Leading global law firm, Baker McKenzie, has achieved a successful outcome for Virgin Mobile Telecoms Limited (part of Virgin Media O2) in its dispute with EE Ltd.
EE had claimed around GBP 27 million in lost revenue arising from what it had said was a breach by Virgin Mobile of the exclusivity provisions of the Telecommunications Supply Agreement (TSA) between the parties. EE claimed that Virgin Mobile had wrongly migrated non-5G customers on to a different network in circumstances where the parties had agreed that only 5G customers could be migrated. Virgin Mobile denied that there had been any breach of the exclusivity obligation at all because only 5G customers had ever been migrated. Virgin Mobile also argued that, in any event, the claim was precluded by an exclusion clause in the TSA which provided that neither party could claim for “anticipated profits”.
Virgin Mobile successfully applied to strike out EE’s entire claim on the basis of that exclusion clause. EE appealed that decision and the issue on appeal was whether the Judge at first instance had been correct to conclude that the exclusion clause applied to EE’s claim. The Court of Appeal held that she had been correct and dismissed the appeal by a majority (Zacaroli LJ and Coulson LJ, with Phillips LJ dissenting).
Working closely with the Virgin Media O2 Legal team, the Baker McKenzie team comprised:
• Dispute Resolution: Carinne Kamdar, Counsel and Hugh Lyons, Partner, London
• Intellectual Property & Technology: Serena King, Associate, London
With overall oversight from Steve Holmes, Intellectual Property & Technology Partner, London.
Commenting on this case, Carinne Kamdar, said:
“This is a significant win for Virgin Mobile, who can now avoid protracted litigation in circumstances where they have always maintained that there was no breach of the terms of the TSA. The Court of Appeal has once again confirmed that sophisticated parties will be taken to mean what they say, and that exclusion clauses will be given effect to.”
EE had claimed around GBP 27 million in lost revenue arising from what it had said was a breach by Virgin Mobile of the exclusivity provisions of the Telecommunications Supply Agreement (TSA) between the parties. EE claimed that Virgin Mobile had wrongly migrated non-5G customers on to a different network in circumstances where the parties had agreed that only 5G customers could be migrated. Virgin Mobile denied that there had been any breach of the exclusivity obligation at all because only 5G customers had ever been migrated. Virgin Mobile also argued that, in any event, the claim was precluded by an exclusion clause in the TSA which provided that neither party could claim for “anticipated profits”.
Virgin Mobile successfully applied to strike out EE’s entire claim on the basis of that exclusion clause. EE appealed that decision and the issue on appeal was whether the Judge at first instance had been correct to conclude that the exclusion clause applied to EE’s claim. The Court of Appeal held that she had been correct and dismissed the appeal by a majority (Zacaroli LJ and Coulson LJ, with Phillips LJ dissenting).
Working closely with the Virgin Media O2 Legal team, the Baker McKenzie team comprised:
• Dispute Resolution: Carinne Kamdar, Counsel and Hugh Lyons, Partner, London
• Intellectual Property & Technology: Serena King, Associate, London
With overall oversight from Steve Holmes, Intellectual Property & Technology Partner, London.
Commenting on this case, Carinne Kamdar, said:
“This is a significant win for Virgin Mobile, who can now avoid protracted litigation in circumstances where they have always maintained that there was no breach of the terms of the TSA. The Court of Appeal has once again confirmed that sophisticated parties will be taken to mean what they say, and that exclusion clauses will be given effect to.”
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