The network is engaged in a legal battle to prove that O2,
Orange, T-Mobile and Vodafone colluded to slow down improvements to
the system which allows consumers to switch networks. It wanted
access to years' worth of documents and emails to boost its case,
but the High Court said that its claims fell out with the rules
governing pre-action disclosure.
3 claims that the four other mobile operators are behaving
anti-competitively by blocking or slowing the progress of change in
the rules governing subscriber switching from one network to
another. 3 is a later market entrant than the others and is almost
totally dependent for its business on convincing subscribers to
switch to it.
The mobile number portability (MNP) system is the process by
which a phone user moves their number and account from one network
to another. In the UK It is a particularly cumbersome and lengthy
process, taking up to a week.
The case put forward by 3 is that the four networks were keen to
change and speed up the system until it entered the market in 2004,
at which point they tried to block change order to protect
their market share.
"[3] needed to win most of its customer base from the
Respondents who made up the vast proportion of the existing
market," explained the ruling. "For that purpose the delays in the
donor-led process and the consequent window of opportunity for
"win-back" activity (often focussed on the "best" customers)
presented a serious impediment."
The networks collaborate on cross-industry issues via the
Operator Steering Group (OSG). 3 submitted a substantial list of
documents which it wants access to before taking its main
action.
"The [list] runs to eight pages for each of the Respondents with
very few specific documents identified: the vast bulk are groups or
classes of documents," said the ruling. "The phrase vast bulk is
appropriate. The scope of the application, even from the
Applicant's perception, is something equivalent to the entirety of
the potential scale of overall disclosure in respect of the
anticipated issues. It covers the period from 1999 to 2006. It
encompasses both electronic and hard copy documents. It is not
challenged that the cost to each Respondent would be in the order
of £200,000."
Civil procedure rules state that 3 is not entitled to ask for
any more documents than would be disclosed as part of Standard
Disclosure in any subsequent legal action. Judge David Steel found
that 3's requests went beyond that.
"In general the scale of the disclosure sought is well beyond
any probable scope of standard disclosure," he wrote. "The request
is so lacking in specificity that it is not possible to accept that
the entirety of the classes of documents are 'likely' or 'may well'
fall within standard disclosure."
"As already noted, the request runs to 8 pages covering an
overall period of 7 years. It contains numerous categories within
which something like 80 classes of documents are identified without
any limitation whatsoever on the documents, correspondence,
reports, notes or communications referred to and without any regard
to the potential limitations in the search as provided in [the
civil procedure rules]," he wrote.
Pre-action disclosure is allowed when it could solve a problem
and avoid subsequent court cases, but Steel said that any
disclosure now is extremely unlikely to halt the litigation
process.
"It was not seriously suggested that the proceedings were likely
to settle in the light of the disclosure. The mere speculative hope
of production of a 'smoking gun' cannot be sufficient to trigger
the desirability of the exercise," he said.
"The disclosure will achieve little in resolving the difficult
legal issues on both liability and quantum that are likely to
arise," wrote Steel. "The potential costs for amendment and
supplementary disclosure are likely to pale into insignificance
compared with the cost of the exercise being proposed by the
Applicant. The cost-benefit analysis favours the Respondents."
The application for disclosure was refused.
