The Commercial Division of the High Court recently handed down judgment in the matter of Phones 4 U Limited (In Administration) v EE Limited. The Court was asked to consider an application for summary judgment in respect of a counter claim brought by EE in which it sought damages in the amount of £200 million for loss of bargain.
The court was asked to consider whether Phones 4U had breached key obligations to market, sell and promote EE’s network and products; whether or not there was a repudiatory breach; whether there was there a renunciation by Phones 4U and whether the terms of EE’s termination letter defeated any claim by EE for loss of bargain.
The case involved a consideration of the principle in Boston Deep Sea Fishing & Ice co v Ansell (1888) 39 ChD 339 namely that a party that terminates a contract for a bad reason may subsequently defend itself against a claim for wrongful termination by reference to a good reason extant at the time of the termination, whether or not then known to that party.
Mr Justice Baker found that EE had no real prospect of success at trial and that there was no other compelling reason why the case should be allowed to proceed to trial and in the circumstances held that there should be summary judgment dismissing EE’s counterclaim.
A copy of the judgment can be found at http://www.bailii.org/ew/cases/EWHC/Comm/2018/49.html