UK case law
EE Limited v Virgin Mobile Telecoms Limited
[2023] EWHC TCC 2425 · High Court (Technology and Construction Court) · 2023
The verbatim text of this UK judgment. Sourced directly from The National Archives Find Case Law. Not an AI summary, not a paraphrase — every word below is the original ruling, under Crown copyright and the Open Government Licence v3.0.
Full judgment
Mrs Justice Joanna Smith Wednesday, 27 September 2023 ( 13:39 pm) Ruling by MRS JUSTICE JOANNA SMITH
1. I am now called upon to deal with an application for permission to appeal my judgment handed down on 31 July of this year.
2. Notwithstanding Mr Patton KC's skilful attack on that judgment on two grounds, I do not consider that an appeal has a real prospect of success.
3. Dealing briefly with those grounds, the first effectively suggests that I misunderstood the TSA, the contract with which I was directly concerned on the application. I did not misunderstand the TSA or the way it operated as I hope is clear from the entirety of the judgment.
4. I considered it to be absolutely plain, for all the reasons I have given, that a breach of the relevant covenant sounded in damages, that those damages were for loss of profits and, accordingly, I can see no realistic basis for the Court of Appeal to take any different conclusion. Paragraph 49 of my judgment, which is specifically attacked by Mr Patton, must be read in the context of the entirety of the judgment.
5. In so far as it is suggested by the claimant that I gave no reasons, I note only that this point was not raised by the claimant in advance of handing down my judgment.
6. As for ground 2, it is essentially suggested that the words of the relevant provision (clause 34.5(a) of the TSA) should be construed differently from their natural and ordinary meaning. I carried out a detailed and entirely conventional textual and contextual analysis and I arrived at the view that the words of the clause had a clear and unambiguous meaning. I identified various factors which supported that conclusion. There is nothing in the wording of clause 34.5(a), or its context in the TSA, which supports the construction for which the claimant contends. Although reasonable minds may differ on the interpretation of a contract, there is no sensible alternative construction of the clause which gives effect to the plain and natural meaning of the words.
7. In the circumstances, if the claimant wishes to pursue an appeal from my judgment, it will need to seek permission from the Court of Appeal.