Brian Kennelly

Called to Bar:
1999 (Eng/Wales); 2008 (Ire)
Practice areas:
Degrees:
MA (Cantab), Licence spéciale en droit européen (Brux.), (Scholarship: Queen Mother Scholar, Middle Temple)
Languages:
French and Irish (fluent)

Brian Kennelly is recognised by both of the leading independent legal directories:

Chambers UK 2014

  • Administrative & Public Law – “He is very good on his feet, and his work is persuasive and intelligent." ... "He is an absolute joy to work with.”
  • Competition - Top ranked. “A future star - he can hold his own and is a very considered, careful advocate.” … “He's a very strong listener.”
  • European Law Top ranked. “He is outstanding." ... "He's very bright and user-friendly.”
  • Sport – “He is bright, a great advocate and extremely user-friendly.”
  • Telecommunications – Top ranked. “He is a trusted adviser and a good opinion-maker who will tell us when we go wrong.”

Legal 500 2013

  • Administrative & Public Law – Top ranked, “thoughtful, concise and reliable”
  • EU & Competition – Top ranked.
  • Media, Entertainment & Sport – “clear, sound advice”
  • Telecommunications – Top ranked.

Chambers UK Top Junior Bar 100 

In December 2013, Brian was ranked as one of Chambers UK’s Top Junior Bar 100, in their inaugural listing of the top barristers practising at the Bar of England & Wales. “An absolute joy to work with," he is "very intelligent and highly persuasive".

Brian was listed in “The World’s 20 Most Influential Sports Lawyers” in SportBusiness International and World Sports Law Report magazine in 2009. Brian was named as a leading EU & Competition law barrister in The Lawyer “Top 100” in 2008. 

Professional Experience

Brian appears regularly in the Court of Justice and the General Court of the EU, the Competition Appeal Tribunal, the High Court, the Court of Appeal and the Irish High Court. In 2000/2001, Brian was seconded to the Legal Service of the European Commission, Competition law team and then to the cabinet of Advocate General Francis Jacobs at the ECJ.

Appointments: 

  • Appointed to the Sports Advocacy Section of the London 2012 Olympic and Paralympic Pro Bono Legal Advice and Representation Service.
  • Brian is a member of the Attorney-General’s 'A' Panel.

Membership of Professional Bodies:

  • Bar European Group
  • Justice
  • Liberty
  • ALBA
  • COMBAR

EU and Competition

Competition law

Brian has appeared in many of the leading EU and domestic competition  cases in recent years: in the EU courts; Ranbaxy (Lundbeck – citalopram), Deutsche Bahn, Schenker (Freight forwarding cartel), Sanitec/Keramag and Masco (bathroom fittings cartel); Ryanair/ATT (State aid); , in the domestic courts; Visa, LIBOR, Copper Fittings, Industrial Bags, Paraffin Wax, Car Glass, Marine Hose, Vitamins (private damages actions) Tobacco (object infringements), Ryanair/Aer Lingus, Universal/EMI (mergers) Devenish v Sanofi-Aventis (remedies in private damages actions), National Grid (abuse of dominance) and Provimi v Aventis (jurisdiction). Brian has particular expertise in private damages actions.

EU law

Brian has appeared in many of the leading non-competition EU cases in recent years: in the EU courts; AbbeVie, CF Kreussler, Lyocentre (pharmaceuticals) Ezz (sanctions), Biocides Products (legal base), Alarape and Tijani, St Prix, Franzen (citizenship), Prism, Antonio Gramsci, Profit Investment SIM (Reg 44/2001), Churchill Insurance (motor insurance), and in the domestic courts: Sinclair Collis (proportionality), Churchill/Evans (Marleasing), Sanchez, Ahmend N (Zambrano and citizenship), Garland (social security).

