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A High Court judge has dismissed a £24.6 million breach of contract lawsuit filed by EE against Virgin Media. The lawsuit was filed in August 2022, claiming that Virgin Media’s deal with Vodafone to provide 5G services breached their MVNO network access agreement.

Virgin Mobile, which ran on EE’s network from 2013 until 2021, announced in 2019 that it would be ending the deal and transitioning to Vodafone for 5G services. EE alleged that this move constituted a breach of contract by Virgin Media.

According to the judgment, Virgin Media had issued a “request for proposals” to all four UK MNOs, including EE, after launching its own 5G service in May 2019. However, without reaching an agreement with EE, Virgin Media proceeded to enter into an agreement with Vodafone in early 2021 and began migrating customers from EE’s network to Vodafone’s network.

In its lawsuit, EE sought £24.6 million in damages, claiming that it lost charges that Virgin Mobile would have been obligated to pay under the contract. EE argued that Virgin Mobile breached the networking agreement by transferring customers without 5G-capable phones or contracts that allowed 5G connectivity to Vodafone and later O2.

The judge examined an exclusion clause in the contract that prevented damages claims related to “anticipated profits.” Virgin Mobile argued that EE’s claim was excluded by this clause, which referred to a 2016 update to their Telecommunications Supply Agreement.

Ultimately, the judge accepted Virgin Mobile’s arguments and dismissed EE’s claim. However, EE still retains the right to payment of Minimum Revenue Commitments under the contract and may pursue a claim for any outstanding sums.

Virgin Media welcomed the court’s ruling, stating that they had fully honored their agreement with BT (EE’s parent company) while providing access to 5G services. BT expressed disappointment with the judgment and will review the findings before deciding on next steps.

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