTH: Well, (inaudible) I don’t think it ’s said 11 MR O’DONOGHUE: No, my Lord, it is not. 11 he was involved in collusion -- he, the individual -- or 12 But, my Lord, the practical point , certainly at this 12 that he had directly any potentially unlawful -- 13 stage , which in my submission is unanswerable, is : if 13 MR O’DONOGHUE: My Lord, that’s true. 14 anything of any significance in relation to EE came to 14 MR JUSTICE ROTH: I think what’s said is he might have been 15 pass, it had by necessity to be filtered through the 15 informed if there was any suspicion of collusion , and 16 four directors . One has to bear in mind that the four 16 therefore his documents might be relevant. 17 directors were senior people: one is the current CEO, 17 MR O’DONOGHUE: Well, my Lord, -- 18 one is a former CFO, one is a current board member and 18 MR JUSTICE ROTH: I think that’s the way it’s put. 19 another is a CEO of a Greek entity . So these are not 19 MR O’DONOGHUE: It is the way it’s put. 20 shrinking violets or junior people, and if anything of 20 MR JUSTICE ROTH: It’s not an allegation against him that he 21 any consequence was done or said in relation to EE or 21 did anything wrong. 22 Phones 4u, it had to come to these four people, because 22 MR O’DONOGHUE: Well, my Lord, the only point Mr MacLean 23 that was the only practical way in which it could be 23 mentioned is a pleading point that EE has pleaded that 24 brought to bear. 24 it informed the former shareholders of the approaches 25 It does go back to proportionality : having reviewed 25 from the other defendant. We have pleaded quite
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1 the hundreds of thousands of documents, Mr MacLean will 1 responsibly that as matters stand we have not been able 2 get a very clear and strong sense of whether these area 2 to find a record of being informed. Therefore, we have 3 management people really were of any consequence 3 quite responsibly not admitted that . 4 whatsoever, or whether indeed they had an important, 4 Now, we will do disclosure . This document, if it 5 active role in the functioning and supporting decision 5 exists , will emerge. EE will , it seems, disclose it , 6 making by the -- on the DT side. That will be revealed 6 subject to whatever Mr Pickford has to say. If we have 7 in spades by the disclosure which is forthcoming, and, 7 a copy, we of course will consider that . But to use 8 in my submission, that is the obvious way to deal with 8 that as some sort of platform or cantilever for 9 this . There will be a comprehensive proposal on the 9 including essentially a random in-house lawyer, in my 10 table -- 10 submission, is clearly disproportionate . 11 MR JUSTICE ROTH: Yes. 11 I mean, this is a discrete point about whether or 12 MR O’DONOGHUE: -- all of this -- I mean, the problem, 12 not a document exists. 13 my Lord, at the moment is that we’re engaged in 13 MR JUSTICE ROTH: Yes. 14 speculation and counter- speculation . The speculation 14 MR O’DONOGHUE: It either does or it doesn’t and it will 15 will end in January when we can see exactly what is 15 emerge presumably in the coming months and, again, if 16 happening in concrete terms. At that stage , it will be 16 there was a problem or a gap come the end of January, 17 manifest what the lie of the land is . At this stage , it 17 the proportionate thing to do is to deal with it at that 18 really is no more than speculation . 18 stage . 19 I mean, we’ve made crystal clear the area management 19 MR JUSTICE ROTH: Yes. 20 had no decision -making power and, insofar as they’ve had 20 MR O’DONOGHUE: Because, apart from anything, my Lord, of 21 material of any consequence, it had to come to these 21 course, what we would have to do in relation to 22 four people. The way to test that is through the 22 Mr Kühbacher is engage in a painful and expensive 23 comprehensive disclosure which is being offered , and 23 redaction exercise of a large number of documents in 24 that will be the proof of that particular pudding. 24 relation to legal privilege . 25 So, my Lord, that’s all I wanted to say about 25 MR JUSTICE ROTH: Yes.
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1 MR O’DONOGHUE: So the only point Mr MacLean makes, with 1 ranges by seven months, in the case of two custodians , 2 respect , makes a bit of a mountain out of a molehill and 2 which is one- third again longer than the period we have 3 can be addressed in January of next year . 3 proposed, and by three months in the case of two other 4 The final custodian, my Lord, is René Obermann, who 4 custodians . 5 is a former CEO. I am certainly correct in saying that 5 Now, my Lord, you will have picked this up, but what 6 until a week ago there wasn’t a mention of Mr Obermann. 6 we have proposed, sensibly and in my submission 7 Of course he has been hiding in plain sight . Anybody 7 generously , is we will add a two-month buffer at either 8 with opposable thumbs can find on Wikipedia or 8 side of the particular director ’s tenure as an EE 9 Deutsche Telekom’s annual report that this person 9 director . That is to pick up any handover period. 10 exists . 10 Just to put this in context, my Lord, the addition 11 So, my Lord, in relation to Mr Obermann, first of 11 of the two-months alone has increased the potential pool 12 all , he was not, for a reason I will explain , subject to 12 of documents, because these are unfiltered , by as much 13 a document hold notice, which is a point against 13 as 10,000 documents. So each incremental period , even a 14 Mr MacLean. The reason, my Lord, he was not subject to 14 couple of months, results in potentially a lot of 15 a document hold notice is twofold : first of all , he left 15 additional disclosure , 20%. It ’s in correspondence. 16 in 2013, which is before the decision not to renew the 16 My Lord, the practical point -- it ’s essentially the 17 Phones 4u contract in September 2014. Second, because 17 same point as area management -- which is, come January, 18 he was the CEO, it is vanishingly unlikely that he 18 Mr MacLean will have full visibility of the tapering - off 19 personally was involved at a granular level in the 19 period . So he will be able to see very clearly -- 20 situation of a local UK distributor . 20 MR JUSTICE ROTH: Yes, it’s the same point. So he can come 21 Just to give my Lord an idea of what this is likely 21 back. 22 to engender, just running some provisional searches on 22 MR O’DONOGHUE: It’s a more specific point, my Lord, which 23 communications between our custodians and Mr Obermann 23 is we are giving the tapering - off period for those 24 has thrown up up to 10,000 emails or hits . That would 24 two months either side , it will be obvious what the 25 expand our disclosure by 20% on its own. 25 role , if any -- we suspect next to nothing -- is of the
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1 MR JUSTICE ROTH: Yes. 1 departing custodian. 2 MR O’DONOGHUE: My Lord, one can see from the custodians we 2 Now, if Mr MacLean sees during that tapering- off 3 have given -- so, for example, one of them, Mr Höttges, 3 period there is substantial input on the part of the 4 who is the current CEO, of course there would have been 4 director , he may then have a point. If by contrast , as 5 a period of grooming and handover from Mr Obermann to 5 I strongly suspect , it tapers off completely, then he 6 him. Another of course was the former CFO. It is 6 doesn’t have a point , but the answer is he comes back in 7 entirely unsurprising and obviously disproportionate 7 January and tries to make that good. 8 that there would be a raft of communications from these 8 The reason we have put in this generous buffer , at 9 custodians to Mr Obermann. 9 some substantial cost , is to cater for that possibility , 10 We come back to the point that if anything of any 10 and that can be examined in concrete terms, rather than 11 consequence was said or done by Mr Obermann, which seems 11 engaging in widespread speculation at this stage . 12 to us vanishingly unlikely and is also unpleaded, it 12 My Lord, that’s all I wish to say. 13 would be picked up through our custodians that we have 13 MR JUSTICE ROTH: Yes, Mr MacLean. 14 offered . 14 Submissions in reply by MR MACLEAN 15 MR JUSTICE ROTH: Yes. 15 MR MACLEAN: My Lord, there are a number of points by way of 16 MR O’DONOGHUE: My Lord, that’s all I want to say on the 16 response. Mr O’Donoghue corrects for the first time 17 four custodians . So two area management, one in-house 17 that we have heard anything about the existence or 18 lawyer , one former CEO. There has been a rather 18 non- existence of hold notices in respect of any 19 haphazard approach to custodians . I ’m afraid to say 19 individuals who (inaudible ). One of the complaints that 20 that these last -minute proposals in relation to 20 I made to your Lordship yesterday was that Deutsche had 21 Mr Obermann in particular are more of the same. 21 refused to ( inaudible ). 22 Now, my Lord, finally on custodian date ranges. It 22 MR JUSTICE ROTH: Yes. That was one of the things you were 23 is a short point but quite an important point for my 23 asking me to order. 24 client . So, my Lord, the practical proposal , Mr MacLean 24 MR MACLEAN: One of the things we were asking. And it is 25 wants to effectively extend the custodian- specific date 25 unacceptable for Mr O’Donoghue on behalf of Deutsche to
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1 play fast and loose in relation to this , whilst standing 1 MR MACLEAN: -- in terms of who we have been asking for. 2 up and saying : well , there is no point in having that 2 That’s an unfair point in circumstances where it is only 3 because he didn’ t receive a hold notice . That’s not 3 within the last month that we have the hit reports from 4 good enough. 4 all the parties . 3 June was when we got the first one 5 Now, as far as what one can or cannot take from the 5 from Clifford Chance and we were still receiving them 6 ( inaudible ) of hold notices , and this is a point which 6 this week from Telefónica . We haven’t had one from 7 both Mr O’Donoghue and Ms Demetriou, was that, well, 7 Deutsche at all . 8 Mr Vishal(?) didn’ t receive a hold notice . Mr Vishal, 8 MR JUSTICE ROTH: Yes. 9 the chief executive officer of Orange didn’t receive a 9 MR MACLEAN: So ultimately your Lordship should put out of 10 hold notice , and therefore he can’t be an appropriate 10 your mind, in my submission, the submission they made 11 custodian. Well, that ’s interesting . We know that 11 that : well , look how many we’re asking for , we’re only 12 Telefónica Spain and its European intermediary 12 asking for two or four now. They should have asked for 13 subsidiary did not at any time before 2020 impose a hold 13 others . Well, we’re not asking for others . We have 14 notice in relation to Mr Alierta or Ms Sanz who, the 14 proportionately narrowed the approach. 15 existing material shows, were significant players in the 15 Now, the common approach which is taken both by 16 matters which we complain. So the fact -- the mere fact 16 Orange and by Deutsche is this narrow decision -making 17 that a hold notice was not given doesn’t mean that these 17 point as regards the EE board. As I submitted to 18 individuals are not appropriate custodians . 18 your Lordship yesterday , the mere fact that these people 19 MR JUSTICE ROTH: Well, isn’t there -- forgive me -- 19 were the decision -makers in the EE board doesn’t mean 20 a difference with Telefónica , as you make clear in your 20 that there were not others in the organisation who ought 21 skeleton and as your solicitor explains in some detail 21 to be recorded as custodians . And we have been trying, 22 in his witness statement. Telefónica , the parent, not 22 as regards Orange and Deutsche, from the time that they 23 the UK company, rather ignored your request in a way 23 supplied their disclosure schedules , to identify 24 that you criticise very strongly and with some force. 24 individuals who could be potential custodians , rather 25 MR MACLEAN: Yes. 25 than the individuals --
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1 MR JUSTICE ROTH: So that’s a rather different point, the 1 MR JUSTICE ROTH: Yes. 2 way Telefónica behaved. They basically said -- they 2 MR MACLEAN: (inaudible). And as far as Orange is 3 almost didn’ t take the whole thing seriously , in 3 concerned, we have narrowed it down to two: Mr Richard, 4 a sense . But that criticism can’t be directed at 4 who was clearly a senior individual , who it does appear 5 Deutsche Telekom and Orange. They did issue hold 5 corresponded at chief executive level with Vodafone, who 6 notices , and somebody exercised judgment at the time of 6 did communicate at senior executive level with EE. 7 who is relevant . 7 It is plain , in our submission, and it is plain from 8 MR MACLEAN: Yes, but all I’m saying is the fact that 8 the pleading of Orange, that it plainly took into 9 someone is not identified ( inaudible ) recipient of the 9 account wider matters than simply the interests of EE 10 hold notice doesn’t carry with it the assumption that 10 when it came to make important commercial decisions. On 11 he’s not an important person. 11 that basis alone we ought to have a wider net of 12 MR JUSTICE ROTH: No, but the whole reason -- the whole 12 potential custodians than simply the two that are 13 reason why you urge me to order the production of the 13 identified . 14 hold notice is that they indicate the view at the time 14 The same point, although it hasn’t been pleaded in 15 of the ( inaudible ). 15 as expansive terms by Deutsche, the same point applies 16 MR MACLEAN: It’s one aspect (inaudible) one aspect of 16 with regard to them. It is inherently likely that 17 redressing the asymmetry of information. 17 people sitting in Bonn would have had regard, likely , to 18 MR JUSTICE ROTH: Yes. Well, okay. Yes. 18 their own commercial interests when deciding what 19 MR MACLEAN: (Inaudible). That’s one aspect. The other 19 decisions should be taken about EE. 20 ( inaudible ) addressed in this ( inaudible ) with the 20 It does not follow from the fact that we’re going to 21 information . 21 get the " decision -makers" that we’re going to get 22 Now, my learned friends , both of them, made 22 a proper selection of documents from the individuals who 23 a ( inaudible ) there has been a movement in terms of my 23 were making those decisions . That’s what we’re asking 24 clients -- 24 the court to order . 25 MR JUSTICE ROTH: Yes. 25 MR JUSTICE ROTH: Yes.
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1 MR MACLEAN: Now, it is also not true to say that even if we 1 your Lordship is , for example ( inaudible ). 2 can show that the individuals who sat on the board were 2 MR JUSTICE ROTH: Yes. 3 the sole channel of communication between EE and the 3 MR MACLEAN: (inaudible). It seems that he was in 4 parent ( inaudible ). I have accepted, of course, that it 4 communication with other individuals , other MNOs. If 5 isn ’ t surprising that a subsidiary should be ( inaudible ) 5 you simply adopt the ( inaudible ), that an important 6 with its parent, but what it shows is that you can’t 6 communication between (inaudible) we should have. The 7 take at face value the assertion , which is essentially 7 full range of areas ( inaudible ) June ’12 and October 8 all that is relied upon against us ( inaudible ) that 8 ’14. That’s what I say about that. 9 these are the matters of channel of communication, 9 MR JUSTICE ROTH: Yes. Right, next point? 10 obviously channel of communication. It ’s much wider 10 MR PICKFORD: My Lord, consonant with the points that your 11 ( inaudible ) than the simple seeking of the reasonable 11 Lordship just raised about getting through this very 12 enforcement expansion of the custodians for the purposes 12 speedily -- sorry , it ’s Mr Pickford for EE -- can I just 13 of disclosure at this stage . And they don’t feature on 13 raise one point very shortly ? None of these 14 the list at this stage . Nobody is going to look in the 14 applications are made against us, and for that reason 15 files and ( inaudible ). 15 I ’m not proposing to pick up on a number of what we 16 MR JUSTICE ROTH: Yes. 16 consider to be inaccuracies that were stated about what 17 MR MACLEAN: My Lord, I could go on but -- 17 we have done or haven’t done, because it simply is 18 MR JUSTICE ROTH: No, please don’t, because I am a bit 18 irrelevant . I just wanted to make sure that our silence 19 concerned about how we’re going to manage this. There 19 on that matter wasn’t taken, or mistaken, that 20 are a whole lot of individual issues raised by the 20 necessarily we assent to everything that has been said . 21 disclosure application on which, several of which, most 21 I can shut up on this application . 22 of which, indeed, I haven’t heard the response, let 22 MR JUSTICE ROTH: Yes. 23 alone any reply . If I am going to give a judgment, 23 MR PICKFORD: I am grateful, my Lord. 24 a reasoned decision on each one, that , it seems to me, 24 MR O’DONOGHUE: My Lord, can I make one proposal which 25 will take up the rest of today. 25 I emphasise I don’t have full instructions on.
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1 MR MACLEAN: Yes. 1 MR JUSTICE ROTH: Yes. 2 MR JUSTICE ROTH: We won’t have time for two other 2 MR O’DONOGHUE: I mean, the two applications that some of us 3 applications that must be dealt with. 3 are concerned with are really quite discrete and I think 4 It may be sensible , although not normally desirable 4 there is a strong desire to have disclosure and, to the 5 with a CMC, that I reserve and I will be able to get 5 extent we can, timetabling nailed down today. We’ll see 6 a decision to you by the end of next week covering 6 how we go but I’m wondering if those two applications 7 everything , because otherwise I do have concerns about 7 might be prime candidates to be dealt with separately . 8 the problems -- if not next week, certainly the week 8 I ’m obviously in your Lordship’s hands. 9 after , but I will endeavour to do it by the end of next 9 MR JUSTICE ROTH: Well, I don’t know. I think it would 10 week. I think that ’s probably the only way we’re going 10 be -- I don’t know how long the security for costs 11 to get through this . 11 will -- there ’s authority being relied on and quite 12 MR MACLEAN: I am happy with that. I’m conscious -- 12 a bit of -- 13 MR JUSTICE ROTH: Because we have a whole other range of 13 MR O’DONOGHUE: There are four parties; it could take quite 14 issues and each one, if I have to give reasons on them 14 a while . 15 and they are quite granular in some cases. So I think 15 MR JUSTICE ROTH: Yes, so it may be we won’t have time to do 16 we’ve dealt with custodians . Do you want to say 16 it today but I think we should see if we can. The other 17 anything about date range? I mean, the main point being 17 application is a short one. We certainly should deal -- 18 made -- it ’s not the only one, but one on this is : well , 18 must deal with trial timetabling and questions of trial , 19 although it ’s standard disclosure , there is an element 19 but I still think giving a reasoned decision on each of 20 of staged disclosure in the sense of you’ ll get quite a 20 these points is going to potentially derail the time for 21 lot . 21 the day. 22 MR MACLEAN: Sure. 22 MR O’DONOGHUE: My Lord, we already -- don’t want to tie 23 MR JUSTICE ROTH: You’ll digest and you’ll be able to come 23 your Lordship’s hands any more than we need to. 24 back and say: look, it ’s clear that we need some more. 24 MR PICKFORD: My Lord, I should say on that we’re very keen 25 MR MACLEAN: I understand that. The point I was making to 25 for our application for security of costs to be heard
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1 today. We have taken a very constructive approach in 1 MR MCQUATER: Then beyond that, what there is to deal with 2 relation to disclosure and -- 2 is early disclosure . Now, there are three categories 3 MR JUSTICE ROTH: I understand that. I would like to hear 3 sought against Vodafone. Your Lordship will recall four 4 it today because you’re all here and it involves all 4 documents from 2012 to 2014, external communications and 5 parties . 5 a spreadsheet , to which I will say something on each of 6 Yes, Mr McQuater. 6 those. Others may want to come in on the early 7 Submissions by MR MCQUATER 7 disclosure piece . 8 MR MCQUATER: My Lord, I think probably, just to take stock 8 The external communications overlaps with a bit of 9 of where we are, it probably makes sense, since we’re on 9 a dispute about the extent of unfiltered searches on 10 custodians , for me to deal with the Vodafone additional 10 that , which I have to address . 11 custodians which are sought first . An item on our 11 Then there are certain unfiltered internal searches 12 agenda which relates to custodians is document hold 12 still sought against Vodafone. 13 notices , which I think ( inaudible ). 13 And then, so far as we are concerned, there ’s then 14 MR JUSTICE ROTH: Sorry, Vodafone -- are there -- 14 the question of personal data. I think between the 15 MR MCQUATER: There are indeed, my Lord. 15 defendants, Mr Hoskins has agreed to take the lead on 16 MR JUSTICE ROTH: -- Vodafone additional custodians being 16 the personal data issue . 17 sought? Yes. It ’s said it ’s of less concern but there 17 MR JUSTICE ROTH: Yes. 18 are four further custodians . 18 MR MCQUATER: So looking ahead on the agenda, what I might 19 MR MCQUATER: Yes. So there are four further custodians 19 suggest to your Lordship is I deal with our piece on 20 I ’ve got to address . There’s document hold notices 20 custodians . I may have a little bit to say on document 21 which relates to custodians , because really that ’s 21 hold notices . I think Mr Hoskins may want to come in on 22 a fishing - style exercise to get some more names and add 22 that . Then I think perhaps the best course if for me 23 some more custodians. So that’s the custodian piece . 23 then to deal with early disclosure , and any further 24 I think it may be Mr Hoskins has something to say about 24 defendants want to come in on that can do so. Then 25 document hold notices as well , because I think some may 25 there ’s some other bits and pieces about the scope of
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1 be sought from him. 1 standard searches on unfiltered searches , which I ’ ll 2 The next item -- I mean, it may be helpful if 2 have something to say on, and then perhaps personal data 3 your Lordship just looks forward at the agenda -- early 3 at the end. 4 disclosure -- 4 MR JUSTICE ROTH: Yes. So you’re now going to deal with the 5 MR JUSTICE ROTH: Just one moment. We’ve been talking about 5 Vodafone custodians and hold notices . 6 custodians , additional custodians sought. The four 6 MR MCQUATER: My Lord, subject to your Lordship, of course. 7 further custodians sought as far as your client is 7 MR JUSTICE ROTH: Yes. 8 concerned I ’ve heard rather less about, and Mr MacLean 8 MR MCQUATER: I was proposing to do that. 9 said , quite helpfully and frankly , it ’s of less concern 9 MR JUSTICE ROTH: There’s also hit lists, I think , which are 10 to the claimant. 10 sought from -- the hit reports , not from you, I think , 11 MR MCQUATER: Yes. 11 but from someone. 12 MR JUSTICE ROTH: But if I’m to address it, it may be that 12 MR MCQUATER: I think maybe just Deutsche now, the hit 13 you want to say something about it and who they are. 13 reports . So we need to put that in somewhere. 14 MR MCQUATER: Yes. Your Lordship might remember it’s C636 14 MR JUSTICE ROTH: Yes. 15 at 9 is where the appendix is . Now, I think one of 15 MR MCQUATER: Well, without taking up any more time, let me 16 those has been dropped as well . 16 get straight to the custodians questions . Your Lordship 17 MR JUSTICE ROTH: Yes, Mr Pradel has been dropped. 17 rightly observed that Mr MacLean was at pains yesterday 18 MR MCQUATER: So those are the four that we’re dealing with. 18 to say he was rather less concerned about outstanding 19 So I ’d propose to say something about custodians so far 19 Vodafone custodians and was more concerned about 20 as Vodafone is concerned. 20 Deutsche and Orange, but he’s still seeking the same 21 MR JUSTICE ROTH: Yes. 21 number as he is against Deutsche, another four . 22 MR MCQUATER: Document hold notices is a related point which 22 I won’t labour the point , my Lord, but it is 23 I ’d have thought ought to be dealt with around about the 23 important context that your Lordship knows that 24 same time in the agenda. 24 custodian demands against Vodafone have come and gone in 25 MR JUSTICE ROTH: Yes. 25 recent days at a dizzying pace. Just to give your
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1 Lordship a tiny flavour of that , as recently as 19 June, 1 MR MCQUATER: That’s right, my Lord. 2 there were no less than 12 brand new custodians 2 MR JUSTICE ROTH: Yes. 3 suggested against us. The reference is C591 at 6 to 7. 3 MR MCQUATER: And so this really is not -- we’re getting to 4 At 6 there ’s a list of 12 new custodians. That same 4 the stage where this really is pushing the boundaries to 5 letter , 19 June -- so that lists continues over to the 5 see if something comes up. You will remember also, as 6 next page, page 7, the list at the foot of the page, (a) 6 part of this process , yesterday we were criticised by 7 through to ( l ). That same letter , if we back up to page 7 Mr MacLean for allegedly not being upfront about whose 8 5, at 12.7 demanded another six more custodians on the 8 phones had been imaged at the time, or we tried to 9 basis that they were on the Vodafone Group executive 9 image -- 10 committee, and that’s at 12.7. Five of those are brand 10 MR JUSTICE ROTH: Yes. 11 new, and they’d already offered Mr Bertoluzzo and there 11 MR MCQUATER: Sorry, phones we had imaged at the time, and 12 were other reasons not to give executive ExCo members 12 I pointed out that actually that information had been 13 further disclosure in relation to those. 13 given in correspondence. He then said : well , what about 14 Your Lordship, in the same letter , you’ ll see at 14 those you sought to image at the time? We said we would 15 12.1, so that ’s going back to page 4 of this letter at 15 write a letter about that and we have done. 16 12.1, two gentlemen mentioned, Mr Doherty and Mr Auld 16 And all of these people are custodians . I think his 17 are mentioned at (v) and (vi ) at 12.1 on page 4. 17 point was they were important at the time, important 18 Now, the new 12 custodians at 12.10, five of the new 18 enough to try to image their phones. But they’re all 19 custodians at 12.7 and Mr Doherty and Mr Auld have all 19 custodians so his point there really goes nowhere. 20 been dropped. 20 Let me deal with the individuals who are now sought. 21 17 custodians -- 17 brand new ones and two who had 21 Ms Varga at the top of the list , all searches , she has 22 been in discussion for some time, Mr Doherty and 22 previously been discussed in correspondence. Sorry , I ’m 23 Mr Auld, all dropped in a letter on 1 July on the eve of 23 told it ’s actually 18 custodians -- 12 UK; six Group -- 24 this hearing , but not, of course, until quite a lot of 24 that we have now on our list . 25 time and energy and costs had been spent over them. So 25 MR JUSTICE ROTH: So you have 18 in all, have you? Six --
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1 a total of 19 have come and gone in the last eight 1 MR MCQUATER: We have 18. I had thought we had 17, but I’m 2 business days, my Lord. 2 told it ’s 18. 3 It is indicative of a scattergun approach and not 3 MR JUSTICE ROTH: Right. 4 a careful and focused approach, or the careful and 4 MR MCQUATER: 12 UK and 6 Group. 5 focused approach that your Lordship endorsed at CMC1. 5 MR JUSTICE ROTH: Six group, yes. Six group, yes. Who are 6 The -- 6 the -- six group. Can you just help me. If you go to 7 MR JUSTICE ROTH: Can you just remind me: as I understand 7 B/42/65 -- 8 it , the four who it is now sought to add are all 8 MR MCQUATER: Yes. 9 principally at Vodafone UK; is that right ? 9 MR JUSTICE ROTH: Who is the sixth? 10 MR MCQUATER: That is correct, my Lord. 10 MR MCQUATER: Mr Bertoluzzo. 11 MR JUSTICE ROTH: And that -- (inaudible - overspeaking). 11 MR JUSTICE ROTH: Mr Bertoluzzo. 12 MR MCQUATER: -- Group. Rosemary Martin is Group. 12 MR MCQUATER: Who’s not, I think, at B2/42/65 list. It’s 13 MR JUSTICE ROTH: Ah, yes. 13 the items that are in dark text which are the ones we’ve 14 MR MCQUATER: General counsel. 14 ( inaudible ). 15 MR JUSTICE ROTH: General counsel, yes. And from 15 MR JUSTICE ROTH: So there’s another one (inaudible) has 16 Vodafone UK at the moment we have the four of those; we 16 come on. Because this , I thought, was what was being 17 have -- is it 12 custodians now agreed? 17 asked for originally . 18 MR MCQUATER: We have -- it is at least 12. The total 18 MR MCQUATER: No, I think -- 19 custodians we have agreed to give are 17, as Mr -- 19 MR JUSTICE ROTH: Yes, but he’s added on, Mr Bertoluzzo 20 MR JUSTICE ROTH: Yes, but that’s including Group. 20 MR MCQUATER: Mr Bertoluzzo is an addition, my Lord. 21 MR MCQUATER: That includes Group. So it’s 17 in total. In 21 MR JUSTICE ROTH: I see. Right. 22 terms of how many of those are Group -- 22 MR MCQUATER: So the individuals who are sought now, Ms 23 MR JUSTICE ROTH: I have five at Group and 12 at UK. 23 Varga, that ’s -- she’s really the high point of 24 MR MCQUATER: Yes. 24 Mr MacLean’s remaining case on this , which is itself a 25 MR JUSTICE ROTH: Is that right? 25 bit of a low point , to be absolutely frank . She was, as
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1 we’ve explained previously , we’ve been through this in 1 are sent at an early stage where you have limited 2 correspondence, she was consulted by Cindy Rose, who is 2 information , usually out of an abundance of caution or 3 a custodian, she was a consumer director from time to 3 as a precautionary measure and, in contrast , the 4 time on aspects of the consumer business. She supported 4 selection of custodians that has happened now has 5 Mr Parbutt, who was the director of strategy from time 5 happened with careful consideration of the pleadings , 6 to time. He’s a custodian. She has the, for these 6 careful consideration of issues and the organisation and 7 purposes, misfortune to be mentioned in an email we 7 how it is structured in relation to the facts and who is 8 provided in the action as someone who could help with 8 likely to have relevant documents to give, all of which 9 financials . She’s previously been considered , and it 9 have been explained at some length in correspondence by 10 was considered that she was not justified as a custodian 10 Hogan Lovells, to carefully guide the custodian 11 because it was unlikely that there would be documents 11 selection . 12 produced that weren’t produced from other custodians , 12 The idea that as a precautionary basis you send 13 and they’ re quite onerously wanting her to be included 13 notices at the time, that really gives you any real 14 for all searches , as your Lordship has noticed . 14 assistance with who should be a custodian now, is really 15 So we say it ’s just not proportionate . We’ve got to 15 quite , in our submission, fanciful . 16 that point where a line has to be drawn at some point. 16 We have a particular concern on this . It may or may 17 MR JUSTICE ROTH: Yes. No, I understand. I don’t think you 17 not apply to other defendants, but a particular concern 18 need go through the others . 18 is that , as we have told Phones 4u, at the time, 19 MR MCQUATER: I’m obliged, my Lord. I’m obliged. In that 19 late 2014, Vodafone -- and probably to be commended for 20 event, perhaps -- maybe I’ ll just make the points 20 this -- sent a large number of document hold notices, 21 related to custodians that I was going to make 21 and we are very concerned that if we give that list 22 ( inaudible ) 22 over, we will end up in a very unproductive and costly 23 MR JUSTICE ROTH: Well, if you deal with the hold notices, 23 argument over all of those names. Quinn Emanuel will 24 because you have covered your custodians . 24 ask us to justify in each case why they are not put 25 MR MCQUATER: Yes, I have. 25 forward as a custodian.
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1 MR JUSTICE ROTH: So there is the point about document hold 1 Your Lordship saw what happened recently over the 2 notices which some have provided, and I think -- 2 last eight business days where 17 names have come and 3 MR MCQUATER: We have not, my Lord. 3 gone very rapidly , but we had to look at each of those 4 MR JUSTICE ROTH: You have not. 4 names and respond to quite a few of them to have them 5 MR MCQUATER: We have not. I mean, it is a fairly short 5 dropped, and all this takes time and costs money. We do 6 point on document hold notices. 6 very much wish to avoid that . 7 MR JUSTICE ROTH: Yes. 7 If you look at that sort of debate, it is exactly 8 MR MCQUATER: Your Lordship said at the very outset of this 8 the sort of debate that is going to happen if we provide 9 hearing that your Lordship wanted to have a limited 9 yet further names because -- on the rather tenuous basis 10 number of custodians but go in at reasonable -- at a 10 that they were sent a precautionary notice at the time. 11 good depth with each of them; I hope I ’m not 11 MR JUSTICE ROTH: Yes. 12 paraphrasing incorrectly . 12 MR MCQUATER: So, my Lord, that’s all I was going to say on 13 MR JUSTICE ROTH: Yes, that’s right. 13 those two subjects . Maybe you want to hear Mr MacLean 14 MR MCQUATER: And what document hold notices -- the seeking 14 or Mr Hoskins in response. I think Mr Hoskins may want 15 of document hold notices is really an attempt to 15 to speak to document hold notices. 16 identify further potential custodians . Your Lordship 16 MR JUSTICE ROTH: Yes, anyone else wants to talk about 17 knows that we have been pretty generous so far in the 17 document hold notices and -- 18 custodians we have identified . The rationale is said to 18 MR MCQUATER: (inaudible) say something. 19 be that those sending these notices at the time, which 19 MR JUSTICE ROTH: Yes. 20 is back in late 2014, will somehow have been able to 20 Submissions by MR HOSKINS 21 take a more informed view of who should be sent one of 21 MR HOSKINS: I’m very grateful and we’re very happy to adopt 22 these notices and that will educate our search for who 22 his submission. I just want to make one point to put 23 should be custodians now. 23 this in context, which is , of course, as a matter of 24 My Lord, in our submission that is actually 24 general policy , the courts want to encourage, as 25 misconceived. It is a non sequitur . The hold notices 25 Mr McQuater said, a liberal approach to sending hold
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1 notices . You want solicitors performing a professional 1 My clients , if your Lordship directs the disclosure 2 duty obviously at all times but to adopt an expansive 2 of these ( inaudible ) accepts as a result of ( inaudible ) 3 approach. If the courts are to adopt an approach which 3 that a measured approach be taken in relation to this on 4 says , having sent out these custodian notices on an 4 the basis of ( inaudible ). 5 expansive approach, that list is going to be produced, 5 We have been seeking permission for a long time and 6 then, as Mr McQuater says, there is going to be this 6 some of the parties in a sense gave the permission and 7 input , to and fro and correspondence having to justify 7 some didn’t. 8 each one, there is a very real risk that that will have 8 MR JUSTICE ROTH: Yes. 9 a chilling effect generally on the sending out of hold 9 MR MACLEAN: And we say there is a great degree of harm, we 10 notices . Solicitors will of course have to perform 10 suggest ( inaudible ). That’s all I want to say about 11 their obligation , the clients will , but you see very 11 that . 12 easily how this would lead to some sort of chilling 12 MR JUSTICE ROTH: Can you just help me on Mr O’Donoghue’s 13 effect . 13 second point , the fact that it was only in March that 14 That’s the only other point I wanted to make. 14 it was clarified there was a direct case against -- 15 MR JUSTICE ROTH: Yes, thank you. 15 MR MACLEAN: They certainly asked for further and better 16 Yes, Mr -- 16 information and your Lordship will recollect that we 17 Submissions by MR O’DONOGHUE 17 supplied -- you ordered us to supply ( inaudible ). 18 MR O’DONOGHUE: My Lord, three points. 18 MR JUSTICE ROTH: Yes. 19 First of all , I completely echo the points made. 19 MR MACLEAN: We did that and that’s going to be later 20 These letters were sent six , seven years ago. The game 20 referred . But I don’t accept that it ’s only then that 21 has moved on a bit in the interim . That’s a general 21 they ( inaudible ) accept that . But even if that were 22 point . 22 true , that doesn’t -- in a sense , all that says is : 23 The second point is one which is particular to 23 well , we were justified in not supplying hold notices . 24 Deutsche Telekom and Orange, which is that it wasn’t 24 But that’s against the notion of why hold notices might 25 until March of this year it was clarified that there was 25 not have been sent. It ’s not an explanation , not
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1 a case of direct participation in an infringement 1 a reason for not giving the information about hold 2 against Deutsche Telekom, so there is a new component to 2 notices that were sent . 3 the case which has only been clarified recently . 3 MR JUSTICE ROTH: Yes. 4 The final point , which in some ways is the most 4 MR MACLEAN: So that’s what I say about that. 5 important one: we have engaged, I think through a dozen 5 MR JUSTICE ROTH: Right. Thank you. Do we go next -- 6 letters and documents, in detail , with each and every 6 there ’s the hit reports . Is that -- would that be 7 custodian, and tried to have a constructive dialogue 7 a logical next point? 8 with the claimant. At this stage the practical focus 8 MR MCQUATER: They’re no longer sought against us, my Lord. 9 needs to be on that dialogue , not what was said or not 9 MR JUSTICE ROTH: I think it is just Deutsche Telekom, isn’ t 10 said seven years ago. 10 it ? 11 MR JUSTICE ROTH: Yes. 11 MR O’DONOGHUE: Well, my Lord, we have essentially covered 12 Mr MacLean. 12 this terrain , but just to crystallise the points . The 13 Submissions in reply by MR MACLEAN 13 hit reports on their own show very little . They show 14 MR MACLEAN: My Lord, I’m not going to say anything further 14 that somebody in a defendant sent an email about a topic 15 about the Vodafone custodians. You have my submissions 15 unknown to somebody else. The various Excel sheets that 16 on that . 16 Mr MacLean brought up to the court were, in my 17 MR JUSTICE ROTH: Yes. 17 submission, entirely unsurprising in both directions . 18 MR MACLEAN: That’s the best I can say and we don’t abandon 18 What they showed in terms of the joint venture, as you’d 19 that . 19 expect, is a very large number of communications between 20 MR JUSTICE ROTH: No, I understand. 20 the shareholders and the joint venture itself , and, as 21 MR MACLEAN: As far as the hold notices are concerned, there 21 your Lordship, shows that is banal and trite and that is 22 shouldn’t be any dispute about this . They all say: oh, 22 how -- 23 terrible consequence following -- you know, Mr Hoskins 23 MR JUSTICE ROTH: Yes. 24 is saying it will lead to chilling effect . No, it 24 MR O’DONOGHUE: -- one would expect. On the other hand, 25 won’t, my Lord. Obviously not. 25 what they also show is virtually no communications
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1 between MNO defendants, certainly a very small number. 1 suite of information in order to square the circles , but 2 Again, as your Lordship said , there may be a myriad 2 your Lordship has heard what I say. 3 reasons why the mere fact an email was sent from one 3 MR JUSTICE ROTH: Yes. 4 individual to an external MNO -- so, you know, just to 4 MR MACLEAN: (inaudible). 5 give your Lordship some examples -- 5 MR JUSTICE ROTH: Yes. 6 MR JUSTICE ROTH: Well, we don’t know what they show in your 6 So, where do we go next? 7 case, because we haven’t seen. 7 MR MCQUATER: My Lord, I would have thought early disclosure 8 MR O’DONOGHUE: Well, my Lord, we get a very clear and 8 is the next place to go. 9 strong sense of the numbers from the other hit reports , 9 MR JUSTICE ROTH: Sorry? 10 which are next to nothing. As your Lordship says , 10 MR MCQUATER: Early disclosure, I would have thought, 11 I mean, there are network sharing agreements all over 11 my Lord. 12 Europe between these MNOs. There is R&D co-operation. 12 MR JUSTICE ROTH: Early disclosure. Yes, let’s deal with 13 There is something in this country called the 13 that now. 14 ( inaudible ) Broadband Scheme. There are 101 different 14 MR MCQUATER: My Lord, it will take more than five minutes 15 reasons why the mere fact that somebody in one defendant 15 but I know we’re a little short of time so -- 16 sent an email at one point over three years to another 16 MR JUSTICE ROTH: Yes, well, it won’t take very long. You 17 defendant may tell you precisely nothing. The answer to 17 go ahead. 18 all this is the same as for the custodians in the date 18 MR MCQUATER: If it goes one way, I would hope not. 19 range, which is : I apprehend these emails will be 19 Your Lordship said when we opened yesterday, 20 disclosed . At that stage it will be obvious whether 20 transcript page 4 {Day1/4:1}, that your Lordship would 21 they are completely banal or of significance and they 21 need some persuasion that there should be early 22 will be disclosed in the context of the other hit 22 disclosure in this case. 23 reports . Given that these data will be provided , at 23 MR JUSTICE ROTH: Yes. 24 that stage it will be manifest to all concerned whether 24 MR MCQUATER: I hope your Lordship hasn’t heard that -- 25 it amounts to a row of beans. 25 heard persuasion of that kind is what I mean.
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1 We haven’t shied away from hit reports for the sake 1 There are three categories sought against my 2 of in contrarium. It is a separate and, in our 2 clients . Before I deal briefly with each of the 3 submission, pointless work stream. Each and every 3 categories , some general points that we might just deal 4 person who has provided a hit report has put a caveat up 4 with before we break, the general points about early 5 in lights : we will give this to you for what it ’s worth, 5 disclosure in this case. 6 which is , in our submission, next to nothing. 6 It is not desirable , in terms of case management and 7 So we say this is diversion , and, again, the focus 7 the efficient conduct of this litigation . My Lord, it ’s 8 needs to be on what’s happening concretely today, and 8 been noted, and I think agreed, that everyone wants 9 not on something which is abstract ( inaudible ). 9 disclosure to take place in seven months, by the end 10 MR JUSTICE ROTH: Yes. 10 of January. As your Lordship commented yesterday, and 11 MR MACLEAN: My Lord, a few brief points. It’s not 11 I quote, "Now that’s not far off ". That is not 12 suggested that ( inaudible ) difficult task ( inaudible ) 12 compatible with an initial phase of disclosure , because 13 and is something which the defendants other than 13 the intended purpose of that seems to be to rescope 14 Deutsche have been ( inaudible ). 14 disclosure , which will inevitably disrupt and derail and 15 MR JUSTICE ROTH: What you seek is it’s for the custodians, 15 delay the standard disclosure process . 16 isn ’ t it ? 16 If one just asks oneself what is going to happen if 17 MR MACLEAN: Yes. 17 one gives early disclosure , what is going to happen is 18 MR JUSTICE ROTH: So a party with less custodians has less 18 that we will end up spending time between now 19 work. 19 and January dealing with constant queries , possibly 20 MR MACLEAN: Indeed. And obviously if your Lordship accepts 20 applications , based on that initial phase of disclosure . 21 that ( inaudible ) expanded pro tanto but even then your 21 It will divert resources , the process becomes 22 Lordship ( inaudible ) compared with Vodafone’s much 22 fragmented, and we are -- your Lordship has been 23 ( inaudible ). 23 referred to a tiny fraction of the disclosure 24 MR JUSTICE ROTH: Yes. 24 correspondence in this case. 25 MR MACLEAN: (inaudible). So we ought to have the full 25 MR JUSTICE ROTH: Yes.
