[2025] EWHC 1160 (TCC)

EE makes the point that if it was open to Avanti to terminate its services simply by not accepting any particular PO (which is its case) it means that EE would not have time to migrate properly to another supplier and it would be at significant cost, in circumstances where there were no provisions for any such transition which would bind Avanti.

As to that, Avanti’s evidence is that EE already owns the core network equipment on the ground, which the satellite services used to operate and the cost of redeploying that equipment would be modest in the course of what is now the First or Second EE-HO Contracts. Further, moving to different satellite operators is common in the market and there are many examples of migration from other operators such as Eutelsat and Intelsat, to Avanti (and vice versa). See paragraphs 61.1 and 61.2 of RT1.

This is not specifically responded to in LP2 but at paragraph 51 - 52 thereof, Mr Pardey says that although a new supplier has now been found, it would take at least three months to migrate the services to it although for the purpose of maintaining 999 services there could be a shorter timescale of 25 days. Such a period, however, would present risks and would be completely out of normal practice. A three month period would involve circumventing some best practice requirements (said to involve a 6-9 month period) and there could be delay factors. These points are made essentially in connection with the balance of convenience arguments that arise here but they are relevant when one considers the commerciality of a position whereby Avanti could effectively terminate its services by refusing to accept any further POs.

I can see the force of this submission but in my view it is weakened by the fact that in reality (as indeed one can see from the commencement of negotiations in May 2023) it was open to EE to put a time limit on the negotiations and thereby allow itself to effect a migration during the currency of an existing PO. Instead, EE decided to let the position of uncertainty going forward (because the pricing terms ran out in December 2023) continue throughout 2024.

It is true that at paragraph 37.1 of LP2, Mr Pardey says that the migration of services to a new satellite supplier would not have been possible while the migration to HYLAS 4 was ongoing in 2024 because all of BT’s design resources were engaged with that migration and there needed to be a stable static environment. The very earliest that any new supply activity could have occurred would have been on 15 April 2024 after completion of primary cell site migrations. I see that, but it is a limited point, since Mr Pardey agrees that there could have been a migration to an alternative supplier as from 15 April 2024. But more fundamentally, as Mr Parker KC pointed out in argument, there was nothing to stop EE from organising its POs in such a way as to give it time to find an alternative supplier if Avanti was not prepared to agree a further PO. After all, PO1 was for a period of 4.5 years and EE could have initiated discussions about the next PO during the period of PO1 and allow itself to switch supplier if Avanti was not prepared to make a commitment for the next PO. As he put it, all they needed to do was issue the next PO in sufficient time before the existing PO expired to enable them to arrange an alternative. In those circumstances, looking back at 2023, they may have decided not to agree a full migration to HYLAS 4 if that would cause logistical problems. So I do not accept that the fact that Avanti could terminate its services by declining to accept a particular PO means that the primacy given to Clause 2.3 of the GSA referred to above is in any way commercially absurd.