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Court Rejects BT Attempt to Sue Virgin Mobile Over Migrations UPDATE

Wednesday, Aug 2nd, 2023 (8:17 am) - Score 6,568

The High Court has thrown out a “fanciful” legal challenge by EE (BT) against Virgin Media (VMO2), which last year (here) accused the UK operator of having migrated customers away from their then EE powered Mobile Virtual Network Operator (MVNO) platform – Virgin Mobile – before the agreement had been concluded.

Just to recap. At the end of 2019 Virgin Media signed a 5-year deal with Vodafone to run their MVNO platform, which effectively ended their long-running supplier deal with EE (here). Under the plan, Virgin Mobile’s services – back then reflecting c.3 million customers – would start to transition to Vodafone’s platform from the end of 2021, although some 5G (mobile broadband) services were introduced before that.

Since then, both Virgin Media and O2 have merged into VMO2, with the new company having already cancelled the Vodafone MVNO agreement in order to fully harness O2’s platform. But that’s another story, and we’re today focused on the prior MVNO deal to use EE’s national mobile network.

In short, BT / EE appeared to be accusing VMO2 of having breached the terms of their MVNO agreement by allowing non-5G customers (i.e. 4G and older users) to be migrated away from EE’s network and on to O2 and Vodafone based platforms before its contract had formally expired. BT says it warned Virgin about this on multiple occasions, but the operator allegedly refused to carry out any checks. BT was reportedly seeking £24.6m in compensation.

High Court Judgment

The judge, Justice Joanna Smith DBE, has now ruled in Virgin Media’s favour as part of a summary judgment applied for by Virgin Media following EE’s original legal claim against Virgin Mobile relating to their former MVNO agreement with BT (meaning EE’s claim fell at the first hurdle). The judge described EE’s legal claim against Virgin Mobile as being “fanciful” and of having “no real prospect of succeeding“.

NOTE: Summary judgments have a very high threshold because, if successful, they can negate the need for a case to proceed to a time-consuming and costly trial.

The summary judgment focused on a specific element of EE’s claim, with Justice Smith ruling that EE had “not advanced a consistent case” and noting that key evidence presented by one of EE’s lead negotiators “really does no more than suggest that ‘something might turn up’ at trial“. She described it as “fanciful” to suggest the evidence presented “provides a real prospect of success“.

VMO2 said that its former agreement with BT/EE provided that if EE launched 5G services to its own customers, and could not reach a commercial agreement with VM with regard to 5G services within a specified period (which it didn’t), then VM was permitted to procure 5G services from an alternative supplier (hence Virgin’s agreement with Vodafone in 2019). The agreement also allowed those customers provided with 5G services to be provided with 2G-4G services on the alternative supplier’s network.

A Virgin Media spokesperson said:

“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.”

At the time of writing, it remains unclear whether BT / EE will attempt to appeal the decision, and we are currently awaiting their response to our comment request.

UPDATE 11:04am

We’ve had a short comment from BT.

A BT spokesperson said:

“We are disappointed by the court’s judgment and will now carefully review the findings before considering next steps.”

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By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on X (Twitter), Mastodon, Facebook and .
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7 Responses
  1. Avatar photo It's so funny. says:


  2. Avatar photo Mml says:

    Needs further explanation. How does that cover the fact that Virgin got away with migrating the non-5G customers as well? Did BT/EE really sign a contract giving Virgin an ‘exit clause’ saying that, in essence, if we don’t offer you 5G, you can leave, 5G or not’?

    1. Mark-Jackson Mark Jackson says:

      According to VMO2, the only requirement within the agreement was that the customer was provided with 5G services. That requirement was satisfied by the provisioning of a 5G service (via a 5G enabled SIM card), and no more. There was no reference to additional obligations on Virgin Media (e.g. ensuring a customer is receiving or utilising those 5G services or has a 5G device) and for good reason given i) 5G coverage is still growing and therefore in some areas 5G services could not be utilised ii) while VM can control which customers are provisioned with a 5G service, we cannot control whether a customer inserts their 5G enabled SIM into a 5G device, or removes their SIM from that device (e.g. if they use a new, temporary, borrowed or replacement handset). Therefore, if any requirements relating to utilising 5G services had been proposed by EE (which they weren’t) they would have been impractical and not agreed to.

      The subsequent merger between Virgin Media and O2, which completed in June 2021, had no impact on our migration of customers with a 5G enabled SIM off of EE’s network. 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 same scenario as a customer choosing to switch from Virgin Mobile to another rival MNO or MVNO.

  3. Avatar photo Kira says:

    where did you get this info from as I can’t see other reports? Interested as a law professor

  4. Avatar photo Kushan says:

    So it took me a bit to understand what went on here, but I think I’ve figured it out:

    EE and VM made an agreement for 4G/3G services but in that agreement there was a clause if they couldn’t agree on a (then) future 5G network, Virgin was free to find its 5G elsewhere.

    EE and VM then couldn’t make such an agreement, so VM made one with Vodafone to supply 5G – as well as 4G, 3G, etc.

    VM then started moving customers from EE (3G/4G) to Vodafone (3G/4G/5G), regardless of if that customer had a 5G handset or not, because they’re still providing them with a 5G service (just one that isn’t being used).

    EE then does a shocked pikachu face and says “wait, not like that”.

    The EE agreement to be able to find 5G services elsewhere didn’t say anything about that 5G service also coming with 4G, nor did the agreement specify that users must be able to actually USE that 5G.

    1. Avatar photo Laurence 'GreenReaper' Parry says:

      I was barely able to use 4G myself. Vodafone sucks in my area. I ended up moving to BT.

    2. Avatar photo AWX says:

      I have to admit, the fact BT let that clause happen without specifying 3g/4g would need to remain and they can ONLY get 5G customers swapped over is a huge oversight on the EE/BT side.

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