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1 MR MCQUATER: (Inaudible). 1 MR JUSTICE ROTH: But you’re going to have to -- you’re 2 MR JUSTICE ROTH: Mr McQuater, I think I can help you with 2 obviously going to have to do that anyway. 3 this . I ’m not persuaded of the various categories for 3 MR MCQUATER: Yes, yes. 4 early disclosure that were put forward, including your 4 MR JUSTICE ROTH: And if that has to be done -- and it’s 5 client ’s spreadsheet , other than, which I still have 5 not, even if they’ re monthly meetings, it ’s not such 6 an open mind, board minutes and the papers that , as it 6 a long period -- if that has to be done by the end 7 were, are behind the board minutes that are referred to 7 of July or end of the first week in August, that should 8 in the board minutes, maybe an attachment. That seems 8 be -- it ’s work that has to be done. They almost 9 to me quite -- and you, I think , your clients have 9 certainly will have been looked at. Is there any reason 10 produced a selection of those -- they, it seems to me, 10 it can’t be done now? 11 are a rather narrow category , readily accessible , no 11 MR MCQUATER: Well, it could be, my Lord, but it’s -- once 12 doubt gathered already because it will be the starting 12 again, it is disruptive of the standard disclosure 13 point for most solicitors , which could be provided with 13 process : they have to take things out of turn to deal 14 no difficulty and no particular expense. 14 with them in this way. And it’s not such a short 15 I ’d like to hear you on that , but on the rest of it , 15 period , because, I mean, they’re sought from 2012 to 16 you reminded me that I started out saying I need some 16 2014, June ’12 to October ’14, so there will be quite 17 persuasion , I wasn’t persuaded, so you needn’t address 17 a number, and of course -- 18 the other categories . 18 MR JUSTICE ROTH: Yes, but are you saying, isn’t your 19 MR MCQUATER: I’m very much obliged, my Lord. Let me 19 submission that your client and their -- those advising 20 deal -- in the board minutes, your Lordship said are 20 them have not gathered and looked at these board minutes 21 readily accessible . As we’ve indicated , not so in the 21 before preparing the defence? 22 case of UK board minutes, because those are held only in 22 MR MCQUATER: My Lord, there’s a very good reason for that, 23 hard copy: our skeleton 89.2. 23 and, as which we have explained as early as pre- action 24 MR JUSTICE ROTH: Yes. 24 correspondence, which is that this was not a decision 25 MR MCQUATER: They are not currently accessible because of 25 made at board level --
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1 COVID restrictions . 1 MR JUSTICE ROTH: Yes. 2 MR JUSTICE ROTH: Well, is that really continuing to be the 2 MR MCQUATER: -- in the Vodafone organisation, and we have 3 case, until the end of the month? 3 explained that until we’re blue in the face , but 4 MR MCQUATER: I have not been told anything has changed. 4 Phones 4u of course do not want to accept that . It was 5 That premises remains closed at the moment. 5 a decision made by the chief executive of Vodafone, 6 MR JUSTICE ROTH: Yes. 6 Mr Hoencamp, in conjunction with an informal project 7 MR MCQUATER: That’s UK board minutes. 7 group and was personally approved by Mr Colao 8 MR JUSTICE ROTH: Yes. 8 subsequently at Vodafone Group, but it was not a board 9 MR MCQUATER: The UK board packs, those are not stored in 9 decision either at Group level or at UK level. So 10 a central repository and they are voluminous, I ’m told, 10 they’ re actually asking for the wrong documents so far 11 and there will have to be a keyword search to find them 11 as Vodafone is concerned. That’s why we don’t have all 12 across certain of the custodians ’ email data to identify 12 of the board minutes and board packs immediately at our 13 UK board packs. So there will -- I ’m afraid , it ’s not 13 fingertips , because actually they’ re asking for the 14 an easy exercise for UK, as Mr MacLean suggests it 14 wrong thing. 15 should be. The practical reality , as has been said in 15 Now, we’re prepared -- of course, Mr MacLean will 16 correspondence, is that it isn ’ t and it will take time, 16 say we want to check that , we want to ensure that 17 and part of it may be COVID-dependent. 17 ( inaudible ) is right , but he’ ll get that as standard 18 MR JUSTICE ROTH: Yes. 18 disclosure . So there is a good reason why we don’t 19 MR MCQUATER: I don’t make the same practical points in 19 already -- 20 relation to Group board minutes, though all 20 MR JUSTICE ROTH: Well, it will have been reported to the 21 board minutes, my Lord, will , of course, have to be 21 board, surely ? 22 checked for irrelevant and confidential material 22 MR MCQUATER: Well, it may have been, my Lord. Until we 23 relating to any number of other topics , and redactions 23 review the board minutes I can’t ( inaudible ) of that . 24 potentially made. So there are potential practical 24 MR JUSTICE ROTH: Yes (inaudible). 25 issues about delivering / disclosing this material early . 25 MR MCQUATER: Sorry, I didn’t mean to interrupt, my Lord.
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1 MR JUSTICE ROTH: No, it’s just something of this 1 (1.00 pm) 2 significance , I ’m rather surprised if that has not been 2 (The luncheon adjournment) 3 looked at already . 3 (2.00 pm) 4 MR MCQUATER: My Lord, your Lordship has just reminded me 4 MR JUSTICE ROTH: Yes, Mr McQuater. 5 that there is a document, I think it was disclosed 5 MR MCQUATER: Good afternoon, my Lord. Just before I sit 6 pre- action , which was sent to the Group board for their 6 down, so your Lordship can hear other parties on early 7 information about the decision . So it was a "for your 7 disclosure of board documents, one last point which 8 information , here it is ". 8 I omitted to make is just this : if Phones 4u wants early 9 MR JUSTICE ROTH: To the Group board. 9 disclosure of board meetings so it can feed this in to 10 MR MCQUATER: To the Group board, yes, and that was 10 their application for expert evidence , I would suggest 11 disclosed pre- action . 11 that high- level board documentation is not the sort of 12 MR JUSTICE ROTH: Yes, and the UK board, which are more 12 material that is going to assist them. 13 directly concerned, would obviously also have been told 13 MR JUSTICE ROTH: Yes. 14 about it . 14 MR MCQUATER: They would really need something rather more 15 MR MCQUATER: One would expect so. 15 granular . I think your Lordship’s intention now is to 16 MR JUSTICE ROTH: With an explanation, I suspect, of why 16 hear other defendants on early disclosure of board 17 it ’s been done. 17 documents and then I’ ll be back on my feet on unfiltered 18 MR MCQUATER: My Lord, I’m not trying to say these documents 18 searches . 19 couldn’t be relevant . 19 MR JUSTICE ROTH: Yes. Mr Hoskins, anything to add to -- 20 MR JUSTICE ROTH: No, I just would have thought you’d have 20 Submissions by MR HOSKINS 21 got them already, that ’s all . 21 MR HOSKINS: Early disclosure of board documents. I want to 22 MR MCQUATER: The report to the Group board was disclosed 22 obviously avoid repeating , as far as I can, what 23 pre- action , so -- 23 Mr McQuater said. There’s actually two periods in 24 MR JUSTICE ROTH: Yes. 24 relation to us that are sought. There’s 1 January 2012 25 MR MCQUATER: So we have been transparent about this. 25 to 31 October 2014. That’s at paragraph 3 of
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1 My Lord, it may be -- yes , the last , well , perhaps 1 Phones 4u’s draft order . That’s at {D1/14/2}. 2 the last point to make about disclosure of board 2 MR JUSTICE ROTH: Yes. 3 documents -- I am conscious of the time -- is that the 3 MR HOSKINS: There’s a second period, and it wasn’t 4 only justification I heard from Mr MacLean this morning 4 expressly referred to so I ’m not sure if it is still 5 for needing the documents early was it would assist with 5 pursued, but Mr MacLean will stop me if I ’m -- 6 a proposed application for expert evidence . That’s, 6 MR MACLEAN: As I understand it, my Lord, that’s the 7 I think -- this is a rationality evidence -- and, 7 period 2006 to 2009. 8 my Lord, that is an application that Mr MacLean has said 8 MR HOSKINS: It is. 9 he’s not going to bring on until after he has full 9 MR MACLEAN: Yes; were not pursuing that at this stage. 10 disclosure , actually standard disclosure . So by the 10 MR HOSKINS: Thank you. 11 time he brings that application on, he will have this 11 MR MACLEAN: We are pursuing it as a matter of standard 12 material as a result of the standard disclosure process . 12 disclosure . 13 As your Lordship observed in argument this morning, he 13 MR HOSKINS: That’s helpful. Thank you. 14 already has ( inaudible ) considerable body of material . 14 So there ’s just one period , it sounds like it ’s the 15 My Lord, I wonder if that would be a good point 15 same for us and Vodafone, 1 January 2012 to 16 to -- 16 31 October 2014. 17 MR JUSTICE ROTH: Yes. 17 Phones 4u is seeking the board documents -- I ’m 18 MR MCQUATER: -- break? 18 using that definition as given in 3rd Greeno, 19 MR JUSTICE ROTH: Yes. This is sought as against your 19 paragraph 84 -- from three committees of Tef UK. That’s 20 client and someone else, I think -- 20 the TUK statutory board, the TUK executive committee, 21 MR O’DONOGHUE: I’m in the frame as well, my Lord. 21 sometimes referred to as UK ExCom, and the TUK steering 22 MS DEMETRIOU: So are we. 22 committee. It is also seeking board documents from two 23 MR JUSTICE ROTH: Yes. So a number of you are concerned. 23 committees from Tef SA, Tef EU; that’s the Tef Europe 24 I think we’d better stop, and I ’ ll hear from you after 24 executive committee and the Tef Europe project approvals 25 2 o’clock . 25 committee, sometimes referred to as the PAC.
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1 We oppose this application for a number of reasons. 1 The fifth reason is already covered by Mr McQuater. 2 MR JUSTICE ROTH: Can you just give me, because I think the 2 The only justification that has been given is to revive 3 transcribers missed it , the reference to Mr Greeno? 3 the application for expert evidence early . Now, of 4 MR HOSKINS: Yes, of course. It’s 3rd Greeno, paragraph 84, 4 course, that can’t be before standard disclosure is 5 at {D1/15/39}. 5 given because, as you heard from Mr MacLean on his feet, 6 MR JUSTICE ROTH: Thank you. 6 at the last CMC Phones 4u agreed that they would revisit 7 MR HOSKINS: I will just read it out. It defines board 7 their application for -- 8 documents as: 8 MR JUSTICE ROTH: Yes, well, I have that point. 9 "... board minutes and board presentations /packs, 9 MR HOSKINS: And the sixth and final point is just 10 which would have been distributed to particular 10 a specific one, which is we have told Phones 4u in 11 individuals with responsibility for the Defendants’ 11 correspondence that Tef UK’s statutory board, so one of 12 commercial strategy ." 12 the three Tef UK bodies, we have told them that it 13 MR JUSTICE ROTH: Yes. 13 wasn’t a separate decision -making entity for the purpose 14 MR HOSKINS: So the reasons for our opposition: first of 14 of corporate approvals . So there is going to be nothing 15 all , it will come as part of standard disclosure in any 15 there in any event, but that ’s obviously a minor point . 16 event. Secondly, like Vodafone, we have already 16 MR JUSTICE ROTH: Yes. 17 disclosed the minutes of the key meetings at which the 17 MR HOSKINS: We oppose the application in its entirety for 18 decisions not to enter into a new contract with 18 those reasons . 19 Phones 4u were taken. Those meetings were the meeting 19 MR JUSTICE ROTH: Yes. 20 of the Tef UK executive committee on 17 July 2012; the 20 Submissions by MS DEMETRIOU 21 meeting of Tef UK’s leadership team meeting on 21 MS DEMETRIOU: Our understanding going back was that we were 22 9 September 2013 and, thirdly , the meeting of Tef EU’s 22 being pursued for the EE board meeting minutes. I think 23 project approvals committee, the PAC, on 23 where we have got to on that , through correspondence, is 24 25 October 2013. 24 that we’re no longer being pursued for those minutes 25 So the key documents have been given. 25 because EE are providing them.
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1 None of those documents provides any support for any 1 MR JUSTICE ROTH: That was my understanding. 2 aspect of Phones 4u’s claim. I think it is a fair 2 MS DEMETRIOU: But we are, I think, still being pursued for 3 assumption or possibility that if those key documents do 3 Orange’s board meeting minutes, so I need to address 4 not contain any material relevant to the claim, it is 4 that . I did ask Mr MacLean to confirm because it didn’ t 5 unlikely that more peripheral document will do so. 5 seem to me to fit with the rationale for his application 6 The third point is that the early disclosure sought 6 generally , because it is very hard to see how these 7 would require specific searches to be conducted. It is 7 minutes could shed light on the expert evidence -- 8 the case that all the documents are not already 8 MR JUSTICE ROTH: Yes. 9 gathered. We have the key documents, we have given them 9 MS DEMETRIOU: -- exercise which is the justification for 10 to Phones 4u, but we don’t have all the documents that 10 it . But he did confirm just before lunch that they are 11 they seek in one place . So there would have to be 11 pursuing it . So may I deal with it very briefly ? 12 a search carried out. 12 MR JUSTICE ROTH: Well, no, I don’t think you need to, 13 MR JUSTICE ROTH: Yes. 13 because I don’t think -- 14 MR HOSKINS: The fourth point is that the documents, once 14 MS DEMETRIOU: Very grateful, my Lord. 15 found, would have to be reviewed for relevance . One of 15 MR JUSTICE ROTH: -- there is good reason for Orange board 16 the reasons why, you may remember, my Lord, at the first 16 minutes. 17 CMC, we said we wanted standard disclosure was because 17 MR O’DONOGHUE: My Lord, Ms Demetriou and I -- 18 we said we thought it would be more efficient to be able 18 MR JUSTICE ROTH: You’re in the same position on that. 19 to carry out one chronological exercise . That’s why we 19 Yes; do you want to -- 20 wanted standard disclosure . Indeed, Phones 4u wants 20 Submissions in reply by MR MACLEAN 21 standard disclosure . 21 MR MACLEAN: Briefly, my Lord. 22 So the problem here, as the point was made earlier 22 Essentially the arguments against disclosure are 23 this morning by Mr McQuater, is having agreed with us to 23 that it is going to be very disruptive and it is not 24 do standard disclosure , they’ re now seeking to disrupt 24 going to be very illuminating . Well, for the reasons 25 that . So that’s the fourth reason. 25 that your Lordship gave, these are documents which ought
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1 already to have been reviewed, they are going to have to 1 remains an issue . 2 be reviewed in due course, and it is hard to see that 2 MR JUSTICE ROTH: Yes. 3 the so- called disruption is going to be very material . 3 MR MCQUATER: My Lord, on unfiltered searches, the remaining 4 The suggestion, for example, by Mr McQuater that the 4 issues , so far as we are concerned, arise on external 5 documents are locked up in an establishment which can’t 5 communications and internal communications. We will 6 be reached because of the Covid crisis , in my 6 deal with them in turn. 7 submission, does not hold water. 7 On external communications, your Lordship has 8 If someone wants to gain access -- they are not 8 already said , not early , but on standard disclosure 9 being kept in a public health institution . No doubt if 9 there ’s a dispute about scope and Mr MacLean, rather 10 they wanted to go and search for these documents, they 10 ungenerously, said , at [ draft ] transcript page 30 today, 11 could. 11 "Vodafone has just said we’re not doing it " {Day2/31:7}. 12 For the reasons , my Lord, that I have already given 12 That is a mischaracterisation . We have not said we 13 to your Lordship, we suggest that these do fall within 13 are not doing it . We have said we’ ll do it custodian to 14 a readily identifiable , discrete category of documents 14 custodian. So the difference between us is that 15 which the court ought to order to be disclosed now. 15 Mr MacLean wants it between our custodians and anyone at 16 MR JUSTICE ROTH: Yes, thank you. 16 another domain name of any of the other defendants, 17 Right. 17 effectively . So he wants a wider pool on an unfiltered 18 Submissions by MR MCQUATER 18 basis , so all to be looked at unfiltered . 19 MR MCQUATER: My Lord, I think the next item on the agenda 19 Now, as to numbers, Mr MacLean referred to the fact 20 is unfiltered searches . 20 that our hit report had a total of 618. That’s not 21 Just before I go there , I ’m afraid something 21 going to be the whole story , because that ’s one 22 Mr MacLean said in response to Mr Hoskins has indicated 22 direction . I don’t suppose the total number in the end 23 that there is another issue which, depressingly , still 23 will be enormous, but it is really a question of 24 remains. I thought, because Mr MacLean didn’t refer to 24 methodology, whether these should be subject to keyword 25 it in his opening, it wasn’t pursued, but Mr MacLean 25 searches , as we say, or should have to be done
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1 said that although all the board minutes from a very 1 unfiltered , as Mr MacLean would have it. 2 early period , ’06 to ’09, are not pursued early , they 2 In our submission, keywords is perfectly ... 3 are still pursued as standard disclosure . That is 3 MR JUSTICE ROTH: Yes. 4 resisted as standard disclosure . So the inclusion of 4 MR MCQUATER: My Lord. So that is effectively the extent of 5 2006 to 2009 board minutes -- because what we have been 5 the dispute between us, my Lord. 6 talking about today is a period asked for earlier , which 6 MR JUSTICE ROTH: Yes. 7 is board minutes from 2012 to 2014. That’s what we have 7 MR MCQUATER: Mr MacLean says these are very likely to be 8 been discussing . 8 key and central documents. Well, on the sample 9 If Mr MacLean is going to press board minutes from 9 testing -- my Lord, that has been covered in recent 10 a much earlier period , 2006 to 2009 -- 10 correspondence. On the sample testing that we did, the 11 MR JUSTICE ROTH: Would it be sensible, given the time, if 11 subject matters that were coming up were not key or 12 that hasn’t actually been ventilated , to put that off to 12 central documents. There was a whole bunch of emails 13 a separate short application , if the claimants are 13 relating to Weve, which was a joint venture between 14 seeking it ? 14 Vodafone and EE and Tef on network sharing. My Lord, 15 MR MCQUATER: Well, it is quite -- it is relatively discrete 15 that ’s -- your Lordship pointed out, and we went to the 16 because it will be entirely new, full of documents -- 16 hit report , that Mr Parbutt had a very large number of 17 MR JUSTICE ROTH: Yes. I just -- I am concerned that we 17 communications. Well, Mr Parbutt was involved in Weve 18 have quite a bit to get through -- 18 and it is completely unremarkable. 19 MR MCQUATER: I appreciate that, my Lord. 19 So what is going to happen here is an awful lot of 20 MR JUSTICE ROTH: -- and I had not identified that as an 20 business -of-usual types of emails , my Lord, and in our 21 issue and, as you say, it wasn’t opened. So I think , 21 submission, keywords is enough. 22 rather than devote time to it , that ’s not covered by the 22 MR JUSTICE ROTH: Yes. 23 order at the moment and if it is pursued, we’ ll do it 23 MR MCQUATER: And it doesn’t require an unfiltered search. 24 separately . 24 My Lord, dealing with unfiltered internal emails , so 25 MR MCQUATER: I am very much obliged, my Lord. It obviously 25 this is emails and communication within Vodafone UK and
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1 within Vodafone Group. This started off as a very wide 1 is sought by Phones 4u. Can we turn up, please , 2 request . It has since been narrowed down, as Mr MacLean 2 {D1/14/2}. This is the draft order . You’ ll see at 3 explained . 3 paragraph 5 that they’ re asking for an order that the 4 MR JUSTICE ROTH: Yes. Well, you needn’t address me on 4 defendants: 5 internal emails . 5 "... take reasonable measures to secure and obtain 6 MR MCQUATER: I am very much obliged. 6 access to personal emails , mobile phone data ( including 7 MR JUSTICE ROTH: The unfiltered search, is that only as 7 personal mobile phone data), and social media 8 against Vodafone? 8 messages ..." 9 MR MCQUATER: That’s against us. I think that is the extent 9 Etc. 10 of the unfiltered -- remaining unfiltered requests 10 MR JUSTICE ROTH: Yes. 11 against us. 11 MR HOSKINS: Then at paragraph 7, to inform Phones 4u of the 12 MR JUSTICE ROTH: Yes. 12 outcome of the measures taken by way of letter from 13 MR MCQUATER: I think it is, my Lord. 13 solicitors . 14 MR JUSTICE ROTH: Yes. 14 MR JUSTICE ROTH: Yes. 15 MR MCQUATER: So I am not clear -- other defendants may be 15 MR HOSKINS: Now, my Lord, we have obviously heard your 16 able to assist your Lordship as to whether there remain 16 initial indication . We do oppose this application . 17 unfiltered -- 17 I hope to persuade you not to grant it . If , having 18 MR JUSTICE ROTH: It is only against Vodafone if we are 18 heard me, you are still against me, I also want to 19 dealing on the custodians? 19 address you on what sort of form the order should take. 20 MR MACLEAN: Yes. I think we’re not -- we had agreed that 20 MR JUSTICE ROTH: Yes. 21 the unfiltered searches that were outstanding in 21 MR HOSKINS: I won’t try and do two birds with one stone -- 22 relation to Telefónica would be dealt with by the end of 22 MR JUSTICE ROTH: I don’t think it should be an order 23 the month, if we could. 23 against the solicitors . It has to be an order against 24 MR JUSTICE ROTH: Yes, that’s right. 24 the party . If it is made. 25 So the issue to reply on is whether it should be 25 MR HOSKINS: If we get to that.
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1 custodian -- a rather narrower issue now: custodian to 1 MR JUSTICE ROTH: Yes, but it wouldn’t be that -- they might 2 custodian, or custodian to anyone. 2 do it through their solicitors , but that ’s different . 3 MR MACLEAN: Essentially what you have heard is 3 MR HOSKINS: Yes. 4 a proportionality argument. 4 MR JUSTICE ROTH: Yes. 5 MR JUSTICE ROTH: Yes. 5 MR HOSKINS: Just to explain the Tef position . In relation 6 MR MACLEAN: One doesn’t know what the difference between 6 to two of our custodians , that ’s Mark Evans and 7 the total -- the aggregate hit number of 618 is compared 7 Feilim Mackle, they each used a single mobile phone for 8 with what would happen if it was narrowed down to 8 business and personal purposes. Those devices have been 9 custodians . My submission is that it is proportionate 9 imaged and will be searched. 10 to search across the whole of that range and if there is 10 MR JUSTICE ROTH: Yes. So it doesn’t affect them. 11 nothing to disclose , then there will be nothing to 11 MR HOSKINS: That’s right. 12 disclose . It is hardly going to cost a great deal to 12 If you have the White Book handy, CPR 31.8? 13 search across all those documents. In our submission, 13 MR JUSTICE ROTH: Yes. 14 it is a proportionate search to carry out on an 14 MR HOSKINS: You’ll have this point from the skeleton so 15 unfiltered basis , given the allegations in the case. 15 I can take it quickly . 16 MR JUSTICE ROTH: Yes. 16 MR JUSTICE ROTH: Mm. 17 MR MCQUATER: My Lord, sorry, it is a bit more than 17 MR HOSKINS: It is the limit on the duty to disclose . 18 proportionality , it is relevance , because as sample 18 MR JUSTICE ROTH: Yes. 19 testing will show you -- 19 MR HOSKINS: You raised the point earlier today, my Lord, 20 MR JUSTICE ROTH: Yes. 20 about the employment contracts. I can say that from the 21 MR MCQUATER: Your Lordship has the point. 21 point of view of Tef, we do not have any right , 22 MR JUSTICE ROTH: Yes, thank you. 22 contractual or otherwise , to take possession or to 23 Are we now at personal data? 23 inspect or take copies of the personal data sought. 24 Submissions by MR HOSKINS 24 MR JUSTICE ROTH: That wasn’t quite the point I was making, 25 MR HOSKINS: That’s right. Can I first of all show you what 25 whether there ’s an obligation to co-operate with the
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1 employer in resisting any claim. 1 imagine, put yourself in the shoes of the employee, the 2 MR HOSKINS: I understand the distinction. We have made it 2 pressure one would feel under, because it is not simply 3 clear in our skeleton we don’t have the contractual 3 a question of shall I give it or not; there ’s: what does 4 right . So I understand that -- 4 my employer want me to do? 5 MR JUSTICE ROTH: Yes. But, I mean, if they were used, 5 It is inevitable , in our submission, that people 6 looking at 38.1.2, if a personal phone was used for 6 being asked, even if the order is simply to ask them, 7 a business communication, then you would have a right , 7 will feel under pressure . It will not be 8 looking at this , to possession of it , because the 8 straightforward . 9 employee in doing that would be acting as your agent. 9 MR JUSTICE ROTH: What’s wrong with that? 10 MR HOSKINS: Well, I’m not sure that -- 10 MR HOSKINS: Well, because there are privacy rights at stake 11 MR JUSTICE ROTH: Isn’t that right? North Shore Ventures is 11 here, my Lord. 12 mentioned here. 12 MR JUSTICE ROTH: Well, if they are supplying them, not to 13 MR HOSKINS: My Lord -- 13 you, not to their employer, but to independent 14 MR JUSTICE ROTH: I appreciate you say it wasn’t used, but 14 solicitors for the purpose only of running an exercise 15 if it was, you would have a right to possession of the 15 with search words to see if there ’s anything relating to 16 communication, I think . 16 the employer’s business , and they’ re adamant there 17 MR HOSKINS: My Lord, the first point is we have asked 17 isn ’ t , and that’s done as an electronic search -- 18 custodians and they have all said they didn’ t use 18 MR HOSKINS: My Lord, with respect -- 19 personal devices for business purposes. Mr MacLean kept 19 MR JUSTICE ROTH: I mean, are you saying there’s some legal 20 going back to an example, the Vodafone iPad, where it 20 prohibition on it , because I need to be addressed on 21 was used, but people have been asked, so that point is 21 that . 22 made. 22 MR HOSKINS: No, my Lord. The point I make is simply one 23 I must confess, I am not sure of the position if , 23 about the position it puts the individuals in . My Lord, 24 for example, one person did use their mobile phone once 24 you look at it from one perspective , which is the 25 for business purposes; would that give a right to 25 perspective of , with respect , a High Court judge with
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1 possession over the phone for all purposes? I don’t 1 these disclosure issues in front of you. Put yourself 2 know the answer. I raise that legal question . 2 in the shoes of the individual . One might have material 3 MR JUSTICE ROTH: Mm. 3 on one’s phone or iPad for all sorts of reasons -- 4 MR HOSKINS: But you’ll see the problem with that in terms 4 MR JUSTICE ROTH: Yes. 5 of a right to possession . 5 MR HOSKINS: -- that are private and personal . Being asked 6 So our submission is that the data sought does fall 6 to provide that to any third party may be something that 7 outside the scope of CPR Part 31.8. 7 someone simply doesn’t want to do, and absolutely 8 The next point is that the scope of the order is 8 unconnected to anything to do with this case when it 9 unclear because it asks that reasonable measures should 9 comes to collusion . 10 be taken. What do "reasonable measures" mean in this 10 In our submission, it is very important when the 11 context? Is it simply that the question is asked: will 11 court is exercising its judgment on whether to make this 12 you provide it ? Do we have to seek to persuade in some 12 order . One can’t really underestimate that privacy 13 way or encourage individuals to comply? 13 element for an individual . 14 Reasonable measures sometimes, as we all know, is an 14 MR JUSTICE ROTH: Yes. 15 appropriate provision to put in an order , but in an area 15 MR HOSKINS: We all have different lives , etc . Maybe some 16 of this sensitivity , simply to say "reasonable 16 people wouldn’t care if their phone was handed over, but 17 measures", in my submission, is unclear and is 17 I ’m afraid a lot of people would. 18 unacceptable as a form of order . If any order were to 18 MR JUSTICE ROTH: If a Competition Authority conducting 19 be made, it would have to specify very clearly what 19 a raid on, as they can, with court authority , 20 indeed was being required to be done. 20 executives ’ homes, seeks to image their private 21 Now, even if the order were limited to requiring Tef 21 computer, which will have all sorts of irrelevant 22 to simply ask individuals to hand over their personal 22 matters and personal matters, is that an objection ? 23 devices , you’ ll have the point , my Lord, about how 23 MR HOSKINS: It is a completely different legal situation 24 intrusive that would be, even as a request , because when 24 here because the powers that the authority has are 25 it is put by an employer to a current employee, you can 25 different from the disclosure .
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1 MR JUSTICE ROTH: Well, that’s a question of power, but 1 submission, for example, it should be permissible for 2 you’re talking about personal concerns -- 2 the company making the request to make it clear to 3 MR HOSKINS: Yes. 3 individuals that they are under no legal obligation to 4 MR JUSTICE ROTH: -- of the individual. Why are they 4 do so; or to make it clear , for example, that the court 5 different ? 5 is not ordering them to provide access to their personal 6 MR HOSKINS: No, the concerns are exactly the same, but my 6 data. Again, it is very unfair and you can see the 7 point is that if the authority has the power to take it 7 problems if one simply gets , in very stark terms, 8 regardless of personal concerns, then the legislature 8 a letter from his employer saying , "Will you provide 9 has decided that personal concerns should not stop it 9 these personal documents". You can see the difficulty 10 being taken. But the position here is that is not the 10 that will put an employee in , in trying to make this 11 legislative position we are in , because the CPR has not 11 sort of decision . 12 seen fit to make provision for that sort of rather 12 So if an order is to be made, it has to be in very 13 draconian regime. We all know it is a draconian 13 clear terms and, in our submission, it should make those 14 regime -- 14 sorts of points clear , or make it clear that the 15 MR JUSTICE ROTH: Yes, but if there’s no power to do it, 15 employer can make a request in those terms. 16 insofar as the court has no power to make the order, 16 The next point is that if an individual receiving 17 I can’t make the order, whether it is desirable or not. 17 such a request feels uncomfortable about it or unsure 18 That’s an end of it . 18 about what to do, then of course they may want to take 19 MR HOSKINS: Yes. 19 their own legal advice . That would be perfectly 20 MR JUSTICE ROTH: Insofar as there is a power to do it, then 20 understandable and they should be entitled to do so. 21 I thought you were saying : well , even though you have 21 But here there is , again, a problem, because if they 22 the power, it is very intrusive and the individuals 22 want to take legal advice , they are going to have to go 23 would be upset about it . 23 to the expense, the personal expense, of obtaining that 24 MR HOSKINS: Yes, that is -- 24 advice . They are going to have the trouble of 25 MR JUSTICE ROTH: I’m saying: how is that different from 25 consulting a lawyer , and that is something that they may
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1 when the Competition Authority -- which, as you say, 1 wish to do if they feel strongly about handing over 2 unquestionably has the power. When it exercises it , no 2 personal material , regardless of whether it is for any 3 doubt the individual is frequently unhappy. 3 reason to do with this case. 4 MR HOSKINS: But, my Lord, you are to exercise a judgment 4 Now, if , for example, Phones 4u were to make a third 5 taking into account all relevant considerations . 5 party disclosure order -- or application , rather , 6 MR JUSTICE ROTH: Yes. 6 against the individuals , then of course they would have 7 MR HOSKINS: One of the relevant considerations, in my 7 to cover the costs of complying with any such order and 8 submission, an important one, is the effect on privacy . 8 that would no doubt cover the legal costs , indeed, of 9 MR JUSTICE ROTH: Yes. 9 consulting a lawyer in relation to that request . 10 MR HOSKINS: That clearly is a relevant consideration . 10 So one of the problems here is that to a certain 11 Given it is a relevant consideration , it is one that you 11 extent the order sought is circumventing the cost 12 must take into account, with all due respect , my Lord. 12 protections on the individuals who are supposed to 13 MR JUSTICE ROTH: Yes. 13 receive these requests . 14 MR HOSKINS: Obviously the weight you give to it is entirely 14 The next point is that , whilst it is certainly 15 a matter for you. I submit it should be given 15 well - established law that two wrongs do not make 16 considerable weight. But certainly it ’s something that 16 a right , it is relevant to the court ’s discretion that 17 you cannot put out of your mind; it is something you 17 Phones 4u did not consider it necessary to preserve even 18 must consider in the exercise of -- 18 the business mobile data of its custodians , let alone 19 MR JUSTICE ROTH: No, I understand. 19 their personal devices . That is so, even though, in 20 MR HOSKINS: There’s a question, my Lord, if you are against 20 Phones 4u’s own words, the senior management team 21 us and you are willing to make an order -- you have my 21 custodians at Phones 4u, and I ’m quoting, "worked 22 submission on why reasonable measures would not be an 22 relatively informally ". 23 appropriate order to make. 23 Can we please turn up {C/621/5}, which is 24 MR JUSTICE ROTH: Yes. 24 a Quinn Emanuel letter of 26 June 2020 to 25 MR HOSKINS: What form should any request take? In our 25 Mishcon de Reya. My Lord, we have been pushing for the
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1 details of this for some time. Can you please read 1 it certainly shouldn’t be in relation to all custodians . 2 paragraph 13.1 to yourself . 2 For example, we have a total of 19 Tef custodians . Most 3 (Pause) 3 of these are nowhere near, for example, the pleaded case 4 MR JUSTICE ROTH: Yes. 4 of collusion . So if an order is to be sought, it 5 MR HOSKINS: So Phones 4u has not retained any mobile data, 5 certainly should not be simply carte blanche against all 6 business or personal , so when you hear a submission 6 custodians . 7 saying how important it is to this material , you must 7 MR JUSTICE ROTH: Yes. 8 bear in mind on the other side that Phones 4u have not 8 MR HOSKINS: It should be, for example, against those named 9 seen fit to preserve any such material . 9 in the particulars of claim, but no further than that . 10 My Lord, bear in mind, I think it was Mr Pickford 10 MR JUSTICE ROTH: There is some distinction drawn somewhere 11 who made the point to you yesterday , there is a specific 11 between key custodians and other custodians . 12 reference to an SMS message from a personal device from 12 MR HOSKINS: There is for this purpose. I don’t know -- 13 a Phones 4u custodian. It was the screenshot . 13 MR JUSTICE ROTH: Where does that arise? 14 So someone saw fit to take a screenshot of an SMS 14 MR HOSKINS: I would need to take instructions -- 15 message, but nobody saw fit to preserve the phone that 15 MR JUSTICE ROTH: Mr MacLean might -- no doubt, but -- 16 was used to send the message? Now, you will understand 16 MR HOSKINS: But you’re right, it does appear. 17 that we are pursuing in correspondence exactly what has 17 MR JUSTICE ROTH: Yes. You are speaking for -- effectively , 18 happened here, but the simple point for this application 18 apart from the particular point you made about the two 19 is , when you are considering how important it is to 19 Telefónica custodians who had a single phone, you’re 20 provide this information , Phones 4u has not seen fit to 20 speaking -- these are general points for all defendants, 21 preserve any mobile data, business or personal . 21 as I understand it ? 22 The next point concerns a consequences of a refusal 22 MR HOSKINS: There may be -- I’m sure there may be some 23 by an individual . There’s no doubt what will happen is , 23 particular points that I was asked to lead on on this . 24 if we make the request, an individual says "no", then 24 MR JUSTICE ROTH: Yes. 25 somewhere down the line it will be suggested that 25
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1 adverse inferences should be drawn. 1 Submissions by MR MCQUATER (continued) 2 In our submission, and we’ ll come to that if and 2 MR MCQUATER: Very briefly, two points. On personal data my 3 when it is made, but that would be completely unfair for 3 clients do feel particularly strongly about the 4 the reasons I ’ve already described . There are a myriad 4 indiscriminate nature of this across all custodians , 5 of reasons why one might not want to hand over one’s 5 because the allegations made in this case don’t come 6 personal device . 6 close to justifying approaching more junior people and 7 MR JUSTICE ROTH: But that’s down the line. 7 asking for all their personal data when there’s no 8 MR HOSKINS: It is down the line, but you can ask yourself , 8 indication that they might have been involved in 9 my Lord, what’s the purpose of this ? 9 collusion , there ’s no concern given to the degree of 10 MR JUSTICE ROTH: The purpose is some may say "yes" and then 10 their involvement in events , and no consideration given 11 some material might be obtained. The purpose is not to 11 to their seniority or their importance. If this is all 12 get refusals . On the contrary , the purpose is to get 12 about potential third party disclosure applications , one 13 the data. 13 isn ’ t going to get off the ground with any of these more 14 MR HOSKINS: I understand that, but for those who refuse 14 junior people and one, in our submission, wouldn’t get 15 they may be put in an invidious position and that is 15 off the ground even with more senior people. 16 something that you can -- 16 So the indiscriminate nature is objectionable . 17 MR JUSTICE ROTH: But adverse inferences will be a matter 17 The second point is simply to add to something 18 for trial , not for me now. 18 Mr Hoskins said and we gratefully adopt his submissions 19 MR HOSKINS: The final point -- 19 about the invidious nature of this , because we have been 20 MR JUSTICE ROTH: And if they shouldn’t be drawn, they won’t 20 given no detail of how it is going to be sought to 21 be drawn. 21 protect the personal data of anyone who gives up access 22 MR HOSKINS: The final point I wish to make then is this , 22 to it . 23 which is that if , contrary to my submissions, you are 23 It is not as though we have been presented with 24 minded to make some form of order, though hopefully it 24 a list -- a detailed proposal to provide this to an 25 will be more tightly drawn than is currently suggested, 25 independent data manager and how that data will be
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1 managed, how it will be kept confidential , how Phones 4u 1 criminal sanctions attached to a breach of these 2 will only be able to see genuinely relevant material , 2 provisions . We have made this point repeatedly to 3 and so on. 3 Phones 4u. We have had no response whatsoever as to 4 That will be a legitimate concern for these 4 whether it is accepted or not. Instead , what we have in 5 individuals , particularly if , as Mr Hoskins says, there 5 the latest skeleton , at paragraph 73 -- this is 6 are all sorts of things about their personal private 6 Phones 4u’s latest skeleton , and they say, and I quote: 7 life they do not want to come into the public domain, 7 "Phones 4u accepts that there may be legitimate 8 and we have had nothing like that . We have had no 8 concerns as to privacy and proportionality and that it 9 proposal of how that is to be managed. 9 may be the case that many (but not all ) documents and 10 Your Lordship knows that maintaining confidentiality 10 personal devices do not fall within the control of the 11 of data is difficult in the current environment -- 11 relevant defendants for the purposes of this 12 MR JUSTICE ROTH: Yes. 12 disclosure ." 13 MR MCQUATER: -- and there has been no proposal about it at 13 We have made a very specific point that is an answer 14 all . 14 to this order , that we do not control , that these 15 MR JUSTICE ROTH: Yes. 15 particular custodians did not use them for company 16 Yes, Ms Demetriou. 16 business , we have had no push back whatsoever and, 17 MS DEMETRIOU: My Lord, I don’t have anything substantive to 17 instead , we have this mealy-mouthed phrase at 18 add. We gratefully adopt the submissions that have been 18 paragraph 73 that we might or might not control them and 19 made by other counsel. 19 they might or might not be sensitive . 20 MR JUSTICE ROTH: I assume all defendants adopt the 20 With respect, that isn ’ t good enough, because what 21 submissions without you each having to say so. So it is 21 Mr MacLean is putting before the court is a sort of one 22 only if you want add anything to what Mr Hoskins and 22 foot in , one foot out. He has to reach a terminus on 23 Mr McQuater have said. 23 whether each defendant controls these documents. If we 24 Submissions by MR O’DONOGUE 24 do, then he can make an application against us. It 25 MR O’DONOGHUE: Yes, a couple of points. 25 seems that he’s not gravitating towards that . If we do
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1 My Lord, can I first go to our skeleton argument for 1 not control these documents, it is a binary thing . He 2 the adjourned CMC. It’s at {E2/3/20}. You see, 2 then has to make a third party disclosure application 3 my Lord, it starts at "Even before ..." 3 against those individuals . 4 If your Lordship can quickly glance through that . 4 What we have instead is a profoundly unsatisfactory 5 MR JUSTICE ROTH: This is paragraph -- 5 situation where we have put a reasoned particular case 6 MR O’DONOGHUE: Starting at 52, my Lord, and it’s really 6 that we do not control , these are not business - related , 7 53(a) and (b). We say: 7 and he wants in effect to circumvent a procedure for 8 "a) As regards Phones 4u’s proposal for DT to give 8 third party disclosure by effectively getting us to 9 disclosure from personal ... email accounts used by any 9 strong-arm or cajole these individuals to provide the 10 of its employees, the position is that DT has no 10 disclosure . 11 entitlement (under the employment contracts or otherwise 11 That is a mixed-up approach. He needs to reach 12 under the applicable laws, which in the case of DT’s 12 a landing point on the question of control . Once he has 13 proposed custodians are of Germany and Greece) to those 13 made that assessment, he can write the letter to these 14 email accounts or their contents . Similarly , DT has no 14 people. He knows who they are. He knows where to find 15 entitlement to obtain the data stored on personal mobile 15 them. We have given him the phone numbers and so on. 16 devices . 16 Where the application , in my submission, is 17 "b) In addition , even leaving aside the question of 17 remarkably coy, if your Lordship looks at the 18 any entitlement , there are further restrictions on the 18 application notice , it doesn’t set out what the legal 19 collection of personal email addresses or personal 19 basis is for this order . There is an amorphous 20 mobile devices . The German Telecommunications Act 20 reference to a direction . So far as we can tell , under 21 requires that the secrecy of the contents of 21 CPR 31, it is a binary thing . Either we control or we 22 telecommunications ... must be maintained. Moreover, 22 don’t . If it is somebody else, it is an application 23 these employees have a reasonable expectation of privacy 23 directed at somebody else. And this sort of backwards 24 (under the Convention and domestic law) ..." 24 approach to an application in relation to documents that 25 Now, they were correct in saying that there are 25 certainly DT has made clear we do not control , and
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1 indeed it would be a criminal offence for us to attempt 1 So whether they need to take legal advice or not 2 to control , none of that has been met in any shape or 2 shouldn’t be an objection to the court making an order 3 form and this application might most politely be 3 that a request be made. 4 described as " half -baked". 4 Now, I accept that the terms of the request ought to 5 I do echo Mr Hoskins’ points on the order . The 5 be formulated carefully . We don’t have a sample request 6 order is far -reaching . It requires us to take 6 before your Lordship, but if your Lordship were to 7 reasonable measures to secure and obtain. Again, that 7 indicate in the course of your Lordship’s judgment that 8 is mixed up with the point of control . If third parties 8 you thought that this was an appropriate step to take, 9 control these documents, it is up to Mr MacLean to 9 then no doubt we could agree the terms of a letter which 10 secure and obtain those documents. He can’t, by the 10 was to be written , explaining to the individuals what 11 back door, expect Deutsche Telekom or its solicitors to 11 the position was, that subject to the question of their 12 do the job for him. 12 employment contracts -- which I can’t deal with because 13 So there is a question that Mr MacLean needs to 13 I haven’t seen them -- they are not being compelled by 14 address the court on, which is the question of legal 14 this court to provide the material . That is a way in 15 basis , and he needs, in my submission, to reach 15 which I would recommend your Lordship deal with that 16 a landing point on the question of control , rather than 16 particular aspect. In other words, decide as a matter 17 hedging his bets. 17 of principle whether in relation to these mobile devices 18 MR JUSTICE ROTH: Yes. 18 the court is in principle prepared to make an order that 19 Submissions in reply by MR MACLEAN 19 a request be made and if it is , then one can sort out 20 MR MACLEAN: The court, plainly, in our submission, has the 20 what the terms of that request ought to be. 21 power to direct the defendants to write to certain 21 The sort of in terrorem submissions which have been 22 individuals , one can argue about who those individuals 22 made, that the sky is going to fall on our heads if the 23 are , to pose a question to them. The question is 23 court makes such an order, I respectfully suggest should 24 simply: are you willing to allow your mobile phone and 24 not deter this court from making such an order, 25 your email account to be examined by -- and it can be an 25 particularly , as we have seen, in relation to the