Current and recent work

Competition law

Antitrust

  • Case T-460/13 Ranbaxy v Commission (2013/2014 pending)
    Brian is acting for the generic pharmaceutical manufacturer challenging the EU Commission’s finding that a settlement agreement in patent infringement proceedings breached Article 101 TFEU.
  • Cases T-265, 267/12, Deutsche Bahn, Schenker and others v Commission (2013/2014 pending)
    Brian is acting for the EU Commission in appeals to the General Court by freight forwarders challenging findings of global price fixing and fines totalling €169 million.
  • Cases T-379/10, T-381/10,  Sanitec, Keramag and others v Commission (judgment 16 September 2013)
    Brian appeared for the EU Commission in appeals to the General Court, successfully resisting a challenge by bathroom fittings manufacturers to findings of global price fixing and fines totalling €622 million.
  • Case T-378/10 Masco v Commission (judgment of 16 September 2013)
    Brian appeared for the EU Commission in successfully resisting an appeal to the General Court by a parent of companies found to have engaged in a global cartel. This is also a leading judgment on the issue of single and continuous infringement.
  • Digicel and LIME v Telecommunications Regulatory Commission (Virgin Islands) (2014, pending)
    Brian acted for the regulator in this major margin squeeze case in the Caribbean.
  • Cable & Wireless v Communications Commission of the Isle of Man (2013)
    Brian acted for the complainant in this dispute with the Isle of Man CC regarding its failure to prevent an anti-competitive margin squeeze.
  • EU Commission’s investigation of Apple Inc (distribution agreements) (2014, pending)
    Brian has advised a major telecoms operator in relation to this investigation.
  • Shell UK Ltd v OFT [2012] Comp AR 61
    Brian acted for Shell in its successful challenge to the OFT’s finding that it participated in price-fixing in the market for tobacco products contrary to domestic and EU law.
  • Leyton Orient FC v Football Association Premier League (2012)
    Brian acted for the FAPL in resisting Leyton Orient’s claim that it breached competition law in allowing West Ham or Tottenham Hotspur to move to the Olympic Stadium (which is very close to its existing ground).

Mergers

  • Ryanair/Aer Lingus
    Brian has advised and acted for Ryanair since 2011 in this major case involving the OFT and Competition Commission’s investigation into the airline’s minority stake in Aer Lingus. It has involved three substantive appeals to the CAT and three appeals to the Court of Appeal. Brian is acting for Ryanair in its challenge to the CC’s final decision (2014, pending).
  • Universal/EMI Group (2013/2014)
    Brian is acting for companies affected by the divestiture remedies agreed by the parties to this merger.
  • Mobile Wallet Joint Venture (2012)
    Brian acted for Three in its complaint to the EU Commission regarding the mobile payment joint venture between the other UK mobile operators – triggering a Phase II investigation.

Competition damages actions

  • New Look Retailers and ors v Visa Inc and ors (2014, pending)
    Brian is acting for the defendants in this major Commercial Court claim for damages arising out alleged anti-competitive behaviour which the EU Commission had investigated but where no infringement decision was taken.
  • WH Newson v IMI plc, Comap SA (2014, pending)
    Brian is acting for a defendant in this major Chancery Division claim for damages arising out the EU Commission’s copper fittings cartel decision.
  • LIBOR
    Brian is advising in relation to claims arising from the manner in which this benchmark rate was agreed (2014, pending).
  • Bord na Móna v Bischof + Klein (2013/2014, pending)
    Brian is acting for the defendant in this claim for damages arising from the Industrial Bags cartel decision of the EU Commission.
  • Waha Oil Company v Dunlop Oil and Marine Ltd (2012, settled)
    Brian acted for the defendant in this claim for damages arising from the Marine Hose cartel decision of the EU Commission.
  • Sintesi e Ricerca v Royal Dutch Shell (2013, settled)
    Brian acted for the defendant in this claim for damages arising from the Paraffin Wax cartel decision of the EU Commission.
  • Major metal-related arbitration (2013, pending)
    Brian is acting for defendants in a major competition law damages claim raised in an arbitration.

