The Court of Appeal has dismissed an application by Motorola to appeal the decision of the Competition and Markets Authority (“CMA”) set out in its Final Report on “Mobile radio network services” dated 5 April 2023 (the “CMA Decision”).
As noted below, the Court's decision is a helpful step forward for the collective action being brought by the proposed class representative, Ms Spottiswoode, to recover damages from Motorola for excessive prices charged to its customers for the emergency services "Airwave Network".
If your agency or entity has been negatively impacted by Motorola's excessive pricing, you do not presently need to do anything. The collective action brought by Ms Spottiswoode seeks to be certified on an opt-out basis, which means that if it is successful, your agency or entity will automatically be included in the class and qualify for any damages that are recovered as a result.
Overview of the appeal
The CMA Decision that the Court of Appeal declined permission to appeal relates to the supply of mobile communications network services for the emergency services under the “Airwave Network”. These critical communications services are used by police, fire, ambulance and other public safety organisations across Great Britain.
Following a market investigation under the Enterprise Act 2002, the CMA found that during the period following the expiration of the original term of the PFI Agreement under which the services were provided, there were features of the relevant market which caused an “adverse effect on competition”. This led to Motorola being able to earn “supernormal” profits in comparison to those it could have earned in a competitive market and amounting to around £1.27 billion in the period 2020-2029, unless remedied. Whilst the CMA imposed a charge control order that applied from 1 August 2023, saving Motorola’s customers around £200 million a year for charges going forward. this did not compensate customers for excess prices already paid between 2020-2023. The purposes of this collective action is to recover those charges for Airwave customers by way of damages.
Motorola had already tried to challenge the CMA Decision in the first instance tribunal, the CAT, which rejected all of its arguments. Motorola then attempted a further appeal to the Court of Appeal. This challenge was heard on 11 November 2024, when procedural and substantive arguments were considered by the Court of Appeal in a full oral hearing.
Motorola's arguments were comprehensively dismissed by the Court of Appeal. In particular, the Court of Appeal was not persuaded that the CMA's assessment and findings as to Motorola's excess profitability should be overturned. As a result, the legal and economic basis for the remedies imposed by the CMA upon Motorola in respect of Airwave continue to apply.
What does this mean for the collective class action?
First, the Court of Appeal has refused permission to appeal, thereby preventing a further attempt to appeal to the UK Supreme Court. That means the CMA Decision is final and its findings cannot be re-litigated. As such it is open to the CAT to take those findings into account, as appropriate, for the purposes of the collective action that Ms Spottiswoode proposes to bring in these proceedings.
Second, subject to the CMA’s review in 2026, the charge control will continue in place until 2029. This means class members will be entitled to lower charges going forward (and a rebate for any payments made in full plus interest since 1 August 2023). However, as noted above, the CMA's charge control order does not compensate customers in respect of the period before the charge control order came into effect in 2023. Accordingly, the collective action, once certified, seeks to recover the excess charged for the period from 1 January 2020 through to 31 July 2023 (inclusive) (plus interest).
Third, the Court of Appeal judgment reinforces Ms Spottiswoode’s arguments that there is a serious issue to be tried and that her claim should be certified.
Further updates on the progress of the collective action will be posted on these pages.
Airwave Solutions Limited and others v Competition and Markets Authority [2025] EWCA Civ 54