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1 independent party , in order to ascertain whether there 1 personal device of Mr Swantee, which has gone missing, 2 are relevant documents, relevant to this litigation . 2 these devices may contain extremely important 3 Now, the court plainly has the power to do that . 3 information in relation to the alleged collusion in this 4 Whether it should exercise that power is a matter which 4 case. 5 is up for debate, in my submission. 5 MR JUSTICE ROTH: So far as providing them are concerned, 6 The suggestion that it would be a criminal offence 6 they could be asked to provide them not to their 7 somehow for the individuals voluntarily to comply with 7 employer, not to the employer’s solicitors , but to 8 a request , a polite request which had been made, simply 8 a nominated third party . 9 can’t be right and there ’s no evidence that it would 9 MR MACLEAN: Yes. 10 amount to a criminal offence if the employer were to ask 10 MR JUSTICE ROTH: I don’t know quite what the technical term 11 for the documents to be subject to review . 11 is , but who conduct the electronic searches for the 12 The parties who are asked can simply say "no". 12 purpose of searching for any work- related emails . 13 Your Lordship has heard the suggestion that they might 13 MR MACLEAN: Yes. 14 be strong-armed into this . We’re talking about senior 14 MR JUSTICE ROTH: Or text. 15 individuals in these organisations . We’re not talking 15 MR MACLEAN: Absolutely. 16 about some shy, shrinking violet . They are people who 16 MR JUSTICE ROTH: Yes. 17 have held and do hold extremely important positions in 17 MR MACLEAN: If that search had been carried out, then the 18 these organisations . 18 results would remain with the third party . Once those 19 Now, if they were to come back, my Lord, and say, 19 results , which were targeted at work- related matters -- 20 "Well, we’re not going to disclose these without taking 20 we’re not interested here in elements of their private 21 legal advice ", then they come back and say, "We’re not 21 lives or anything like that , what films they want to 22 prepared to disclose these documents without taking 22 watch or anything else ; we’re interested in targeting 23 legal advice ", and at that stage we have an answer. We 23 work- related material . If that is carried out by 24 can either decide to pursue it further or we can 24 a third party , independent of any of these parties , that 25 consider what further steps ought to be taken. 25 ought to provide comfort and protection to these third
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1 parties . It will be explained to them in the letter 1 arrangements for trial , is that right ? 2 that is written that that is what is going to happen. 2 Discussion re arrangements for trial 3 If they don’t want to do that , they can say so. 3 MR MACLEAN: Yes, that’s right. 4 MR JUSTICE ROTH: Yes. 4 Now you will have seen from our skeleton argument 5 MR HOSKINS: My Lord, there’s a new point that’s been raised 5 that we have been suggesting that we ought to try and 6 that I ’d like to address but I was just making sure 6 get this case tried in 2022. 7 Mr MacLean had finished. 7 MR JUSTICE ROTH: Yes. 8 MR MACLEAN: I’m waiting to see whether the judge would like 8 MR MACLEAN: Now, it is true that I think on the last CMC or 9 me to address any further points . 9 even earlier in June we were suggesting a trial date 10 (Pause) 10 starting in October 2022. Your Lordship will have seen 11 My Lord, that’s what I propose to say. Mr Hoskins 11 from our skeleton argument that we are now suggesting 12 can have the floor . 12 trial dates starting in April 2022. The reason that we 13 Further submissions by MR HOSKINS 13 have moved to April 2022 is because it has become 14 MR HOSKINS: My Lord the new point is the suggestion that 14 apparent that the term of October 2022 is potentially 15 there ’s an independent third party , because that raises 15 not sufficient to capture all of the trial and there ’s 16 a number of questions: Who is it? Who is going to 16 a potential for that to go off to 2023. 17 identify it ? Who is going to pay for it ? Because it 17 MR JUSTICE ROTH: Yes. 18 has been pointed out by myself and Mr O’Donoghue that if 18 MR MACLEAN: At least until February, I think , on 19 this was a third party application , then Phones 4u would 19 Mr Hoskins’ suggestion . 20 have to bear the costs of complying with it in any 20 MR JUSTICE ROTH: Yes. 21 event. 21 MR MACLEAN: What we submit is that, given that these 22 With respect, again, to adopt Mr O’Donoghue’s 22 proceedings were started in late 2018, it wouldn’t be 23 language, this just shows the half -baked nature of this 23 right , given the nature of the allegations , for them to 24 application , to come to the court and on the hoof 24 go off until 2023. We would urge the court to put 25 suggest all sorts of : well , this can be drafted out, 25 a trial in --
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1 that can be drafted out and there can be an independent 1 MR JUSTICE ROTH: Yes. 2 third party dealing with all of this , without any 2 MR MACLEAN: -- 2022. 3 thought having been given to it in advance, without any 3 MR JUSTICE ROTH: That does take one to the point which 4 indication of the willingness on the part of Phones 4u 4 I raised before and that some of you have commented on, 5 to bear the costs of this in any event, as it would have 5 which is whether it should be a split trial . 6 to do with a third party disclosure order . 6 MR MACLEAN: Yes. 7 It shows that whatever the court ’s view of this on 7 MR JUSTICE ROTH: The more -- yes. 8 the merits , it has simply not been thought out by 8 MR MACLEAN: The current position, my Lord, is that you’ll 9 Phones 4u in the manner it has been brought before the 9 see from the skeleton arguments that some of the parties 10 court today. 10 are not keen on the idea of a split trial . We’re not 11 MR JUSTICE ROTH: Yes, thank you. 11 keen on the idea of a split trial . Mr Hoskins’ clients 12 Are there any other issues on the list of -- that 12 are not keen on a split trial , but they reserve their 13 were to be -- 13 position , and -- 14 MR MACLEAN: I think, my Lord, there’s the call records 14 MR HOSKINS: I think "not keen" might be too strong; we just 15 issue . 15 say we’re not in a position yet . Given what Phones 4u 16 MR JUSTICE ROTH: Yes. Thank you. 16 has said about its case on causation , it ’s very hard to 17 MR HOSKINS: I thought we had parked that because I stood up 17 come to a landing , but we’re certainly not averse if it 18 and -- 18 appears appropriate . 19 MR JUSTICE ROTH: Yes, that was parked. 19 MR JUSTICE ROTH: Yes. 20 Give me a moment. I don’t immediately see there ’s 20 MR MACLEAN: The position is that nobody is asking for 21 anything that has not been covered by way of response. 21 a split trial . 22 MR MACLEAN: I think that’s right, my Lord. 22 MR JUSTICE ROTH: Yes. 23 MR JUSTICE ROTH: Yes. As I said, and given the time, 23 MR MACLEAN: If your Lordship is going to make trial 24 I think that makes sense. I will deal with those in 24 directions , yes , of course, it can make provision for , 25 a reserved judgment. I think we then move to consider 25 at some stage, someone to come along and make an
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1 application for such a split trial . In our submission, 1 MR MACLEAN: Yes. 2 the directions which your Lordship makes for trial ought 2 MR JUSTICE ROTH: And we can then -- I’m not suggesting, to 3 to be for a whole trial . 3 make clear, that there should not be disclosure of all 4 MR JUSTICE ROTH: I mean, I have power to direct a split 4 issues , nor have you resisted it , because I think it is 5 trial even if no one asks for it . 5 right that the defendants should be able to estimate and 6 MR MACLEAN: You do. You do. 6 assess , well , what are the consequences anyway. That 7 MR JUSTICE ROTH: It does seem to me, Mr MacLean, that 7 will also mean that if you succeed on the first trial , 8 essentially this is two trials . You can have them 8 the second one is not so long delayed as it would be if 9 together as one, but there is the question of whether 9 you had to start the whole disclosure exercise . 10 there was an infringement of competition law and indeed 10 So it ’s not going to interfere with disclosure and 11 a breach of contract by EE and the economic tort and 11 it certainly would assist in then having the trial in 12 what was the reason for the decision to terminate or not 12 the spring of 2022. 13 renew the agreements with your client . That’s one whole 13 MR MACLEAN: Yes. The only -- we would be very keen to get 14 area . 14 on with the question of collusion or breach of contract . 15 MR MACLEAN: Yes. 15 MR JUSTICE ROTH: Yes. So what is your reason? Can you 16 MR JUSTICE ROTH: And then the second trial is, well -- and 16 explain why you’re so against -- 17 the answer to the first trial is if there was no 17 MR MACLEAN: The reason we’re so against it is if -- it is 18 collusion and no breach of contract , that ’s that . You 18 unfair to the claimants not to have this all dealt with 19 don’t go any further . 19 at once because -- let ’s assume that we win. 20 MR MACLEAN: No. 20 MR JUSTICE ROTH: Yes. 21 MR JUSTICE ROTH: If the answer is, yes, there was, then one 21 MR MACLEAN: Obviously, if we lose, then we can forget about 22 asks: well , what was the causative effect of it and what 22 the rest . But if we win, then we’re still going to face 23 damage has resulted? 23 a whole barrage of arguments about whether the found 24 So it splits , actually , it seems to me, quite neatly 24 collusion actually has caused any loss . And that, in 25 into two, and the costs of the second part of that 25 circumstances where this case was started in 2018, is
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1 exercise , namely looking at the precarious or otherwise 1 potentially going to lead us on not to know what damages 2 financial position of your client , what would have 2 we are entitled to in respect of these breaches until 3 happened in a counterfactual , which -- it ’s very hard to 3 sometime in 2023. That can’t -- 4 explore a counterfactual if you don’t know what the 4 MR JUSTICE ROTH: That is going to be likely anyway if 5 factual is ; it ’s really quite difficult . 5 there ’s a trial in the autumn of 2022 with a much longer 6 MR MACLEAN: Of course, yes. 6 trial and a much longer time to write judgment, all 7 MR JUSTICE ROTH: And I am somewhat surprised in particular 7 those things then have to be factored in , and you will 8 that defendants, who are vociferous in saying there was 8 of course, if you succeed in the first trial , life being 9 no collusion , no wrongdoing of any sort and it is 9 what it is , we know that then you are in much better 10 disgraceful that they’ re being dragged through all this , 10 position to potentially negotiate a settlement . You may 11 are not keener to have that disposed of in one trial and 11 not succeed in that , but it will be a whole different 12 avoid all the expense and time and effort -- 12 scenario in terms of settling the case. 13 MR O’DONOGHUE: We from the outset have been clear that we 13 Equally , if you lose the first trial , then the costs 14 want a split trial . 14 to the creditors of Phones 4u will be still large , but 15 MR JUSTICE ROTH: Yes, but, I mean, they take their own 15 nothing like the scale of losing on the whole thing , 16 position , but it does seem to me there is a lot to be 16 with all the expert evidence on accountancy and so on 17 said for a split trial , given the nature of this case, 17 which comes into the part 2. 18 and that would mean that the first trial would be -- you 18 MR MACLEAN: The sticking point, my Lord, is the question of 19 will tell me better than I can estimate it , but I would 19 splitting issues of causation out from the issues of 20 have thought about eight weeks of court time, more or 20 liability . 21 less . 21 MR JUSTICE ROTH: Well, I don’t think -- the causation of 22 MR MACLEAN: It certainly won’t be the 12 weeks. 22 why you went into administration is a quite different 23 MR JUSTICE ROTH: All right. Easily accommodated within one 23 question from causation of why the agreements were 24 term, even on the basis of four days’ sitting a week, 24 terminated. 25 which is quite sensible for longer trials . 25 MR MACLEAN: Yes.
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1 MR JUSTICE ROTH: So there’s no overlap of the -- 1 tangled up", I ’ ll listen to what you say. I mean, you 2 MR MACLEAN: I suppose the argument that is being run 2 may want to go away and all reflect on it further . 3 against us is that : your financial position was so bad 3 MR MACLEAN: Yes. 4 that inevitably you would have gone into liquidation 4 MR JUSTICE ROTH: But if I’m going to make directions, 5 anyway. 5 including trial length , that ’s the basis on which 6 MR JUSTICE ROTH: Yes. 6 I consider I should proceed -- 7 MR MACLEAN: Whether it is an argument to say: you were 7 MR MACLEAN: Right. 8 a moribund patient and I pushed you over the edge and 8 MR JUSTICE ROTH: -- unless someone wants to jump up and 9 killed you and therefore I ’m not liable , whether that’s 9 say: this would be a disaster . 10 an answer to the question -- 10 Yes, Mr Pickford. 11 MR JUSTICE ROTH: Well, I think what’s said is: we didn’t 11 MR PICKFORD: My Lord, I’m not -- 12 push you over the edge, you were falling over the edge 12 MR JUSTICE ROTH: It is Friday afternoon. 13 and you did. That’s how it is put, if we want to reduce 13 MR PICKFORD: I’m not going to make that submission. The 14 it to such crude terms. 14 submission I am going to make, however, is that we 15 But I have to say, the more I have read of this , and 15 should have discrete hearing on this issue because no 16 this is now the second time I ’ve looked at it , as it 16 one has made an application and we consider that there 17 were, afresh and re-read the pleadings , it seems to me 17 are some points in favour , there are some points 18 that it is a classic case for a split trial and it ’s not 18 against . 19 only the parties ; there is also a question of judicial 19 MR JUSTICE ROTH: Yes. 20 efficiency , the court time, interests of other litigants 20 MR PICKFORD: We would want to consider the matter properly 21 with trials , which I have to take into account. 21 and then form a view as to which side we’re going to 22 MR MACLEAN: So my Lord -- 22 come down on and then argue the point out. 23 MR JUSTICE ROTH: So I am very strongly inclined towards 23 We haven’t come here to do that today. That’s the 24 a split trial in this case and I think some of the 24 reason, for our part , in fact , in our skeleton , we 25 defendants support it , some are neutral , some I think 25 thought that directions for trial were potentially
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1 are opposed, but -- 1 a little bit premature because we haven’t dealt with the 2 MR MACLEAN: Some of the defendants want a different split, 2 question of -- 3 but if your Lordship is putting to me: have a trial on 3 MR JUSTICE ROTH: Well, I am entirely content with that. 4 the issue of was there collusion or not, was there 4 I don’t want to bounce anyone on a case particularly of 5 a breach of contract , and then put off the issues of 5 this substance and cost into that situation . So you can 6 causation -- 6 all reflect on it with your legal teams and indeed with 7 MR JUSTICE ROTH: Well, and: what was the reason for the 7 your clients and we can revisit it . We can make 8 decision to terminate the agreements. 8 probably some directions , but they will be affected by 9 MR MACLEAN: Yes. Yes. 9 that . I think on any view one is looking at trial in 10 MR JUSTICE ROTH: That seems to me to go with it, because 10 2022. 11 the same people are involved . 11 MR PICKFORD: Yes. 12 MR MACLEAN: Yes. 12 MR JUSTICE ROTH: Everyone has agreed on the date for 13 MR JUSTICE ROTH: But not: what was the reason for the 13 standard disclosure . One can probably have a date for 14 collapse -- 14 witness statements, and the scope of experts ’ reports of 15 MR MACLEAN: Yes. I’m sorry. 15 course will be significantly affected by this because 16 MR JUSTICE ROTH: -- because that’s the split I have in 16 I think it ’s common ground that what I have termed 17 mind. 17 stage 2, why did Phones 4u collapse or would it have 18 MR MACLEAN: I was being slow at -- 18 collapsed in the counterfactual , will need expert 19 MR JUSTICE ROTH: And I think it will work. 19 evidence . It ’s an open question whether stage 1 needs 20 MR MACLEAN: Yes. Well, I am -- 20 expert evidence , but -- and it does seem to me that if 21 MR JUSTICE ROTH: I mean, you may say -- you are obviously, 21 it is limited to stage 1, it could be heard in the 22 all of you, much closer to the facts than the trial 22 spring or summer term of 2022; it wouldn’t have to wait 23 judge or a case management judge who starts reading the 23 then until the autumn. 24 papers a few days before the hearing , but if you say, 24 MR HOSKINS: My Lord, can I -- 25 "No, this is hopeless , it will get us all terribly 25 MR JUSTICE ROTH: Yes.
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1 MR HOSKINS: -- say this at this stage , because without 1 MR JUSTICE ROTH: But you can certainly ask for one. You 2 wishing to be too much of a crawler , I think 2 have liberty to ask for one. 3 your Lordship’s advocacy has certainly persuaded my 3 MR PICKFORD: My Lord, that’s understood. 4 clients , who have been WhatsApping me feverishly. If 4 MR JUSTICE ROTH: So shall we look -- I think it is -- 5 the position is that the split trial is the issues that 5 MR MCQUATER: I apologise, my Lord, just before we move on, 6 your Lordship has identified , collusion , breach of 6 I am being pressed to ventilate one point . 7 contract and reason for the decision to terminate the 7 Vodafone, as your Lordship may have picked up, we’re 8 agreements, plus disclosure on everything , we would 8 one of the parties who has always been very interested 9 support that . 9 in the split . 10 MR JUSTICE ROTH: Yes. 10 MR JUSTICE ROTH: Yes. 11 MR HOSKINS: And we would like that ordered as quickly as 11 MR MCQUATER: We have hesitated about applying because there 12 possible because, as you say, it has been hanging around 12 is an issue as to where the right split is in this case. 13 and on that basis we’re very happy with it and it makes 13 One of the difficulties with the straight , if I can 14 sense . 14 describe your Lordship’s split as more of a straight 15 MR JUSTICE ROTH: Well, if I say that everyone should have, 15 liability on the one hand, then causation/quantum on the 16 what, two weeks to consider the question and if 16 other hand for T2, is the permutations point , because if 17 necessary -- I don’t know if we even need a remote 17 you just decide liability issues , you don’t then 18 hearing -- it could be decided on any further written 18 decide -- if there were no collusion , absent collusion , 19 submission on this point , it seems to me. It doesn’t 19 what terms would have been agreed with the various MNOs. 20 need further oral argument. I can then determine it by 20 If you haven’t decided that at the first trial , you get 21 the end of term. 21 a very , very difficult number of quantum permutations 22 MR HOSKINS: My Lord, because also I think we do want to all 22 for your trial 2, because there are many, many 23 make progress today on the timetable , so do we spend 23 permutations to be resolved as to what Phones 4u would 24 today on a timetable -- whilst you will have an open 24 have agreed absent collusion with O2, with Vodafone, 25 mind on that basis , and you can revisit it if you change 25 with EE, when their contracts were about to expire , with
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1 your mind, for example, I mean, it will still be helpful 1 virtual mobile providers and so on. I won’t go to the 2 to do a timetable . We’re very keen on that . 2 documents and the RFIs on this , but there is a real 3 MR JUSTICE ROTH: Yes, well, let’s get on with that. 3 issue as to whether that type of point should be part of 4 Does that, Mr Pickford, giving you 14 days -- 4 trial 1. 5 MR PICKFORD: Yes, my Lord, I was simply going to say, can 5 MR JUSTICE ROTH: You reflect on that. My thinking was that 6 we have liberty to apply for an oral hearing in the 6 it is actually -- I see the point you are making, but it 7 event that we consider that it is necessary to have one? 7 equally may be quite difficult to explore that , which is 8 I ’m not suggesting -- 8 based on a hypothetical , which -- the defendants’ 9 MR JUSTICE ROTH: Yes. 9 position in the first trial is that this is completely 10 MR PICKFORD: At the moment, we don’t say that at all, it is 10 divorced from reality and it is not the facts . 11 just it may be that there is a very substantial chasm 11 MR MCQUATER: I see that, my Lord, but there’s also a point 12 between the parties and it might be sensible to 12 to be made that it ’s quite close to negotiation 13 ventilate it . 13 evidence , which will be part of trial 1, evidence of 14 MR JUSTICE ROTH: The only problem is a purely practical 14 what was actually happening in the negotiations . 15 one. There are a lot of parties . You’re all , I know, 15 MR JUSTICE ROTH: Yes, there would be some overlap, but the 16 heavily engaged counsel. Finding a time when you can 16 point you’re raising is a counterfactual hypothetical 17 all participate , because this clearly affects everyone, 17 argument. 18 before the end of July , even for a one-hour hearing , may 18 MR MCQUATER: Yes, it is. 19 be problematic and I think it must be decided by the end 19 MR JUSTICE ROTH: And that’s sometimes rather difficult to 20 of term. 20 have alongside a factual argument. It doesn’t arise , of 21 So you can apply, but if in your efforts to liaise 21 course, in the usual follow -on competition damages 22 with everyone and their time and of course also my time 22 claim, because you know about the infringement, it is 23 we can’t find a time, it may be that we won’t be able to 23 all about a counterfactual , but that ’s not this case. 24 have one. 24 MR MCQUATER: Well, my Lord, we’ll reflect on -- 25 MR PICKFORD: My Lord -- 25 MR JUSTICE ROTH: But you reflect on -- I am not saying that
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1 the position I ’ve proposed is said in stone. That was 1 MR JUSTICE ROTH: -- plus some pre-reading. 2 my not-unconsidered view on looking at the pleadings and 2 MR MACLEAN: Yes, it would. 3 the way the case is developing , but if you come together 3 MR JUSTICE ROTH: I would have thought that should be 4 and suggest there ’s a better split , obviously I will 4 sufficient if it is limited in the way -- 5 reconsider that . 5 MR MACLEAN: I would have hoped so. 6 MR MCQUATER: My Lord, yes. 6 MR JUSTICE ROTH: -- suggested. I mean, we’re dealing with 7 MR JUSTICE ROTH: I think we have a timetable. Is it 7 a relatively short timeframe. 8 Vodafone -- sorry , Telefónica that has set out -- 8 MR MACLEAN: Yes, precisely. 9 Mr Hoskins, you put forward a timetable . 9 MR JUSTICE ROTH: And we’re dealing with three sets of 10 MR HOSKINS: It is E/6/21. You will see we have marked up 10 negotiations . So I think that might be, even if there ’s 11 in this where, certainly , it was previously agreed, when 11 time off for closing submissions and so on -- 12 we were all agreed on an October trial . So we work from 12 MR MACLEAN: Yes. 13 that , but it leads to an October trial , as you can see . 13 MR JUSTICE ROTH: -- that should work. I would be content, 14 You might want to -- 14 on that basis , to fix this now to start on 7 June 2022 15 MR JUSTICE ROTH: Well -- 15 with the first three days for pre-reading . Perhaps the 16 MR HOSKINS: I’m sorry, I’m told the wrong thing is on the 16 first -- perhaps I should say the first four days, 17 screen . It should be -- 17 because I do find pre-reading is very helpful . 18 MR JUSTICE ROTH: I don’t have anything on the screen at the 18 Now, it may be that this is something I will 19 moment. 19 reconsider much closer, if I am indeed the trial judge, 20 MR HOSKINS: I think it is {E3/6/21}. 20 but it is sometimes with large trials actually helpful 21 MR JUSTICE ROTH: Yes, that’s it. 21 to have some openings and then the judge to rise to do 22 MR HOSKINS: Yes, thank you. 22 pre-reading , having heard the openings. 23 MR JUSTICE ROTH: Yes. So if we go to the next page, please 23 MR MACLEAN: Yes, absolutely. We were certainly thinking 24 {E3/6/22}. So I think your suggestion of July 2021 24 not of lengthy oral openings. In our skeleton , when we 25 seems agreed and seems sensible on any view. We have to 25 were optimistically looking at sometime in Easter , but
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1 leave open experts ’ reports but it does seem to me that 1 now perhaps time in July , we were suggesting there ought 2 if there ’s going to be a split trial , part 1 could then 2 to be no more than three days for oral opening 3 be in -- and I don’t have the dates of the -- certainly 3 submissions . 4 in Trinity term 2022, I would have thought to start 4 MR JUSTICE ROTH: Yes. 5 notionally on the first day of term, but with some time 5 MR MACLEAN: The court will have had by then fairly lengthy 6 for pre-reading . 6 written submissions , I ’m sure. 7 MR HOSKINS: I think -- was that an eight-week trial you had 7 MR JUSTICE ROTH: Yes. 8 in mind, my Lord? 8 MR MACLEAN: Yes -- 9 MR JUSTICE ROTH: Well, I would be guided by the parties of 9 MR JUSTICE ROTH: Well, I think short openings, time to read 10 quite how long it would be, but if it is a four -day 10 the submissions and then go into the evidence is often 11 week -- if you would prefer a four -day week, and it can 11 the most efficient and satisfactory way of doing things . 12 be helpful to everyone, I think . 12 MR MACLEAN: Yes. 13 MR HOSKINS: It is, certainly from an advocate’s point of 13 MR JUSTICE ROTH: Well, on that basis, I would have 14 view. 14 thought -- is there more than we can fix at the moment? 15 MR JUSTICE ROTH: I understand that. 15 Now, if you come back and say, "No, no, there has to be 16 MR MACLEAN: My Lord, in our skeleton I think when we were 16 one trial ", then we’ ll have to look at expert evidence 17 talking about Mr (inaudible) and the Trinity term, 17 and we might have to put the trial date back. 18 I think in footnote 103 of our skeleton argument -- 18 MR MACLEAN: Yes. I’m not sure there is anything else that 19 MR JUSTICE ROTH: You have the dates, thank you. 19 we can usefully determine in terms of the trial -- the 20 MR MACLEAN: We have the date. Trinity term begins on 20 particular trial timetable or the other steps towards 21 Tuesday, 7 June and ends on Friday , 29 July which 21 trial which are necessarily contingent on whether there 22 amounts to 39 sitting days. 22 is going to be the split trial . I ’m not sure we can -- 23 MR JUSTICE ROTH: Yes. So, I mean, that would allow 23 MR JUSTICE ROTH: Yes, but I think generally the most 24 eight weeks of four -day weeks -- 24 important thing is that you know the disclosure time, 25 MR MACLEAN: It would. 25 you know the witness statement time and you can put
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1 a trial -- a long trial fixture into your respective 1 Application for security for costs 2 diaries . 2 Submissions by MR O’DONOGHUE 3 MR MACLEAN: Yes. Respectfully agree. 3 MR O’DONOGHUE: My Lord, with your Lordship’s permission, we 4 MR JUSTICE ROTH: Anything else anyone wants to say on that? 4 start with security . 5 MR MCQUATER: My Lord, obviously these directions are to 5 MR JUSTICE ROTH: Yes. 6 some degree provisional because there ’s an outstanding 6 MR O’DONOGHUE: It has been agreed on the defendants’ side 7 question of split trial . My Lord, we have some 7 that I will kick off , followed by I think Mr Pickford 8 reservations about the limited trial length if it is 8 and then Ms Demetriou. 9 intended to be fixed into that term, my Lord. Obviously 9 MR JUSTICE ROTH: Yes. 10 our previous estimate had been something like more than 10 MR O’DONOGHUE: And then of course Mr MacLean. 11 70 days -- 11 As your Lordship is aware, this is an application by 12 MR JUSTICE ROTH: But this -- just to be clear, this is only 12 the first , second and third defendants, albeit the 13 on the basis that it is split . 13 applications are not entirely identical . The practical 14 MR MCQUATER: I understand, my Lord. We obviously 14 difference between the applications is as follows -- so 15 haven’t -- I don’t have an up-to-date calculation of how 15 it is essentially a question of the percentage, whether 16 much we think would be cut off if you take off quantum 16 it is 65 or 75. The difference is D1 and D3 effectively 17 and causation . It will be significant , but I do have in 17 seek costs retroactively , whereas D2, my client , as has 18 mind that hitherto parties have said 30 witnesses of 18 been agreed, also seeks costs prospectively up to the 19 fact and so forth , a rationality expert has been mooted 19 disclosure phase. So that’s the practical difference . 20 as well , and there are six parties to hear from -- six 20 My Lord, in terms of the sums at stake , I will leave 21 sets of represented parties , and it ’s a high value 21 the other defendants’ sums to them. My client seeks 22 claim. 22 security in the amount of just over 1.386 million , 23 So, provided one recognises that the trial length 23 which, as I repeat , is up to the end of disclosure . 24 may have to be revisited , even on a split basis , then 24 MR JUSTICE ROTH: So 1.386 million. That’s at a 75% -- 25 I won’t say any more. 25 MR O’DONOGHUE: That is 75% of 1.8-something.
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1 MR JUSTICE ROTH: Yes. 1 MR JUSTICE ROTH: But, what, you have been offered 65%; is 2 MR O’DONOGHUE: My Lord, one final point, so no one is 2 that right ? 3 blindsided : obviously for Orange and DT there is 3 MR O’DONOGHUE: It is the 10% difference. 4 a separate question of the decisive influence part of 4 MR JUSTICE ROTH: Yes. 5 the case. We will address your Lordship on that in 5 MR O’DONOGHUE: My Lord, can I start by explaining, apart 6 submissions in a couple of weeks. Obviously if there is 6 from the obvious reason, why in detail the application 7 no liability , that falls by the wayside. In particular , 7 is being brought. We can turn up very quickly the 8 so that Mr MacLean is not blindsided , that is something 8 eleventh administrators ’ report , which is {D2/1/1}. If 9 that in my submission needs to be considered as part of 9 we can go to page 27 {D2/1/27}. So, my Lord this is the 10 the length . 10 most recent administrators ’ report from earlier this 11 MR JUSTICE ROTH: Yes. 11 year . At the top -- 12 Very well . I think that then concludes the trial 12 MR JUSTICE ROTH: What’s the date of this? 13 questions . What remains, as I understand it , are an 13 MR O’DONOGHUE: It is February 2020. 14 application for security for costs by three defendants. 14 MR JUSTICE ROTH: Yes. 15 MR MACLEAN: Yes. 15 MR O’DONOGHUE: My Lord, you see at the top of the page 16 MR JUSTICE ROTH: And an application for further information 16 under "Noteholders", there is some 430 million of senior 17 by one defendant, who is also one of those three . 17 secured notes. 18 MR MACLEAN: That’s correct. 18 MR JUSTICE ROTH: Yes. 19 MR JUSTICE ROTH: So I will then rise until 3.25 and all 19 MR O’DONOGHUE: Then in the next paragraph you’ll see: 20 other defendants are excused. 20 "... it is unlikely that there will be sufficient 21 (3.15 pm) 21 realisations to pay the principal outstanding on the 22 (Short Break) 22 Notes in full . Please refer to Section 5.6 ..." 23 (3.25 pm) 23 Then if you can turn to section 5.6, which is on 24 MR JUSTICE ROTH: Yes, Mr O’Donoghue. 24 page 38 {D2/1/38}. In the middle of the page, 25 25 your Lordship will see a figure of about 84% of the
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1 secured amounts will be paid. Then you’ ll see the 1 My Lord, let me then develop the body of the 2 unsecured creditors at the bottom of the page in the 2 application . Your Lordship of course will be familiar 3 table . You will see , in the second last column on the 3 with CPR 25.13. Two conditions: is it just to make an 4 right , an estimate of unsecured claims and you will see 4 order for security , and your Lordship then has 5 these astronomical figures . Then you will see the 5 a discretion under CPR 25.12 to determine the amount of 6 dividend figures to the right , which are tiny . I think 6 security . 7 it works out at about 0.07p in the pound for unsecured 7 MR JUSTICE ROTH: Yes. 8 creditors . 8 MR O’DONOGHUE: My Lord, then in respect of indemnity costs, 9 MR JUSTICE ROTH: Yes. 9 one short point . This is CPR 44.3. Indemnity costs is 10 MR O’DONOGHUE: So, my Lord, as matters stand, there is 10 not a blank cheque because under subparagraph 1 the 11 a fundamental pragmatic concern that the defendants 11 court will not allow costs which have been unreasonably 12 before you today, on any view, would be out of pocket 12 incurred or are unreasonable in amount. 13 potentially to the tune of millions of pounds simply 13 MR JUSTICE ROTH: Yes. 14 because there is not enough money in the kitty . 14 MR O’DONOGHUE: So there is that protection as well. 15 MR JUSTICE ROTH: Do you take priority over the secured 15 Then, my Lord, starting with the substantive legal 16 notes? 16 test . I think this is common ground so I can take it 17 MR O’DONOGHUE: My Lord, there has been a suggestion to that 17 quickly . It is the Three Rivers case, which is in 18 effect . 18 {F1/5/1}. 19 MR JUSTICE ROTH: Yes. 19 MR JUSTICE ROTH: Just a minute. 20 MR O’DONOGHUE: We’ll hear what Mr MacLean says. We don’t 20 MR O’DONOGHUE: It’s on page -- 21 understand on what basis , at least in a legally secure 21 MR JUSTICE ROTH: Yes, I have the hard copies, although 22 way, that is so, but we’ ll hear what Mr MacLean says. 22 unhelpfully they have all been labelled F1. 23 MR JUSTICE ROTH: Yes. Well, there’s -- it is covered a bit 23 MR O’DONOGHUE: Ah. 24 in the skeleton , isn ’ t it ? 24 MR JUSTICE ROTH: Although there are three of them. 25 MR O’DONOGHUE: A little bit, my Lord. It is somewhat vague 25 This is Mr Justice Tomlinson’s judgment.
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1 but we’ ll hear what he says. 1 MR O’DONOGHUE: Yes, a very familiar -- 2 MR JUSTICE ROTH: Yes. 2 MR JUSTICE ROTH: Yes. 3 MR O’DONOGHUE: But there is at least a sobering thought 3 MR O’DONOGHUE: -- dictum. It is internal page 17. Sorry , 4 that there may be substantial -- 4 my Lord, it starts at 16. {F1/5/16} Under (1): 5 MR JUSTICE ROTH: I mean, that’s a matter of insolvency law, 5 "The court should have regard to all the 6 isn ’ t it ? 6 circumstances of the case and the discretion to award 7 MR O’DONOGHUE: Well, my Lord, what we can certainly say 7 indemnity costs is extremely wide." 8 today is nothing has been ring -fenced to that effect . 8 MR JUSTICE ROTH: This was post-trial, wasn’t it? 9 MR JUSTICE ROTH: Yes, but it doesn’t have to be ring-fenced 9 MR O’DONOGHUE: Yes, this is at the costs assessment. 10 if , as a matter of the law of insolvency and the 10 MR JUSTICE ROTH: Yes. 11 insolvency rules , you take priority . Then you come 11 MR O’DONOGHUE: Then (2), there has to be something to take 12 ahead of the secured notes. So that’s a matter of law. 12 the case out of the norm. 13 MR O’DONOGHUE: Well, my Lord, we’ll hear what Mr MacLean 13 Then at subparagraph (8) {F1/5/17} there are 14 says . 14 a number of illustrative examples of what would take 15 MR JUSTICE ROTH: Yes. 15 a case out of the norm -- 16 MR O’DONOGHUE: But -- 16 MR JUSTICE ROTH: Yes. 17 MR JUSTICE ROTH: What’s your position? 17 MR O’DONOGHUE: -- to justify indemnity costs. I would ask 18 MR O’DONOGHUE: Well, my position is, as matters stand, 18 your Lordship to look at (a) and, to a lesser extent , 19 there isn ’ t even enough to pay the secured creditors . 19 (c). 20 MR JUSTICE ROTH: No, but what’s your position? Do you take 20 MR JUSTICE ROTH: Yes. 21 priority -- an adverse costs order , does it take 21 MR O’DONOGHUE: My Lord, I think that is common ground. 22 priority over the secured creditors or not? 22 There are a couple of authorities which I can take your 23 MR O’DONOGHUE: My Lord, our position is, no. 23 Lordship to briskly . The first is the Danilina case 24 MR JUSTICE ROTH: You say it doesn’t. 24 before Mr Justice Teare. That’s at {F1/13/1}, which may 25 MR O’DONOGHUE: Yes. 25 not be very helpful for your Lordship. It ’s toward the
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1 back of the bundle, my Lord. 1 MR JUSTICE ROTH: Yes. 2 MR JUSTICE ROTH: F2, I think, yes. 2 MR O’DONOGHUE: It is really the last sentence: 3 MR O’DONOGHUE: Sorry, forgive me. 2 October 2018. 3 "That conclusion does not involve an assessment of 4 My Lord, you’ ll see at paragraph 1 is an application for 4 the merits of the claims but simply an appreciation of 5 further security {F1/13/2}. Under 2, the second line : 5 the nature of the claims . I do not say that indemnity 6 " Security was sought in tranches ." 6 costs will be ordered, only that there is a reasonable 7 You’ ll see the history of the case. There was 7 possibility that they will be." 8 a judgment of Mrs Justice Cockerill which was partly 8 MR JUSTICE ROTH: Yes. 9 overturned on appeal, which I think Mr MacLean relies on 9 MR O’DONOGHUE: And then at 17 he picks up on the corollary 10 for a different point . 10 of that : 11 Then at 4: 11 "Where there is no possibility of costs being 12 "... no dispute that in principle the Defendants are 12 assessed on an indemnity basis or where such possibility 13 entitled to security for their costs ." 13 is no more than speculative the courts generally make 14 The same is true in this case, because the question 14 orders for security for costs by reference to 60% to 15 before the court is how much security, so it is the same 15 70%..." 16 question as in this application . 16 MR JUSTICE ROTH: Yes. 17 Then you will see at paragraph 11 {F1/13/3} there 17 MR O’DONOGHUE: And then he says: in my experience 60 to 75% 18 were two claims . First , a claim for indirect beneficial 18 is more usual. 19 ownership of a Russian company. You see in the second 19 My Lord, pausing there . The application in a sense 20 last line reference to a shareholders ’ agreement. The 20 appears to be binary between 65 and 75, but it is worth 21 second claim, in paragraph 13, concerns beneficial 21 bearing in mind there is a potential middle ground, 22 ownership of assets held in trust pursuant to an 22 which is that , even on a standard basis , 70% is -- not 23 agreement. 23 unheard of, shall we say. 24 Then, my Lord, we can pick up the substantive test 24 MR JUSTICE ROTH: Yes. 25 at 14. Mr Justice Teare says that : 25 MR O’DONOGHUE: My Lord, this is judgment was applied in
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1 "The question ... is whether an order for costs on 1 a more recent case, Rowe v Ingenious. 2 the indemnity basis is a reasonable , not a speculative , 2 MR JUSTICE ROTH: Mr Justice Nugee’s case? 3 possibility such that it is appropriate that the 3 MR O’DONOGHUE: My Lord, yes. There were a number of 4 security ordered by the court should reflect that 4 security - and funding- related questions . The one we’re 5 possibility . That does not involve a consideration of 5 interested in , my Lord, starts at paragraph 87. 6 the merits of the claim. On the contrary it assumes 6 MR JUSTICE ROTH: Sorry, where it is, this judgment? What’s 7 that the Claimant loses [ in this case] her claim." 7 the reference for it ? Oh, 15, I see . 8 Then, my Lord, you will see at 15 and 16 {F1/13/4} 8 MR O’DONOGHUE: 15, my Lord {F1/15/1}. 9 there was a dispute between the parties as to whether 9 MR JUSTICE ROTH: I see. 10 the case would in the end turn on a question of mistaken 10 MR O’DONOGHUE: It is about halfway in, my Lord. There was 11 recollection or honesty. You will then see at 16 there 11 a whole series of issues and one of them, at 87, is 12 was a submission resisting the application that there 12 "Quantum of security sought" {F1/15/31}. 13 was further evidence which went to the question of 13 MR JUSTICE ROTH: Yes. So these are claims by taxpayers 14 mistaken recollection . 14 against their investment advisor ; is that it ? 15 MR JUSTICE ROTH: Sorry, let me just read that. 15 MR O’DONOGHUE: My Lord, yes. We will see over the page, my 16 MR O’DONOGHUE: My Lord, yes. 16 Lord, the details of the claim {F1/15/32}. 17 (Pause) 17 MR JUSTICE ROTH: Where is that? Which paragraph? 18 MR JUSTICE ROTH: So in 15 the judge is saying that if the 18 MR O’DONOGHUE: My Lord, it is in part 93. 19 claimant loses , it is likely it would be because her 19 MR JUSTICE ROTH: Sorry? 20 evidence was dishonest ; is that right ? 20 MR O’DONOGHUE: 93. 21 MR O’DONOGHUE: Yes, my Lord. One obviously needs to read 21 MR JUSTICE ROTH: Paragraph 93? 22 16. 22 MR O’DONOGHUE: Yes: 23 MR JUSTICE ROTH: Sorry? 23 "... although the claims ... are based on a number 24 MR O’DONOGHUE: That’s to some extent a qualification of 15. 24 of causes of action , those put at the forefront are 25 (Pause) 25 fraudulent misrepresentation and deceit , and the bulk of
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1 the factual allegations consist of particulars of 1 a hybrid and it could be something between 65 and 70. 2 representations ..." 2 That’s not the primary basis on which I put this 3 And so on. And you see at the end, my Lord: 3 application , but, given your Lordship’s discretion , in 4 "And there is a further claim in unlawful means 4 my submission it would be open to your Lordship to make 5 conspiracy which is brought against certain of the ... 5 such an order , if you were so minded. 6 Defendants ..." 6 Now, my Lord, we’re to some extent assisted by 7 MR JUSTICE ROTH: Yes. It’s all fraudulent 7 Mr MacLean because his skeleton says , at paragraph 148, 8 misrepresentation . 8 that indemnity costs is at least a possibility . Without 9 MR O’DONOGHUE: In this case, my Lord. 9 wishing to put words in his mouth, he says it is 10 MR JUSTICE ROTH: Yes. 10 a possibility but at this stage it is no more than 11 MR O’DONOGHUE: My Lord, if we can jump back to 88 11 a speculative possibility . 12 {F1/15/31}, you will see , not unlike this case, there 12 So the question is whether there is a realistic 13 were some defendants seeking a higher amount and other 13 possibility . In my submission, the answer is plainly , 14 defendants, unwisely , as it turned out, seeking a lower 14 yes , there is a realistic possibility , in this case, of 15 amount {F1/15/31}. 15 indemnity costs . 16 MR JUSTICE ROTH: Yes. 16 The main point we rely on from Three Rivers is the 17 MR O’DONOGHUE: Then, my Lord, at 95 you will see the judge 17 point we’ve just seen. I quote: {F1/15/32} 18 recycle his ex tempore judgment {F1/15/33}. If I can 18 "Where the claimant advances and aggressively 19 pick up paragraph 24 within 95: 19 pursues serious and wide ranging allegations of 20 "... I certainly regard claims of deceit and of 20 dishonesty or impropriety over an extended period of 21 unlawful means conspiracy ... as serious allegations 21 time ..." 22 which at least open the door to the possibility of 22 MR JUSTICE ROTH: You say it’s not dishonesty here but 23 indemnity costs in the event that the claims are found 23 impropriety ? 24 at trial to be unfounded." 24 MR O’DONOGHUE: My Lord, I will develop the point. It is at 25 Then over the page at 96 you will see the approval 25 least impropriety and in substance involves an
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1 of the passage from Danilina , which we’ve just seen 1 allegation which is akin to deceit or deceptive 2 {F1/15/34}. Then at paragraph 100: 2 activity , but I will develop that point . 3 "In my judgment therefore the appropriate percentage 3 My Lord, the point at this stage is that these are 4 in a case where there is a realistic prospect of 4 disjunctive and impropriety is sufficient for my 5 indemnity costs is 75%. That is the figure adopted by 5 purposes. 6 Teare J and is also what I would myself have thought 6 In my submission, whichever way one looks at this 7 about right judging from what experienced litigation 7 case, it does involve wide-ranging allegations or claims 8 solicitors have told me in other cases that they would 8 of serious impropriety . The main issue is clear and has 9 expect to recover on a detailed assessment on the 9 crystallised : Phones 4u says when EE did not renew the 10 indemnity basis ." 10 Phones 4u contract in 2014, that decision was not the 11 MR JUSTICE ROTH: Yes. 11 product of unilateral commercial assessment, but 12 MR O’DONOGHUE: Then you will see that he said the fact that 12 involved a wholly improper effectively cartel 13 somebody else sought 70 is neither here nor there . 13 agreement -- 14 MR JUSTICE ROTH: Yes. 14 MR JUSTICE ROTH: Yes. 15 MR O’DONOGHUE: One final point at paragraph 101. The 15 MR O’DONOGHUE: -- between independent undertakings and 16 circumstance that at least some of the applicants ’ costs 16 their competitors that they would no longer deal with 17 are comparatively modest may also enter into the 17 Phones 4u. In other words, the non-renewal of the 18 equation. 18 contract was the product of what was effectively 19 My Lord, the essential legal test is whether at this 19 a secret cartel - like agreement, not involving 20 stage it can be said that indemnity costs are 20 a unilateral commercial assessment by each of the 21 a realistic possibility . If that is the case, then on 21 defendants. 22 the authorities I ’ve shown your Lordship it looks like 22 My Lord, in this regard the battle lines are well 23 75% is the correct figure . 23 drawn. Phones 4u says the question of fact of collusion 24 There is , as I indicated , my Lord, a potentially 24 is , and I quote: 25 intermediate position , which is the case is something of 25 "... the most important question of primary fact ."