State aid

  • Case T-500/12 Ryanair v Commission (2014, pending)
    Brian is acting for Ryanair in its challenge against the State aid decision in respect of Ireland’s Air Travel Tax (ATT).
  • Minister of Finance and ors v Ryanair and ors (Irish High Court, 2014, pending)
    Brian is acting for Ryanair in resisting the State’s claim for repayment of the ATT found to be a State aid on the grounds of a set off and Francovich counterclaim.
  • 4G spectrum (2013)
    Brian advised a major telecoms operator in relation to State aid issues arising from the “refarm” of existing 2G spectrum holdings for 4G use.
  • Export Credit Guarantee Department (2012)
    Brian has advised the ECGD in relation to State aid compliance on a number of occasions.
  • Greater Manchester Waste Disposal Authority (2013)
    Brian has advised the GMWDA in relation to State aid compliance on a number of occasions.
  • London Olympic Stadium (2012)
    Brian acted for the FAPL in its intervention in Tottenham Hotspur’s High Court State aid challenge in relation to West Ham’s use of the stadium.

EU law

Legal base

  • Case C-427/12 Commission v Parliament and Council (2013/2014, pending).
    Brian acted for the UK in resisting the challenge to the Biocides Products Regulation. In substance the case will determine an important question on the balance of power in the EU between the Commission and the Member States.

Sanctions

  • Brian regularly advises companies and individuals in relation to compliance with the EU and OFAC sanctions regimes, particularly with regard to Iran.
  • Case T-279/13 Ezz v Council (2014, pending)
    Brian is acting for Mr Ezz and his wives in this second application to unfreeze their assets, against the Council acting at the prompting of the Egyptian government.
  • Case T-256/11 Ezz v Council (2014, pending)
    Brian appeared before the General Court for Mr Ezz and his wives whose assets have been frozen by the EU because of an alleged misappropriate of Egyptian State funds in conjunction with the Mubarak regime.
  • Case C-585/13 P Europäisch Iranische Handelsbank AG v Council (2014, pending)
    Brian has advised in relation to the bank’s efforts to be removed from the list of those undertakings subject to restrictions intended to prevent nuclear proliferation in Iran.
  • Case T-145/09 Bredenkamp and Others v Commission (order, 6 September 2012)
    Brian advised the applicant in relation to the asset freeze imposed on him because of alleged links with the Mugabe regime.

Citizenship and social security

  • Case C-529/11 Alarape and Tijani [2013] 1 WLR 2883
    Brian acted for the UK in this case about derived rights of carers and the scope of Baumbast.
  • Case C-507/12 St Prix (2014, pending)
    Brian acted for the UK in this case about the citizenship right to reside of a woman who gives up her job in order to have and care for her child.
  • Case C-382/13 Franzen (2014, pending)
    Brian acted for the UK in these cases about the right to benefits of a person who works for short periods in a neighbouring Member State.
  • Case C-403/13 Kelly (2013, settled)
    Brian acted for the UK in this reference from the Irish High Court about the right to benefits of a person who works for short periods in a neighbouring Member State.
  • Case C-680/11 Anita Chieza (2013, settled)
    Brian acted for the UK in this reference relating to the extent to which UK retirement benefit rules comply with EU social security law.
  • Sanchez v King’s College Hospital Trust, SSHD (2014, pending)
    Brian is acting for the SSHD in this appeal relating to the scope of the Zambrano right.
  • Ahmed N v Secretary of State for the Home Department (2014, pending)
    Brian is acting for the SSHD in this appeal relating to the scope of the Zambrano right.
  • Garland v Secretary of State for Work and Pensions (2014, pending)
    Brian is acting for the SSWP in this appeal relating to EU social security requirements.

Jurisdiction and judgments: Reg. 44/2001

  • Case C-366/13 Profit Investments SIM (2014, pending)
    Brian is acting for the UK in this important case relating to the requirements of Arts 5(1), 6(1) and 23.
  • Case C-350/13 Antonio Gramsci Shipping (2014, pending)
    Brian is acting for the UK in this case relating to the circumstances in which a court may refuse to recognise a judgment on public policy grounds.
  • Case C-139/10 Prism Investments [2011] ECR I-9511
    Brian acted for the UK in this case relating to the circumstances in which a court may refuse to enforce a judgment on public policy grounds.

