EE suffered a significant setback this week in its legal dispute against Virgin Mobile over 5G exclusivity. The case centred on a former agreement between EE and Virgin Media, which allowed Virgin to seek alternative 5G services if EE could not provide it.
In 2019, Virgin Mobile formed an agreement with Vodafone to offer 5G services to its customers. However, EE claimed that Virgin Mobile had breached an Exclusivity Clause and sought damages amounting to £24,635,684 for alleged revenue loss.
Justice “Joanna Smith DBE” ruled in favour of Virgin Media’s application for a summary judgement, which meant the case could be determined at an early stage without proceeding to a full trial.
The judge deemed EE’s claim “fanciful” and concluded that it had no real prospect of succeeding. This type of judgement is unusual in complex commercial litigation cases like this.
The dispute hinged on whether Virgin Media had the right to use Vodafone as an alternative supplier for 5G services. The agreement allowed Virgin customers to receive 5G services along with 2G, 3G and 4G services, provided they were given a 5G-enabled SIM card.
Virgin Mobile argued that it could control which customers received a 5G SIM, but it could not regulate if a customer used the SIM in a 5G device or removed it.
In the end, the court ruled in favour of Virgin Mobile, dismissing EE’s claim and affirming that Virgin Media’s actions did not breach the Exclusivity Clause. The case was resolved through a summary judgement, which saved both parties from a prolonged and costly trial.
Virgin Mobile released a statement and explained:
At no time prior to the expiry of the agreement period were any Virgin Mobile customers migrated to the O2 network. Virgin Media O2 did launch its “Volt” bundles in October 2021 but this was a new product and service that any consumer could take by combining Virgin Media broadband and O2 mobile services. No customers were moved to these services, it would have been their choice to take them under a new contract. This is the same scenario as a customer choosing to switch from Virgin Mobile to another rival MNO or MVNO. We’ve always been very clear that we fully honoured our former mobile agreement with BT while giving our customers access to 5G as soon as possible. We’re pleased that the court has ruled in our favour and summarily dismissed EE’s claim against us.