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1 For your Lordship’s reference , this is {B/41/7}, 1 collusion that could be alleged , that ’s one thing , and 2 point 16. That is the central allegation in the 2 you will be well aware of the great range of collusion 3 collusion case. 3 that can take place ; but if you’re saying that because 4 MR JUSTICE ROTH: Are you saying in every case brought 4 it ’s said there ’s secret collusion in breach of 5 alleging anti -competitive collusion , if the claimant 5 Article 101, then that does seem to be the whole 6 fails to prove it he’ ll have to pay indemnity costs? 6 category of those cases , not -- I fully accept not every 7 MR O’DONOGHUE: No, that is what Mr MacLean -- 7 101 case, because some of them involve no secrecy at 8 MR JUSTICE ROTH: No, well, what do you say? 8 all , but -- and are not in between -- 9 MR O’DONOGHUE: (Inaudible - overspeaking) 9 MR O’DONOGHUE: My Lord, I accept there may well be 10 MR JUSTICE ROTH: I mean, you say: this is a case alleging 10 a spectrum, but what I’m certainly saying loud and clear 11 collusion and therefore look at Three Rivers , realistic 11 is that this sits on the basis of the allegations as 12 possibility of indemnity costs . 12 put. 13 MR O’DONOGHUE: Well -- 13 MR JUSTICE ROTH: Yes. 14 MR JUSTICE ROTH: What more -- 14 MR O’DONOGHUE: At the very serious or extreme end of the 15 MR O’DONOGHUE: If the question is that horizontal 15 spectrum. I mean, my Lord, one could conceive of quite 16 competitors club together to effectively collectively 16 rarefied , say, price - signalling cases that following 17 boycott and terminate these contracts , not for 17 a detailed economic analysis turn out to have had some 18 unilateral reasons but for secret collusion reasons , 18 potential impact. We are a long, long way from that 19 that is an allegation involving serious impropriety . 19 scenario . This is , on its face , an allegation of pretty 20 MR JUSTICE ROTH: Yes. 20 serious and naked collusion , and that is more than 21 MR O’DONOGHUE: And that is the long and short of the 21 sufficient for my purposes -- 22 submission. 22 MR JUSTICE ROTH: Yes, see. 23 MR JUSTICE ROTH: That’s why I’m asking the question. 23 MR O’DONOGHUE: -- to ground an impropriety. 24 MR O’DONOGHUE: So we do not say that simply because there 24 MR JUSTICE ROTH: Yes. 25 is a 101 horizontal allegation of any shape or form -- 25 MR O’DONOGHUE: Your Lordship has seen the way the claim is
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1 MR JUSTICE ROTH: No, but I’m saying collusion. If there ’s 1 put and the way it is defended. 2 secret collusion . 2 MR JUSTICE ROTH: Yes. 3 MR O’DONOGHUE: The particular form of collusion alleged in 3 MR O’DONOGHUE: The defence between these three defendants 4 this case, yes , my Lord. 4 in terms of its primary basis is very simple . We say 5 MR JUSTICE ROTH: So, whenever secret collusion, in breach 5 that in 2014 detailed commercial rationality work was 6 of 101 -- 6 undertaken at the level of EE and based on an EBITDA 7 MR O’DONOGHUE: My Lord, I am not saying that in each and 7 assessment. It was concluded that by far the most 8 every case where there is secret collusion there is by 8 compelling unilateral commercial option was not to renew 9 definition a realistic possibility of indemnity costs . 9 the Phones 4u contract. 10 One has of course to have regard to the particular 10 So, my Lord, that is how the battle lines are drawn. 11 allegations in this case. And Phones 4u has not been 11 MR JUSTICE ROTH: Yes. 12 backwards in coming forwards. Allegations are made 12 MR O’DONOGHUE: There is an allegation of essentially 13 against the most senior executives of the defendants 13 improper behaviour of a very serious nature and, on the 14 over an extended period of an extremely serious nature. 14 other hand, the defence is a pretty straightforward one, 15 MR JUSTICE ROTH: Well, secret collusion is serious by 15 which is : we had jolly good commercial reasons of 16 definition , isn ’ t it ? 16 a unilateral nature not to renew the contract . 17 MR O’DONOGHUE: My Lord, yes, and in addition these are made 17 Now, in the thought experiment your Lordship has 18 in respect of chief executives , senior -- 18 engaged in today, on the basis that the claimant fails 19 MR JUSTICE ROTH: Yes, but when is secret collusion not 19 in respect of the collusion claim, the most likely 20 serious ? 20 basis -- I ’m not saying this is a racing certainty , but 21 MR O’DONOGHUE: Well, my Lord, I am anxious not to sort of 21 the most likely basis is that the defendants’ evidence 22 get too much into the abstract -- 22 that this was a commercial decision of a unilateral 23 MR JUSTICE ROTH: Well, it is quite important because if it 23 nature made sense on its own terms. That is the most 24 is put -- if you say that the allegations of collusion 24 likely basis on which we will be vindicated . 25 here are particularly heinous and the worst kind of 25 If that is the case, then these very serious
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1 allegations will prove to be utterly groundless . To put 1 Second, he says the claim could fail for other 2 it in the terms of Three Rivers , there would have been 2 reasons . Again, that is irrelevant . The issue for 3 no good basis whatsoever for the allegation of serious 3 present purposes is whether there is a realistic 4 impropriety . 4 prospect of indemnity costs being ordered , not whether 5 MR JUSTICE ROTH: Yes. 5 they certainly would be. 6 MR O’DONOGHUE: So that is how the battle lines are drawn. 6 MR JUSTICE ROTH: Yes. 7 A couple of final points before I turn very briefly 7 MR O’DONOGHUE: Finally, my Lord, he says that Phones 4u has 8 to pick up on one or two things Phones 4u says. 8 a non-competition claim. There are of course two. One 9 Your Lordship may pick this up in the skeletons , but 9 is a contractual claim which Mr Pickford’s client is 10 Phones 4u has not been shy in publicising the claim. 10 concerned with, and the other is a non-contractual claim 11 There is a dedicated website which contains all the 11 which is the unlawful means conspiracy raised against 12 pleadings , all the skeletons , all the transcripts . 12 Ms Demetriou’s client and my client . 13 There may be some reasons in respect of the 13 In relation to this latter claim, it basically 14 administrators ’ activity why that is made public, but it 14 involves , my Lord, a recycling of the competition law 15 is a fact that great detail in respect of this claim is 15 case, in essence that DT and Orange are pulling the 16 there for the world to see , and that is a relatively 16 strings by imposing MNO parent-level wishes on the 17 unusual feature of this case. That is at least relevant 17 retail operations . Indeed, one can see from the 18 in terms of Three Rivers . It ’s not my primary point but 18 particularisation of this part of the case, in 19 it is at least relevant . 19 paragraph 159 of the particulars of claim, that it 20 Your Lordship will also have in mind dicta from 20 involves recycling the same factual material as the 21 cases such as Lundbeck, which say that serious 21 competition law claim. For example, Mr Pellissier of 22 competition law infringements carry a stigma. Again, 22 Orange, the allegation in respect of his public comments 23 that is a supplemental point . It ’s not my major point. 23 is repeated at 159(d). {A/2/69} 24 Just to turn very briefly to pick up on a couple of 24 MR JUSTICE ROTH: The claim at 159 is partly procuring 25 points from Mr MacLean’s skeleton, his main point is 25 breach of contract , isn ’ t it ?
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1 that Phones 4u’s claim was not based on dishonesty , 1 MR O’DONOGHUE: Yes, my Lord, it is a tort of procuring 2 whereas Rowe and Danilina are. In my submission, that 2 a breach of contract . 3 is irrelevant . Claims concerning improper conduct are 3 MR JUSTICE ROTH: But that’s separate from any competition 4 sufficient for indemnity costs , as we saw through the 4 law allegation , isn ’ t it ? If EE was in breach of the 5 disjunctive in Three Rivers . 5 good faith obligation and if you procured that breach, 6 To the extent I need to, my Lord -- I ’m not sure 6 you’re liable . Forget about collusion , forget about the 7 I need to -- we say that in substance the allegation is 7 other MNOs. 8 a form of deceptive activity since the allegation is 8 (Pause) 9 that the reason for the non-renewal of the contract was 9 MR O’DONOGHUE: My Lord, yes, but I’m simply making the 10 not the reason as given ; it was a form of cartel - like 10 point that it relies on the same essential allegation as 11 collusion to boycott Phones 4u. 11 would support the collusion . 12 Mr MacLean then makes the point that as a technical 12 MR JUSTICE ROTH: Well, it relies on the breach of contract . 13 matter of competition law, competition law claims do not 13 MR O’DONOGHUE: Well, it does, but -- 14 require subjective intention to restrict competition. 14 MR JUSTICE ROTH: But a breach of good faith is not 15 That, in my submission, is also irrelevant . The point 15 dependent on collusion at all . 16 here is that on Phones 4u’s pleaded case, it is alleged 16 MR O’DONOGHUE: My Lord -- 17 that the MNOs engaged in a form of improper or deceptive 17 MR JUSTICE ROTH: Well, there we are. 18 activity -- 18 MR O’DONOGHUE: The essential point is that on the primary 19 MR JUSTICE ROTH: Yes. 19 claim there is an allegation of serious impropriety . 20 MR O’DONOGHUE: -- by pretending to terminate or not renew 20 MR JUSTICE ROTH: Yes. 21 unilaterally , when in fact , as they allege , this was 21 MR O’DONOGHUE: Therefore a realistic basis for indemnity 22 a product of a collective agreement. 22 costs . 23 This necessarily involves claims that multiple 23 MR JUSTICE ROTH: Yes. 24 senior executives within the MNOs were and continue to 24 MR O’DONOGHUE: My Lord, I will hand over to Mr Pickford. 25 lie about the real reasons for the non-renewal. 25 That’s all I wanted to say.
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1 MR JUSTICE ROTH: Yes. 1 Mr Justice Nugee in Ingenious Media, of us ultimately 2 Submissions by MR PICKFORD 2 obtaining an order for indemnity costs . 3 MR PICKFORD: My Lord, it may be helpful to turn up our 3 MR JUSTICE ROTH: Yes. 4 draft order , which is in the bundle at {E1/12/1}. This 4 MR PICKFORD: Now, for our part it will obviously not 5 is the order that was framed, assuming we were going to 5 surprise my Lord to hear that we say that there is such 6 have a hearing about three weeks ago, but what we’re 6 a reasonable prospect or reasonable possibility . 7 seeking is the payment in the sum of č589,700. That’s 7 MR JUSTICE ROTH: Yes. 8 the second phase security . 8 MR PICKFORD: And the reasons for that are that Phones 4u 9 MR JUSTICE ROTH: Give me just a moment. (Pause) 9 has advanced very serious allegations of impropriety . 10 I know it’s on the screen but I ’m sort of working 10 MR JUSTICE ROTH: Well, Mr Pickford, I appreciate that. 11 both electronically and -- yes , E1/12. 11 I heard that argument. 12 MR PICKFORD: Page 1 {E1/12/1}. 12 MR PICKFORD: Yes, well, I am just going to come onto -- 13 MR JUSTICE ROTH: Yes. 13 MR JUSTICE ROTH: So it is really -- I mean -- 14 MR PICKFORD: This is our draft order. As Mr O’Donoghue 14 MR PICKFORD: It’s just a composite point. 15 said , we’re seeking a retrospective security for the 15 MR JUSTICE ROTH: Yes, so -- 16 costs application , as it were. It is for the costs that 16 MR PICKFORD: A composite point. 17 led up in fact to the last hearing . So there ’s 17 MR JUSTICE ROTH: I really want to hear what -- I assume you 18 a tranche of costs in respect of the adjournment which 18 adopt what Mr O’Donoghue said? 19 we’re not seeking in this application . They will form 19 MR PICKFORD: Well, I adopt what he says but I would like to 20 part of any future application . 20 go slightly further , if I may. 21 MR JUSTICE ROTH: Yes. And the 590,000-odd. 21 MR JUSTICE ROTH: Yes, well, you tell me the further bits . 22 MR PICKFORD: Yes. 22 MR PICKFORD: It is not merely the seriousness of the claim. 23 MR JUSTICE ROTH: Is that the extra 10%? 23 MR JUSTICE ROTH: Yes. 24 MR PICKFORD: That includes the extra 10%. 24 MR PICKFORD: It’s the flimsiness of the way in which it has 25 MR JUSTICE ROTH: It includes the extra 10%? 25 been pleaded against us. Moreover, the crucial point
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1 MR PICKFORD: That’s the 75% figure. 1 that is missed by Phones 4u in all of this is that 2 MR JUSTICE ROTH: Yes. And the claimant, is this right, 2 obviously my Lord is not being asked to determine the 3 agrees a lower figure ? 3 application for costs now. You can’t possibly do that . 4 MR PICKFORD: Yes, they’re willing to pay 65% but they 4 The point is : is there a reasonable prospect , assuming 5 disagree with 75%. 5 that everything goes in our favour , that we could get -- 6 MR MACLEAN: And have already done that, my Lord. 6 MR JUSTICE ROTH: No, no, I have that point; yes. 7 MR JUSTICE ROTH: Yes. So what actually are you now 7 MR PICKFORD: And so to address the debate that my Lord had 8 seeking , given -- what’s the difference that you’re 8 with Mr O’Donoghue, we don’t say that all claims of 9 actually asking for? 9 collusion necessarily lead to an order for indemnity 10 MR PICKFORD: I haven’t calculated that sum. We can 10 costs , but certainly they’ re in the category where if 11 obviously do that -- 11 there are sufficient other factors at play , they may 12 MR JUSTICE ROTH: Well -- 12 well lead to an order for indemnity costs . It all 13 MR PICKFORD: The payment post-dates this particular order 13 depends on the case. 14 and we haven’t updated the order for the very recent 14 MR JUSTICE ROTH: Yes. 15 payment. 15 MR PICKFORD: Effectively what the court needs to do today 16 MR JUSTICE ROTH: Yes. Well, we’ll do the maths. Yes. 16 is to determine: is my Lord able to strike out 17 Right. Thank you. 17 a contention that we may be able to obtain indemnity 18 MR PICKFORD: I’m sure my learned junior at the back is 18 costs in the future , or is that simply not arguable ; or 19 doing it already . 19 is there a reasonable prospect that we might do so, in 20 MR JUSTICE ROTH: Yes. 20 which case we say that the ability for us to be able to 21 MR PICKFORD: So, yes, the argument between us turns on 21 get costs at that level should be preserved . 22 whether we should get 75% or 65%. That, in turn, 22 Now, in relation to the way that Phones 4u put their 23 depends on whether there is a reasonable possibility , to 23 case against us, there are essentially two points that 24 use the language of Mr Justice Teare in Danilina , or 24 are made. One is they say we are asking this court to 25 a reasonable prospect , to use the line of 25 enter into the merits and this court shouldn’t conduct
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1 a mini- trial . Our response to that is that that is the 1 MR JUSTICE ROTH: Is it your case that the letter in 2 opposite of what we’re asking the court to do. We’re 2 paragraph 56 was sent? {A/2/21} 3 not providing any evidence on this application . We’re 3 MR PICKFORD: No. 4 not asking the court to reach a view on any of the 4 MR JUSTICE ROTH: So you accept it was not sent? 5 facts . As my Lord saw in the Danilina judgment that 5 MR PICKFORD: That’s right, my Lord. 6 Mr O’Donoghue took your Lordship to, my Lord approaches 6 MR JUSTICE ROTH: So you did not write to distance yourself 7 this on the basis that we’re right . 7 from -- 8 MR JUSTICE ROTH: Yes. 8 MR PICKFORD: We did distance ourselves, but not in such 9 MR PICKFORD: You assume that we’re right -- 9 a letter . 10 MR JUSTICE ROTH: Yes, I have all these points. 10 MR JUSTICE ROTH: How? 11 MR PICKFORD: Yes, and therefore what I was going to do is, 11 MR PICKFORD: General counsel for EE spoke with general 12 against that -- sorry , I ’m trying to be as fast as 12 counsel for the -- 13 I can, my Lord. The difficulty is I need to frame the 13 MR JUSTICE ROTH: Who is the general counsel, sorry? 14 point I ’m just about to come onto -- 14 MR PICKFORD: For EE it is James Blendis, or then was. 15 MR JUSTICE ROTH: Yes. 15 MR JUSTICE ROTH: Yes. He spoke on the phone? 16 MR PICKFORD: -- or it will be unclear what I’m trying to 16 MR PICKFORD: I think actually it was a meeting. 17 say. 17 MR JUSTICE ROTH: Mm. 18 So what I wanted to then do is go through, very 18 MR PICKFORD: So that’s -- 19 briefly , the pleadings against us, the three key 19 MR JUSTICE ROTH: That’s pleaded, is it? 20 pleadings against us against that background, if I may. 20 MR PICKFORD: My Lord, the fact that we did distance 21 So if we could turn, please , to {A/2/21}. 21 ourselves is pleaded. I ’ ll have to find exactly where 22 MR JUSTICE ROTH: Yes. 22 it ’s pleaded. Paragraph 74. 23 MR PICKFORD: So at paragraphs 54, 55 and 56 we have the 23 MR JUSTICE ROTH: Yes. 24 high point of the particularised allegations as against 24 MR PICKFORD: That’s at {A/3/27}. 25 my clients , EE, because these are the ones that actually 25 So:
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1 involve our CEO, Mr Swantee. 1 "Mr Blendis protested the approaches and publicly 2 MR JUSTICE ROTH: Yes. 2 distanced EE from them in separate conversations with 3 MR PICKFORD: What is said about Mr Swantee is he was 3 O2’s General Counsel and Vodafone UK’s General Counsel. 4 approached and, in terms, it is reported back that 4 Following these steps , the approaches ceased." 5 Mr Swantee "was not inclined to discuss EE’s 5 MR JUSTICE ROTH: Sorry, who is O2’s general counsel you are 6 distribution plans ". 6 referring to? 7 So, insofar as there is any particularized case of 7 MR PICKFORD: I think that will be for Mr Hoskins to answer. 8 our involvement in this alleged collusion , what one sees 8 MR JUSTICE ROTH: Well, no, because it’s your client who had 9 here from their pleaded case is that we rejected any 9 the conversation . 10 approach. And this court is entitled to take a view now 10 MR PICKFORD: I don’t know off the top of my head who O2’s 11 on whether that is , as we say it is , an exceptionally 11 general counsel is . 12 thin basis on which to bring a claim as serious as the 12 MR JUSTICE ROTH: Yes. Or Vodafone’s? 13 one that is brought against us. 13 MR PICKFORD: That’s right, my Lord. We can certainly find 14 It is for that reason, in part , although I have more 14 out and tell your Lordship. 15 points to make, that we say that when my Lord projects 15 MR JUSTICE ROTH: Mm. 16 himself into the future and says , "Well, how would 16 MR PICKFORD: So the second part of the claim -- so that is 17 I approach this were their application made for 17 when effectively we get expressly drawn in. I ’ve shown 18 indemnity costs in the future ?", we say my Lord could 18 you what Mr Swantee says about that -- sorry , on what it 19 have regard , assuming that we win, hands down, as the 19 is said by the claimant Mr Swantee said. 20 assumption is made -- 20 The next aspect of the case, which I ’m sure my Lord 21 MR JUSTICE ROTH: Yes. 21 is familiar with -- for your note, it starts at 22 MR PICKFORD: -- that: well, should this claim really have 22 paragraph 124 -- is the economic case. I don’t need to 23 been brought on the basis of this kind of allegation 23 take you through it . I addressed Lordship on it 24 that we were approached? And the answer was: not 24 yesterday . 25 inclined to discuss it . 25 MR JUSTICE ROTH: No.
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1 MR PICKFORD: Obviously, again, you can’t decide that case 1 dishonesty . Mr O’Donoghue has effectively covered the 2 today, but what my Lord does know today is that it will 2 ground in relation to this point . 3 be a first for any competition case in this jurisdiction 3 I think the only additional point that I would make 4 or the European Union for a claim of collusion to be 4 is that when one sits back and considers the job that 5 proved on the basis of inference from an economic model. 5 the court will be doing in adjudicating on this claim, 6 My Lord will know from your deep experience of 6 it is quite clear that Mr MacLean is going to need to 7 competition cases the necessary and inherent limitations 7 call my clients liars because they say, "We did not take 8 of economic models and certainly it will be a first if 8 part in this highly collusive activity . It simply 9 that ’s the basis on which they manage to succeed. 9 didn’ t happen". So in order to make good his claim, he 10 MR JUSTICE ROTH: Yes. 10 is going to have to say, "No, you are lying ". 11 MR PICKFORD: Again, we say that is illustrative of this 11 So this is going to be a very -- 12 being an exceptionally thin basis for a claim against my 12 MR JUSTICE ROTH: It’s not about dishonesty on his part. 13 clients , EE. 13 MR PICKFORD: Sorry? 14 Then the third part of the claim is the breach of 14 MR JUSTICE ROTH: If he loses, that’s not on the basis of 15 contract claim. The allegations of breach, they’ re at 15 finding his witnesses were dishonest . 16 {A/2/65}, beginning at paragraph 150. 16 MR PICKFORD: That is true, my Lord. So it is -- 17 MR JUSTICE ROTH: Yes. This is the good faith. 17 MR JUSTICE ROTH: That’s a point that was made in the case 18 MR PICKFORD: This is the good faith point, indeed. As I am 18 by Mr Justice Teare. 19 pressed for time, I ’ ll try to summarise it in 19 MR PICKFORD: Exactly, but there’s no closed category here. 20 a nutshell . The essence of the breach of a good faith 20 It is quite clear from Three Rivers that it is simply 21 claim is that it is said that the problem was that we 21 enough to make an allegation which is itself very 22 told Phones 4u the truth about the decision that we were 22 serious and has serious repercussions and not to have 23 planning to take. They say, "You shouldn’t have done 23 done so with a sufficient basis for doing so. 24 that . You should have kept that from us. It was 24 MR JUSTICE ROTH: Yes. 25 a breach of an obligation of good faith to tell us what 25 MR PICKFORD: And so, to conclude --
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1 you were going to do. We didn’t want to know. Bad 1 MR JUSTICE ROTH: Yes. 2 news, don’t tell us about that". That’s the essence of 2 MR PICKFORD: -- there may well be very good strategic 3 their case. 3 reasons for having joined my clients . There may well be 4 Now, again, we say that ’s an exceptionally thin 4 very good strategic reasons for having sought to 5 basis for a claim. To be clear , if this were the only 5 publicise the claim, as the claimants do, but that 6 part of the claim matters might be somewhat different in 6 strategy comes with some risks . One of them is that 7 relation to this particular application . 7 ultimately you may have to pay indemnity costs . 8 My Lord will well understand from the day and a half 8 MR JUSTICE ROTH: Well, yes, I have the point. 9 that we have had in relation to disclosure that this 9 Right, Ms Demetriou, time is really marching on 10 part of the claim is not exactly front and centre . This 10 quite fast . 11 is a very minor part of the claim. We say it is 11 MS DEMETRIOU: I will be five minutes. 12 a makeweight. 12 MR JUSTICE ROTH: Yes. Well, watch the clock. 13 MR JUSTICE ROTH: Yes. 13 Submissions by MS DEMETRIOU 14 MR PICKFORD: This really is not what this claim is about 14 MS DEMETRIOU: I will. 15 and a very small proportion of the costs of this claim 15 I have four short points . The first point relates 16 seem likely to be incurred in relation to this aspect of 16 to the level of costs . The 75% figure is about 17 it . Obviously the jurisdiction that your Lordship is 17 č394,000. The difference between the 65% and the 75% is 18 going to be -- 18 between č52,000 and č53,000. So that’s the difference . 19 MR JUSTICE ROTH: Yes, okay. I have the point. 19 MR JUSTICE ROTH: Yes. 20 MR PICKFORD: -- exercising here is a broad one. Even if 20 MS DEMETRIOU: For your note -- don’t turn it up -- it is 21 we’re entitled to indemnity costs on one part but 21 {D1/7/1}. That’s our draft order and that gives the 22 perhaps not the entire part , it makes no difference at 22 overall 75% figure. 23 this stage . 23 MR JUSTICE ROTH: Yes. 24 MR JUSTICE ROTH: Yes, I understand. 24 MS DEMETRIOU: The second point relates to flimsiness of 25 MR PICKFORD: So the second point is the issue about 25 allegation . So, in relation to that , these are
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1 Orange- specific points that I wish to make. 1 given you the figures , but we say that even on 2 MR JUSTICE ROTH: Yes. 2 a standard basis we would be likely to recover more than 3 MS DEMETRIOU: This is a claim about collusion between MNOs, 3 65% of our costs . We say 75% but if my Lord is not with 4 mobile phone operators, in the UK. Orange has at no 4 me on that, so this doesn’t require us to show indemnity 5 material time been active on the UK mobile phone market, 5 costs , but we say our costs are modest and we would 6 yet the claimant has chosen to sue Orange, as well as 6 recover at least 70% of our costs , probably 75% of our 7 the MNOs, as its one of the parent companies. Now, of 7 costs , even on a standard basis . 8 course it didn’ t need to do that because there ’s joint 8 My Lord, the fourth point is just a point of 9 and several liability . 9 clarification which relates to our position on whether 10 Now, one of the bases, in fact the main basis on 10 or not we would have priority over secured creditors . 11 which Orange is sued, derives from its corporate 11 We say that we would, so we take a different view to DT, 12 relationship with EE. So this is the decisive influence 12 but that of course priority wouldn’t arise until there ’s 13 point . Now, again, having chosen to sue Orange, the 13 been a cross - order because the liability wouldn’t 14 claimant could have stopped there and at that point 14 crystallise until that point . So the reason we say we 15 Orange’s involvement in this litigation would have been 15 need security is because we don’t know what is going to 16 much more confined. We served an RFI asking the 16 happen in the meantime in terms of payment to secured 17 claimant to clarify whether it goes further and advances 17 creditors . 18 a claim of direct collusion on the part of Orange. It 18 Indeed, this seems to be something which is accepted 19 has said that it does. That allegation is based on 19 by Phones 4u because they have accepted that security is 20 vanishingly flimsy particulars and it really comes down 20 payable in principle and so we’re only really 21 to a statement made to the press by Mr Pellissier , so, 21 quarrelling at the moment about whether it is 65% or 22 other than inference , the only thing that ’s relied on by 22 75%. 23 way of particulars is a statement to the press by 23 MR JUSTICE ROTH: Yes. 24 Mr Pellissier which you can see at {A/2/25}. You can 24 MS DEMETRIOU: My Lord, those are my submissions. 25 see it set out. I hope that will be brought up on the 25 MR JUSTICE ROTH: Thank you very much.
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1 screen . Thank you. 1 Further submissions by MR PICKFORD 2 MR JUSTICE ROTH: Yes. 2 MR PICKFORD: My Lord, I can provide answers to your 3 MS DEMETRIOU: You see there it is the citation that ’s 3 questions , if that will assist ? 4 inset . 4 MR JUSTICE ROTH: Yes. 5 MR JUSTICE ROTH: Yes. 5 MR PICKFORD: Justine Campbell is the general counsel at 6 MS DEMETRIOU: Essentially what -- this is at the top of the 6 Vodafone who Mr Blendis met. 7 page. He says that the role of middle-men, so not just 7 MR JUSTICE ROTH: Just one second. Sorry? 8 Phones 4u but also Dixons CarphoneWarehouse, he doesn’t 8 MR PICKFORD: Justine Campbell at Vodafone. 9 like the middle-men and, if it were his choice , he would 9 MR JUSTICE ROTH: Yes. 10 get rid of both of them but he can’t decide . 10 MR PICKFORD: Ed Smith at O2. 11 So one might think in fact that ’s a statement which 11 MR JUSTICE ROTH: Yes. 12 goes in our favour because it shows an independent 12 MR PICKFORD: The amount on the application is č78,623, but 13 reason for not liking intermediaries generally but, in 13 of course what really matters here is the point of 14 any event, he says it is not in his gift to decide . 14 principle for the rest of the litigation because this is 15 So we say that ’s the long and short of it in terms 15 just one small tranche. 16 of the evidence and it is vanishingly flimsy . 16 MR JUSTICE ROTH: Yes. 17 Now, of course in competition cases claimants have 17 MR PICKFORD: And it will be a much bigger number for the 18 a high degree of latitude in terms of not 18 litigation as a whole. 19 particularising their claims , but that doesn’t mean that 19 MR JUSTICE ROTH: Yes, sure. 20 defendants who are faced with highly speculative claims , 20 MR PICKFORD: Thank you, my Lord. 21 as this is , should not be afforded protection . We say 21 MR JUSTICE ROTH: Thank you. 22 that they should. 22 Yes, Mr MacLean. 23 MR JUSTICE ROTH: Yes. 23 Submissions by MR MACLEAN 24 MS DEMETRIOU: Now, the third point is that our costs are 24 MR MACLEAN: I note the time, my Lord. I will endeavour to 25 modest, so far , compared to the other defendants. I ’ve 25 respond as swiftly as I can to these applications .
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1 MR JUSTICE ROTH: Yes. 1 Three Rivers case, on appeal, when a appellant sought to 2 MR MACLEAN: We invite your Lordship to dismiss them on the 2 have a costs award increase from 60% to 80%, which had 3 basis that they are objectionable as a matter of 3 been rejected by I think it was Mr Justice Popplewell , 4 principle . As you know, all of these defendants are 4 on the basis that no material had been put before him to 5 currently secured to the extent of 65% of their 5 show that that was appropriate , Lord Justice Tomlinson 6 estimated costs paid so far in two tranches to 6 said he had never heard of a case in which a more 7 Quinn Emanuel to hold subject to undertakings . 7 generous award of security was made on the basis that 8 Your Lordship will recollect on the previous occasion 8 there was a possibility of an award indemnity costs . 9 there were discussions about the undertakings . They 9 There are now in the books, as far as we can see, 10 were eventually formalised in a manner acceptable to the 10 two examples of that , two examples which bear no 11 defendants and those have been given in respect of both 11 relation to the circumstances of this case. 12 tranches . 12 There is not a shred of evidence before the court 13 Now, your Lordship will have seen that the Vodafone 13 from any of the EE, Orange or DT executives who were 14 and Telefónica defendants make no further application at 14 active at the time in relation to this dispute and, 15 this stage , but EE, DT and Orange do. In my respectful 15 indeed, even if your Lordship had been treated to such 16 submission, the court should reject the applications and 16 evidence , that would not assist for the various obvious 17 conclude at this existing stage the security which has 17 reasons that your Lordship is not trying this case and 18 in fact been paid to Quinn Emanuel is adequate and 18 your Lordship is not getting into the merits at this 19 sufficient security . 19 interlocutory stage . 20 Now, the application notice of my learned friend 20 Now, for example, and you heard from Ms Demetriou 21 Mr Pickford’s clients said that if it succeeds at trial , 21 that it is said that it is very thin to rely on what 22 as they put in the application notice , an award of 22 Mr Pellissier said in the press and it has been said on 23 indemnity costs cannot be discounted as unrealistic . 23 a number of occasions that that was simply his personal 24 Essentially the same point is made on behalf of all the 24 view. Well, we will find out at trial whether that was 25 defendants. We cannot discount it as unrealistic . 25 simply his personal view or whether it represented
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1 Ms Demetriou’s clients say an award of indemnity 1 a considered decision or considered strategic view of 2 costs at this stage would be perfectly justified . 2 his employers. Indeed, if it is still up on the screen , 3 There are a number of points to be made in response 3 paragraph 66 of our points of claim, {A/2/25}, 4 to this . First , at least in theory , an award of 4 represents what was reported in the Daily Telegraph, the 5 indemnity costs is possible in any litigation . As 5 last paragraph: 6 your Lordship knows, such an award at the end of the day 6 "His comments signalled the widespread desire among 7 will depend on a wide range of factors which cannot be 7 European mobile operators to cut out the middlemen and 8 predicted for foreseen at an interlocutory stage when 8 to sell to more consumers directly . They have seen 9 security is sought. That does not mean that the fact 9 their profits eroded ..." 10 that it can be awarded means that it is likely or that 10 It doesn’t sound like anyone at the time thought 11 it is indeed appropriate to speculate as to whether 11 that that was simply an off -the- cuff expression of 12 indemnity costs might indeed be ordered at the 12 Mr Pellissier ’s views, but, again, that is a matter that 13 conclusion of the case. If that were the case, my Lord, 13 we will have to investigate at trial . 14 the law reports would be full of cases where security 14 On our submission, on the matter before the court , 15 was awarded on a more generous basis than the standard 15 the prospect of indemnity costs against my client , which 16 basis and would be awarded on an indemnity basis , but, 16 I accept can never be ruled out, as it cannot in any 17 for good reason, there are , as far as we can see, only 17 case, is no more than a speculative one which the court 18 two isolated examples of this happening. That is the 18 should disregard in determining what the appropriate 19 Danilina case and the Rowe v Ingenious Innovation case 19 level of security is . 20 which your Lordship has been shown. 20 It is well - established , my Lord, that, on 21 Indeed, as I will show you, my Lord, one of the 21 applications such as this , the court does not go into 22 cases that appeared in my learned friend Mr O’Donoghue’s 22 the merits of the dispute , unless it can be demonstrated 23 skeleton for the vacated hearing was a case called 23 that there is a high probability of success one way or 24 Stokors . That is a case in which 24 the other . I take that phrase, my Lord, from the 25 Lord Justice Tomlinson, the trial judge in the 25 well -known decision of Vice Chancellor Browne-Wilkinson
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1 in the Porzelack v Porzelack case, which your Lordship 1 Mrs Justice Cockerill who had ordered a reduction in 2 has no doubt heard cited on many occasions. 2 security based on a supposed sliding scale . 3 Can I show you the Danilina case which went to the 3 MR JUSTICE ROTH: Oh, I see. 4 Court of Appeal, which is to be found at {F2/13.1/1}. 4 MR MACLEAN: The Court of Appeal said that was wrong. 5 MR JUSTICE ROTH: Yes. This is the one -- 5 I only refer to this for the proposition that it is 6 MR MACLEAN: Sorry, that’s Mr Justice Teare. 6 quite clear , although this was by way of dictum, 7 MR JUSTICE ROTH: No, Mr Justice Teare is at tab 13 and the 7 powerful dictum of the Court of Appeal, that one doesn’t 8 Court of Appeal is at 13.1. 8 get into the merits . In our respectful submission, even 9 MR MACLEAN: Yes, that’s right. If your Lordship turns to 9 though my learned friends say they are not, that is 10 page {F1/13.1/15}, page 772 of the report in the 2019 10 precisely what they are doing. They are seeking to get 11 Weekly Law Reports, you’ ll see the question : 11 into the merits of this case by describing these 12 "Ground 3 - Whether the judge failed to have 12 allegations which are made as exceptionally thin and the 13 appropriate regard to the following discretionary 13 like . That’s a merits -based approach. 14 factors ..." 14 Danilina -- 15 MR JUSTICE ROTH: Just give me a moment, sorry. 772. 15 MR JUSTICE ROTH: Well, I think they’re saying there’s 16 MR MACLEAN: 772, between C and D. You will see one of the 16 a high degree of probability of failure . 17 questions which was suggested had to be dealt with on 17 MR MACLEAN: Well, there’s nothing on the -- there’s nothing 18 the appeal. One of the suggested factors that ought to 18 on the material before the court , in our submission, 19 have been taken into account was "Mrs Danilina’s claims 19 which could lead the court to come to that conclusion 20 are palpably weak". 20 properly . That is a merits assessment which this court 21 Now, Lord Justice Hamblen, as he then was, says : 21 should not be engaging in . 22 " It is equally unnecessary to determine this ground 22 The Danilina case, which was relied on, is obviously 23 of appeal, which was in any event only pursued to the 23 a completely different case from this case. In that 24 extent it was needed. 24 case, as you have seen, Mr Justice Teare formed the view 25 "In relation to the appropriateness of considering 25 that the nature of the allegations , viz had there been
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1 arguments on the merits , the position is correctly 1 an oral agreement in relation to some various assets , 2 summarised in the notes to the Civil Procedure ...: 2 could not be the result of a mistaken recollection , an 3 ’ Parties should not attempt to go into the merits of the 3 honest mistaken recollection . He reasoned that if the 4 case unless it can be clearly demonstrated one way or 4 allegations failed , it would be likely because the 5 another that there is a high degree of probability of 5 claimant had given dishonest evidence -- 6 success or failure ’. 6 MR JUSTICE ROTH: Yes. 7 "I agree with judge that the summary in the 7 MR MACLEAN: -- and was advancing a dishonest claim. 8 following paragraph of the notes in the White Book is 8 Indeed, by way of post- script , Mr Justice Teare did 9 inconsistent with this well - established approach and 9 reject the claims at trial and did decide that costs 10 should not be followed ." 10 should be awarded on an indemnity basis . 11 There he sets out what the notes wrongly state . 11 MR JUSTICE ROTH: I mean, I see obviously the factual 12 MR JUSTICE ROTH: I am just trying to understand because 12 difference . The real question is : is the test , which 13 Mr Justice Teare, I thought, did order security -- 13 was put to me, that if an order of indemnity costs 14 MR MACLEAN: He did. 14 cannot be discounted as unrealistic , then -- I mean, 15 MR JUSTICE ROTH: -- on the basis of indemnity costs. 15 obviously there ’s always the possibility of indemnity 16 MR MACLEAN: Yes, I think the -- 16 costs because of something else that happens in the 17 MR JUSTICE ROTH: This is an appeal against his order? 17 course of the trial and so on, but this is a situation 18 MR MACLEAN: Yes, the claimants -- 18 where we’re looking at the nature of the case. 19 MR O’DONOGHUE: No, it pre-dates it. 19 MR MACLEAN: Yes. 20 MR JUSTICE ROTH: Ah. 20 MR JUSTICE ROTH: That it cannot be discounted as 21 MR MACLEAN: Right. 21 unrealistic because of the nature of the allegations you 22 MR JUSTICE ROTH: I see. 22 make, then security should be ordered on an indemnity -- 23 MR MACLEAN: You’re quite right. 23 MR MACLEAN: Yes. Well, if -- 24 MR JUSTICE ROTH: Yes, this was in -- 24 MR JUSTICE ROTH: -- because if that’s the law -- 25 MR MACLEAN: This was in relation to the earlier order of 25 MR MACLEAN: That isn’t the law.