Pharmaceuticals

  • Case T-44/13 AbbVie v European Medical Agency (2014, pending)
    Brian is acting in this major case about transparency within the EMA and clinical trials information on behalf of the British Medical Association.
  • Case C-308/11 Chemische Fabrik Kreussler & Co GmbH (6 September 2012)
    Brian acted for the UK in this reference relating to the extent to which national authorities may have regard to Commission guidance on medical devices in determining whether a medicinal product has a pharmacological action.
  • Case C-109/12 Laboratoires Lyocentre (3 October 2013).
    Brian acted for the UK (successfully) in this leading case on the regulation of medical devices and medicinal products in EU law.

Broadcasting

  • EU broadcast listed events
    Brian has advised DCMS in relation to threatened EU Commission infraction proceedings.
  • AVMS Directive advertising restrictions
    Brian has advised Scandanavian broadcasters in relation to these issues
  • Case T-55/08 UEFA, FIFA v Commission [2011] ECR II-271
    Brian acted for the UK in resisting successfully FIFA and UEFA’s challenge to the decision to list the entire World Cup and European Championships as events of national importance and therefore free to view.

Internal market

  • Churchill Insurance Co. Ltd. v Wilkinson (Supreme Court, 2014, pending)
    Brian will appear for the Secretary of State in defending the Court of Appeal’s reading of the domestic motor insurance rules as compatible with EU law.
  • Case C-435/11 CHS Tour Services (19 September 2013)
    Brian acted for the UK in this reference relating to unfair commercial practices and consumer protection.
  • Tobacco Plain Packs requirement (2014, pending)
    Brian is advising a major tobacco manufacturer regarding the proposed plain packs rule in Ireland.
  • PISC/PETA v European Chemicals Agency (2014, pending)
    Brian is acting for the animal rights bodies before the European Ombudsman challenging the Agency’s approach to EU rules which seek to minimise animal testing.
  • R(Imperial Tobacco) v Secretary of State for Health (2012)
    Brian acted for a tobacco company challenging the ban on display of tobacco products in shops in the UK on the basis that it contravened EU free movement rules and the ECHR.
  • Case C-16/10 The Number (UK) Ltd v Ofcom and BT plc [2011] ECR I-691
    Brian acted for the applicant in this reference from the Court of Appeal relating to scope of the Universal Service Directive in telecommunications.
  • R (Sinclair Collis Ltd) v Secretary of State for Health [2011] 3 CMLR 37
    Brian acted for a vending machine supplier before the Court of Appeal challenging the Government’s decision to ban tobacco vending machines on the basis that it contravenes EU free movement rules and the ECHR.

Francovich damages actions

  • Delaney v Secretary of State for Transport (2014, pending)
    Brian acting for the defendant in resisting this claim arising from an alleged breach of the EU motor insurance rules.
  • Ryanair v Revenue Commissioners and Minister for Finance (2014, pending)
    Brian is acting for the claimant in this claim arising from the Irish Government’s decision to impose a discriminatory tax on airlines. Discovery has been ordered against the defendants.

Other cases

Competition law

  • National Grid v Gas and Electricity Markets Authority [2010] EWCA Civ 114; [2010] UKCLR 386 
  • Provimi v Aventis
  • BCL v Aventis
  • Devenish Nutrition Ltd v Sanofi-Aventis SA & Ors [2009] 3 WLR 198 (Court of Appeal)
  • Hutchinson 3G UK Ltd v O2 Ltd & Ors [2008] All ER (D) 80 

EU law

  • Case T-121/09 Al Shanfari v Council and Commission (order, 13 July 2010)
  • Case C-58/08 R(Vodafone and ors) v Secretary of State for Business Enterprise and Regulatory Reform [2010] ECR I-4999

Public Law and Human Rights

Brian appears for and advises claimants and defendants, including individuals, businesses, government departments and agencies, local authorities and public interest groups in public law cases. Brian has also advised tribunals and government agencies in Ireland, the Virgin Islands, Hong Kong and the Cayman Islands. Brian is a member of the Attorney General’s 'A' Panel.

