Software Cellular Network Ltd v T-Mobile (UK) Ltd

Software Cellular Network Ltd v T-Mobile (UK) Ltd

The Court found that Truphone has a seriously arguable case that T-Mobile's refusal to activate its allocated numbers may constitute an abuse of dominant position, and that damages would not be an adequate remedy for Truphone due to the risk of destruction of its business and the time-critical nature of market entry. The balance of convenience favoured granting interim mandatory orders, as the risk of injustice to Truphone outweighed the risk to T-Mobile, especially since all other MNOs had activated Truphone's numbers and T-Mobile's concerns could be addressed by a cross-undertaking in damages.

Parties
Applicant: Software Cellular Network Limited; Respondent: T-Mobile (UK) Limited
Jurisdiction
England and Wales
Judgment Date
17 July 2007
Procedural Posture
Interim Application for Mandatory Injunction Under Competition Law / Interlocutory (interim Relief Sought Pending Trial)
Outcome
Interim mandatory injunction granted
Legal Topics
Abuse of Dominant Position, Interim Injunctions, Market Definition, Essential Facilities Doctrine
Competition Law Telecommunications Law Abuse of Dominant Position Interim Injunctions Market Definition Essential Facilities Doctrine

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Parties

Software Cellular Network Limited

Applicant

T-Mobile (UK) Limited

Respondent

Procedural Posture

Interim Application for Mandatory Injunction Under Competition Law / Interlocutory (interim Relief Sought Pending Trial)

Legal Issues

  1. 1 Whether T-Mobile's refusal to activate Truphone's allocated numbers constitutes an abuse of dominant position under section 18 of the Competition Act 1998
  2. 2 Whether interim mandatory orders should be granted to require T-Mobile to activate Truphone's numbers pending trial
  3. 3 Whether damages would be an adequate remedy for Truphone if interim relief is refused

Ratio Decidendi

The Court found that Truphone has a seriously arguable case that T-Mobile's refusal to activate its allocated numbers may constitute an abuse of dominant position, and that damages would not be an adequate remedy for Truphone due to the risk of destruction of its business and the time-critical nature of market entry. The balance of convenience favoured granting interim mandatory orders, as the risk of injustice to Truphone outweighed the risk to T-Mobile, especially since all other MNOs had activated Truphone's numbers and T-Mobile's concerns could be addressed by a cross-undertaking in damages.

Court Disposition

Interim mandatory injunction granted

Orders

  • T-Mobile to open Truphone's allocated number range on its systems by 0001 hrs Monday 23 July 2007.
  • T-Mobile to pay Truphone termination rates as specified in the letter dated 13 June 2007 (Day: 0.3536 pence; Evening: 0.1619 pence; Weekend: 0.1275 pence) unless and until Ofcom or the Court determines otherwise.