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1 MR JUSTICE ROTH: That’s what has been put to me. 1 MR JUSTICE ROTH: Three Rivers, as I recall, and I may be 2 MR MACLEAN: That’s not the law. It’s very important not to 2 wrong, was brought by the liquidators , was it not? 3 derive general principles like that from cases such as 3 MR MACLEAN: It was. It was. 4 Danilina , which are really exceptional , and 4 MR JUSTICE ROTH: So presumably there was an order for 5 Rowe v Ingenious Innovation which, if I would have to 5 security for costs in that case? 6 submit, I ’d submit that , first of all , those are 6 MR MACLEAN: I have been unable to discover what that order 7 exceptional cases and actually the test is not so low 7 was. 8 because if the test were so low, an application for 8 MR JUSTICE ROTH: But normally, if liquidators bring a case, 9 indemnity costs would be a matter of common -- for 9 self - evidently there ’s good grounds for seeking 10 indemnity costs in relation to security , the matter 10 security . 11 would be commonplace. We can see from the books that 11 MR MACLEAN: Yes. I -- 12 they’ re not. 12 MR JUSTICE ROTH: You don’t know on what -- 13 MR JUSTICE ROTH: Yes. So far as I can recall in another 13 MR MACLEAN: I don’t know. I did think about phoning 14 competition case alleging collusion , a stand-alone case 14 Mr Thanki of Fountain Court, who was in the case, but 15 where the collusion allegation was rejected , but the 15 the thought went out of my mind. 16 claimants won on quite different grounds, I don’t think 16 In any event, I don’t know. The judge -- as the 17 any indemnity costs were awarded. 17 judge put it , the bank, through its officers , was 18 MR MACLEAN: No. 18 accused of an immense catalogue of outrageous behaviour, 19 MR JUSTICE ROTH: The case was complicated because they 19 including dishonestly misleading Parliament. 20 succeeded on different grounds. 20 MR JUSTICE ROTH: Yes. 21 MR MACLEAN: Yes. But the problem with this is it is not 21 MR MACLEAN: He described the public relations exercise 22 enough simply to say: oh, these are serious allegations . 22 which had been conducted as a cynical and grotesque 23 MR JUSTICE ROTH: Mm. 23 operation and he described the discontinuance press 24 MR MACLEAN: That is not the gateway to getting indemnity 24 release which the liquidators had issued as lamentable. 25 costs at this stage . 25 He also revealed , my Lord, that he had been to see the
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1 Perhaps I should show you the decision in the 1 Lord Chief Justice to explain his concerns about the way 2 Stokors case that I mentioned, which is referred to -- 2 that case had been conducted and, after consulting the 3 MR JUSTICE ROTH: Well, you quote it at some length in your 3 Lord Chief Justice , had considered that there was 4 skeleton and I have looked at it . 4 nothing that could be done to persuade the liquidators 5 MR MACLEAN: Right. 5 of the folly of their enterprise . 6 MR JUSTICE ROTH: I see what Mr Justice Popplewell said at 6 In summary, he said, at paragraph 24 of the 7 first instance , which was effectively approved -- 7 report -- we needn’t turn it up {F1/5/14}: 8 MR MACLEAN: Yes. I’m grateful. 8 "The pursuit of such hopeless but widely publicised 9 MR JUSTICE ROTH: -- by the Court of Appeal and you quote it 9 allegations of dishonesty against so many officers of 10 in paragraph 152. 10 this country’s central bank of itself takes the case out 11 MR MACLEAN: Yes. Given the reliance, my Lord, on the 11 of the norm." 12 judgment of Mr Justice Tomlinson, as he then was, in the 12 MR JUSTICE ROTH: Yes, we all know that was an exceptional 13 Three Rivers case, it is significant . It ’s not as if 13 case. 14 Mr Justice Tomlinson, albeit six years later in the 14 MR MACLEAN: It was an exceptional case, but the mere fact 15 Stokors case, can have forgotten the experience that he 15 the case involved serious allegations does not, in my 16 had in the Three Rivers case. The Three Rivers case, in 16 submission, give the court -- ultimately as a matter of 17 terms of a spectrum of exceptional cases , was obviously 17 practice of course, because the court has a power, but 18 utterly exceptional . 18 it is not the practice of the court to make an award or 19 If one reads the report , and I ’m not going to go 19 prospective award of indemnity costs on the basis that 20 through it line -by- line with your Lordship or indeed do 20 serious allegations are being made. Simply that isn ’ t 21 anything other than say what one can derive from that. 21 enough. 22 Mr Justice Tomlinson was dealing there , as your Lordship 22 As we have said in our skeleton argument, if the 23 rightly says , with an application for indemnity costs 23 position is that complainants in competition litigation 24 following 12 years of litigation and then the 24 were to find themselves being subject to a special 25 abandonment of a trial after 256 days. 25 regime in relation to security for costs , then that
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1 itself could have a disincentive on such claims being 1 those duties would involve keeping back sufficient 2 brought. 2 assets in the estate to pay for the costs -- potential 3 MR JUSTICE ROTH: Yes. Can you just help me on the 3 adverse costs orders which they are committing the 4 insolvency position . 4 company to incur by virtue of this litigation . That’s 5 MR MACLEAN: Yes. Now that’s interesting, my Lord, for this 5 what the administrators have said in their joint reports 6 reason: Mr O’Donoghue declined to address that issue 6 that they are in fact doing. 7 when he -- 7 Now, the defendants contend, finally -- 8 MR JUSTICE ROTH: Well, he was reluctant, but I think, under 8 MR JUSTICE ROTH: Can you give me a reference for that, the 9 some pressure, he did and he said it would not -- well , 9 administrators ’ report? 10 his understanding of the law was that it would not rank 10 MR MACLEAN: We will find you one, my Lord. 11 before secured creditors . Ms Demetriou advanced 11 MR JUSTICE ROTH: Thank you. 12 a different proposition . She disagreed with that and 12 MR MACLEAN: My junior will find that for you. 13 said it would but only once the costs order is made. 13 All the defendants say, I think , that if they were 14 MR MACLEAN: Yes. Well, Mr McQuater isn’t here jump up and 14 to be awarded indemnity costs following a trial , they 15 confirm his agreement with this proposition , but the 15 might find themselves unsecured to the extent the 16 Vodafone defendants have recognised in correspondence, 16 security provided turns out to be insufficient because 17 {C/221/1}, that adverse costs are a necessary 17 it wasn’t originally provided in a more generous basis . 18 disbursement within the meaning of paragraph 3.51(2)(g) 18 That’s a different argument to whether it is a necessary 19 of the Insolvency Rules. Now, we refer to this , 19 disbursement in the administration . That particular 20 my Lord, in our skeleton argument on page 45 of our 20 argument proves too much. In any case in which the 21 skeleton under paragraph 174 {E3/1/45}. These 21 court orders security to be provided , there is an 22 submissions were made specifically with reference to the 22 obvious risk that the claimant may not be able to pay 23 ring - fencing submissions for which an application was 23 the defendants’ costs if the claim fails , but the fact 24 made and which has not been pursued today by Mr Hoskins. 24 that the security ordered , and normally ordered on 25 He’s let that lie . You’ ll see that from the skeleton . 25 a standard basis , may not be sufficient does not
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1 MR JUSTICE ROTH: Yes. 1 automatically lead to enhanced security . Indeed, one 2 MR MACLEAN: But we submitted that adverse costs orders are 2 might ask rhetorically why stop at 75? Even that itself 3 a necessary disbursement and we refer to 3 carries a risk of under-recovery . 4 Lord Neuberger’s remarks in relation to the predecessor 4 This is not a route which the court has gone down in 5 of that insolvency rule in the case of In re Nortel (in 5 the past, save for the two cases which your Lordship has 6 administration ) and we submit that this accords with the 6 been referred to, and we suggest that this is not 7 position in liquidation , see Re MT Realisations. We 7 a route which this court should go down today. 8 have cited that case. 8 As I have said , we invite your Lordship to dismiss 9 MR JUSTICE ROTH: Yes. 9 these applications . 10 MR MACLEAN: Now, those submissions were made in the 10 MR JUSTICE ROTH: Yes, thank you. 11 skeleton argument essentially in the same terms which we 11 MR MACLEAN: Before Mr Pickford rises, the eleventh joint 12 filed for the hearing which was vacated in the first 12 report is at {D2/133/1}. 13 week in June. 13 MR JUSTICE ROTH: Thank you. 14 MR JUSTICE ROTH: Yes. 14 Submissions in reply by MR PICKFORD 15 MR MACLEAN: We have had nothing further in response. 15 MR PICKFORD: My Lord, four short points. 16 MR JUSTICE ROTH: The only question then is: it is 16 Firstly , whether we’re asking the court to examine 17 a necessary disbursement takes priority . 17 the merits . My Lord put it that we were saying that 18 MR MACLEAN: Yes. 18 there was a high probability of failure . It is 19 MR JUSTICE ROTH: But if there’s been no costs order made at 19 important to appreciate that our submission is not the 20 the time, do sums have to be retained ? They can be 20 mere fact that there is a high probability of failure , 21 disbursed at that point to other creditors or 21 although there is , it is the fact that they can see that 22 preferential creditors or secured creditors . I think 22 now and that will be a relevant consideration for this 23 that ’s the -- 23 court , highly relevant consideration , when it comes to 24 MR MACLEAN: Yes. The matter I think would resolve itself 24 the question of what type of costs order should we get 25 in this way: the administrators have various duties and 25 if we win. That’s the point .
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1 So we’re not asking this court to determine whether 1 to justify the defendant seeking to revisit the order 2 we are in fact going to win or not. We’re simply 2 which had already been made in its favour and which had 3 saying : look at the way the claim is currently pleaded. 3 been intended to secure its costs ..." 4 That issue will go to the reasonableness of the bringing 4 So the key point that one draws from that is this 5 of the claim in the first place . That’s the point . 5 whole issue was not the subject of any argument in the 6 MR JUSTICE ROTH: Yes. 6 Court of Appeal and indeed even below it wasn’t really 7 MR PICKFORD: Secondly, my Lord asked about the test and 7 the matter that was the focus of attention . It was 8 whether it really is the case that if there ’s 8 a different one about change in circumstances. 9 a reasonable prospect , you should be making the 9 So one has to be very careful about reading too 10 application in our favour . 10 much, in my respectful submission, into the Stokors 11 MR JUSTICE ROTH: Yes. 11 case. 12 MR PICKFORD: That is indeed the approach that was taken 12 MR JUSTICE ROTH: Yes. 13 in -- that was the test that was applied in those two 13 MR PICKFORD: Then the final point in reply on insolvency 14 cases , as you were taken to by Mr O’Donoghue. In 14 was this : we had understood the insolvency point being 15 Ingenious Media it ’s at paragraph 23 of -- 15 raised as exactly what Mr MacLean was addressing, which 16 MR JUSTICE ROTH: I have the reference, yes. 16 was his last point to say: you, defendants, can’t make 17 MR PICKFORD: Yes. So we say that is the test. It is the 17 a positive point out of the insolvency and the rules in 18 test in both of them. 18 respect of that to justify your increment. 19 Thirdly , my Lord suggested that the Court of Appeal 19 For our part we’re not making a positive point about 20 approved of the approach of the first instance judge in 20 that to justify our increment. Our increment is 21 the Stokors case. If we can just very briefly turn that 21 justified on the basis that I explained in my 22 up. It is actually slightly more subtle than that , in 22 application . So we say that point ultimately goes 23 my respectful submission. It is at {F1/8/10}. What one 23 nowhere and, insofar as it had any potency at all , we 24 finds -- 24 really much align ourselves with what Ms Demetriou said 25 MR JUSTICE ROTH: Yes. 25 in her opening remarks.
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1 MR PICKFORD: -- is, at paragraph 30, where the issue of 1 MR JUSTICE ROTH: Thank you. 2 indemnity costs is addressed. There’s then a quote of 2 MR PICKFORD: I am grateful. 3 what the judge said about that. One sees, about 3 Submissions in reply by MR O’DONOGHUE 4 two- thirds of the way down, the nub of it is : 4 MR O’DONOGHUE: Can I make a couple of quick points. 5 "’ I am not satisfied on the material he has put 5 My Lord, just so that I ’m crystal clear as to what 6 before me [counsel for the defendant] that I can reach 6 exactly my core submission is , I am not saying in any 7 any such conclusion ." 7 shape or form your Lordship can and should get into the 8 Ie one that supported security for costs . 8 merits . What I am saying on the basis of the two cases 9 Then if we go on over the page, page 11 {F1/8/11}, 9 I ’ve shown you, particularly paragraphs 16 and 17 of 10 one sees there , right at the top: 10 Mr Justice Teare’s decision , is that one has to look at 11 " It is not, as I understand it , suggested that the 11 the nature of the particular claims before your Lordship 12 judge’s approach as set out at that paragraph can be the 12 and how the battle lines are drawn. 13 subject of any criticism in this court ." 13 Then the thought experiment is you assume the 14 So no one was arguing in the Court of Appeal about 14 claimant fails on the basis of the nature of the case as 15 the approach that had been adopted before it . It wasn’t 15 put. In this case there is a reasonable and certainly 16 the subject of any developed submissions . 16 realistic scenario that will involve allegations 17 Then the court goes on to note that : 17 effectively that the defendants were lying and they will 18 "The judge turned next to the question what amount 18 have been established at trial to be untrue. So that’s 19 should be required to be secured ... Before indicating 19 how the battle lines are drawn. That does not involve 20 what he said about that, I should emphasise that the 20 getting into the merits . It is a realistic assessment 21 principal issue with which the judge was concerned, on 21 based on the nature of the claims as to how this -- 22 this contested application for security for costs , was 22 MR JUSTICE ROTH: I understand. I have that. 23 not in fact the quantum of the order he should make 23 MR O’DONOGHUE: In that case, my Lord, that’s exactly what 24 [ ie what we’re concerned with here] but whether or not 24 the judge did . 25 there had been a sufficient change in circumstances as 25 The second point, there was a reference to
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1 a chilling effect . In my submission that is at best 1 INDEX 2 a neutral point because there is equally a public policy 2 3 concern in the context of stand-alone claims that Submissions by MR MACLEAN (continued) ...... 1 4 defendants could be left holding a baby to the tune of 3 5 millions of pounds based on speculative claims . That is Submissions by MS DEMETRIOU ...... 48 6 a point that at least cuts both ways, or at least is 4 7 a neutral factor , or there are public policy Submissions by MR O’DONOGHUE ...... 68 8 considerations going in different directions . 5 9 Finally , just to pick up on the insolvency point , Submissions in reply by MR MACLEAN ...... 84 10 I mean, the practical point , my Lord, is that these 6 11 costs would only become payable at the earliest in Submissions by MR MCQUATER ...... 93 12 around 2023. At that stage we have no clear idea and it 7 13 seems on the basis of what I’ve shown your Lordship the Submissions by MR PICKFORD ...... 104 14 kitty is pretty bare. In the interim all we have are 8 15 some warm words from the administrators. Submissions by MR HOSKINS ...... 105 16 There is a practical point . If the administrators 9 17 genuinely believe in the medium term that there is no Submissions in reply by MR MACLEAN ...... 106 18 issue , then they will have no issue paying the security 10 19 we seek today. Submissions by MR HOSKINS ...... 119 20 MR MACLEAN: Just to correct one point, my Lord, the 11 21 submission that the kitty is bare, the recent report Submissions by MS DEMETRIOU ...... 123 22 showed there was 140 million of cash being held by the 12 23 administrators . Submissions in reply by MR MACLEAN ...... 124 24 MR O’DONOGHUE: Yes, as against secured and unsecured 13 25 liabilities of hundreds of millions . Submissions by MR MCQUATER ...... 125 14 233 Submissions by MR HOSKINS ...... 130 15 1 MR JUSTICE ROTH: Yes. Right. Thank you all very much. Submissions by MR MCQUATER (continued) ...... 144 2 Given the time, I shall have to reserve that one as 16 3 well . Submissions by MR O’DONOGUE ...... 145 4 Now, I will have to stop at 5.00 pm. There is 17 5 a very short , I think , application -- Submissions in reply by MR MACLEAN ...... 149 6 MR O’DONOGHUE: My Lord, I just talked to Mr MacLean. 18 7 I wonder if that is something your Lordship would be Further submissions by MR HOSKINS ...... 153 8 content to deal with on paper? 19 9 MR JUSTICE ROTH: I would be content to deal with it on the Discussion re arrangements for trial ...... 155 10 papers if you are content for me to deal with it on the 20 11 papers. Application for security for costs ...... 175 12 MR MACLEAN: My Lord, I am content with that. 21 13 MR JUSTICE ROTH: The pressure of time and heat on a Friday Submissions by MR O’DONOGHUE ...... 175 14 afternoon often has that curtailing effect , I think , 22 15 although it ’s not necessarily so attractive for the Submissions by MR PICKFORD ...... 197 16 judge. 23 17 Yes, very well . So there are two substantive Submissions by MS DEMETRIOU ...... 208 18 matters on which I have heard argument on which I shall 24 19 endeavour to produce decisions as soon as possible and Further submissions by MR PICKFORD ...... 212 20 I said I ’ ll try on disclosure to give that priority . 25 21 MR MACLEAN: I am grateful to your Lordship. Submissions by MR MACLEAN ...... 212 22 (4.50 pm) 23 (The court concluded) 235 24 25
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1 Submissions in reply by MR PICKFORD ...... 228 2 Submissions in reply by MR O’DONOGHUE ...... 232 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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74:20 154:5 215:10 abstract (2) 110:9 190:22 admitted (1) 80:3 178:12 144:21 164:4 173:4 216:10 229:20 attention (1) 231:7 bearing (2) 65:4 183:21 absurd (1) 79:9 adopt (10) 91:5 104:21 aimed (1) 71:7 anything (27) 15:14 16:24 april (2) 155:12,13 attractive (2) 35:15 234:15 become (2) 155:13 233:11 abundance (1) 103:2 105:2,3 144:18 145:18,20 akin (1) 188:1 31:1 50:7 64:17 67:6 apt (1) 66:17 audio (14) 2:10 11:22 15:4 becomes (2) 56:11 112:21 accept (11) 12:22 35:13,13 153:22 199:18,19 albeit (3) 74:25 175:12 77:14,20 79:21 80:20 area (15) 14:8 74:19 22:5,11 30:1 33:17 before (38) 1:12,23 27:14 107:20,21 116:4 151:4 adopted (2) 186:5 230:15 222:14 82:10 84:17 90:17 106:14 75:6,12,15,24 76:4,11,19 34:18,23 35:8,11 37:12 38:13 50:24 54:21 70:1 191:6,9 203:4 216:16 adopting (1) 8:14 alierta (2) 42:13 85:14 114:4 119:19 135:15 136:8 78:2,19 82:17 83:17 38:20 40:5 81:16 85:13 112:2,4 acceptable (1) 213:10 advance (5) 9:11 55:20 alighted (1) 57:20 145:17,22 152:21,22 134:15 157:14 august (2) 39:7 115:7 115:21 119:5 123:4 124:10 accepted (6) 5:12 7:3 89:4 64:16 65:1 154:3 align (1) 231:24 154:21 169:18 172:18 areas (2) 63:13 91:7 auld (3) 97:16,19,23 125:21 146:3 147:21 151:6 147:4 211:18,19 advanced (2) 199:9 225:11 allegation (20) 63:5 79:20 173:4 222:21 arguable (1) 200:18 authorities (2) 180:22 186:22 154:9 156:4 162:24 166:18 accepts (3) 107:2 110:20 advances (2) 187:18 209:17 188:1 189:2,19,25 191:19 anyway (4) 115:2 159:6 argue (2) 149:22 163:22 authority (6) 92:11 167:5 177:12 180:24 147:7 advancing (1) 220:7 192:12 193:3 194:7,8 160:4 161:5 arguing (1) 230:14 136:18,19,24 137:7 138:1 181:15 193:7 215:4,12 access (10) 7:17 17:6,19,21 advantages (1) 8:20 195:22 196:4,10,19 202:23 apart (8) 4:1 5:23 49:16 argument (31) 1:23 4:22 6:1 automatically (1) 228:1 216:14 219:18 225:11 18:2,16 125:8 131:6 139:5 adverse (6) 142:1,17 178:21 207:21 208:25 209:19 55:17 58:9 80:20 143:18 10:20 12:23 17:8,11 27:5 autumn (2) 160:5 164:23 228:11 230:6,15,19 232:11 144:21 225:17 226:2 227:3 221:15 176:5 49:5 52:10 103:23 118:13 available (9) 7:23,25 9:21,24 beginning (2) 9:8 205:16 accessible (5) 5:16,22 advice (6) 139:19,22,24 allegations (27) 16:4,20 apologise (2) 24:19 167:5 130:4 146:1 155:4,11 20:6 23:16 25:18 61:8,18 begins (1) 170:20 113:11,21,25 150:21,23 151:1 28:10 130:15 144:5 155:23 apparent (3) 27:6 56:11 161:2,7 165:20 168:17,20 averse (1) 156:17 behalf (2) 84:25 213:24 accommodated (1) 158:23 advisement (2) 22:12 47:11 185:1,21 187:19 188:7 155:14 170:18 198:21 199:11 avoid (4) 40:7 104:6 119:22 behave (1) 36:20 accords (1) 226:6 advising (1) 115:19 190:11,12,24 191:11 193:1 apparently (4) 1:7 25:14,25 224:22 225:20 226:11 158:12 behaved (1) 86:2 account (7) 64:25 88:9 advisor (1) 184:14 199:9 201:24 205:15 50:14 227:18,20 231:5 234:18 award (10) 180:6 213:22 behaviour (2) 192:13 223:18 138:5,12 149:25 161:21 advocacy (1) 165:3 219:12,25 220:4,21 221:22 appeal (13) 181:9 215:1 arguments (5) 54:20 124:22 214:1,4,6 215:2,7,8 behind (1) 113:7 217:19 advocates (1) 170:13 224:9,15,20 232:16 217:4,8,18,23 218:17 156:9 159:23 218:1 224:18,19 being (42) 7:9 12:8 46:23 accountancy (1) 160:16 affect (2) 46:21 132:10 allege (1) 194:21 219:4,7 222:9 229:19 arise (4) 127:4 143:13 awarded (6) 214:10,15,16 47:17 51:10 54:12 55:13 accounts (4) 17:7,22 affected (2) 164:8,15 alleged (6) 40:11 152:3 230:14 231:6 168:20 211:12 220:10 221:17 227:14 59:18 60:5 62:9 66:5 78:23 146:9,14 affects (1) 166:17 190:3 191:1 194:16 202:8 appear (3) 21:6 88:4 143:16 arises (4) 20:3 29:15 aware (3) 22:9 175:11 191:2 80:2 90:17 92:11 93:16 accurate (1) 63:14 afforded (1) 210:21 allegedly (1) 99:7 appeared (2) 21:4 214:22 37:13,19 away (2) 110:1 163:2 99:7 100:16 123:22,24 accused (1) 223:18 afraid (4) 82:19 114:13 alleges (1) 37:20 appears (5) 19:13 23:2,3 around (3) 94:23 165:12 awful (1) 128:19 124:2 125:9 134:20 135:6 acknowledge (1) 62:10 125:21 136:17 alleging (3) 189:5,10 221:14 156:18 183:20 233:12 136:5 137:10 151:13 B acknowledged (2) 51:21 afresh (1) 161:17 allocated (1) 67:25 appellant (1) 215:1 arrangements (3) 155:1,2 158:10 160:8 161:2 162:18 56:23 after (9) 7:11 8:17 11:19 allow (3) 149:24 170:23 appendix (1) 94:15 235:19 b (4) 24:10 74:1 146:7,17 167:6 176:7 183:11 195:4 acknowledgement (1) 61:14 32:20 90:9 118:9,24 179:11 applicable (1) 146:12 article (1) 191:5 b18 (1) 71:19 200:2 205:12 224:20,24 across (8) 37:4,7 41:24 42:12 222:25 224:2 almost (4) 3:6 36:3 86:3 applicants (1) 186:16 ascertain (1) 150:1 b181 (1) 71:17 225:1 231:14 233:22 114:12 130:10,13 144:4 afternoon (3) 119:5 163:12 115:8 application (75) 6:24 7:6,9 aside (1) 146:17 b24265 (1) 100:12 believe (3) 1:15,21 233:17 acting (1) 133:9 234:14 alone (4) 83:11 88:11 89:23 9:9,17 13:6 15:3 18:4 ask (11) 13:24 103:24 124:4 b417 (1) 189:1 below (2) 2:16 231:6 action (3) 17:23 101:8 again (21) 30:10 31:11 44:12 140:18 22:14,18 24:4,8,10 26:20 134:22 135:6 142:8 150:10 b4265 (1) 100:7 beneficial (2) 181:18,21 184:24 56:6 72:10 80:15 83:2 along (2) 61:7 156:25 45:22 47:24 65:25 89:21 167:1,2 180:17 228:2 baby (1) 233:4 benefit (1) 7:8 active (3) 78:5 209:5 215:14 109:2 110:7 115:12 alongside (1) 168:20 91:21 92:17,25 118:6,8,11 asked (18) 6:13 18:2 back (36) 4:9 22:18 26:19 benefits (1) 5:23 actively (1) 57:5 139:6,21 149:7 153:22 already (19) 6:8 32:22 92:22 119:10 121:1 123:3,7,17 57:23,24 87:12 100:17 35:1,4 41:13 45:8 56:19 berlin (1) 70:10 activities (1) 50:6 193:22 195:2 205:1,11 97:11 113:12 116:19 124:5 126:13 131:16 140:5 107:15 126:6 133:17,21 58:16 65:24 67:17 69:19 bertoluzzo (5) 97:11 activity (5) 188:2 193:14 206:4 209:13 216:12 117:3,21 118:14 121:16 141:18 147:24 134:11 135:6 136:5 143:23 70:14 77:25 82:10 83:21 100:10,11,19,20 194:8,18 207:8 against (76) 3:25 4:4 10:13 122:8 123:1 125:1,12 148:2,16,18,22,24 149:3 150:12 152:6 200:2 229:7 84:6 90:24 97:7,15 102:20 best (6) 10:22 20:17 52:3 actual (2) 70:2 72:13 11:5 16:8 17:8,13,16 20:8 127:8 142:4 198:6,19 153:19,24 157:1 163:16 asking (32) 1:5,16 10:2,3 119:17 123:21 133:20 95:22 106:18 233:1 actually (29) 17:15 22:13 22:14,22,22,24,25 24:4,11 231:2 174:14,16 175:1,11 176:6 12:11 18:8 19:1,2,18 21:11 147:16 149:11 150:19,21 bets (1) 149:17 42:23 45:18,22 52:22 53:3 29:13 31:19 45:17 48:19 also (32) 2:15,17 4:9 38:1 179:2 181:4,16 182:12 43:18 44:9 84:23,24 172:15,17 181:1 185:11 better (12) 1:11 14:21 54:25 55:25 70:4 99:12,23 55:12,16,21,23 61:2 64:9 39:15 50:17 51:6,8 63:24 183:19 187:3 197:16,19,20 87:1,11,12,13 88:23 198:18 202:4 207:4 227:1 16:3,10 22:13 27:6 40:7 102:24 116:10,13 118:10 79:20 81:13 89:8 91:14 66:20 75:6 82:12 89:1 96:9 200:3 201:3 202:17 206:7 116:10,13 131:3 144:7 background (2) 8:6 201:20 107:15 118:24 158:19 119:23 126:12 157:24 95:3,12 96:21,24 97:3 99:5 108:25 117:13 120:22 212:12 213:14,20,22 221:8 156:20 189:23 198:9 backwards (2) 148:23 190:12 160:9 169:4 159:24 168:6,14 171:20 106:2 107:14,24 108:8 131:18 159:7 161:19 222:23 225:23 229:10 200:24 201:2,4 209:16 bad (2) 161:3 206:1 between (79) 4:23 5:11 9:11 198:7,9 201:25 203:16 112:1 118:19 124:22 165:22 166:22 168:11 230:22 231:22 234:5 228:16 229:1 balanced (2) 10:13 11:25 11:2,3 12:14 17:11 19:11 221:7 229:22 129:8,9,11,18 174:17 175:18 186:6,17 235:20 asks (4) 112:16 134:9 banal (2) 108:21 109:21 21:3,9 25:15,23 26:6 27:23 ad (1) 76:2 131:18,23,23 138:20 140:6 193:20 194:15 210:8 applications (15) 21:19 157:5,22 bank (2) 223:17 224:10 29:1,16,18,22 31:13 32:15 adamant (1) 135:16 143:5,8 147:24 148:3 223:25 45:17 48:5 90:3 91:14 aspect (8) 4:7 86:16,16,19 bar (1) 2:7 33:15,20,21,24 34:6,8,9,22 add (9) 35:17 46:13 83:7 159:16,17 161:3 163:18 although (11) 88:14 90:4,19 92:2,6 112:20 144:12 122:2 151:16 204:20 bare (2) 233:14,21 37:8 40:1,9,17 93:22 98:8 119:19 144:17 184:14 185:5 190:13 126:1 179:21,24 184:23 175:13,14 212:25 213:16 206:16 barrage (1) 159:23 41:8,10,11,12 42:1,8,12 145:18,22 195:11 199:25 200:23 202:14 219:6 228:21 216:21 228:9 aspects (2) 4:15 101:4 based (12) 50:22 55:12 69:7 43:5,13 46:25 53:5 56:25 added (4) 60:4,11 62:4 201:12,19,20,20,24 202:13 234:15 applied (2) 183:25 229:13 assent (1) 91:20 112:20 168:8 184:23 192:6 58:11,20 63:10 64:7 100:19 205:12 216:15 218:17 always (2) 167:8 220:15 applies (1) 88:15 assertion (3) 10:12 21:2 89:7 194:1 209:19 219:2 232:21 66:13,19,20 67:2 81:23 adding (1) 60:24 224:9 233:24 among (4) 70:5 75:17,18 apply (6) 27:19 56:16 70:8 assess (2) 54:11 159:6 233:5 89:3 91:6 95:14 108:19 addition (5) 45:6 83:10 agenda (5) 93:12 94:3,24 216:6 103:17 166:6,21 assessed (1) 183:12 bases (1) 209:10 109:1,12 112:18 127:14,15 100:20 146:17 190:17 95:18 125:19 amongst (1) 38:3 applying (1) 167:11 assessment (9) 148:13 180:9 basically (2) 86:2 195:13 128:5,13 130:6 143:11 additional (9) 49:23,24 55:6 agent (1) 133:9 amorphous (1) 148:19 appreciate (8) 15:11 29:8 183:3 186:9 188:11,20 basis (84) 2:3 4:18 6:10 7:2 166:12 175:14 182:9 67:6 83:15 93:10,16 94:6 aggregate (1) 130:7 amount (10) 55:24 63:4 47:19 73:9 126:19 133:14 192:7 219:20 232:20 15:12 26:15 39:11 40:2,17 183:20 187:1 188:15 191:8 207:3 aggressively (1) 187:18 150:10 175:22 179:5,12 199:10 228:19 assessments (1) 52:2 45:13 49:2,8 50:25 51:4 192:3 198:21 208:17,18 address (16) 19:22 25:1 31:2 ago (5) 72:25 81:6 105:20 185:13,15 212:12 230:18 appreciation (1) 183:4 assets (3) 181:22 220:1 53:23 55:20 59:2,10 209:3 217:16 93:20 94:12 95:10 113:17 106:10 197:6 amounts (5) 41:16 56:10 apprehend (1) 109:19 227:2 61:4,18 62:10,16 65:24 beyond (3) 15:9 76:24 95:1 124:3 129:4 131:19 149:14 agree (4) 2:5 151:9 173:3 109:25 170:22 177:1 approach (33) 6:3 7:21 8:15 assist (6) 118:5 119:12 67:17 73:15,21 88:11 97:9 bigger (1) 212:17
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
bills (4) 20:7,13 21:8 23:9 200:10 207:19 207:6,20 219:6 232:5 communicated (1) 53:17 33:23 40:8 42:7,10 43:1 132:20 146:11 151:12 C binary (3) 148:1,21 183:20 cater (1) 84:9 233:12 communicating (3) 32:22 50:12,18 66:8,10 112:7 167:25 189:17
