About this case:

• Citation:
  [2025] IEHC 66
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Denis McDonald

Delivering judgment for the High Court, Mr Justice Denis McDonald found that certain of Virgin Media’s ‘save’ activities acted as a disincentive to customers to switching providers in contravention of regulation 25(6)(b) of the the European Communities (Electronic Communications Networks and Services) (Universal Service and Users Rights) Regulations 2011.

Background

The applicant, ComReg, became concerned that Virgin Media’s call-handling agents were engaging in extensive “save activity” in the course of calls concerning the cancellation of customer contracts, and with Virgin Media’s requirement for customers to give 30 days’ notice of cancellation even where their minimum contract term had expired.

ComReg requested information from Virgin Media as to its notice requirement and the save activity, eventually issuing notifications of non-compliance under regulation 31(2) of the European Communities (Electronic Communications Networks and Services) (Universal Service and Users Rights) Regulations 2011 (S.I. No. 337 of 2011).

ComReg found inter alia that Virgin Media failed to comply with regulation 25(6)(b) of the Regulations, requiring, without prejudice to any minimum contractual period which may apply, electronic communications service providers to ensure that their procedures and conditions of contract termination do not disincentivise a consumer from changing service provider.

Subsequently, ComReg issued an opinion asserting inter alia that Virgin Media’s save activity procedures presented an obstacle to switching where there was no direct method for a consumer to switch and where customers who called to cancel were actually provided with a better offer, and that this conclusion was borne out by the statistics, with approximately 76 per cent of customers who called Virgin Media to cancel failing to proceed with cancellation.

In September 2022, ComReg issued proceedings pursuant to regulation 31(5) of the Regulations seeking inter alia a declaration that Virgin Media had not complied with its obligations under regulation 25(6)(b) due to its save activity and its imposition of a 30-day notice requirement where the minimum term of the contract had expired.

ComReg also sought an order directing Virgin Media to undertake steps including the implementation of a “two-step” process where it would not provide information about its services or offers unless it firstly explicitly offers a choice to its customers to proceed directly to cancellation, and having done so, it could then seek the consent of the customer to give further information about its products and services.

The High Court

Mr Justice McDonald noted that ComReg’s application was the first made to the High Court under regulation 31, and considered that the correct approach to be taken was for ComReg to bear the burden of satisfying the court, on the balance of probabilities, that there was non-compliance with an obligation imposed by the Regulations.

The court did not accept that it should proceed on the basis of ComReg’s findings, unless those findings had been accepted by Virgin Media, and found that ComReg had not identified a sufficient legal basis for its contention that the court should accord curial deference to its findings or views.

As to the legal test to be applied under regulation 25(6)(b), Mr Justice McDonald had regard to the guidance of the Competition Appeal Tribunal in Virgin Media v. Office of Communications [2020] CAT 5 as to the interpretation of the words “conditions”, “procedures” and “disincentive”.

Having considered the evidence, the High Court considered that the procedures operated by Virgin Media for contract termination acted as a disincentive to customers who wished to change to a rival service provider and so it was appropriate to grant the first relief sought by ComReg, a declaration that Virgin Media did not comply with its obligations under regulation 25(6)(b) of the Regulations.

In this regard, the court also stressed that where Virgin Media agents telephone a customer who has given written notice of termination, if save activity is to be attempted on those calls agents should be instructed to cease such activity where it is clear that the customer wishes to proceed with cancellation.

Turning to consider whether Virgin Media should implement the two-step process suggested by ComReg, the court determined that in circumstances where the process would apply where a customer contacts Virgin Media seeking to cancel their service or seeking information about cancellation procedures, the proposed order went too far.

Mr Justice McDonald reasoned that, amongst other issues, the order sought “has the potential to undermine the bargaining position of those customers who wish to use the threat or prospect of cancellation as a negotiating tool” and that “some may feel under pressure to opt to proceed directly to cancellation even though that was not their original intention”.

The judge also emphasised that the order sought could result in cancellation where a technical issue that could be resolved is the reason for cancellation, noting that it “would have the potential to prevent any exploration of whether the technical issue could be fixed even where the customer would have been very happy to hear about it, had they known a fix was available”.

Nonetheless, Mr Justice McDonald considered that Virgin Media did need to change its procedures and that a significant factor underlying his findings of fact was “the lack of any instruction in Virgin Media’s training manuals and materials to cease save activity once customers make it clear that they are intent on cancelling”.

Additionally, the court found that it would not be appropriate to consider whether Virgin Media should provide training to its agents to ensure that no unverified or inaccurate criticisms are made in respect of rival service providers where there was nothing of substance in ComReg’s opinion on this issue.

As to ComReg’s assertion that the 30-day notice requirement amounted to a condition for contract termination acting as a disincentive to Virgin Media customers to changing service provider, the court determined that insufficient evidence was adduced to establish a breach on this ground.

In that regard, Mr Justice McDonald highlighted that “this is not a finding that a 30-day notice requirement is legally valid in the context of switching. It is simply a finding that, on the evidence presented in this case, ComReg has not succeeded in establishing that such a requirement acts a disincentive to switching service providers.”

Conclusion

Accordingly, the High Court indicated that it would make the declaration sought and that it would make an order requiring Virgin Media to take steps (including amending its training materials) to ensure that all of its agents are trained to give effect to a customer’s wish to cancel their service once it is clear that this is the customer’s intention, inviting the parties to liaise in terms of the precise order to be made.

Commission for Communications Regulations v Virgin Media Ireland Limited [2025] IEHC 66