Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Before :
Mrs Justice Joanna Smith
Between :
EE Limited | Claimant |
- and - | |
Virgin Mobile Telecoms Limited | Respondent |
Conall Patton KC and Gideon Shirazi (instructed by Bryan Cave Leighton Paisner LLP) for the Claimant
Adam Zellick KC, Philip Ahlquist and Gillian Hughes (instructed by Baker & McKenzie LLP) for the Respondent
Hearing dates: 27th September 2023
RULING ON PERMISSION TO APPEAL
Mrs Justice Joanna Smith Wednesday, 27 September 2023
(13:39 pm)
Ruling by MRS JUSTICE JOANNA SMITH
I am now called upon to deal with an application for permission to appeal my judgment handed down on 31 July of this year.
Notwithstanding Mr Patton KC's skilful attack on that judgment on two grounds, I do not consider that an appeal has a real prospect of success.
Dealing briefly with those grounds, the first effectively suggests that I misunderstood the TSA, the contract with which I was directly concerned on the application. I did not misunderstand the TSA or the way it operated as I hope is clear from the entirety of the judgment.
I considered it to be absolutely plain, for all the reasons I have given, that a breach of the relevant covenant sounded in damages, that those damages were for loss of profits and, accordingly, I can see no realistic basis for the Court of Appeal to take any different conclusion. Paragraph 49 of my judgment, which is specifically attacked by Mr Patton, must be read in the context of the entirety of the judgment.
In so far as it is suggested by the claimant that I gave no reasons, I note only that this point was not raised by the claimant in advance of handing down my judgment.
As for ground 2, it is essentially suggested that the words of the relevant provision (clause 34.5(a) of the TSA) should be construed differently from their natural and ordinary meaning. I carried out a detailed and entirely conventional textual and contextual analysis and I arrived at the view that the words of the clause had a clear and unambiguous meaning. I identified various factors which supported that conclusion. There is nothing in the wording of clause 34.5(a), or its context in the TSA, which supports the construction for which the claimant contends. Although reasonable minds may differ on the interpretation of a contract, there is no sensible alternative construction of the clause which gives effect to the plain and natural meaning of the words.
In the circumstances, if the claimant wishes to pursue an appeal from my judgment, it will need to seek permission from the Court of Appeal.