birds (1) 131:21 c (4) 74:1,6 180:19 217:16 causation (6) 156:16 clearly (10) 14:9 73:8 74:23 39:2 57:12 152:11 194:3 200:25 contractual (3) 132:22 133:3 bit (15) 10:9 68:16,21 81:2 c191 (1) 71:18 160:19,21,23 162:6 173:17 80:10 83:19 88:4 134:19 communication (13) 15:14 conducted (5) 27:3 40:17 195:9 89:18 92:12 95:8,20 c1911 (1) 71:16 causationquantum (1) 138:10 166:17 218:4 26:13 57:6 58:11 64:11 122:7 223:22 224:2 contrarium (1) 110:2 100:25 105:21 126:18 c2211 (1) 225:17 167:15 client (16) 11:5 62:3 72:13 89:3,9,10 91:4,6 128:25 conducting (3) 17:22 69:9 contrary (3) 142:12,23 182:6 130:17 164:1 177:23,25 c2281 (2) 71:16,19 causative (1) 157:22 82:24 94:7 115:19 118:20 133:7,16 136:18 contrast (3) 62:22 84:4 bits (2) 95:25 199:21 c5541 (1) 72:1 caused (1) 159:24 157:13 158:2 175:17,21 communications (44) 4:7 conducts (1) 38:5 103:3 blanche (1) 143:5 c5548 (1) 72:5 causes (1) 184:24 195:9,12,12 204:8 216:15 11:2,3,11,20 12:14,17 conference (3) 7:5 16:15,17 control (13) 15:2 blank (1) 179:10 c55823 (1) 64:20 causing (1) 2:12 clients (21) 33:22 48:24 13:17,25 14:9 16:2 17:1 confess (1) 133:23 147:10,14,18 blendis (5) 38:1,16 203:14 c5583 (1) 65:4 caution (1) 103:2 50:11 62:22 72:12 86:24 28:4 29:24 30:14 31:12 confidential (4) 2:1,2 114:22 148:1,6,12,21,25 204:1 212:6 c591 (1) 97:3 caveat (1) 110:4 105:11 107:1 112:2 32:15 34:20 36:7 39:8 145:1 149:2,8,9,16 blindcopied (1) 70:19 c5935 (1) 60:22 ccd (2) 57:6,14 113:5,9 144:3 156:11 40:1,11 41:10,12 42:7 confidentiality (3) 1:20,21 controls (1) 147:23 blindsided (2) 174:3,8 c5936 (1) 61:11 ceased (1) 204:4 164:7 165:4 201:25 205:13 43:10 46:4,12,25 56:25 145:10 convenient (2) 14:11 48:7 blue (1) 116:3 c5937 (1) 62:5 central (5) 114:10 128:8,12 207:7 208:3 213:21 214:1 57:2,22 63:10 64:7 81:23 confined (1) 209:16 convention (1) 146:24 board (83) 3:20,21 c610 (1) 32:9 189:2 224:10 clifford (3) 15:19 17:9 87:5 82:8 95:4,8 108:19,25 confirm (3) 124:4,10 225:15 conversation (1) 204:9 4:10,11,11,12 5:5,21 c61011 (3) 32:5,10 57:17 centre (1) 206:10 clock (1) 208:12 127:5,5,7 128:17 confirmed (2) 24:2 60:18 conversations (3) 15:13 6:18,18,25 8:1,2,3,3 9:2 c62 (1) 22:4 ceo (7) 77:17,19 81:5,18 close (2) 144:6 168:12 companies (2) 42:11 209:7 confusion (1) 24:20 20:23 204:2 36:20 49:10,11,12,17 50:8 c6215 (1) 140:23 82:4,18 202:1 closed (2) 114:5 207:19 company (10) 39:13 49:22 conjunction (1) 116:6 cooperate (2) 18:13 132:25 51:12,16,16 52:13,14 c6223 (1) 47:4 certain (11) 4:2 20:4,7 45:4 closer (4) 1:6,6 162:22 52:8 55:23 61:17 85:23 connection (1) 24:25 cooperation (3) 10:9 71:7 64:16,17,25 65:2,6,12 c6272 (1) 24:3 53:4 74:21 95:11 114:12 171:19 139:2 147:15 181:19 227:4 conscientiously (2) 48:24 109:12 67:2,8 70:12 74:21 77:18 c636 (2) 35:5 94:14 140:10 149:21 185:5 closing (1) 171:11 comparatively (1) 186:17 71:14 coordinated (3) 20:25 21:4,7 87:17,19 89:2 c6372 (1) 60:1 certainty (1) 192:20 club (1) 189:16 compared (4) 54:13 110:22 conscious (2) 90:12 118:3 copied (2) 60:5 70:19 113:6,7,8,20,22 c6373 (1) 63:25 cfo (2) 77:18 82:6 cmc (5) 90:5 122:17 123:6 130:7 210:25 consequence (6) 70:18 77:21 copies (2) 132:23 179:21 114:7,9,13,20,21 c6411 (1) 68:23 chance (4) 15:19 17:9 45:7 146:2 155:8 compatible (1) 112:12 78:3,21 82:11 106:23 copy (5) 1:16 2:4 70:9 80:7 115:20,25 cajole (1) 148:9 87:5 cmc1 (1) 98:5 compelled (1) 151:13 consequences (2) 141:22 113:23 116:8,12,12,21,23 calculated (1) 198:10 chancellor (1) 216:25 cockerill (2) 181:8 219:1 compelling (1) 192:8 159:6 core (1) 232:6 117:6,9,10,12,22 118:2 calculation (1) 173:15 change (3) 165:25 230:25 colao (9) 20:11 23:11,15 competition (20) 1:16 36:22 consider (13) 24:6 65:21 corollary (1) 183:9 119:7,9,11,16,21 call (8) 20:3,16,16 23:18 231:8 32:21,21 40:10 42:15 62:3 79:5 136:18 138:1 80:7 91:16 138:18 140:17 corporate (4) 64:25 76:23 120:17,20,22 121:7,9,9 37:24 39:3 154:14 207:7 changed (1) 114:4 57:20 116:7 157:10 168:21 193:22 150:25 154:25 163:6,16,20 123:14 209:11 123:11,22 124:3,15 called (3) 1:16 109:13 214:23 channel (3) 89:3,9,10 colaos (3) 32:7 57:24,25 194:13,13,14 195:14,21 165:16 166:7 corpus (1) 70:12 126:1,5,7,9 calling (1) 20:11 chasm (1) 166:11 collapse (2) 162:14 164:17 196:3 205:3,7 210:17 considerable (3) 12:13 correct (8) 31:16 41:23 81:5 boat (1) 22:7 calls (3) 20:14,14 21:9 check (3) 30:24 77:7 116:16 collapsed (1) 164:18 221:14 224:23 118:14 138:16 98:10 146:25 174:18 bodies (1) 123:12 came (4) 35:1 74:14 77:14 checked (1) 114:22 collection (1) 146:19 competitors (3) 11:4 188:16 consideration (8) 103:5,6 186:23 233:20 body (2) 118:14 179:1 88:10 cheque (1) 179:10 collective (1) 194:22 189:16 138:10,11 144:10 182:5 correction (1) 42:25 bonn (2) 70:10 88:17 campbell (3) 37:10 212:5,8 chief (10) 37:9 50:4 53:14 collectively (1) 189:16 complain (1) 85:16 228:22,23 correctly (1) 218:1 book (2) 132:12 218:8 candidate (3) 25:13 26:23 58:19 85:9 88:5 116:5 colluded (1) 63:6 complainants (1) 224:23 considerations (3) 138:5,7 corrects (1) 84:16 books (2) 215:9 221:11 27:1 190:18 224:1,3 collusion (51) 51:13,14 complaints (1) 84:19 233:8 corresponded (3) 60:13 both (13) 30:16 44:25 70:6 candidates (2) 60:20 92:7 chilling (4) 105:9,12 106:24 55:16,21 56:1 63:11 complete (3) 9:19 11:19 considered (12) 48:25 56:5 61:14 88:5 79:8 85:7 86:22 87:15 cannot (8) 85:5 138:17 233:1 79:8,11,15 136:9 143:4 23:24 60:25 61:19 62:23,23 correspondence (27) 6:11 108:17 197:11 210:10 213:23,25 214:7 216:16 choice (1) 210:9 144:9 152:3 157:18 158:9 completely (9) 46:9 84:5 101:9,10 174:9 216:1,1 15:20,21 22:9 24:2 25:20 213:11 229:18 233:6 220:14,20 chosen (2) 209:6,13 159:14,24 162:4 165:6 105:19 109:21 128:18 224:3 27:13 34:5 44:18 45:10 bottom (3) 57:24 60:24 cant (24) 6:16 8:11,16 15:24 chronological (1) 122:19 167:18,18,24 188:23 136:23 142:3 168:9 219:23 considering (6) 47:10,11 47:6 59:15 60:16 83:15 177:2 40:20 67:16 85:10 86:4 cindy (3) 23:11 34:6 101:2 189:3,5,11,18 complicated (3) 28:20 31:9 61:8 62:25 141:19 217:25 99:13,22 101:2 103:9 bounce (1) 164:4 89:6 115:10 116:23 123:4 circa (2) 69:2 70:15 190:1,2,3,5,8,15,19,24 221:19 considers (2) 65:21 207:4 105:7 112:24 114:16 boundaries (1) 99:4 125:5 136:12 137:17 circles (1) 111:1 191:1,2,4,20 192:19 comply (2) 134:13 150:7 consist (1) 185:1 115:24 123:11,23 128:10 boycott (2) 189:17 194:11 149:10 150:9 151:12 160:3 circumstance (1) 186:16 194:11 196:6,11,15 200:9 complying (2) 140:7 153:20 consistently (1) 59:12 141:17 225:16 brand (3) 97:2,10,21 166:23 200:3 205:1 210:10 circumstances (7) 65:17 202:8 205:4 209:3,18 component (1) 106:2 consonant (1) 91:10 corresponding (1) 57:10 breach (18) 147:1 157:11,18 231:16 87:2 159:25 180:6 215:11 221:14,15 composite (2) 199:14,16 conspicuously (1) 50:20 cost (4) 84:9 130:12 140:11 159:14 162:5 165:6 190:5 cantilever (1) 80:8 230:25 231:8 collusive (1) 207:8 comprehensive (4) 69:23,23 conspiracy (3) 185:5,21 164:5 191:4 195:25 capable (1) 65:7 circumvent (1) 148:7 column (1) 177:3 78:9,23 195:11 costly (1) 103:22 196:2,4,5,12,14 capacity (1) 75:1 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213:6,23 214:2,5,12 briskly (3) 70:3 71:12 180:23 carry (8) 20:6 23:5 34:1,8 159:18 208:5 210:17 209:20 228:23 103:21 106:21 109:24 67:11 70:24 164:3 171:13 215:2,8 216:15 218:15 broad (6) 29:2 34:3 42:21 86:10 122:19 130:14 218:18 221:16 comfort (1) 152:25 116:11 117:13 118:23 234:8,9,10,12 220:9,13,16 63:8,15 206:20 193:22 claims (24) 18:16 36:22 coming (3) 80:15 128:11 126:17 127:4 152:5 195:10 contention (1) 200:17 221:9,10,17,25 222:23 broadband (1) 109:14 carrying (1) 24:22 177:4 181:18 183:4,5 190:12 230:21,24 contents (2) 146:14,21 223:5 224:19,25 225:13,17 broader (2) 35:13 43:19 carte (1) 143:5 184:13,23 185:20,23 188:7 commended (1) 103:19 concerning (5) 3:1 46:4 contested (1) 230:22 226:2,19 227:2,3,14,23 brought (11) 77:24 108:16 cartel (1) 188:12 194:3,13,23 200:8 comment (1) 55:17 74:24 75:2 194:3 context (9) 19:24 72:12 228:24 230:2,8,22 231:3 154:9 176:7 185:5 189:4 cartellike (2) 188:19 194:10 210:19,20 217:19 220:9 commented (2) 112:10 156:4 concerns (11) 1:21 16:21 75:15 83:10 96:23 104:23 233:11 235:20 202:13,23 209:25 223:2 cases (16) 8:4 90:15 186:8 225:1 232:11,21 233:3,5 comments (2) 195:22 216:6 90:7 137:2,6,8,9 141:22 109:22 134:11 233:3 couldnt (1) 117:19 225:2 191:6,16 193:21 205:7 clarification (1) 211:9 commercial (13) 39:22 52:3 147:8 181:21 224:1 contingent (1) 172:21 counsel (16) 1:5 37:11 38:2 brownewilkinson (1) 216:25 210:17 214:14,22 221:3,7 clarified (3) 105:25 106:3 65:5,11 88:10,18 121:12 concerted (1) 20:25 continue (2) 28:16 194:24 98:14,15 145:19 166:16 buffer (3) 3:22 83:7 84:8 222:17 228:5 229:14 232:8 107:14 188:11,20 192:5,8,15,22 concession (3) 70:21,24 71:1 continued (6) 1:3 15:13 203:11,12,13 204:3,3,5,11 bulk (1) 184:25 cash (1) 233:22 clarify (1) 209:17 commitments (5) 40:12,13 conclude (2) 207:25 213:17 72:12 144:1 235:2,15 212:5 230:6 bunch (2) 74:7 128:12 catalogue (1) 223:18 classic (1) 161:18 42:5,15 43:8 concluded (2) 192:7 234:23 continues (1) 97:5 counterfactual (5) 158:3,4 bundle (2) 181:1 197:4 categories (11) 4:3 5:4 10:18 clause (2) 18:12 77:3 committee (7) 97:10 concludes (1) 174:12 continuing (1) 114:2 164:18 168:16,23 business (14) 5:7 74:21 98:2 29:2 63:8,15 95:2 112:1,3 clear (35) 19:8 20:18 120:20,22,24,25 121:20,23 concluding (2) 51:1 62:11 contract (21) 4:18 18:12 counterspeculation (1) 78:14 101:4 104:2 132:8 113:3,18 21:11,15 22:14,22 23:9,12 committees (2) 120:19,23 conclusion (4) 183:3 214:13 21:3 39:25 63:22 81:17 countries (1) 75:17 133:7,19,25 135:16 140:18 category (22) 10:25 30:22 35:21 69:3 78:2,19 committing (1) 227:3 219:19 230:7 121:18 157:11,18 159:14 country (1) 109:13 141:6,21 147:16 13:6,14,16,18 14:10 16:10 85:20 90:24 109:8 129:15 common (5) 87:15 164:16 concrete (2) 78:16 84:10 162:5 165:7 188:10,18 countrys (1) 224:10 businessofusual (1) 128:20 27:18,21 29:21 33:14 39:5 133:3 139:2,4,13,14,14 179:16 180:21 221:9 concretely (2) 71:2 110:8 192:9,16 194:9 195:25 couple (8) 31:12 83:14 businessrelated (1) 148:6 40:9 41:2 43:13 47:17 64:6 148:25 158:13 159:3 commonplace (1) 221:11 conditions (1) 179:3 196:2,12 205:15 145:25 174:6 180:22 busy (1) 74:24 113:11 125:14 191:6 173:12 188:8 191:10 206:5 communicate (2) 26:15 88:6 conduct (15) 16:4 28:9 contracts (8) 18:6,9 63:12 193:7,24 232:4
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
course (63) 1:10,14 6:10 9:2 106:15 109:18 110:15,18 deciding (1) 88:18 depending (2) 14:16 18:6 77:16,17 83:8 distribution (1) 202:6 152:10 153:3 154:20 12:4,15 16:15 47:25 48:22 114:12 127:15 129:19 decision (21) 53:2 78:5 depends (3) 47:14 198:23 directs (1) 107:1 distributor (1) 81:20 157:19 158:4 160:21 164:4 49:21,22 50:5 51:14,16 130:9 132:6 133:18 81:16 89:24 90:6 92:19 200:13 disagree (2) 50:18 198:5 ditch (1) 76:21 165:17 166:10 167:17 52:8,11 53:7,12 55:7 140:18,21 115:24 116:5,9 117:7 depressingly (1) 125:23 disagreed (1) 225:12 diversion (1) 110:7 169:18 170:3 173:15 56:16,22 58:9,19 59:2,4 143:1,2,6,11,11,19 144:4 139:11 157:12 162:8 165:7 depth (1) 102:11 disaster (1) 163:9 divert (1) 112:21 177:20 200:8 204:10,22 70:17 80:7,21 81:7 82:4,6 146:13 147:15 188:10 192:22 205:22 derail (2) 92:20 112:14 disbursed (1) 226:21 dividend (1) 177:6 206:2 208:20 211:15 89:4 95:22 96:6 97:24 custodianspecific (1) 82:25 216:1,25 222:1 232:10 derive (2) 221:3 222:21 disbursement (4) 225:18 dividing (1) 19:10 221:16 223:12,13,16 104:23 105:10 114:21 cut (3) 67:10 173:16 216:7 decisional (1) 74:25 derives (1) 209:11 226:3,17 227:19 divorced (1) 168:10 door (2) 149:11 185:22 115:17 116:4,15 121:4 cuts (1) 233:6 decisionmakers (2) 87:19 describe (1) 167:14 disclosable (1) 6:6 dixons (1) 210:8 doubt (16) 10:15 15:9 53:4 123:4 125:2 139:18 140:6 cynical (1) 223:22 88:21 described (4) 142:4 149:4 disclose (10) 25:10 33:4 dizzying (1) 96:25 54:19 67:16 70:3,25 74:24 151:7 156:24 158:6 160:8 decisionmaking (7) 6:16 223:21,23 68:22 69:2 80:5 130:11,12 document (35) 10:18 13:23 113:12 125:9 138:3 140:8 D 164:15 166:22 168:21 21:1 49:18 74:22 78:20 describing (1) 219:11 132:17 150:20,22 25:12,17,18 26:25 27:4 141:23 143:15 151:9 217:2
175:10 179:2 190:10 195:8 d (4) 74:1,6 217:16 235:1 87:16 123:13 desirable (3) 90:4 112:6 disclosed (10) 8:13,18 12:24 50:23 51:5 58:9 down (18) 8:1 13:9 54:18 209:8 210:17 211:12 d1 (1) 175:16 decisions (12) 4:14 7:1,2 137:17 109:20,22 117:5,11,22 59:2,4,7,17 62:12 63:17 75:4 88:3 92:5 119:6 129:2 212:13 220:17 224:17 d1142 (2) 120:1 131:2 8:22 21:6 52:23 65:8 desire (2) 92:4 216:6 121:17 125:15 68:24 80:4,12 81:13,15 130:8 141:25 142:7,8 courtroom (1) 2:14 d11539 (1) 121:5 88:10,19,23 121:18 234:19 detail (6) 64:4 85:21 106:6 disclosure (127) 2:23 3:5 93:12,20,25 94:22 95:20 163:22 202:19 209:20 courts (5) 104:24 105:3 d171 (1) 208:21 decisive (3) 55:13 174:4 144:20 176:6 193:15 4:6,10,21 5:2,3,14,24 102:1,6,14,15 103:20 228:4,7 230:4 140:16 154:7 183:13 d2 (1) 175:17 209:12 detailed (6) 9:14 69:16 7:7,11 8:13,14 9:22 104:15,17 117:5 122:5 download (1) 57:18 cover (4) 35:1,18 140:7,8 d211 (1) 176:8 declined (1) 225:6 144:24 186:9 191:17 192:5 10:10,17,25 12:9 13:10,21 documentation (3) 8:16 dozen (2) 71:12 106:5 covered (11) 3:10 14:10 72:9 d2127 (1) 176:9 dedicated (1) 193:11 details (3) 47:2 141:1 184:16 14:6 15:6 18:4 25:14 13:24 119:11 dr (1) 79:3 101:24 108:11 123:1 d21331 (1) 228:12 deduplicated (1) 69:4 deter (1) 151:24 26:20,23,25 27:3,9 documents (110) 4:3,11,21 draconian (2) 137:13,13 126:22 128:9 154:21 d2138 (1) 176:24 deep (1) 205:6 determine (7) 165:20 172:19 28:6,21,22 46:16,21 48:6 5:2,6,8,12,13,25 6:9,15,21 draft (8) 19:3 21:14 120:1 177:23 207:1 d3 (1) 175:16 default (5) 3:18 179:5 200:2,16 217:22 55:24 56:8,9,10,16 60:3,14 7:8,15,18 8:9,23 9:20,23 127:10 131:2 197:4,14 covering (1) 90:6 daily (1) 216:4 42:12,19,21,24 229:1 61:21 63:5,8,15 65:22,23 10:2,16 13:15,16 14:12,17 208:21 covers (1) 75:16 damage (1) 157:23 defences (3) 8:25 9:4,14 determining (1) 216:18 69:5,24 71:8,16,19,21 15:25 16:11 27:20,23 drafted (2) 153:25 154:1 covid (2) 114:1 125:6 damages (2) 160:1 168:21 defendant (9) 69:21 79:25 deutsche (26) 3:17 22:7 78:7,23 80:4 81:25 83:15 28:7,11 33:4,9 38:6,8 drafting (1) 9:5 coviddependent (1) 114:17 danilina (10) 180:23 186:1 108:14 109:15,17 147:23 29:18 68:13,17 71:4 72:20 87:23 89:13,21 90:19,20 41:14,14 49:1 50:16,18 dragged (1) 158:10 coy (1) 148:17 194:2 198:24 201:5 214:19 174:17 230:6 231:1 75:18 76:5,22 81:9 92:4 93:2 94:4 95:2,7,23 51:2 54:3,13 56:11,13 58:6 draw (1) 19:10 cpr (7) 132:12 134:7 137:11 217:3 219:14,22 221:4 defendants (78) 4:1,16 5:24 84:20,25 86:5 87:7,16,22 97:13 107:1 59:11,14 62:12,24 drawn (12) 101:16 148:21 179:3,5,9 danilinas (1) 217:19 6:22 7:13,16 10:11 11:2,16 88:15 96:12,20,21 105:24 111:7,10,12,22 63:2,11,23 64:18 65:16 142:1,20,21,25 143:10 crawler (1) 165:2 dark (1) 100:13 13:20 15:11 17:5,12,16 106:2 108:9 110:14 149:11 112:5,9,12,14,15,17,20,23 66:18 68:22,25 69:3,13 188:23 192:10 193:6 created (1) 75:25 data (35) 20:5,5 19:16 20:4 21:25 24:17 develop (4) 75:19 179:1 113:4 115:12 116:18 70:9,16 71:13 75:2 78:1 204:17 232:12,19 creditors (11) 160:14 177:2,8 23:14,14,16,19 24:14,25 27:9 28:2,3 29:22,23 187:24 188:2 118:2,10,10,12 79:16 80:23 83:12,13 draws (1) 231:4 178:19,22 211:10,17 25:4,8 27:6 31:11 74:12 30:8,19 31:13 35:25 65:23 developed (2) 10:22 230:16 119:7,9,16,21 120:12 88:22 95:4 101:11 103:8 drive (1) 25:5 225:11 226:21,22,22 95:14,16 96:2 109:23 66:12,21,22 70:5 95:15,24 developing (1) 169:3 121:15 122:6,17,20,21,24 106:6 116:10 117:18 dropped (8) 60:9,17 65:20 criminal (4) 147:1 149:1 114:12 130:23 131:6,7 103:17 109:1 110:13 development (2) 26:10,11 123:4 124:22 126:3,4 118:3,5 119:7,17,21 94:16,17 97:20,23 104:5 150:6,10 132:23 134:6 139:6 140:18 119:16 121:11 127:16 device (4) 19:7 141:12 142:6 127:8 136:1,25 140:5 120:17,22 121:8,25 dropping (1) 60:19 crisis (1) 125:6 141:5,21 142:13 129:15 131:4 143:20 152:1 144:12 146:9 147:12 122:1,3,8,9,10,14 124:25 dt (11) 55:8 78:6 critical (1) 76:17 144:2,7,21,25,25 145:11 145:20 147:11 149:21 devices (17) 3:5 16:14 148:2,8,10 154:6 125:5,10,14 126:16 146:8,10,14 148:25 174:3 criticise (1) 85:24 146:15 158:8 159:5 161:25 162:2 17:6,19 19:10 20:19,20,21 159:3,9,10 164:13 165:8 128:8,12 130:13 139:9 195:15 211:11 213:15 criticised (1) 99:6 date (19) 3:14,16,18,22 168:8 174:14,20 132:8 133:19 134:23 172:24 175:19,23 206:9 147:9,23 148:1,24 215:13 criticism (2) 86:4 230:13 27:14 34:24 40:7 68:13 175:6,12,21 177:11 181:12 140:19 146:16,20 147:10 234:20 149:9,10 150:2,11,22 dts (1) 146:12 crosschecked (1) 61:1 70:10 82:22,25 90:17 185:6,13,14 188:21 190:13 151:17 152:2 discontinuance (1) 223:23 168:2 due (2) 125:2 138:12 crossorder (1) 211:13 109:18 155:9 164:12,13 192:3,21 210:20,25 devote (1) 126:22 discount (1) 213:25 does (36) 7:24 9:4 26:21 dunne (6) 15:9,12 42:1,4 crucial (1) 199:25 170:20 172:17 176:12 213:4,11,14,25 225:16 dialogue (2) 106:7,9 discounted (3) 213:23 28:15 30:3 47:16 70:21 43:5,6 crude (1) 161:14 dates (3) 155:12 170:3,19 227:7,13,23 231:16 232:17 diaries (1) 173:2 220:14,20 72:19 77:25 80:14 88:4,20 dunnemackle (1) 43:16 cry (1) 15:5 day (8) 1:10,14 16:7,9 92:21 233:4 dicta (1) 193:20 discover (1) 223:6 125:7 134:6 135:3 dunnes (1) 15:7 crystal (2) 78:19 232:5 170:5 206:8 214:6 defended (1) 192:1 dictum (3) 180:3 219:6,7 discrete (8) 13:16,18 16:10 143:13,16 156:3 157:7 dunnesmith (1) 43:14 crystallise (2) 108:12 211:14 day141 (1) 111:20 defined (1) 10:18 didnt (19) 6:17 9:16 80:11 92:3 125:14 126:15 158:16 164:20 166:4 170:1 duration (1) 20:14 crystallised (1) 188:9 day2317 (1) 127:11 defines (1) 121:7 65:13,13,14 74:22 85:3,8,9 163:15 178:21 182:5 183:3 188:7 during (10) 1:10,14 3:19 crystallises (1) 71:24 days (14) 36:2,2 96:25 98:2 definition (3) 120:18 86:3 107:7 116:25 124:4 discretion (4) 140:16 179:5 191:5 196:13 205:2 209:19 6:10 12:15 42:4 49:19 50:2 current (6) 77:17,18 82:4 104:2 158:24 162:24 166:4 190:9,16 125:24 133:18 161:11 180:6 187:3 214:9 216:21 224:15 64:24 84:2 134:25 145:11 156:8 170:22 171:15,16 172:2 degree (6) 107:9 144:9 173:6 206:1 207:9 209:8 discretionary (1) 217:13 227:25 232:19 duties (2) 226:25 227:1 currently (4) 113:25 142:25 173:11 222:25 210:18 218:5 219:16 died (1) 76:21 discuss (5) 35:17 37:22,25 doesnt (26) 9:4 33:8 38:12 duty (2) 105:2 132:17 213:5 229:3 daytoday (1) 39:11 delay (1) 112:15 difference (13) 29:1 85:20 202:5,25 58:25 64:10,11 80:14 84:6 E curtailing (1) 234:14 de (1) 140:25 delayed (1) 159:8 127:14 130:6 175:14,16,19 discussed (3) 25:2 38:12 85:17 86:10 87:19 107:22 custodian (28) 3:14 32:25,25 deal (31) 24:23 67:25 70:2 deliveringdisclosing (1) 176:3 198:8 206:22 99:22 128:23 130:6 132:10 136:7 e (3) 74:2,6 235:1 33:1 51:1 68:13 72:14 81:4 74:2,4 78:8 80:17 92:17,18 114:25 208:17,18 220:12 discussing (1) 126:8 148:18 165:19 168:20 e112 (1) 197:11 82:22 84:1 85:11 93:23 93:10 95:1,19,23 96:4 demanded (1) 97:8 different (29) 31:19 42:24 discussion (5) 4:5 50:10 178:9,24 210:8,19 211:4 e1121 (2) 197:4,12 96:24 101:3,6,10 99:20 101:23 111:12 demands (1) 96:24 45:25 53:24 55:8 64:8 97:22 155:2 235:19 216:10 219:7 e2320 (1) 146:2 103:10,14,25 105:4 106:7 112:2,3 113:20 115:13 demetriou (81) 23:24 24:2 65:19 66:23 86:1 109:14 discussions (8) 52:17,19,20 doherty (3) 97:16,19,22 e3145 (1) 225:21 127:13,14 130:1,1,2,2 124:11 127:6 130:12 48:15,16,17,17,21 49:15 132:2 136:15,23,25 53:1,6,10 61:22 213:9 doing (10) 33:9 127:11,13 e3217 (2) 4:24,25 141:13 151:12,15 154:24 188:16 51:7,9,19,24 52:4,7,19 137:5,25 160:11,22 162:2 disgraceful (1) 158:10 133:9 172:11 198:19 e3412 (1) 49:6 custodians (138) 3:1,11,19 234:8,9,10 53:7,12,16,18,21 181:10 206:6 211:11 dishonest (4) 182:20 207:15 207:5,23 219:10 227:6 e3413 (1) 49:16 11:20 13:17 16:19 17:7,19 dealing (12) 19:9 35:10 54:7,10,22 55:3,11 56:3 219:23 221:16,20 225:12 220:5,7 domain (5) 30:17 32:6,17 e3621 (1) 169:20 20:7,8 21:23 22:1 27:24 36:12 48:18 94:18 112:19 58:4,13,16,18,25 59:9 60:8 227:18 231:8 233:8 dishonestly (1) 223:19 127:16 145:7 e3622 (1) 169:24 30:18 31:1,14 32:6,16 128:24 129:19 154:2 61:7 62:22 63:20 64:2,5,15 difficult (9) 7:25 10:12 26:4 dishonesty (6) 187:20,22 domestic 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210:3,6,24 211:24 direct (5) 106:1 107:14 36:4 80:10 82:7 198:6 205:23 207:23 224:4 10:17,25 12:6 13:9 67:6 68:12 70:2,19 debating (1) 72:16 215:20 225:11 231:24 149:21 157:4 209:18 dispute (9) 5:10 95:9 106:22 dont (79) 1:18,21 11:15 12:4 14:9,12,15 15:6 71:2,8,15 72:5,24 73:2 deceit (3) 184:25 185:20 235:3,11,23 directed (2) 86:4 148:23 127:9 128:5 181:12 182:9 13:5 15:6,25 16:23 17:8,15 26:19,23,25 94:3 95:2,6,23 74:15 76:20 81:23 188:1 demetrious (3) 74:11 195:12 direction (5) 36:21,22 46:24 215:14 216:22 18:7,11,23,25 19:21,22 103:1 111:7,10,12,21 82:2,9,13,17,19 83:1,4 december (2) 44:5,13 214:1 127:22 148:20 disputes (1) 12:5 27:19 29:2 34:11 35:14 112:4,17 113:4 114:25 85:18 deceptive (3) 188:1 194:8,17 demonstrated (2) 216:22 directions (8) 108:17 156:24 disregard (1) 216:18 37:1 38:15,19,25 57:7 66:5 115:23 118:5 87:21,24 88:12 89:12 90:16 decide (9) 18:3 150:24 218:4 157:2 163:4,25 164:8 disrupt (2) 112:14 122:24 75:3 76:10 77:7 79:10 119:6,8,16,21 122:6 123:3 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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
echo (2) 105:19 149:5 employer (9) 18:13 133:1 120:23,24 expand (1) 81:25 facing (1) 18:15 first (60) 1:13 18:18 27:17 fraction (1) 112:23 echoing (1) 46:16 134:25 135:4,13 139:8,15 european (3) 85:12 205:4 expanded (1) 110:21 factor (1) 233:7 28:1 29:21 30:2,3 34:5 fragmented (1) 112:22 economic (8) 6:25 55:14 150:10 152:7 216:7 expansion (1) 89:12 factored (1) 160:7 35:12,19 41:22 43:13 frame (2) 118:21 201:13 69:14 157:11 191:17 employers (3) 135:16 152:7 eus (1) 121:22 expansive (4) 6:3 88:15 factors (4) 200:11 214:7 50:22 51:20 56:22 59:4 framed (1) 197:5 204:22 205:5,8 216:2 evans (2) 42:2 132:6 105:2,5 217:14,18 62:25 63:9 66:24 70:5,5 frank (1) 100:25 ed (1) 212:10 employment (5) 18:6,9 eve (1) 97:23 expect (6) 57:12 108:19,24 factual (5) 158:5 168:20 72:25 74:20 75:23,25 frankly (1) 94:9 edge (3) 161:8,12,12 132:20 146:11 151:12 even (37) 2:8 35:25 45:21 117:15 149:11 186:9 185:1 195:20 220:11 81:11,15 84:16 87:4 93:11 fraudulent (2) 184:25 185:7 educate (1) 102:22 enable (3) 13:19,23 27:2 49:12 59:15 69:1 70:19 expectation (1) 146:23 fail (1) 195:1 105:19 115:7 121:14 frequently (1) 138:3 ee (95) 3:20 4:1,1,4,5,20 enabling (1) 8:20 83:13 89:1 107:21 110:21 expense (4) 113:14 failed (3) 71:6 217:12 220:4 122:16 130:25 133:17 friday (4) 1:1 163:12 170:21 5:1,5,7,9,10,23 10:7,13 encourage (2) 104:24 134:13 115:5 134:21,24 135:6 139:23,23 158:12 fails (4) 189:6 192:18 227:23 146:1 157:17 158:18 159:7 234:13 11:17 13:24 14:2 17:14 end (36) 9:12 13:2,2,12 137:21 140:17,19 144:15 expensive (1) 80:22 232:14 160:8,13 167:20 168:9 friends (6) 1:19 2:25 14:14 18:20 28:2 29:18 37:19,20 14:22 16:7,9 21:3 22:19 146:3,17 155:9 157:5 experience (5) 2:15 8:3 failure (4) 218:6 219:16 170:5 171:15,16,16 175:12 47:7 86:22 219:9 38:2 49:11,13,17,19,22,23 47:21 48:1 64:21 69:12,15 158:24 165:17 166:18 183:17 205:6 222:15 228:18,20 180:23 181:18 205:3,8 fro (1) 105:7 50:1,8 51:12,15,16 78:15 80:16 90:6,9 96:3 171:10 173:24 178:19 experienced (1) 186:7 fair (5) 11:16 21:21,22 44:19 208:15 214:4 221:6 222:7 front (3) 27:13 136:1 206:10 52:9,14,18 54:1,14 55:24 103:22 112:9,18 114:3 183:22 206:20 211:1,7 experiment (2) 192:17 122:2 226:12 229:5,20 full (10) 6:18 70:11 83:18 56:9 57:4,11,12 115:6,7 127:22 129:22 215:15 219:8 228:2 231:6 232:13 fairly (6) 13:15,18 16:23 firstly (1) 228:16 91:7,25 110:25 118:9 58:13,16,19,21 61:18 62:9 137:18 165:21 166:18,19 event (10) 101:20 121:16 expert (12) 6:24 9:9 13:7 56:23 102:5 172:5 fishingstyle (1) 93:22 126:16 176:22 214:14 63:4,21 64:16,17,25 175:23 182:10 185:3 123:15 153:21 154:5 166:7 118:6 119:10 123:3 124:7 faith (6) 196:5,14 fit (6) 124:5 137:12 fully (1) 191:6 65:2,6,23 68:18,22 70:12 191:14 214:6 185:23 210:14 217:23 160:16 164:18,20 172:16 205:17,18,20,25 141:9,14,15,20 functioned (1) 69:17 74:21,21,24,25 75:2 endeavour (3) 90:9 212:24 223:16 173:19 fall (6) 27:20 41:2 125:13 five (7) 60:8 74:1 97:10,18 functioning (2) 69:13 78:5 77:14,21 79:23 80:5 83:8 234:19 events (1) 144:10 experts (2) 164:14 170:1 134:6 147:10 151:22 98:23 111:14 208:11 fundamental (1) 177:11 87:17,19 88:6,9,19 89:3 endorsed (1) 98:5 eventually (1) 213:10 expire (1) 167:25 falling (1) 161:12 fix (2) 171:14 172:14 fundingrelated (1) 184:4 91:12 123:22,25 128:14 ends (1) 170:21 every (6) 74:3 106:6 110:3 explain (10) 27:14 28:18 falls (2) 47:10 174:7 fixed (1) 173:9 further (49) 13:20,24 15:18 157:11 167:25 188:9 192:6 energy (1) 97:25 189:4 190:8 191:6 43:10 54:22,23 73:23 familiar (3) 179:2 180:1 fixture (1) 173:1 16:3 18:3 19:23 27:2,12,13 196:4 201:25 203:11,14 enforcement (1) 89:12 everyone (7) 54:17 112:8 81:12 132:5 159:16 224:1 204:21 flavour (1) 97:1 41:21 46:6 50:15,15 204:2 205:13 209:12 engage (2) 72:12 80:22 164:12 165:15 166:17,22 explained (12) 49:3 54:19 family (1) 68:25 flesh (1) 68:16 60:4,11,19 67:18 71:7 213:15 215:13 engaged (7) 2:25 71:14 170:12 63:20,25 65:18 101:1 famous (1) 15:7 flimsiness (2) 199:24 208:24 93:18,19 94:7 95:23 97:13 ees (12) 5:12,25 38:1 51:20 78:13 106:5 166:16 192:18 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(7) 37:9 68:18 77:18 germany (1) 146:13 F 38:25 57:13 60:6 61:20 equivalent (1) 31:20 exclusive (1) 4:18 filtered (7) 29:1 38:10,24 79:24 81:5 82:6,18 get (44) 6:14 13:1 14:11 70:20 101:7 108:14 eroded (1) 216:9 exclusively (1) 77:5 f1 (1) 179:22 50:11 52:21 76:20 77:15 formulated (1) 151:5 16:9 22:19 31:6 32:3 109:3,16 114:12 essence (3) 195:15 205:20 exco (1) 97:12 f1131 (1) 180:24 filtration (1) 70:21 forth (1) 173:19 35:15,21 36:14 38:24 146:9,14,19 149:25 206:2 excom (1) 120:21 f113115 (1) 217:10 final (11) 39:23 40:9 81:4 forthcoming (1) 78:7 44:17 70:15 78:2 88:21,21 emails (33) 11:18 32:22 essential (3) 186:19 excused (1) 174:20 f1132 (1) 181:5 106:4 123:9 142:19,22 fortiori (1) 27:1 90:5,11,20 93:22 96:16 33:12,15,19 34:6,8,22 35:2 196:10,18 executive (12) 37:9 53:14 f1133 (1) 181:17 174:2 186:15 193:7 231:13 forward (8) 51:4 56:14,15 109:8 116:17 126:18 36:4,15 40:20 41:25 42:12 essentially (23) 3:6 4:18 58:19 85:9 88:5,6 97:9,12 f1134 (1) 182:8 finalisation (1) 45:10 70:6 94:3 103:25 113:4 131:25 142:12,12 43:2,5,13 50:13 57:7 17:11 29:4 34:24 53:21 116:5 120:20,24 121:20 f1151 (1) 184:8 finally (4) 82:22 195:7 227:7 169:9 144:13,14 155:6 159:13 66:8,10,13,14 67:1 81:24 55:11,12 62:8 71:24 80:9 executives (7) 62:1,1 136:20 f11531 (3) 184:12 185:12,15 233:9 forwards (1) 190:12 162:25 166:3 167:20 109:19 128:12,20,24,25 83:16 89:7 108:11 124:22 190:13,18 194:24 215:13 f11532 (2) 184:16 187:17 financial (4) 50:4 68:18 found (5) 5:13 122:15 190:22 198:22 200:5,21 129:5 131:6 152:12 130:3 157:8 175:15 192:12 exemplified (1) 17:2 f11533 (1) 185:18 158:2 161:3 159:23 185:23 217:4 204:17 210:10 219:8,10 emanating (1) 76:19 200:23 210:6 213:24 exercise (14) 14:25 28:22 f11534 (1) 186:2 financials (1) 101:9 foundation (1) 6:1 228:24 232:7 emanuel (5) 47:3 103:23 226:11 80:23 93:22 114:14 122:19 f151 (1) 179:18 find (16) 8:16 16:1 35:14 fountain (1) 223:14 gets (1) 139:7 140:24 213:7,18 establish (1) 28:23 124:9 135:14 138:4,18 f1514 (1) 224:7 80:2 81:8 114:11 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228:15 44:24 56:10 67:16 69:16 135:1 139:10 eu (1) 120:23 existing (3) 19:20 85:15 face (5) 38:17 89:7 116:3 finished (3) 2:22 48:8 153:7 fourday (3) 170:10,11,24 72:8 81:21 89:23 90:14 employees (3) 19:20 euphemisms (1) 40:24 213:17 159:22 191:19 fired (1) 14:22 fourth (4) 49:11 122:14,25 96:25 97:12 98:19 146:10,23 europe (4) 42:24 109:12 exists (3) 80:5,12 81:10 faced (1) 210:20 firm (1) 19:10 211:8 103:8,21 109:5 110:5
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
121:2 133:25 135:3 138:14 group (22) 42:6 97:9 help (5) 100:6 101:8 107:12 137:3,6,19,24 96:23 99:17,17 106:5 40:16,18 42:8,13 46:6 63:11,21 67:10 95:11 146:8 154:20 197:9 217:15 98:12,12,20,21,22,23 113:2 225:3 138:4,7,10,14,20,25 141:5 136:10 138:8 141:7,19 49:17,25 55:5 57:12 127:5 128:24 129:5 180:3 224:16 227:8 234:20 99:23 100:4,5,5,6 114:20 helpful (9) 29:5 94:2 120:13 142:8,14,19,22 150:17 152:2 172:24 60:4,11,13 internally (3) 8:21 39:2 70:6 given (55) 1:21 5:14 7:12 116:7,8,9 117:6,9,10,22 166:1 170:12 171:17,20 143:8,12,14,16,22 144:18 188:25 190:23 221:2 61:9,11,15,20,24 62:6,19 international (1) 64:23 8:21 16:4,19,21 17:2 23:1 129:1 180:25 197:3 145:5,22 149:5 228:19 65:19 72:18 74:3 84:19 interrupt (4) 12:18 47:5 76:3 27:5 28:9 grouping (2) 75:24 76:9 helpfully (1) 94:9 153:5,11,13,14 154:17 impose (1) 85:13 85:18 87:24,25 88:22 89:2 116:25 40:13,13,16,22,23 42:5,15 groups (1) 69:21 helps (2) 24:13 30:9 155:19 156:11,14 164:24 imposed (2) 50:23 59:9 91:4 99:20 100:22 121:11 into (33) 2:19 25:5 27:21 54:3,15,25 56:21 72:17 guide (1) 103:10 here (34) 14:9 15:25 40:20 165:1,11,22 imposing (1) 195:16 134:13,22 135:23 137:22 41:2 69:17 88:8 121:18 82:3 85:17 99:13 109:23 guided (1) 170:9 49:15 56:18 58:5,12 60:23 169:9,10,16,20,22 impression (1) 44:17 139:3 140:6,12 145:5 138:5,12 145:7 150:14 120:18 121:25 122:9 gun (1) 14:21 62:8,17 65:17 93:4 117:8 170:7,13 204:7 225:24 improper (5) 15:14 188:12 148:3,9 149:22,22 157:25 160:17,22 161:4,21 123:2,5 125:12 126:11 guy (1) 37:9 122:22 128:19 133:12 235:8,10,14,18 192:13 194:3,17 150:7,15 151:10 164:5 172:10 173:1,9 130:15 138:11,15 135:11 136:24 137:10 however (1) 163:14 impropriety (10) inevitable (1) 135:5 186:17 190:22 200:25 H 144:9,10,20 148:15 139:21 140:10 141:18 httges (1) 82:3 187:20,23,25 188:4,8 inevitably (3) 6:22 112:14 202:16 215:18 216:21
