UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
tive and has formed the view that bringing a claim should not be the primary route to redress for con - sumers where they have suffered loss as a result of anti-competitive behaviour. The consultation closes on 14 October 2025. Landmark cases England and Wales is a highly active jurisdiction with dozens of judgments issued in private antitrust litiga - tion cases. It is not possible to summarise all of the relevant developments, but we summarise below a handful of the key recent cases. In July 2025, the Court of Appeal issued judgment in Phones 4U Limited v EE Limited and others [2025] EWCA Civ 869. This was an appeal by Phones 4u against the dismissal of its claim that it had been the victim of alleged collusive anti-competitive schemes in which senior executives of three mobile network operators and their respective parent companies had participated between 2012 and 2014. The judgment considered a wide range of grounds of appeal, but two areas in particular are of relevance to those involved in standalone cartel claims, particularly involving allegations of information exchange. At first instance, Roth J found that O2’s CEO was “sounding out” EE’s CEO as to whether, if O2 reduced the vol - ume of supplies it made via indirect retailers, EE would not take up that volume. This was found to be an invi - tation to collude by O2, but the judge accepted EE’s evidence that its CEO essentially did not engage and remained passive, until the conversation moved on. He also found that the remarks were “too vague” to remove uncertainty for EE as to O2’s future conduct. The Court of Appeal considered whether a passive response to the disclosure of confidential informa - tion from one competitor to another was sufficient to infringe competition law. It found that it was not in the circumstances of this case and that the High Court had committed no error of law. In setting out the prin - ciples, the Court of Appeal held that some reciprocity is required and that may be satisfied where a disclo - sure of future intentions is made to a competitor who either accepts it or requests it. While the case law is not always clear on what “accepts” means, there must be a consensus of some form. It further found
that the conduct must at least be capable of reducing uncertainty and, in this case, the judge was entitled to conclude that the information was too vague to reduce uncertainty. The Court of Appeal also found that concertation requires an element of consensus, which will depend on the context. Where there is an unanticipated “one-way” communication of confiden - tial information, whether a passive response is taken as tacit approval will depend on the facts. In many circumstances, a failure to object will be seen as tacit approval and it is entirely possible that the discloser of the information, may also derive something from the recipient’s reaction, even if it is entirely passive. The Court of Appeal also considered whether the “Anic” presumption can be rebutted by anything oth - er than public distancing or a report to the compe - tition authorities. The Anic presumption means that undertakings participating in concerted practices and remaining active on the market are presumed to take account of the information exchanged with their competitors when determining their conduct on the market. At first instance, despite finding that there had been no “concertation”, Roth concluded that EE had rebutted the Anic presumption by signing a new three- year deal with Phones 4u. In considering whether this amounted to an error of law, the Court of Appeal found that there is an additional presumption contained in Anic: that par - ticipating in a meeting at which an anti-competitive agreement/concerted practice is concluded without public distancing is presumed to amount to partici - pation (the “participation” presumption). The Court of Appeal found that public distancing is not essential to rebut the Anic presumption, was not supported by any authority, lacked logic and would lead to unprincipled differences of approach depending on whether there had been a meeting between competitors. The Court also found that the presumption only applies to those receiving information. On the facts of this case, EE’s CEO conveyed nothing to O2’s CEO, so there was nothing that O2 gleaned from the meeting which could have influenced O2’s conduct. Limitation We have also seen important developments in the context of limitation.
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