“where VM sources 5G services from an alternative supplier and a customer of VM is provided with such 5G services sourced from an alternative supplier then VM shall also be entitled to provide such customer of VM with 2G services, 3G services and 4G/LTE services sourced from such alternative supplier…”
“is represented by the revenue [EE] would have received from [VM] under the terms of the TSA for the 2G-4G services that each of [VM’s] customers would have consumed had they remained or been added to the EE network rather than migrated or added to the Vodafone network or O2 or VOLT network”
“the correct measure in principle would be [EE’s] loss of profit, which (a) would need to take into account for example its costs of providing the services to customers which it no longer provided once those ceased to be on the EE network and (b) is in any event excluded by clause 34.5(a) of the TSA…”
“3. Provision of Services and Capabilities 3.1 EE shall provide the EE Hosted Services on the terms and conditions set out in this Agreement. The EE Hosted Services shall be provided as follows: (a) As at the Services Start Date, EE shall provide the EE Hosted Services that EE is obliged to or has agreed to provide to VM immediately prior to the Services Start Date under the Telecommunications Supply Agreement. … 3.2 EE shall commence the provision of the VM Controlled Services for individual Customers on such date as determined in accordance with Schedule 9…From such commencement date, EE shall provide the VM Controlled Services to VM on the terms and conditions set out in this Agreement. 5B. 5G Services 5B.1 In the event that EE and/or BT and/or any member of the EE Group or the BT Group (or any other flagship brand of EE and/or BT from time to time) launches mass market 5G services in the Term to its own consumer retail customers (excluding any trials only) in the UK then in accordance with Clause 5B.2 below EE will make a proposal for the enablement of 5G services to Customers on the Full MVNO Infrastructure. 5B.2 EE shall ensure that the 5G proposal will be shared with VM no later than one (1) month after such launch of 5G services to consumer retail customers on the Network with the aim of enabling 5G services for Customers on the Network and the Full MVNO Infrastructure within six (6) months of receipt of the EE proposal subject to agreement in writing between EE and VM of the applicable commercial, technical and legal terms (both Parties acting reasonably and in good faith). In the event that EE and VM do not reach agreement of such terms within such six (6) month period then where VM sources 5G services from an alternative supplier and a customer of VM is provided with such 5G services sourced from an alternative supplier then VM shall also be entitled to provide such customer of VM with 2G services, 3G services and 4G/LTE services sourced from such alternative supplier, subject to compliance with the conditions in Clause 11.1”. … 10. Exclusivity 10.1 Without prejudice to Clauses 11.1 and 27.2 Clauses 11.1 and 27.2 are concerned with VM’s ability to obtain services from Third Party Suppliersbut not to permit unauthorised access by any Third Party to the Systems, i.e. to the information systems leased or used by EE in connection with the provision of the Services. but subject to Clauses 5B.2, 10.4 Clause 10.4 disapplies the exclusivity provisions in clause 10.1 in the event of VM acquiring another entity supplying mobile communications services to business users in the UK as an MVNO or a reseller through an existing agreement with a UK MNO. and 39.3.1 Clause 39.3.1 disapplies the exclusivity provisions in clause 10 during any Run Off Period following termination. , VM shall not and shall ensure that no other member of the VM Group shall for the duration of the Exclusive Period: (a) procure for supply in the UK from any Third Party Supplier any Exclusive Service; or (b) supply to the customers in the UK any Exclusive Service that it has not procured directly from EE, provided that nothing in this Agreement shall prevent VM from entering into a Standard MNO Reselling Arrangement”
“16 At the time the TSA was negotiated both VM and EE had a good understanding of the sort of commercial situation which might give rise to claims for anticipated profits. 17 For example, if there was a network outage, this could cause VM to lose anticipated profits in its separate contractual relationships with its customers; it could also arguably include loss of anticipated profits due to negative impacts on its brand and future sales to customers. In addition, if EE undertook Bespoke Development work as envisaged by section 10 of Schedule 3, but did the work badly and caused delay, there might be anticipated profits which VM might claim to have lost. The same can be said in relation to the obligations and services EE agreed to provide in relation to the Transition. 18 I believe it was also understood that a breach of the TSA by VM could cause EE to lose profits that it may otherwise have anticipated. For example, clause 11.1 of the TSA permitted VM to obtain services from Third Parties provided that it did not (among other things) result in equipment being directly connected to EE’s network or any harm or damage to EE’s RAN. If VM was to put equipment on EE’s RAN, that could cause EE’s network to be affected and/or consequently cause damage to EE’s brand, EE may lose some of the profits it would otherwise have made from separate contractual arrangements with its retail customers. I would also refer to the VOIP and VOLTE rules at section 3.1 of Schedule 3 where various conditions were attached to VM’s entitlement to operate and promote VM VOIP. The concern here was that VM’s offering to its customers might be poor and reflect badly on EE’s network. Breach by VM of those conditions could have damaged EE’s reputation and brand and hence its profitability. 19 I also take the view that, at the time the TSA was negotiated, it was fully understood and known by VM as well as EE that anticipated profits contemplated by clause 34.5 did not apply to the Charges which EE was entitled to levy for use of its 2G, 3G and 4G network (see clauses 18.3, 18.7 and 34.2 which expressly refer to the ability of EE to sue for its charges). I believe the drafting of the TSA makes that clear as well as the importance of the exclusivity provisions which I address next.”
“…the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would have reasonably been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so the court must have regard to all the relevant surrounding circumstances…”
“of little assistance in circumstances where, as here, the wording is plain, the exclusion clause of mutual benefit and detailed in its form. As quoted above, Lord Diplock made it clear that in commercial contracts it is wrong to place a strained construction on words in an exclusion clause which are clear”
“does not in my view provide sufficient justification for overriding the parties’ intention where that has been clearly expressed. The principle of freedom of contract, which is still fundamental to our commercial law, requires the court to respect and give effect to the parties’ agreement”. b. Second, unlike in Kudos, this is not a case in which the construction advanced by VM denudes the TSA of all commercial effect. Mr Harrap’s subjective belief about what would be commercially appropriate is irrelevant to, and inadmissible in respect of, the court’s interpretation of clause 34.5. It is not enough that EE may now regret its bargain or that it considers it is left “without a financial remedy”