154:3,23 155:21,23 156:15 hacked (1) 25:8 152:20 163:23 186:13 huge (4) 54:2,6,8 55:24 189:19 191:23 193:4 161:4 217:19 218:3 219:8,11 158:17 187:3 194:10 198:8 hadnt (1) 2:22 187:22 190:25 194:16 hugely (1) 8:4 196:19 199:9 inference (3) 20:25 205:5 231:10 232:7,20 211:1 213:11 220:5 222:11 half (2) 70:11 206:8 202:9 206:20 207:19 humm (4) 23:11,15 40:10 inaccuracies (1) 91:16 209:22 intrusive (2) 134:24 137:22 234:2 halfbaked (2) 149:4 153:23 212:13 225:14 230:24 42:16 inadequate (1) 55:3 inferences (2) 142:1,17 investigate (4) 17:10 givers (1) 41:4 halfway (1) 184:10 hes (12) 53:12 64:8 74:23,24 humms (1) 32:8 inaudible (71) 2:17 5:11 8:17 inferentially (2) 40:13 41:4 18:17,20 216:13 gives (4) 103:13 112:17 hamblen (1) 217:21 75:6 86:11 96:20 100:19 hundred (1) 31:12 11:18 12:1 13:19 16:14 influence (3) 55:13 174:4 investigation (1) 16:3 144:21 208:21 hand (7) 108:24 134:22 101:6 118:9 147:25 225:25 hundreds (3) 69:12 78:1 18:24 22:3 23:1,20 27:2 209:12 investment (8) 49:23 50:1 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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
120:14 121:4 123:17 keener (1) 158:11 186:16 187:8,25 193:17,19 list (14) 59:6 60:12,13 61:1 lost (1) 23:16 233:20 234:6,12,21 100:1,4,8,10,12,18,20,22 136:11 138:16 140:18 keep (1) 77:4 211:6 214:4 233:6,6 89:14 97:4,6 99:21,24 lot (16) 9:10,23 24:23 35:20 235:2,5,9,12,17,25 101:19,25 102:3,5,8,14 146:2,6,10 149:11 keeping (1) 227:1 leave (2) 170:1 175:20 100:12 103:21 105:5 40:21 64:3 71:20 73:2 macleans (5) 53:8 63:7 71:3 104:12,18,25 105:6 108:8 156:16,16 158:3,5 159:10 kept (6) 7:22,24 125:9 leaving (1) 146:17 144:24 154:12 83:14 89:20 90:21 97:24 100:24 193:25 111:7,10,14,18,24 161:18 164:16,19 168:12 133:19 145:1 205:24 led (1) 197:17 listed (1) 74:1 128:19 136:17 158:16 magnitude (1) 69:5 113:1,2,19,25 114:4,7,9,19 173:21 179:20 180:25 key (18) 4:21 34:22 40:1 left (2) 81:15 233:4 listen (3) 33:7 41:15 163:1 166:15 main (6) 5:21 90:17 187:16 115:3,11,22 116:2,22,25 185:7 187:22 191:4,19 46:25 49:15 50:3 61:13 legal (21) 38:2 64:16,23,25 lists (2) 96:9 97:5 loud (1) 191:10 188:8 193:25 209:10 117:4,10,15,18,22,25 192:4,23 193:18,23 197:10 64:5 65:10 121:17,25 65:11 80:24 134:2 135:19 litigants (1) 161:20 lovells (1) 103:10 mainly (1) 49:10 118:18 119:4,5,14,23 199:14,24 203:22 204:8 122:3,9 128:8,11 143:11 136:23 139:3,19,22 140:8 litigation (16) 14:13 16:4 low (3) 100:25 221:7,8 maintained (1) 146:22 122:23 123:1 125:4,18,19 207:12 209:7,11 221:2 201:19 231:4 148:18 149:14 150:21,23 18:15 50:24 55:8 79:4 lower (2) 185:14 198:3 maintaining (1) 145:10 126:15,19,25 127:3 222:13 223:17 229:15 keyword (3) 40:3 114:11 151:1 164:6 179:15 186:19 112:7 150:2 186:7 209:15 lunch (1) 124:10 major (1) 193:23 128:4,7,23 129:6,9,13,15 231:2,3 234:15 127:24 legally (1) 177:21 212:14,18 214:5 222:24 luncheon (1) 119:2 makes (10) 9:13 81:1,2 93:9 130:17,21 144:1,2 itself (13) 26:13 55:16 57:14 keywords (11) 27:19 28:5 legislative (1) 137:11 224:23 227:4 lundbeck (1) 193:21 151:23 154:24 157:2 145:13,23 167:5,11 63:6,18 71:20 100:24 35:16,17 46:5,6,8 70:8,8 legislature (1) 137:8 little (5) 95:20 108:13 lying (2) 207:10 232:17 165:13 194:12 206:22 168:11,18,24 169:6 108:20 207:21 224:10 128:2,21 legitimate (3) 6:1 145:4 111:15 164:1 177:25 makeweight (1) 206:12 173:5,14 225:14 M 225:1 226:24 228:2 keywordsearched (1) 36:15 147:7 lives (2) 136:15 152:21 making (18) 9:17 22:8 25:18 235:6,13,15
ive (15) 1:4 3:1 36:19 48:5 khbacher (2) 79:3 80:22 length (7) 72:7 103:9 163:5 local (1) 81:20 ma (1) 79:4 51:13 65:8 77:2 78:6 88:23 mealymouthed (1) 147:17 69:8 93:20 94:8 142:4 kick (1) 175:7 173:8,23 174:10 222:3 locating (1) 5:13 mackle (5) 42:1 43:5,11,15 90:25 132:24 139:2 mean (45) 2:18 5:15 7:24,25 161:16 169:1 186:22 killed (1) 161:9 lengthy (2) 171:24 172:5 locked (1) 125:5 132:7 151:2,24 153:6 168:6 12:15 30:9,20 35:14 41:13 204:17 210:25 232:9 kind (3) 111:25 190:25 less (11) 45:6 53:9 73:7 log (1) 23:19 maclean (379) 1:3,9 196:9 229:9 231:19 72:23 76:11 78:12,19 233:13 202:23 93:17 94:8,9 96:18 97:2 logic (1) 12:2 2:5,15,21 3:12,14,17,22,24 man (1) 74:24 80:11 85:17 87:19 90:17 J kitty (3) 177:14 233:14,21 110:18,18 158:21 logical (1) 108:7 5:17,20,23 6:8,15,21 7:24 manage (2) 89:19 205:9 92:2 94:2 102:5 109:11 kniese (6) 72:19 73:14 lesser (1) 180:18 long (11) 92:10 107:5 111:16 manageable (2) 30:15 41:15 111:25 115:15 116:25 j (1) 186:6 8:7 9:1,13 10:2,6,22,25 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manager (2) 75:6 144:25 meaning (1) 225:18 80:16 81:3 83:17 84:7 22:8,12,16,18,24 23:1,6 130:6 134:2,14 137:13 64:20 66:9,9 71:11,23 72:2 71:21 74:20 87:11 89:14 managers (1) 75:12 meaningful (1) 71:7 112:10,19 119:24 120:15 24:5,7,9,12,19,21,25 143:12 152:10 158:4 73:16,17 75:8 90:24 104:3,7 135:24 manifest (3) 69:18 78:17 means (6) 41:13 67:1 jeroen (2) 23:11 34:7 25:7,12 160:1,9 165:17 166:15 97:5,7,14,15,23 99:15 167:4 172:16 180:18 109:24 185:4,21 195:11 214:10 jettisoned (1) 73:3 26:2,9,11,13,18,21,23 168:22 172:24,25 197:10 131:12 139:8 140:24 189:11 229:3 232:10 manner (2) 154:9 213:10 meantime (2) 73:2 211:16 job (2) 149:12 207:4 27:17,23 28:9,14,20,24 204:10 205:2,6 206:1 148:13 151:9 153:1 looked (10) 9:6,15,20 14:10 manual (1) 70:9 measure (1) 103:3 joined (1) 208:3 29:4,7,10,13,15 211:15 213:4 223:12,13,16 203:1,9 115:9,20 117:3 127:18 many (15) 2:12 33:9 40:20 measured (1) 107:3 joint (15) 65:3 73:21,22,24 30:2,5,7,9,13,17,21 224:12 letters (3) 71:13 105:20 161:16 222:4 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209:9 211:13 lordship (154) 1:13,19 market (3) 75:20 76:24 121:19,21,21,22 123:22 217:12 218:7 223:16,17 labelled (1) 179:22 43:15,17,19,23,25 liable (2) 161:9 196:6 2:7,24,24 3:2,9,17,25 4:22 209:5 124:3 203:16 229:20 230:3,18,21 232:24 labour (1) 96:22 44:4,8,11,13,15,19,23 liaise (1) 166:21 5:1 7:3 8:7,10,12,15 markets (1) 76:23 meetings (12) 49:12 64:17 234:16 labouring (1) 11:13 45:1,9,13,21 47:5,10,14,25 liars (1) 207:7 9:13,19 10:6,7,12,18 marks (1) 54:15 65:1,6,13 74:21,24 76:1 judges (1) 230:12 lack (3) 16:22 70:20 72:10 48:4 51:3,20 56:21 57:9,20 liberal (1) 104:25 11:1,6,13 14:2 15:10 16:14 martin (1) 98:12 115:5 119:9 121:17,19 judging (1) 186:7 lamentable (1) 223:24 58:8 61:4 66:5 68:4 78:1 liberty (2) 166:6 167:2 17:17 18:24 21:1,16 22:19 master (1) 27:13 member (2) 65:6 77:18 judgment (15) 86:6 89:23 land (1) 78:17 79:22 81:1,14 82:24 83:18 lie (3) 78:17 194:25 225:25 25:1,3 27:10,11,15,25 match (1) 58:1 members (13) 3:20 25:16 136:11 138:4 151:7 154:25 landing (3) 148:12 149:16 84:2,13,14,15,24 85:25 life (3) 21:3 145:7 160:8 28:16 30:9,11 32:13,23 matches (1) 58:4 39:10,22 49:10,11,17 160:6 179:25 181:8 183:25 156:17 86:8,16,19 87:1,9 88:2 light (4) 12:13 59:23 63:10 33:21 34:11,15,16 36:6,8 material (31) 9:10,15 12:15 51:15,16 52:14 64:16,25 184:6 185:18 186:3 201:5 language (2) 153:23 198:24 89:1,17 90:1,12,22,25 91:3 124:7 48:17,21 51:3 69:20 14:2 25:16 26:2 53:4 69:19 97:12 222:12 large (12) 47:8 57:11 58:20 94:8 96:17 99:7 104:13 lights (1) 110:5 70:3,17 71:11 72:8 73:11 76:18 78:21 85:15 mention (2) 1:12 81:6 judicial (1) 161:19 59:16 61:14 70:22 80:23 106:12,13,14,18,21 like (23) 2:19 3:2 21:16 74:5 84:20 87:9,18 91:1,11 114:22,25 118:12,14 mentioned (8) 42:14 72:25 july (13) 5:4 13:3 14:22 23:3 103:20 108:19 128:16 107:9,15,19 108:4,16 54:23 55:8 58:16 93:3 94:3,14 95:3,19 96:6,16,23 119:12 122:4 125:3 136:2 79:23 97:16,17 101:7 47:6 60:1 97:23 115:7 160:14 171:20 110:11,17,20,25 111:4 113:15 120:14 121:16 97:1,14 98:5 101:14 140:2 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212:22,23,24 213:2 line (8) 19:10 101:16 141:25 16:16 68:23 92:8,23 104:13 113:8 136:15 might (42) 18:16,17 justine (3) 37:10 212:5,8 leadership (1) 121:21 217:6,9,16 142:7,8 181:5,20 198:25 119:15 151:7 165:3 167:14 mcquater (116) 22:7 26:8,9,10,11 40:21 50:15 jv (3) 65:14 69:17 73:25 leads (1) 169:13 218:14,16,18,21,23,25 linebyline (1) 222:20 175:3 187:3 189:1 23:2,8,11,18 25:7 27:24 53:2 63:10 68:6 77:9 jva (3) 75:25 76:13,14 learned (10) 2:25 4:5 14:14 219:4,17 220:7,19,23,25 44:19 47:7 86:22 198:18 lines (5) 188:22 192:10 lose (2) 159:21 160:13 221:2,18,21,24 222:5,8,11 30:18,24 93:6,7,8,15,19 79:14,16 92:7 94:14 95:18 K 213:20 214:22 219:9 193:6 232:12,19 loses (3) 182:7,19 207:14 223:3,6,11,13,21 224:14 94:11,14,18,22 95:1,18 107:24 112:3 132:1 136:2 keen (8) 45:18 92:24 least (20) 14:1 16:18,25 29:5 liquidation (2) 161:4 226:7 losing (1) 160:15 225:5,14 96:6,8,12,15 142:5,11 143:15 144:8 156:10,11,12,14 159:13 74:13,16 98:18 155:18 liquidators (4) 223:2,8,24 loss (5) 23:14,14 24:14 27:6 226:2,10,15,18,24 98:10,12,14,18,21,24 147:18,18,19,19 149:3 166:2 177:21 178:3 185:22 224:4 159:24 227:10,12 228:11 231:15 99:1,3,11 150:13 156:14 166:12
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
169:14 171:10 172:17 28:20 31:9 35:6 36:25 183:5 190:14 192:13,16,23 noticed (2) 2:7 101:14 78:12 79:3,13,17,19,22 54:1,14 55:12,16,21,23 30:25 98:11 189:9 200:19 206:6 210:11 41:19 45:4,5 56:15 58:6 219:25 220:18,21 notices (31) 3:11 60:14 80:14,20 81:1 82:2,16 56:13 57:11,22 58:5,21 overturned (1) 181:9 214:12 227:15 228:2 63:2 66:3 69:9 70:1 78:18 232:11,14,21 62:15 84:18 85:6 86:6 83:22 84:16,25 85:7 91:24 59:13 60:4,13 61:15,17,25 own (8) 33:24 81:25 88:18 million (4) 175:22,24 176:16 82:21 83:22 90:24 92:23 naulleau (1) 49:12 93:13,20,25 94:22 95:21 92:2,13,22 105:17,18 62:2 63:3,5 65:5,21 66:7,9 108:13 139:19 140:20 233:22 93:22,23 96:15,19 97:8 near (1) 143:3 96:5 101:23 108:11,24 109:8 118:21 67:3,7 72:18 85:9 86:5 158:15 192:23 millions (3) 177:13 233:5,25 102:21 111:14 117:12 neatly (1) 157:24 102:2,6,14,15,19,22,25 124:17 145:25 146:6 87:16,22 88:2,8 96:20 owner (2) 52:9,12 mind (17) 26:14 36:17 62:25 119:14 122:5,18 130:17 necessarily (7) 11:25 19:9 103:13,20 104:15,17 153:18 158:13 174:2,24 105:24 124:15 174:3 ownership (2) 181:19,22 77:16 87:10 113:6 138:17 142:25 144:6,13,15 156:7 91:20 172:21 194:23 200:9 105:1,4,10 106:21 175:2,3,6,10,25 195:15,22 P 141:8,10 162:17 165:25 158:20 161:15 167:14 234:15 107:23,24 108:2 176:3,5,13,15,19 209:4,6,11,13,18 213:15
166:1 170:8 173:18 183:21 172:2,14 173:10,25 necessary (12) 13:21 26:5 notion (1) 107:24 177:10,17,20,25 215:13 pac (2) 120:25 121:23 193:20 223:15 183:13,18 184:1 187:10 45:8 47:23 140:17 165:17 notionally (1) 170:5 178:3,7,13,16,18,23,25 oranges (6) 50:1 55:7 60:3 pace (1) 96:25 minded (2) 142:24 187:5 189:14 191:20 202:14 166:7 205:7 225:17 notunconsidered (1) 169:2 179:8,14,20,23 63:21 124:3 209:15 packs (6) 4:12 6:19 65:2 minimisapprehension (1) 209:16 211:2 214:15 215:6 226:3,17 227:18 nowhere (3) 99:19 143:3 180:1,3,9,11,17,21 181:3 orangespecific (1) 209:1 114:9,13 116:12 11:14 216:8,17 227:17 229:22 necessity (2) 76:19 77:15 231:23 182:16,21,24 order (83) 4:10 8:8 9:14 pages (1) 35:5 minitrial (1) 201:1 moreover (2) 146:22 199:25 need (39) 17:15,20 18:3,23 nub (1) 230:4 183:2,9,17,25 17:13,16 18:23 19:1,3,4,5 paid (3) 177:1 213:6,18 minor (2) 123:15 206:11 moribund (1) 161:8 19:22 25:21 36:23 37:1 nugee (1) 199:1 184:3,8,10,15,18,20,22 21:14,16,18,21 26:25 33:3 painful (1) 80:22 minute (3) 73:19,19 179:19 morning (5) 1:4 4:6 118:4,13 46:17,17,18,19 55:2,6 nugees (1) 184:2 185:9,11,17 186:12,15 37:22,24 40:7 84:23 86:13 pains (1) 96:17 minutes (38) 4:11 5:5,7,9,22 122:23 56:20 72:17 73:8 90:24 number (40) 11:11 20:12 187:24 188:15 88:24 111:1 120:1 125:15 pair (1) 30:6 6:4,18 7:1 8:1,2,3,4 9:3 most (24) 4:15 18:19 92:23 96:13 101:18 111:21 21:23 31:12 36:3 47:8 189:7,9,13,15,21,24 126:23 131:2,3,19,22,23 palpably (1) 217:20 73:12 111:14 39:9,22 49:4 54:3 62:13 113:16 119:14 124:3,12 49:3,24 57:11,21 190:3,7,17,21 134:8,15,18,18,21 135:6 paper (1) 234:8 113:6,7,8,20,22 69:23 72:14,24 89:21 135:20 143:14 151:1 59:16,17,17 61:14 62:6 191:9,14,23,25 192:3,12 136:12 137:16,17 papers (5) 8:6 113:6 162:24 114:7,20,21 115:20 106:4 113:13 143:2 149:3 164:18 165:17,20 194:6,7 68:25 75:23 80:23 84:15 193:6 194:20 195:7 138:21,23 139:12 234:10,11 116:12,23 121:9,17 172:11,23 176:10 188:25 201:13 204:22 207:6 209:8 91:15 96:21 102:10 103:20 196:1,9,13,16,18,21,24 140:5,7,11 142:24 143:4 paragraph (51) 22:4 24:3 123:22,24 124:3,7,16 190:13 192:7,19,21,23 211:15 108:19 109:1 114:23 197:14 199:18 200:8 201:6 147:14 148:19 149:5,6 42:14 47:4 49:6,8 52:4,5 126:1,5,7,9 208:11 mountain (1) 81:2 needed (1) 217:24 115:17 118:23 121:1 207:1 218:19 225:6 229:14 150:1 151:2,18,23,24 60:2,23 68:24 71:6,8 72:5 mischaracterisation (1) mouth (1) 187:9 needing (1) 118:5 127:22 128:16 130:7 232:3,4,23 233:24 234:6 154:6 178:21 179:4 182:1 73:17,20 119:25 120:19 127:12 move (4) 16:13 20:2 154:25 neednt (3) 113:17 129:4 153:16 167:21 180:14 235:4,21 236:2 187:5 197:4,5,14 121:4 131:3,11 141:2 misconceived (1) 102:25 167:5 224:7 184:3,23 212:17 214:3 odonoghues (3) 107:12 198:13,14 199:2 200:9,12 146:5 147:5,18 176:19 misfortune (1) 101:7 moved (2) 105:21 155:13 needs (9) 106:9 110:8 215:23 153:22 214:22 207:9 208:21 218:13,17,25 181:4,17,21 184:5,17,21 mishcon (1) 140:25 movement (1) 86:23 148:11 149:13,15 164:19 numbers (10) 20:8,15 odonogue (2) 145:24 235:16 220:13 223:4,6 225:13 185:19 186:2,15 187:7 misheard (1) 43:12 movies (1) 19:12 174:9 182:21 200:15 54:2,6,8 58:20 66:17 109:9 offence (3) 149:1 150:6,10 226:19 228:24 230:23 195:19 203:2,22 204:22 misleading (2) 74:14 223:19 moving (3) 2:23 44:21 50:20 negotiate (1) 160:10 127:19 148:15 offender (1) 1:9 231:1 205:16 216:3,5 218:8 misrepresentation (2) ms (94) 23:24 24:2 34:12 negotiation (1) 168:12 nutshell (1) 205:20 offer (2) 21:23 23:21 ordered (11) 46:20 107:17 222:10 224:6 225:18,21 184:25 185:8 39:8 42:13 negotiations (2) 168:14 offered (5) 62:18 78:23 165:11 182:4 183:6 195:4 229:15 230:1,12 O missed (2) 121:3 200:1 48:15,16,17,17,21 49:15 171:10 82:14 97:11 176:1 214:12 219:1 220:22 paragraphs (3) 4:24 201:23 missing (19) 1:7 2:10 11:22 51:7,9,19,24 52:4,7,19 neither (2) 50:25 186:13 o2 (4) 38:5,19 167:24 212:10 offhand (1) 77:7 227:24,24 232:9 15:4 17:3 22:5,11 25:5 53:7,12,16,18,21 net (1) 88:11 o2s (3) 204:3,5,10 officer (4) 37:10 50:4 53:14 ordering (1) 139:5 parameters (1) 28:24 30:1 33:17 34:18,23 54:7,10,22 55:3,11 56:3 network (2) 109:11 128:14 obermann (8) 81:4,6,11,23 85:9 orders (4) 183:14 226:2 paraphrasing (1) 102:12 35:8,11,22 37:12 38:20 58:4,13,16,18,25 59:9 60:8 neubergers (1) 226:4 82:5,9,11,21 officers (2) 223:17 224:9 227:3,21 parbutt (3) 101:5 128:16,17 40:5 152:1 61:7 62:19,22 63:20 neutral (3) 161:25 233:2,7 objection (4) 1:18,20 136:22 official (1) 19:11 organisation (5) 35:10 36:2 parent (13) 42:11 49:22 mistaken (5) 91:19 64:2,5,15,15,21 65:4,10 never (3) 26:14 215:6 216:16 151:2 offthecuff (1) 216:11 87:20 103:6 116:2 52:8,9 55:23 56:25 58:24 182:10,14 220:2,3 66:3,20,25 news (1) 206:2 objectionable (2) 144:16 often (2) 172:10 234:14 organisations (8) 7:17 8:22 61:17 68:7 85:22 89:4,6 misunderstood (1) 31:24 67:4,9,11,14,20,24 68:2,17 next (29) 7:11 33:14 57:20 213:3 oh (5) 16:8 106:22 184:7 11:12 25:24 26:7 36:12 209:7 mixed (1) 149:8 69:3,6 74:11 85:7,14 99:21 68:5,7 77:4 81:3 83:25 objective (3) 10:8 21:7 74:12 219:3 221:22 150:15,18 parentlevel (1) 195:16 mixedup (1) 148:11 100:22 118:22 123:20,21 90:6,8,9 91:9 94:2 97:6 objectively (1) 74:13 okay (2) 86:18 206:19 original (1) 67:12 parents (1) 28:2 mm (14) 6:7,20 10:5 20:1 124:2,9,14,17 145:16,17 108:5,7 109:10 110:6 obligation (5) 105:11 132:25 omitted (1) 119:8 originally (4) 34:3,7 100:17 parentsubsidiary (1) 64:13 25:11 27:16 34:2 38:18 175:8 195:12 111:6,8 125:19 134:8 139:3 196:5 205:25 once (8) 60:2 115:11 122:14 227:17 park (4) 24:18,24 45:2,11 53:11 132:16 134:3 203:17 208:9,11,13,14,20,24 139:16 140:14 141:22 obliged (5) 101:19,19 113:19 133:24 148:12 152:18 others (11) 28:20 38:3 53:5 parked (3) 17:11 154:17,19 204:15 221:23 209:3 210:3,6,24 211:24 169:23 176:19 204:20 126:25 129:6 159:19 225:13 54:20 65:19 67:2 parliament (1) 223:19 mno (7) 11:21 12:1 25:16 214:1 215:20 225:11 230:18 observed (2) 96:17 118:13 onehour (1) 166:18 87:13,13,20 95:6 101:18 part (38) 6:6,23 8:13,13 9:18 31:13 109:1,4 195:16 231:24 235:3,11,23 nobody (4) 16:24 89:14 observer (1) 21:7 onerous (1) 28:7 otherwise (6) 64:3 66:16 18:19 51:10 55:13 84:3 mnos (19) 11:3 12:14 mt (1) 226:7 141:15 156:20 obtain (5) 131:5 146:15 onerously (1) 101:13 90:7 132:22 146:11 158:1 99:6 114:17 121:15 134:7 20:9,14,24 21:4,9 43:7 much (26) 16:3 44:23 83:12 nominated (1) 152:8 149:7,10 200:17 ones (5) 97:21 100:13 136:3 ought (24) 6:12 16:17 154:4 157:25 160:17 55:9 63:10 64:7 91:4 89:10 104:6 110:22 113:19 non (1) 102:25 obtained (1) 142:11 142:5 201:25 17:5,17 21:25 27:4,4 28:11 163:24 168:3,13 170:2 109:12 167:19 194:17,24 126:10,25 129:6 160:5,6,9 noncompetition (1) 195:8 obtaining (2) 139:23 199:2 oneself (1) 112:16 40:2,17 87:20 88:11 94:23 174:4,9 184:18 195:18 196:7 209:3,7 162:22 165:2 171:19 noncontractual (1) 195:10 obvious (7) 43:6 78:8 83:24 onethird (1) 83:2 110:25 124:25 125:15 197:20 199:4 202:14 mobile (25) 3:5 17:6,21 173:16 181:15 190:22 none (5) 1:25 63:23 91:13 109:20 176:6 215:16 onto (2) 199:12 201:14 150:25 151:4,20 152:25 204:16 205:14 20:4,5,6,8,11,13 21:8 209:16 211:25 212:17 122:1 149:2 227:22 open (9) 1:17 6:3 70:22 155:5 157:2 172:1 217:18 206:6,10,11,21,22 131:6,7 132:7 133:24 227:20 231:10,24 234:1 nonetheless (3) 36:20 61:18 obviously (41) 4:25 11:3 113:6 164:19 165:24 170:1 ourselves (3) 203:8,21 207:8,12 209:18 231:19 140:18 141:5,21 146:15,20 multiple (1) 194:23 76:6 12:8 13:7,15 15:25 19:5 185:22 187:4 231:24 participant (2) 60:15 61:12 149:24 151:17 168:1 must (11) 4:12 11:25 14:25 nonexistence (1) 84:18 33:7 34:19 46:18 82:7 opened (2) 111:19 126:21 outcome (1) 131:12 participate (1) 166:17 209:4,5 216:7 90:3 92:18 133:23 nonrenewal (3) 188:17 89:10 92:8 105:2 106:25 opening (4) 16:16 125:25 outgoing (4) 11:11,18,25 participation (1) 106:1 model (1) 205:5 138:12,18 141:7 146:22 194:9,25 110:20 115:2 117:13 172:2 231:25 13:16 particular (32) 2:13 10:17 models (1) 205:8 166:19 nor (3) 57:4 159:4 186:13 119:22 123:15 126:25 openings (4) 171:21,22,24 outgoings (2) 11:15 32:5 25:12 33:12 51:1 57:7 60:6 modest (6) 11:11 14:25 17:4 myriad (2) 109:2 142:4 norm (3) 180:12,15 224:11 131:15 138:14 159:21 172:9 outlined (1) 68:17 71:15 72:18 75:13 78:24 186:17 210:25 211:5 myself (2) 153:18 186:6 normally (3) 90:4 223:8 162:21 169:4 173:5,9,14 operated (1) 73:22 outrageous (1) 223:18 82:21 83:8 103:16,17 molehill (1) 81:2 227:24 174:3,6 182:21 198:11 operating (1) 53:25 outset (2) 102:8 158:13 105:23 113:14 121:10 N moment (24) 6:17 13:5 18:8 nortel (1) 226:5 199:4 200:2 205:1 206:17 operation (2) 73:25 223:23 outside (2) 76:14 134:7 143:18,23 147:15 148:5 22:17,21 31:22 37:15 n (1) 235:1 north (1) 133:11 219:22 220:11,15 222:17 operations (1) 195:17 outstanding (6) 4:3 6:24 151:16 158:7 172:20 174:7 38:17 48:7 51:23 54:23 nailed (1) 92:5 notable (1) 50:19 occasion (1) 213:8 operators (2) 209:4 216:7 96:18 129:21 173:6 176:21 190:3,10 198:13 206:7 55:15 78:13 94:5 98:16 naked (1) 191:20 note (4) 204:21 208:20 occasions (3) 49:3 215:23 opposable (1) 81:8 outwardgoing (1) 33:1 227:19 232:11 114:5 126:23 154:20 name (2) 57:24 127:16 212:24 230:17 217:2 oppose (4) 46:19 121:1 over (39) 1:23 6:19 10:1 particularisation (1) 195:18 166:10 169:19 172:14 named (1) 143:8 noted (1) 112:8 oclock (1) 118:25 123:17 131:16 15:2 16:11 24:21 42:18,19 particularised (1) 201:24 197:9 211:21 217:15 namely (1) 158:1 noteholders (1) 176:16 october (22) 34:10,25,25 opposed (2) 5:21 162:1 44:21 46:13 61:10 62:5 particularising (1) 210:19 money (2) 104:5 177:14 names (11) 30:17 32:7,17 notes (7) 176:17,22 177:16 35:7,7 37:8,16,22 39:7 opposite (1) 201:2 73:23 77:7 97:5,25 particularized (1) 202:7 monitor (2) 52:12 54:1 38:24 59:6 61:2 93:22 178:12 218:2,8,11 40:19 41:9 42:22 91:7 opposition (1) 121:14 103:22,23 104:1 109:11,16 particularly (9) 25:13 36:6 monitored (1) 49:22 103:23 104:2,4,9 nothing (21) 16:8 57:1,15 115:16 119:25 120:16 optimistically (1) 171:25 134:1,22 136:16 140:1 45:3 144:3 145:5 151:25 monitoring (4) 50:1,6 51:11 narrow (8) 37:4,7 38:6,21 62:17,17 64:8 76:5 83:25 121:24 155:10,14 option (1) 192:8 142:5 161:8,12,12 175:22 164:4 190:25 232:9 54:14 39:6 69:8 87:16 113:11 109:10,17 110:6 123:14 169:12,13 181:3 oral (6) 38:11 165:20 166:6 177:15 178:22 184:15 particulars (6) 42:14 143:9 month (5) 47:21 48:2 87:3 narrowed (8) 34:5 35:6 130:11,11 145:8 160:15 odonoghue (167) 3:15 171:24 172:2 220:1 185:25 187:20 190:14 185:1 195:19 209:20,23 114:3 129:23 44:10 54:18 87:14 88:3 178:8 219:17,17 224:4 22:3,6 68:5,7,10,11,16,21 orally (1) 10:22 196:24 211:10 230:9 parties (22) 46:4,8 87:4 monthly (1) 115:5 129:2 130:8 226:15 69:11 70:1,24 71:19,22 orange (68) 12:16 23:25 overall (1) 208:22 92:13 93:5 107:6 119:6 months (8) 46:17 70:13 narrower (1) 130:1 notice (15) 39:25 61:1 72:1,4,7,21,23 29:18 48:18,19,21 overlap (3) 75:2 161:1 149:8 150:12 152:24 153:1 80:15 83:1,3,14,24 112:9 nature (22) 12:14 16:2,19 81:13,15 85:3,8,10,14,17 73:2,5,9,11,15,20 74:9,19 49:17,18,21,22,24 50:5,24 168:15 156:9 161:19 166:12,15 mooted (1) 173:19 28:9 36:8 144:4,16,19 86:10,14 104:10 148:18 75:6,8,11,15,17,22 51:15,16 overlaps (1) 95:8 167:8 170:9 173:18,20,21 more (60) 5:18 6:3 14:11 153:23 155:23 158:17 213:20,22 76:6,9,12,15 77:1,7,11 52:2,8,12,14,17,20 53:14 overspeaking (4) 18:24 182:9 218:3
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
partly (2) 181:8 195:24 165:3 pocket (1) 177:12 predates (1) 218:19 professional (1) 105:1 135:14 142:9,10,11,12 range (16) 3:14,16,18 34:24 partners (4) 8:16 13:23,25 persuasion (3) 111:21,25 pointed (4) 52:9 99:12 predecessor (1) 226:4 profits (1) 216:9 143:12 152:12 39:6 42:12,21,24 70:11 26:25 113:17 128:15 153:18 predicted (1) 214:8 profoundly (1) 148:4 purposes (11) 17:22 89:12 90:13,17 91:7 109:19 party (17) 18:4,15 110:18 phase (4) 112:12,20 175:19 pointless (1) 110:3 prefer (1) 170:11 progress (2) 7:9 165:23 101:7 132:8 133:19,25 130:10 191:2 214:7 131:24 136:6 140:5 144:12 197:8 points (39) 36:5 45:2 48:19 preferential (1) 226:22 prohibition (1) 135:20 134:1 147:11 188:5 191:21 ranges (3) 68:14 82:22 83:1 148:2,8 150:1 152:8,18,24 phone (25) 17:6,21 53:8 59:4 68:11 74:1 75:23 premature (3) 36:1,24 164:1 project (3) 116:6 120:24 195:3 ranging (1) 187:19 153:15,19 154:2,6 20:4,5,7,8,12,13 21:8 23:9 84:15 91:10 92:20 101:20 premises (1) 114:5 121:23 pursuant (3) 6:6 9:18 181:22 rank (1) 225:10 pass (1) 77:15 131:6,7 132:7 133:6,24 105:18,19 108:12 110:11 prepare (1) 7:9 projects (1) 202:15 pursue (5) 13:21 45:7 rapidly (1) 104:3 passage (1) 186:1 134:1 136:3,16 141:15 112:3,4 114:19 139:14 prepared (5) 10:7 11:9 prominent (2) 39:10,22 47:12,18 150:24 rarefied (1) 191:16 passed (2) 12:8 25:23 143:19 148:15 149:24 143:20,23 144:2 145:25 116:15 150:22 151:18 prompted (1) 21:22 pursued (18) 46:18,19 rather (30) 2:8 9:4 14:22 passing (6) 21:9 25:15 26:5 203:15 209:4,5 149:5 153:9 163:17,17 preparing (1) 115:21 proof (1) 78:24 47:17,20,20 54:12 59:18 16:5,11 24:20,21 31:9 40:3 34:6 40:14 42:1 phones (73) 3:5 4:17 6:2,8 193:7,25 200:23 201:10 prereading (5) 170:6 proper (4) 17:18 53:23 65:24 66:5 120:5 123:22,24 45:6,23 70:22 82:18 84:10 passwordprotected (1) 25:9 21:3,5 23:9,19 33:22 35:18 202:15 208:15 209:1 214:3 171:1,15,17,22 88:22 124:2 125:25 126:2,3,23 85:23 86:1 87:24 94:8 past (2) 44:22 228:5 39:10,23,25 63:12,22 216:3 228:15 232:4 present (2) 7:15 195:3 properly (2) 163:20 219:20 217:23 225:24 96:18 104:9 113:11 117:2 patient (1) 161:8 71:4,15 77:22 81:17 policy (3) 104:24 233:2,7 presentation (1) 31:10 proportion (2) 32:18 206:15 pursues (1) 187:19 119:14 126:22 127:9 130:1 pause (9) 32:11,11 51:25 99:8,11,18 103:18 116:4 polite (1) 150:8 presentations (1) 4:12 proportionality (9) 33:6 pursuing (8) 11:5 24:4 53:13 137:12 140:5 149:16 141:3 153:10 182:17,25 119:8 120:1,17 121:19 politely (1) 149:3 presentationspacks (1) 121:9 36:23 55:7 56:4 63:2 77:25 65:25 120:9,11 124:11 168:19 196:8 197:9 122:2,10,20 123:6,10 pool (3) 33:4 83:11 127:17 presented (1) 144:23 130:4,18 147:8 141:17 rationale (2) 102:18 124:5 pausing (2) 57:10 183:19 131:1,11 140:4,17,20,21 popplewell (2) 215:3 222:6 preserve (5) 25:4 140:17 proportionate (9) 50:17 pursuit (1) 224:8 rationality (4) 6:25 118:7 pay (8) 153:17 176:21 141:5,8,13,20 145:1 146:8 porzelack (2) 217:1,1 141:9,15,21 56:7,17 65:15,17 80:17 push (2) 147:16 161:12 173:19 192:5 178:19 189:6 198:4 208:7 147:3,6,7 153:19 154:4,9 pose (1) 149:23 preserved (2) 25:25 200:21 101:15 130:9,14 pushed (1) 161:8 rd (1) 109:12 227:2,22 156:15 160:14 164:17 position (51) 2:7 14:20 18:1 press (8) 19:4 43:4 55:18 proportionately (2) 36:20 pushing (2) 99:4 140:25 re (4) 155:2 226:5,7 235:19 payable (2) 211:20 233:11 167:23 188:9,10,17,23 19:21 21:24 22:6 34:20 126:9 209:21,23 215:22 87:14 puts (1) 135:23 reach (6) 47:14 147:22 paying (1) 233:18 190:11 192:9 193:8,10 36:18 41:16 47:22 49:6,7 223:23 proposal (14) 5:12 33:8 34:6 putting (2) 147:21 162:3 148:11 149:15 201:4 230:6 payment (4) 197:7 198:13,15 194:1,11,16 195:7 199:8 52:11 53:25 54:24 55:7 pressed (2) 167:6 205:19 35:5 69:24 75:9,10 78:9 reached (2) 29:17 125:6 211:16 200:1,22 205:22 210:8 59:22,25 62:13 64:8 66:24 pressure (5) 45:24 135:2,7 82:24 91:24 144:24 Q read (8) 35:20 72:7 121:7 pellissier (7) 50:4 54:5 55:18 211:19 124:18 132:5 133:23 225:9 234:13 145:9,13 146:8 141:1 161:15 172:9 qua (1) 55:23 195:21 209:21,24 215:22 phoning (1) 223:13 135:23 137:10,11 142:15 presumably (6) 15:11 25:23 proposals (1) 82:20 182:15,21 qualification (1) 182:24 pellissiers (1) 216:12 phrase (2) 147:17 216:24 146:10 151:11 35:18 50:17 80:15 223:4 propose (5) 10:23 37:4 69:2 readily (8) 5:22 7:17,22,24 quantum (4) 167:21 173:16 people (45) 35:9 36:1,12 pick (10) 35:20 38:7 83:9 156:8,13,15,20 158:2,16 pretending (1) 194:20 94:19 153:11 64:12 113:11,21 125:14 184:12 230:23 39:2 40:1 46:17 91:15 181:24 185:19 160:10 161:3 165:5 168:9 pretty (5) 35:21 102:17 proposed (13) 15:10 34:3,7 reading (2) 162:23 231:9 quarrelling (1) 211:21 53:1,8,9,13,19,21,22,24,25 193:8,9,24 233:9 169:1 178:17,18,20,23 191:19 192:14 233:14 60:3,11,17,21 62:7 83:3,6 reads (1) 222:19 queries (1) 112:19 54:2,13 57:5 58:5,7,20,21 picked (7) 38:9 74:5,16 186:25 211:9 218:1 224:23 previous (6) 7:4 13:6 16:15 118:6 146:13 169:1 real (6) 7:15 103:13 105:8 question (47) 9:8 16:13 20:2 59:6 62:14 66:21 74:14 75:22 82:13 83:5 167:7 225:4 226:7 66:9 173:10 213:8 proposes (2) 62:4 68:22 168:2 194:25 220:12 29:15 30:4 95:14 127:23 77:17,20,22 78:3,22 79:5 pickford (94) 4:5 17:9 80:6 positions (2) 54:3 150:17 previously (5) 61:21 99:22 proposing (11) 3:18 10:14 realisations (2) 176:21 226:7 134:2,11 135:3 137:1 87:18 88:17 99:16 133:21 91:10,12,23 92:24 141:10 positive (2) 231:17,19 101:1,9 169:11 25:9 35:6 39:24 41:20 realistic (10) 186:4,21 138:20 146:17 148:12 135:5 136:16,17 163:10,11,13,20 164:11 possession (6) 63:24 132:22 prices (1) 37:22 44:11 56:10 70:4 91:15 187:12,14 189:11 190:9 149:13,14,16,23,23 151:11 144:6,14,15 148:14 150:16 166:4,5,10,25 167:3 175:7 133:8,15 134:1,5 pricesignalling (1) 191:16 96:8 195:3 196:21 232:16,20 157:9 159:14 160:18,23 162:11 196:24 possibility (22) 17:2 40:23 primary (6) 8:19 187:2 proposition (3) 219:5 reality (2) 114:15 168:10 161:10,19 164:2,19 165:16 percentage (2) 175:15 186:3 197:2,3,12,14,22,24 84:9 122:3 182:3,5 188:25 192:4 193:18 225:12,15 really (39) 8:1 9:11 16:8 173:7 174:4 175:15 perfectly (3) 128:2 139:19 198:1,4,10,13,18,21 183:7,11,12 185:22 186:21 196:18 prospect (8) 186:4 195:4 35:24 36:4,23 37:1 51:4 181:14,16 182:1,10,13 214:2 199:4,8,10,12,14,16,19,22,24 187:8,10,11,13,14 189:12 prime (4) 1:9 26:23 27:1 198:25 199:6 200:4,19 56:20 78:3,18 92:3 93:21 187:12 188:23,25 perform (2) 42:17 105:10 200:7,15 201:9,11,16,23 190:9 198:23 199:6 215:8 92:7 216:15 229:9 99:3,4,19 100:23 102:15 189:15,23 217:11 220:12 performing (1) 105:1 202:3,22 220:15 principal (2) 176:21 230:21 prospective (1) 224:19 103:13,14 114:2 119:14 226:16 228:24 230:18 perhaps (17) 2:12,18 4:21 203:3,5,8,11,14,16,18,20,24 possible (9) 9:2 10:9 15:24 principally (1) 98:9 prospectively (1) 175:18 127:23 136:12 146:6 158:5 questions (8) 36:14 92:18 7:21 57:17,18 60:22 69:23 204:7,10,13,16 16:1 19:9 75:3 165:12 principle (7) 24:15 151:17,18 protect (1) 144:21 183:2 199:13,17 202:22 96:16 153:16 174:13 184:4 95:22 96:2 101:20 118:1 205:1,11,18 206:14,20,25 214:5 234:19 181:12 211:20 212:14 protected (1) 52:15 206:14 208:9 209:20 212:3 217:17 171:15,16 172:1 206:22 207:13,16,19,25 208:2 possibly (2) 112:19 200:3 213:4 protection (3) 152:25 179:14 211:20 212:13 221:4 229:8 quick (1) 232:4 222:1 212:1,2,5,8,10,12,17,20 postdates (1) 198:13 principles (1) 221:3 210:21 231:6,24 quickly (7) 41:19 49:5 period (40) 3:19 6:19 8:12 228:11,14,15 229:7,12,17 postscript (1) 220:8 prior (1) 25:24 protections (1) 140:12 reason (35) 6:2 9:24 23:12 132:15 146:4 165:11 176:7 12:15 38:7 40:3,18 41:25 230:1 231:13 232:2 posttrial (1) 180:8 priority (8) 177:15 protested (2) 38:2 204:1 43:5 59:23 81:12,14 84:8 179:17 42:3,4,18,19,21 235:7,22,24 236:1 potency (1) 231:23 178:11,21,22 211:10,12 protests (1) 38:16 86:12,13 91:14 108:1 quid (1) 40:15 43:19,20,22 44:3,5,15 pickfords (3) 4:22 195:9 potential (13) 70:16,20 71:8 226:17 234:20 prove (2) 189:6 193:1 115:9,22 116:18 122:25 quinn (5) 47:3 103:23 140:24 49:19 50:2 64:24 70:13 213:21 83:11 87:24 88:12 102:16 privacy (5) 135:10 136:12 proved (1) 205:5 123:1 124:15 140:3 155:12 213:7,18 82:5 83:2,9,13,19,23 84:3 picks (1) 183:9 114:24 144:12 155:16 138:8 146:23 147:8 proves (1) 227:20 157:12 159:15,17 162:7,13 quite (47) 9:10,10 21:11 115:6,15 120:3,7,14 picture (2) 11:19 23:24 183:21 191:18 227:2 private (4) 136:5,20 145:6 provide (21) 4:20 5:2,24,25 163:24 165:7 176:6 22:22 24:22 28:25 35:20 126:2,6,10 187:20 190:14 piece (3) 93:23 95:7,19 potentially (11) 13:15 79:12 152:20 50:25 59:6 67:14 71:4,6 194:9,10 202:14 210:13 45:19 46:21 53:1 69:6 73:2 periods (1) 119:23 pieces (1) 95:25 83:14 92:20 114:24 155:14 privilege (1) 80:24 104:8 134:12 136:6 211:14 214:17 225:6 74:10 79:25 80:3 82:23 peripheral (1) 122:5 place (8) 7:23,25 57:1 111:8 160:1,10 163:25 177:13 pro (1) 110:21 139:5,8 141:20 144:24 reasonable (23) 8:17 17:18 90:15,20 92:3,11,13 94:9 permissible (1) 139:1 112:9 122:11 191:3 229:5 186:24 probability (5) 216:23 218:5 148:9 151:14 152:6,25 65:15 89:11 102:10 131:5 97:24 101:13 103:15 104:4 permission (3) 107:5,6 175:3 placed (1) 59:11 pottier (4) 62:19 64:15,21 219:16 228:18,20 212:2 134:9,10,14,16 138:22 113:9 115:16 126:15,18 permit (1) 20:25 places (1) 75:18 65:4 probably (10) 8:5 29:8 42:20 provided (19) 6:9,11 52:14 146:23 149:7 182:2 183:6 132:24 152:10 157:24 permutations (3) plain (3) 81:7 88:7,7 pound (1) 177:7 90:10 93:8,9 103:19 60:6,8 61:1 64:15,24 65:23 198:23,25 199:6,6 158:5,25 160:22 168:7,12 167:16,21,23 plainly (5) 16:24 88:8 149:20 pounds (2) 177:13 233:5 164:8,13 211:6 72:13 101:8 102:2 109:23 200:4,19 229:9 232:15 170:10 190:23 191:15 person (6) 57:8 79:3 81:9 150:3 187:13 power (15) 49:18 65:7 78:20 problem (17) 2:11,13,16 110:4 113:13 173:23 reasonableness (1) 229:4 207:6,20 208:10 218:23 86:11 110:4 133:24 planning (1) 205:23 137:1,7,15,16,20,22 138:2 8:8,10 9:21 17:25 25:17 227:16,17,21 reasoned (4) 89:24 92:19 219:6 221:16 personal (48) 2:6 3:5 16:13 plans (1) 202:6 149:21 150:3,4 157:4 47:8 78:12 80:16 122:22 providers (1) 168:1 148:5 220:3 quo (1) 40:15 17:6,7,19,21 19:7,11,12 platform (1) 80:8 224:17 134:4 139:21 166:14 provides (2) 19:8 122:1 reasoning (2) 8:24 13:22 quote (7) 112:11 147:6 20:19 95:14,16 96:2 play (3) 43:6 85:1 200:11 powerful (1) 219:7 205:21 221:21 providing (4) 63:4 123:25 reasons (27) 4:16 8:21 10:16 187:17 188:24 222:3,9 130:23 131:6,7 132:8,23 players (1) 85:15 powers (2) 74:22 136:24 problematic (1) 166:19 152:5 201:3 62:7 90:14 97:12 109:3,15 230:2 133:6,19 134:22 136:5,22 pleaded (12) 9:14 79:23,25 practical (18) 69:11,13 73:24 problems (3) 90:8 139:7 provision (7) 4:2 7:7,14 8:23 121:1,14 122:16 123:18 quoting (1) 140:21 137:2,8,9 139:5,9,23 88:14 143:3 194:16 199:25 76:19 77:1,12,23 82:24 140:10 134:15 137:12 156:24 124:24 125:12 136:3 140:2,19 141:6,12,21 202:9 203:19,21,22 229:3 83:16 106:8 114:15,19,24 procedure (2) 148:7 218:2 provisional (2) 81:22 173:6 142:4,5 189:18,18 192:15 R 142:6 144:2,7,21 145:6 pleading (7) 9:17 51:6,8,9,10 166:14 175:13,19 proceed (3) 1:12 65:20 163:6 provisions (1) 147:2 193:13 194:25 195:2 199:8
146:9,15,19,19 147:10 79:23 88:8 233:10,16 proceedings (3) 13:13 63:3 public (7) 125:9 145:7 racing (1) 192:20 208:3,4 215:17 152:1 215:23,25 pleadings (10) 6:4 21:2 practicalities (2) 17:10 18:21 155:22 193:14 195:22 223:21 radar (1) 79:6 recall (4) 57:19 95:3 221:13 personally (2) 81:19 116:7 34:13,15 103:5 161:17 practice (3) 36:22 224:17,18 process (7) 46:21 49:25 99:6 233:2,7 raft (1) 82:8 223:1 personnel (5) 46:12 47:1 169:2 193:12 201:19,20 pradel (1) 94:17 112:15,21 115:13 118:12 publicise (1) 208:5 raid (1) 136:19 recalling (1) 63:7 51:17 57:13 66:14 please (13) 1:5 17:21 47:2 pragmatic (1) 177:11 procured (1) 196:5 publicised (1) 224:8 raise (5) 1:19,24 55:14 91:13 receive (5) 14:15 85:3,8,9 persons (7) 49:24 52:22 48:17 60:2 62:5 89:18 preaction (5) 6:10 115:23 procuring (2) 195:24 196:1 publicising (1) 193:10 134:2 140:13 59:17 60:19 61:25 63:1 131:1 140:23 141:1 169:23 117:6,11,23 produce (2) 8:9 234:19 publicly (3) 61:8,18 204:1 raised (10) 3:1 23:2 74:4 received (5) 1:10,14 53:4 65:25 176:22 201:21 precarious (1) 158:1 produced (5) 40:21 pudding (1) 78:24 89:20 91:11 132:19 153:5 56:8 59:6 perspective (2) 135:24,25 plough (2) 3:2,8 precautionary (4) 59:9 101:12,12 105:5 113:10 pulling (1) 195:15 156:4 195:11 231:15 receiving (2) 87:5 139:16 persuade (3) 131:17 134:12 plus (3) 70:13 165:8 171:1 103:3,12 104:10 product (3) 188:11,18 purely (1) 166:14 raises (2) 36:14 153:15 recent (8) 44:18 71:23 96:25 224:4 pm (6) 119:1,3 174:21,23 precisely (4) 6:16 109:17 194:22 purport (1) 6:18 raising (2) 2:23 168:16 128:9 176:10 184:1 198:14 persuaded (3) 113:3,17 234:4,22 171:8 219:10 production (1) 86:13 purpose (9) 112:13 123:13 random (1) 80:9 233:21
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
recently (5) 72:14 79:6 97:1 171:7 193:16 requiring (2) 19:15 134:21 ringfenced (2) 178:8,9 124:1,8,12,15,18 125:16 same (28) 22:7 31:20 43:21 177:1,15 178:12,19,22 104:1 106:3 release (1) 223:24 requisite (1) 65:2 ringfencing (1) 225:23 126:11,17,20 127:2 55:13 61:4 66:16 82:21 211:10,16 213:5 225:11 recipient (1) 86:9 relevance (3) 12:19 122:15 reread (1) 161:17 rise (2) 171:21 174:19 128:3,6,22 83:17,20 88:14,15 94:24 226:22 230:19 233:24 recipients (2) 40:11 41:3 130:18 rescope (1) 112:13 rises (1) 228:11 129:4,7,12,14,18,24 96:20 97:4,7,14 109:18 security (41) 92:10,25 recognised (1) 225:16 relevant (51) 6:19 12:4,20 reservations (1) 173:8 risk (3) 105:8 227:22 228:3 130:5,16,20,22 114:19 120:15 124:18 174:14 175:1,4,22 179:4,6 recognises (1) 173:23 14:12 26:8,14,16 33:4 reserve (3) 90:5 156:12 risks (1) 208:6 131:10,14,20,22 137:6 162:11 181:14,15 181:5,6,13,15 182:4 recognising (1) 61:17 38:8,25 46:5,8 49:1,19 234:2 rivers (12) 179:17 187:16 132:1,4,10,13,16,18,24 195:20 196:10 213:24 183:14 184:4,12 197:8,15 recollect (4) 3:17 25:3 50:2,6,7,16 51:2 54:12 reserved (1) 154:25 189:11 193:2,18 194:5 133:5,11,14 134:3 226:11 211:15,19 213:17,19 107:16 213:8 56:13 57:2 58:6 59:14 resist (2) 12:23 43:4 207:20 215:1 222:13,16,16 135:9,12,19 136:4,14,18 sample (4) 128:8,10 130:18 214:9,14 215:7 216:19 recollection (4) 182:11,14 62:11,24 63:1,23 64:24 resisted (2) 126:4 159:4 223:1 137:1,4,15,20,25 151:5 218:13 219:2 220:22 220:2,3 67:7 73:5,6 77:9 79:16 resisting (3) 67:6 133:1 robertson (3) 39:9,9,21 138:6,9,13,19,24 141:4 sanctions (1) 147:1 221:10 223:5,10 224:25 recommend (1) 151:15 86:7 103:8 117:19 122:4 182:12 role (9) 43:7 63:3 65:1,4,12 142:7,10,17,20 sanz (2) 42:13 85:14 227:16,21,24 228:1 reconsider (2) 169:5 171:19 138:5,7,10,11 140:16 resolutions (1) 5:5 78:5 79:7 83:25 210:7 143:7,10,13,15,17,24 sat (1) 89:2 230:8,22 233:18 235:20 record (3) 20:15,16 80:2 145:2 147:11 150:2,2 resolve (1) 226:24 roles (1) 62:3 145:12,15,20 146:5 149:18 satef (1) 42:24 see (114) 1:18 4:13,23 5:1 recorded (2) 15:17 87:21 193:17,19 228:22,23 resolved (3) 45:18 47:21 rose (6) 23:11,18 34:6,12 152:5,10,14,16 153:4 satisfactory (1) 172:11 6:13,25 8:2,24 11:9 recording (3) 15:7,16 19:14 reliance (1) 222:11 167:23 39:8 101:2 154:11,16,19,23 satisfied (1) 230:5 13:5,20 19:1 20:10 21:16 records (4) 17:1 20:3,23 relied (8) 58:8 62:9 64:9 resources (1) 112:21 rosemary (1) 98:12 155:7,17,20 save (1) 228:5 24:3 26:4 29:12 30:10 154:14 77:10 89:8 92:11 209:22 respect (29) 3:18 7:5 13:17 roth (728) 1:4,25 2:11,18 156:1,3,7,19,22 saved (1) 25:5 36:9,13 38:23 43:24 45:20 recover (3) 186:9 211:2,6 219:22 23:7 26:24 33:25 49:19 3:10,13,16,21,23 157:4,7,16,21 158:7,15,23 saw (6) 59:15 104:1 46:15,23 47:1 48:10 recycle (1) 185:18 relies (3) 181:9 196:10,12 50:12 51:9 59:10 65:25 5:15,18,21 6:7,14,20 7:19 159:2,15,20 160:4,21 141:14,15 194:4 201:5 49:8,15,20 57:25 58:1 recycling (2) 195:14,20 relinquished (1) 68:19 66:7 81:2 84:18 135:18,25 8:2,24 9:2,23 10:5,21,24 161:1,6,11,23 saying (36) 12:19 13:1,9 59:5,20 60:2,23,24 61:10 redaction (2) 26:4 80:23 reluctant (1) 225:8 138:12 147:20 153:22 11:8 12:3,10,12,18,22 162:7,10,13,16,19,21 18:19 28:4 41:5 43:22 62:12 63:14 64:19 redactions (1) 114:23 rely (3) 6:23 187:16 215:21 160:2 179:8 190:18 192:19 13:1,5,12 14:3,5,8,24 163:4,8,12,19 164:3,12,25 48:23 52:7 77:4 81:5 85:2 67:9,11,18 72:4,10 redressing (1) 86:17 relying (1) 61:4 193:13,15 195:22 197:18 15:1,16,21,23 17:13 165:10,15 166:3,9,14 86:8 106:24 113:16 115:18 73:17,23 74:1 78:15 82:2 reduce (1) 161:13 remain (2) 129:16 152:18 213:11 231:18 18:5,8,11,15,22,25 167:1,4,10 168:5,15,19,25 135:19 137:21,25 139:8 83:19 92:5,16 97:14 99:5 reduction (1) 219:1 remaining (8) 3:3,4 27:8 respectful (7) 14:19 15:5 19:3,6,17,19,22 20:1,18,21 169:7,15,18,21,23 141:7 146:25 158:8 168:25 100:21 105:11 124:6 125:2 refer (5) 125:24 176:22 43:3 60:18 100:24 127:3 59:21 213:15 219:8 229:23 21:11,14,18 170:9,15,19,23 182:18 189:4 190:1,7 131:2 134:4 135:15 219:5 225:19 226:3 129:10 231:10 22:2,13,17,21,25 171:1,3,6,9,13 191:3,10 192:20 219:15 139:6,9 145:2 146:2 153:8 reference (13) 68:23 97:3 remains (4) 114:5 125:24 respectfully (3) 6:12 151:23 23:4,10,17,23 172:4,7,9,13,23 173:4,12 228:17 229:3 232:6,8 154:20 156:9 168:6,11 121:3 141:12 148:20 127:1 174:13 173:3 24:1,5,8,10,13,20,23 174:1,11,16,19,24 scale (3) 28:17 160:15 219:2 169:10,13 176:15,19,25 181:20 183:14 184:7 189:1 remarkably (1) 148:17 respective (1) 173:1 25:6,11 175:5,9,24 scattergun (3) 73:6,7 98:3 177:1,3,4,5 181:4,7,17,19 225:22 227:8 229:16 remarks (3) 16:16 226:4 respectively (1) 42:15 26:1,8,10,12,17,19,22 176:1,4,12,14,18 scenario (3) 160:12 191:19 182:8,11 184:7,9,15 232:25 231:25 respects (1) 74:13 27:16,22 28:8,13,19,21,25 177:9,15,19,23 232:16 185:3,12,17,25 186:12 referred (11) 6:5 9:16 107:20 remember (4) 30:12 94:14 respond (5) 45:7 68:4,9 29:5,8,11,14,25 178:2,5,9,15,17,20,24 schedule (1) 60:3 191:22 193:16 195:17 112:23 113:7 120:4,21,25 99:5 122:16 104:4 212:25 30:3,6,8,12,16,20,22,25 179:7,13,19,21,24 schedules (1) 87:23 209:24,25 210:3 214:17 127:19 222:2 228:6 remind (4) 15:16 39:12 52:4 response (12) 36:5 40:14 31:5,8,14,17,24 180:2,8,10,16,20 181:2 scheme (1) 109:14 215:9 217:11,16 218:22 referring (1) 204:6 98:7 65:17 84:16 89:22 104:14 32:2,4,9,11,14,18,24 182:15,18,23 scope (7) 69:19 76:24 95:25 219:3 220:11 221:11 222:6 reflect (6) 163:2 164:6 reminded (2) 113:16 117:4 125:22 147:3 154:21 201:1 33:2,5,13,20 34:2,14 183:1,8,16,24 127:9 134:7,8 164:14 223:25 225:25 226:7 168:5,24,25 182:4 remote (1) 165:17 214:3 226:15 35:3,9,12,14,24 36:9,17 184:2,6,9,13,17,19,21 screen (5) 169:17,18 197:10 228:21 reflection (1) 63:14 remove (1) 2:20 responsibility (2) 75:14 37:1,5,15,18 185:7,10,16 186:11,14 210:1 216:2 seek (14) 16:22 17:15 27:18 refusal (2) 72:12 141:22 ren (1) 81:4 121:11 38:4,9,14,18,21,23 187:22 188:14 screens (1) 2:12 29:21 39:6 43:4,6,10 45:4 refusals (1) 142:12 renew (6) 81:16 157:13 responsibly (2) 80:1,3 39:5,12,15,17,20 189:4,8,10,14,20,23 screenshot (2) 141:13,14 110:15 122:11 134:12 refuse (1) 142:14 188:9 192:8,16 194:20 rest (4) 89:25 113:15 159:22 41:1,5,8,11 42:18 190:1,5,15,19,23 scrolled (1) 61:23 175:17 233:19 refused (5) 5:24 14:6 45:5 repeat (1) 175:23 212:14 43:12,16,18,21,24 191:13,22,24 192:2,11 search (43) 8:17 10:4 20:13 seeking (30) 4:2 6:21 17:4,13 71:4 84:21 repeated (2) 72:10 195:23 restrict (1) 194:14 44:2,10,14,16,21,24 193:5 194:19 195:6,24 29:1,2,3 33:10,23 34:1 24:15 29:3 31:19 34:21 regard (10) 27:8 64:6 repeatedly (1) 147:2 restrictions (2) 114:1 146:18 45:2,12,20,23 46:2,10,22 196:3,12,14,17,20,23 35:6 37:3 38:6,10,22,24 45:6 54:17 59:24 63:8,9 88:16,17 180:5 185:20 repeating (1) 119:22 result (5) 11:14 52:24 107:2 47:9,13,16,23 48:3,8,15,20 197:1,9,13,21,23,25 40:3,16 41:5,24 89:11 96:20 102:14 107:5 188:22 190:10 202:19 repercussions (1) 207:22 118:12 220:2 49:14 51:6,8,18,23 198:2,7,12,16,20 42:7,10,11,17 43:1 120:17,22 122:24 126:14 217:13 reply (15) 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206:16 regulatory (1) 62:3 81:9 110:4 117:22 127:20 retroactively (1) 175:17 68:3,6,15,20 69:10,25 208:1,8,12,19,23 209:2 17:22 20:6 27:2,10,18,19 seems (19) 2:17 24:20 43:6 reject (2) 213:16 220:9 128:16 176:8,10 217:10 retrospective (1) 197:15 70:23 71:18,21,25 210:2,5,23 211:23,25 29:19,20 31:18,21,21 80:5 82:11 89:24 91:3 rejected (4) 44:8 202:9 222:19 224:7 227:9 228:12 revealed (6) 15:20 20:12 72:3,6,16,22 212:4,7,9,11,16,19,21 33:24 34:4 36:10 39:19 112:13 113:8,10 147:25 215:3 221:15 233:21 30:14 61:12 78:6 223:25 73:1,4,7,10,13,19 213:1 217:5,7,15 40:6 41:20,22 43:3 46:3,14 157:24 161:17 162:10 related (3) 62:1 94:22 reported (4) 50:3 116:20 revealing (3) 59:12 63:12,18 74:8,18,20 218:12,15,17,20,22,24 50:11,12,18 66:8,10,13,15 165:19 169:25,25 211:18 101:21 202:4 216:4 revelations (2) 37:14,19 75:7,10,13,16,18 219:3,15 220:6,11,20,24 70:6,18 81:22 95:9,11 233:13 relates (13) 4:6 11:1 23:14 reporting (1) 50:1 revert (1) 17:10 76:3,8,10,14,22 77:3,9 221:1,13,19,23 222:3,6,9 96:1,1 99:21 101:14 seen (19) 6:4 8:4 10:18 28:5 27:9 33:15 34:6 40:10 reports (31) 3:11 review (17) 1:16 5:2,7 25:21 78:11 79:2,10,14,18,20 223:1,4,8,12,20 224:12 119:18 122:7 125:20 48:21 109:7 137:12 43:19 93:12,21 208:15,24 11:7,10,15,25 28:6 50:23 27:20 28:12,15 29:22 80:13,19,25 82:1,15 83:20 225:3,8 226:1,9,14,16,19 127:3,25 129:21 152:11 141:9,20 151:13,25 211:9 51:5,19,20 56:22 33:3,25 34:8 40:25 65:22 84:13,22 85:19 227:8,11 228:10,13 searching (1) 152:12 155:4,10 186:1 187:17 relating (7) 1:22 6:15,24 57:4,11,16 58:9 60:15 70:9 74:21 116:23 150:11 86:1,12,18,25 87:8 88:1,25 229:6,11,16,25 231:12 second (30) 2:6 10:25 30:4 191:25 213:13 216:8 66:4 114:23 128:13 135:15 62:9,15 87:3 96:10,13 reviewed (7) 28:5 40:2 56:9 89:16,18 90:2,13,23 232:1,22 234:1,9,13 37:3,6 45:18,25 64:6 76:1 219:24 relation (64) 3:3,8 6:22 7:14 108:6,13 109:9,23 110:1 77:25 122:15 125:1,2 91:2,9,22 92:1,9,15 route (3) 13:10 228:4,7 81:17 105:23 107:13 120:3 sees (4) 84:2 202:8 230:3,10 8:15 10:10,17,19 13:22,24 164:14 170:1 214:14 reviewer (1) 27:20 93:3,14,16 row (3) 57:21 58:1 109:25 144:17 157:16,25 159:8 selected (1) 49:9 16:18 17:23 21:25 26:3,5 217:11 227:5 reviewing (1) 65:1 94:5,12,17,21,25 95:17 rowe (4) 184:1 194:2 214:19 161:16 175:12 177:3 selecting (1) 49:2 33:12 34:4 37:23 38:7 39:7 repository (1) 114:10 revisit (4) 123:6 164:7 96:4,7,9,14 221:5 181:5,19,21 195:1 197:8 selection (8) 6:9,12,15 72:14 50:10 53:7,22 55:1 59:3 represent (1) 26:2 165:25 231:1 98:7,11,13,15,20,23,25 ruled (1) 216:16 204:16 206:25 208:24 88:22 103:4,11 113:10 62:13 66:11 77:14,21 representations (1) 185:2 revisited (1) 173:24 99:2,10,25 rules (3) 178:11 225:19 212:7 232:25 selfevidently (1) 223:9 80:21,24 81:11 82:20 represented (2) 173:21 revive (1) 123:2 100:3,5,9,11,15,19,21 231:17 secondbest (1) 24:16 sell (1) 216:8 85:1,14 93:2 97:13 103:7 215:25 reya (1) 140:25 101:17,23 102:1,4,7,13 run (2) 14:19 161:2 secondly (5) 50:23 63:2,11 send (4) 8:11 36:1 103:12 107:3 114:20 119:24 represents (2) 45:14 216:4 rfi (1) 209:16 104:11,16,19 105:15 running (4) 14:16,21 81:22 121:16 229:7 141:16 129:22 132:5 140:9 143:1 request (18) 1:15 69:20 rfis (1) 168:2 106:11,17,20 107:8,12,18 135:14 secrecy (2) 146:21 191:7 sending (4) 32:22 102:19 148:24 151:17,25 152:3 85:23 129:2 134:24 138:25 rhetorically (1) 228:2 108:3,5,9,23 109:6 russian (1) 181:19 secret (9) 79:8 188:19 104:25 105:9 195:13 200:22 206:7,9,16 139:2,15,17 140:9 141:24 richard (13) 57:9,14 110:10,15,18,24 189:18 190:2,5,8,15,19 senior (19) 5:9 25:15 26:6 207:2 208:25 215:11,14 150:8,8 151:3,4,5,19,20 58:1,6,10,11,25 59:10,18 111:3,5,9,12,16,23 112:25 S 191:4 53:1,9,9,13 61:25 62:2 217:25 218:25 220:1 requests (6) 15:18 50:22 62:18 63:16,22 88:3 113:2,24 114:2,6,8,18 secretaries (1) 74:7 77:17 88:4,6 140:20
221:10 224:25 226:4 60:9 67:18 129:10 140:13 richards (1) 59:11 115:1,4,18 116:1,20,24 sa (1) 120:23 section (2) 176:22,23 144:15 150:14 176:16 relations (1) 223:21 require (6) 16:3 27:19 122:7 rid (1) 210:10 117:1,9,12,16,20,24 safe (1) 62:10 secure (8) 17:6,18 24:16 190:13,18 194:24 relationship (4) 4:17 39:24 128:23 194:14 211:4 rightly (3) 74:10 96:17 118:17,19,23 119:4,13,19 safeguard (1) 67:15 131:5 149:7,10 177:21 seniority (1) 144:11 64:13 209:12 required (2) 134:20 230:19 222:23 120:2 121:2,6,13 122:13 sake (1) 110:1 231:3 sense (12) 35:21 78:2 86:4 relatively (4) 126:15 140:22 requires (2) 146:21 149:6 rights (3) 49:18 51:12 135:10 123:8,16,19 sale (1) 8:16 secured (13) 176:17 90:20 93:9 107:6,22 109:9
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
154:24 165:14 183:19 142:20 143:1 151:2 200:25 148:22,23 186:13 69:18,22 74:2 77:13 40:24 44:17 45:10 47:24 surprised (2) 117:2 158:7 194:20 192:23 205:23 somehow (3) 79:7 102:20 78:16,17 80:18 84:11 48:4 63:17 70:7 80:6 surprising (3) 7:16 72:11 terminated (2) 63:13 160:24 sensible (12) 33:8 44:16 show (20) 4:21 11:15,15 150:7 89:13,14 99:4 103:1 106:8 81:12,14 96:6 127:24 89:5 termination (1) 63:21 47:15 48:9 66:15 68:3,6 21:8 32:21 34:11,15 57:11 someone (11) 2:19 62:11 109:20,24 120:9 150:23 128:11 150:11 151:11 suspect (4) 5:18 83:25 84:5 terminus (1) 147:22 90:4 126:11 158:25 166:12 89:2 108:13,13,25 109:6 86:9 96:11 101:8 118:20 156:25 164:17,19,21 165:1 213:7 224:24 230:13,16 117:16 terms (44) 8:20 11:4 18:6 169:25 130:19,25 211:4 214:21 125:8 136:7 141:14 156:25 186:20 187:10 188:3 231:5 suspicion (1) 79:15 19:4 21:15 22:19 24:21 sensibly (2) 44:24 83:6 215:5 217:3 222:1 163:8 206:23 213:15,17 214:2,8 subjective (1) 194:14 swantee (20) 15:7,10,13,15 31:10 55:4,6 56:4 73:25 sensitive (1) 147:19 showed (3) 11:6 108:18 something (34) 1:15 36:13 215:19 221:25 233:12 subjects (1) 104:13 20:11 37:21,24 42:5 53:17 74:15,16 78:16 84:10 sensitivity (1) 134:16 233:22 40:14 75:25 76:4,12 93:24 staged (2) 13:10 90:20 submit (5) 138:15 155:21 57:10 58:11,19,22 64:11 86:23 87:1 88:15 98:22 sent (17) 50:7 60:14 64:17 showing (1) 20:14 94:13,19 95:5 96:2 99:5 stages (1) 72:21 221:6,6 226:6 152:1 202:1,3,5 204:18,19 108:18 112:6 134:4 102:21 103:1,20 104:10 shown (7) 31:7 32:23 186:22 104:18 109:13 110:9,13 stake (2) 135:10 175:20 submitted (2) 87:17 226:2 swantees (4) 17:3 19:8,12 139:7,13,15 151:4,9,20 105:4,20 107:25 108:2,14 204:17 214:20 232:9 117:1 119:14 125:21 136:6 stand (5) 69:2,22 80:1 subparagraph (7) 49:16,20 58:13 160:12 161:14 167:19 109:3,16 117:6 203:2,4 233:13 138:16,17 139:25 142:16 177:10 178:18 52:5,10,11 179:10 180:13 swiftly (1) 212:25 172:19 175:20 192:4,23 sentence (1) 183:2 shows (10) 31:4,11 32:5 144:17 171:18 173:10 standalone (3) 55:15 221:14 subsequently (1) 116:8 sympathetic (2) 24:15 36:18 193:2,18 202:4 210:15,18 separate (6) 110:2 123:13 57:15 85:15 89:6 108:21 174:8 180:11 186:25 187:1 233:3 subset (1) 3:6 211:16 222:17 226:11 T 126:13 174:4 196:3 204:2 153:23 154:7 210:12 211:18 220:16 234:7 standard (28) 5:3,14 8:14 subsidiary (3) 56:25 85:13 terrain (2) 72:9 108:12
separately (2) 92:7 126:24 shred (1) 215:12 sometime (2) 160:3 171:25 12:9 27:3 90:19 96:1 89:5 t2 (1) 167:16 terrible (1) 106:23 separates (1) 62:18 shrinking (2) 77:20 150:16 sometimes (5) 120:21,25 112:15 115:12 116:17 substance (4) 74:16 164:5 tab (4) 32:8,8 57:23 217:7 terribly (1) 162:25 september (9) 37:8,16 42:21 shut (1) 91:21 134:14 168:19 171:20 118:10,12 120:11 121:15 187:25 194:7 table (3) 72:24 78:10 177:3 terrorem (1) 151:21 44:4,7,7,13 81:17 121:22 shy (2) 150:16 193:10 somewhat (3) 158:7 177:25 122:17,20,21,24 123:4 substantial (7) 45:19 46:15 tabs (2) 32:7,20 test (13) 5:3 12:8 78:22 sequitur (1) 102:25 side (7) 70:13 78:6 83:8,24 206:6 126:3,4 127:8 164:13 56:9 84:3,9 166:11 178:4 taken (20) 4:14 15:12 18:20 179:16 181:24 186:19 series (1) 184:11 141:8 163:21 175:6 somewhere (3) 96:13 141:25 183:22 211:2,7 214:15 substantially (1) 46:21 25:3 50:14 56:18 59:13 220:12 221:7,8 serious (21) 185:21 187:19 sides (1) 44:25 143:10 227:25 substantive (6) 46:6,7 87:15 88:19 91:19 93:1 229:7,13,17,18 188:8 189:19 190:14,15,20 sight (1) 81:7 soon (3) 7:11 47:20 234:19 standing (2) 15:24 85:1 145:17 179:15 181:24 107:3 121:19 131:12 testing (3) 128:9,10 130:19 191:14,20 192:13,25 signalled (1) 216:6 sooner (1) 16:5 stark (1) 139:7 234:17 134:10 137:10 150:25 text (5) 25:4,14 26:5 100:13 193:3,21 196:19 199:9 significance (4) 14:1 77:14 sort (18) 28:14,17 72:16 80:8 start (15) 14:15,19,21 substitute (1) 20:15 217:19 229:12,14 152:14 202:12 207:22,22 221:22 109:21 117:2 104:7,8 105:12 119:11 28:21,22 36:13 50:24 subtle (1) 229:22 takes (3) 104:5 224:10 thank (25) 2:5 15:23 61:23 224:15,20 significant (8) 11:4 12:7 131:19 137:12 139:11 54:20 69:15 73:13 159:9 succeed (4) 159:7 160:8,11 226:17 66:2 105:15 108:5 seriously (1) 86:3 19:14 21:10 32:18 85:15 147:21 148:23 151:19,21 170:4 171:14 175:4 176:5 205:9 taking (7) 20:10 22:12 27:17 120:10,13 121:6 125:16 seriousness (1) 199:22 173:17 222:13 158:9 190:21 197:10 started (4) 113:16 129:1 succeeded (1) 221:20 96:15 138:5 150:20,22 130:22 154:11,16 169:22 served (2) 60:2 209:16 significantly (1) 164:15 sorted (1) 47:23 155:22 159:25 succeeds (1) 213:21 talk (1) 104:16 170:19 198:17 210:1 set (7) 8:25 60:14 73:21 silence (1) 91:18 sorts (5) 136:3,21 139:14 starting (7) 14:21 69:24 success (2) 216:23 218:6 talked (1) 234:6 211:25 212:20,21 227:11 148:18 169:8 209:25 similar (4) 8:14 16:2 68:8 145:6 153:25 113:12 146:6 155:10,12 successfully (1) 25:8 talking (9) 20:18 31:22 228:10,13 232:1 234:1 230:12 69:5 sought (35) 18:17 45:5 179:15 sue (2) 209:6,13 53:20 94:5 126:6 137:2 thanki (1) 223:14 sets (3) 171:9 173:21 218:11 similarly (1) 146:14 46:24 47:2 68:12 93:11,17 starts (7) 42:20 72:4 146:3 sued (1) 209:11 150:14,15 170:17 thats (168) 2:12 3:12,22 4:7 settlement (1) 160:10 simple (3) 89:11 141:18 94:1,6,7 95:3,12 96:10 162:23 180:4 184:5 204:21 suffer (1) 2:17 tangled (1) 163:1 9:18,24 10:23 11:19 14:12 settling (1) 160:12 192:4 98:8 99:14,20 100:22 stated (1) 91:16 sufficient (13) 67:15 155:15 tanto (1) 110:21 19:24 20:16 22:6 25:25 seven (5) 46:17 83:1 105:20 since (3) 93:9 129:2 194:8 108:8 112:1 115:15 118:19 statement (6) 46:16 85:22 171:4 176:20 188:4 191:21 taperingoff (3) 83:18,23 84:2 28:2,14,17 106:10 112:9 single (5) 55:13 57:13 69:14 119:24 122:6 131:1 132:23 172:25 209:21,23 210:11 194:4 200:11 207:23 tapers (1) 84:5 30:14,17,18,20,21 31:3,3 several (2) 89:21 209:9 132:7 143:19 134:6 140:11 143:4 144:20 statements (1) 164:14 213:19 227:1,25 230:25 targeted (1) 152:19 33:13,15,25 36:17 39:4 shall (7) 68:4 77:4 135:3 sit (1) 119:5 181:6 184:12 186:13 208:4 statutory (2) 120:20 123:11 sufficiently (1) 29:11 targeting (1) 152:22 40:25 46:15 47:22 49:6 167:4 183:23 234:2,18 sits (2) 191:11 207:4 214:9 215:1 stead (1) 7:10 suggest (14) 6:12 7:22 8:9 task (3) 28:7 46:13 110:12 54:7,10,20 55:2 56:17 shape (3) 149:2 189:25 sitting (4) 40:20 88:17 sound (3) 50:25 62:16 steering (1) 120:21 11:1 16:23 64:8 95:19 taxpayers (1) 184:13 58:22 60:22 63:14 64:5,9 232:7 158:24 170:22 216:10 step (1) 151:8 107:10 119:10 125:13 team (5) 5:9 39:10,22 66:15,21 67:20 68:3,7 shared (1) 27:7 situation (5) 81:20 136:23 sounds (1) 120:14 stepping (1) 4:9 151:23 153:25 169:4 228:6 121:21 140:20 69:6,24 75:4 76:11 78:25 shareholders (3) 79:24 148:5 164:5 220:17 spade (2) 39:3,3 steps (9) 17:5,17,18,18 18:20 suggested (14) 7:3 15:10 teams (4) 49:24 50:3 54:1 79:13,18 82:16 84:12 108:20 181:20 six (11) 60:4 97:8 99:23,25 spades (2) 17:3 78:7 25:3 150:25 172:20 204:4 16:17 22:20 71:3 97:3 164:6 85:3,11 86:1,19 87:2 88:23 sharing (2) 109:11 128:14 100:5,5,6 105:20 spain (1) 85:12 stick (1) 67:12 110:12 141:25 142:25 teare (10) 180:24 181:25 90:10 91:8 93:21,23 shed (2) 63:10 124:7 173:20,20 222:14 speak (2) 1:5 104:15 sticking (1) 160:18 171:6 217:17,18 229:19 186:6 198:24 207:18 97:10,15 98:20 99:1 sheds (1) 59:22 sixth (3) 28:1 100:9 123:9 speaking (2) 143:17,20 stigma (1) 193:22 230:11 217:6,7 218:13 219:24 100:23 102:13 104:12 sheets (1) 108:15 size (1) 7:16 special (3) 36:22 41:2 224:24 still (16) 18:18 39:18 87:5 suggesting (6) 155:5,9,11 220:8 105:14,21 106:18 shes (2) 100:23 101:9 sizeable (2) 59:16 65:22 specialised (1) 79:4 92:19 95:12 96:20 113:5 159:2 166:8 172:1 teares (1) 232:10 107:10,19,24 108:4 112:11 shied (1) 110:1 skeleton (33) 1:17,22 4:22 specific (7) 31:23 68:13 120:4 124:2 125:23 126:3 suggestion (10) 7:4 37:23 technical (3) 7:21 152:10 114:7 116:11 117:21 118:6 shoes (2) 135:1 136:2 10:20 29:9 49:5 52:10 71:3 83:22 122:7 123:10 141:11 131:18 159:22 160:14 79:6 125:4 150:6,13 194:12 119:25 120:1,6,13,19,23 shore (1) 133:11 74:6 85:21 113:23 132:14 147:13 166:1 216:2 153:14 155:19 169:24 tef (16) 42:24 122:19,25 123:15 126:7,22 short (21) 40:4 47:24 133:3 146:1 147:5,6 specifically (2) 25:4 225:22 stock (1) 93:8 177:17 120:19,23,23,23,24 127:20,21 128:15 129:9,24 48:9,11,13 77:8 82:23 155:4,11 156:9 163:24 specify (1) 134:19 stokors (5) 214:24 222:2,15 suggests (1) 114:14 121:20,21,22 123:11,12 130:25 132:2,6,11 135:17 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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
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212:24 215:14 216:10 tuk (5) 46:24,25 unhelpfully (1) 179:22 vishal (2) 85:8,8 werent (2) 7:17 101:12 wrongdoing (1) 158:9 1386 (2) 175:22,24
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
14 (8) 6:6 9:18 34:25 57:21 29 (7) 5:14 8:14 22:4 25:10 7 (7) 60:2 62:5 97:3,6 91:8 115:16 166:4 181:25 47:3 49:6 170:21 131:11 170:21 171:14 140 (1) 233:22 291 (1) 49:8 70 (6) 173:11 183:15,22 144 (1) 235:15 186:13 187:1 211:6 145 (1) 235:16 3 73 (3) 47:4 147:5,18 148 (2) 61:19 187:7 74 (1) 203:22 3 (7) 1:1 49:16 64:20 68:24 149 (1) 235:17 75 (17) 175:16,24,25 87:4 119:25 217:12 15 (8) 39:7 44:7 58:2 183:17,20 186:5,23 30 (3) 127:10 173:18 230:1 182:8,18,24 184:7,8 198:1,5,22 208:16,17,22 31 (18) 5:4 6:6 9:18 34:10 150 (1) 205:16 211:3,6,22 228:2 35:7 37:8,16 40:19 41:9,25 152 (1) 222:10 772 (3) 217:10,15,16 42:3,22 44:1,5,13 119:25 153 (1) 235:18 78623 (1) 212:12 120:16 148:21 155 (1) 235:19 315 (1) 174:21 159 (2) 195:19,24 8 318 (2) 132:12 134:7 159d (1) 195:23 325 (2) 174:19,23 16 (6) 180:4 182:8,11,22 8 (5) 22:4 30:2 35:5 72:4 3512g (1) 225:18 189:2 232:9 180:13 38 (1) 176:24 17 (15) 27:24 32:16 80 (1) 215:2 3812 (1) 133:6 73:17,17,20 97:21,21 82 (1) 11:17 39 (1) 170:22 98:19,21 100:1 104:2 84 (4) 120:19 121:4 176:25 394000 (1) 208:17 121:20 180:3 183:9 232:9 235:5 3rd (2) 120:18 121:4 174 (1) 225:21 84000odd (1) 46:14 175 (2) 235:20,21 87 (2) 184:5,11 4 17page (1) 72:2 88 (1) 185:11 18 (5) 73:23 99:23,25 4 (7) 15:22 33:23 34:1 892 (1) 113:23 100:1,2 97:15,17 111:20 181:11 18a (1) 74:1 42 (1) 24:3 9 18something (1) 175:25 430 (1) 176:16 9 (2) 94:15 121:22 19 (5) 74:2 97:1,5 98:1 143:2 443 (1) 179:9 93 (4) 184:18,20,21 235:6 197 (1) 235:22 45 (1) 225:20 95 (2) 185:17,19 19a (2) 74:17 75:23 450 (1) 234:22 96 (1) 185:25 19b (1) 74:6 48 (1) 235:3 4g (1) 37:23 2 4u (60) 4:17 6:2,8 21:3,5 33:22 35:18 39:10,23,25 2 (8) 72:2 118:25 160:17 63:12,22 71:4,15 77:22 164:17 167:22 180:11 81:17 103:18 116:4 119:8 181:3,5 120:17 121:19 122:10,20 20 (2) 81:25 83:15 123:6,10 131:1,11 200 (1) 119:3 140:4,17,21 141:5,8,13,20 2000 (1) 41:14 145:1 147:3,7 153:19 20000 (1) 46:13 154:4,9 156:15 160:14 2006 (3) 120:7 126:5,10 164:17 167:23 2009 (3) 120:7 126:5,10 188:9,10,17,23 190:11 2011 (4) 42:19,20,21 44:7 192:9 193:8,10 194:11 2012 (17) 15:8 34:9 195:7 199:8 200:1,22 37:8,8,22 40:18 41:8 205:22 210:8 211:19 44:4,5,13,13 95:4 115:15 4us (7) 120:1 122:2 140:20 119:24 120:15 121:20 146:8 147:6 194:1,16 126:7 5 2013 (4) 35:7 81:16 121:22,24 5 (6) 49:20 52:5,11 72:15 2014 (21) 34:10 36:3 39:7 97:8 131:3 40:19 41:9,25 42:3,3,22 50 (3) 49:21 52:8,12 43:25 44:7 81:17 95:4 500 (1) 234:4 102:20 103:19 115:16 5000 (1) 41:14 119:25 120:16 126:7 50000 (2) 69:2 70:15 188:10 192:5 52 (1) 146:6 2015 (1) 25:24 52000 (1) 208:18 2018 (3) 155:22 159:25 53000 (1) 208:18 181:3 53a (1) 146:7 2019 (1) 217:10 54 (2) 42:14 201:23 2020 (6) 1:1 5:4 47:3 85:13 55 (1) 201:23 140:24 176:13 56 (4) 176:22,23 201:23 2021 (2) 14:23 169:24 203:2 2022 (12) 155:6,10,12,13,14 58 (1) 4:24 156:2 159:12 160:5 589700 (1) 197:7 164:10,22 170:4 171:14 590000odd (1) 197:21 2023 (4) 155:16,24 160:3 5g (2) 26:10,11 233:12
208 (1) 235:23 6 212 (2) 235:24,25 214000 (1) 68:22 6 (5) 30:2 35:5 97:3,4 100:4 22 (2) 60:10,21 60 (5) 4:24 52:5 183:14,17 228 (1) 236:1 215:2 23 (1) 229:15 600 (1) 30:13 232 (1) 236:2 618 (6) 28:6 30:14,16 32:15 24 (3) 60:23 185:19 224:6 127:20 130:7 244 (1) 61:11 65 (10) 175:16 176:1 183:20 25 (2) 61:11 121:24 187:1 198:4,22 208:17 25000 (3) 56:11 69:4,6 211:3,21 213:5 2512 (1) 179:5 66 (1) 216:3 2513 (1) 179:3 67 (1) 71:6 256 (1) 222:25 68 (3) 71:6,8 235:4 26 (2) 2:16 140:24 27 (1) 176:9 7
Opus 2 [email protected] Official Court Reporters +44 (0)20 3008 5900