In judicial review, Brian has a particular expertise in the EU, competition and regulatory fields including Competition Commission investigation cases, utilities regulation and pharmaceuticals.

In human rights, Brian has acted for applicants before the European Court of Human Rights and the General Court of the EU and advised the UK media on ensuring press freedom in EU choice of law legislation (“Rome II”). Brian is currently acting for a number of individuals and companies whose assets have been frozen under EU anti-terrorist legislation.

Current and recent work

  • R(Europäisch Iranische Handelsbank) v HM Treasury (2013/2014)
    Brian is acting for the bank in its challenge to the UK’s decision to propose it for sanctions designation.
  • R(Ahmed Ezz and ors) v HM Treasury (2013/2014)
    Brian is acting for individuals whose assets have been frozen pursuant to EU sanctions in their challenge to the UK implementation of those measures.
  • Brian is currently (2014) advising individuals whose assets have been frozen in the UK pursuant to EU measures designed to assist the new Egyptian government recover monies allegedly wrongfully removed under the previous regime.
  • International Committee of the Red Cross and the proposed EU data protection regulation
    Brian is advising the ICRC in relation to this proposed EU legislation, which threatens the ICRC’s rights under international human rights and humanitarian law.
  • R(Digicel and LIME) v Telecommunications Regulatory Commission (Virgin Islands) (2014, pending)
    Brian is acting for the regulator opposing the operators’ judicial reviews of decisions taken to stop anti-competitive conduct.
  • R(Cable & Wireless) v Communications Commission of the Isle of Man (2013)
    Brian acted for the complainant in this judicial review against the Isle of Man CC regarding its failure to prevent an anti-competitive margin squeeze.
  • Ryanair v Competition Commission (2014, pending)
    Brian is acting for the airline in its judicial review of the CC’s decision ordering divestment of its shares in Aer Lingus.
  • Gibraltar betting (2014, pending)
    Brian is advising betting operators based in Gibraltar in relation to various restrictive measures under consideration by HM Treasury. 
  • BT plc v Competition Commission [2013] EWCA Civ 154
    Brian acted for an intervener in BT’s judicial review of the CC’s decision regarding mobile termination rates.
  • R(Barco de Vapor) v Thanet DC [2012] EWHC 3429
    Brian acted for the RSPCA in opposing interim relief for the live animal exporters seeking to overturn restrictions imposed by the port of Ramsgate.
  • R (Leyton Orient Football Club Ltd) v Secretary of State for Culture, Media and Sport and ors (2012)
    Brian acted for the Football Association Premier League in its intervention in Leyton’s challenge to the Government’s decision to allow and approve West Ham’s move to the Olympic Stadium.
  • R (Imperial Tobacco) v Secretary of State for Health (2012)
    Brian acted for a cigarette manufacturer challenging the Government’s decision to ban the display of tobacco products on the basis that it contravenes EU free movement rules and the ECHR.
  • R(Sinclair Collis Ltd) v Secretary of State for Health [2011] 3 CMLR 37
    Brian acted in the Court of Appeal for a vending machine supplier challenging the Government’s decision to ban tobacco vending machines on the basis that it contravened EU free movement rules and the ECHR.

Other cases

  • R(ICO Satellite Ltd) v Ofcom [2011] EWCA Civ 1121
  • R(ABS Financial Planning Ltd) v Financial Services Compensation Scheme [2011]  EWHC 18 (Admin)
  • Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] 2 CMLR 32
  • Case C-58/08 R(Vodafone and ors) v Secretary of State for Business Enterprise and Regulatory Reform (8 June 2010)
  • R(Al Shanfari) v Secretary of State for Foreign and Commonwealth Affairs (2010) 
  • Times Newspapers Ltd v United Kingdom [2009] EMLR 14 (European Court of Human Rights)
  • R(Eisai Ltd) v National Institute of Health and Clinical Excellence [2008] Times Law Reports, 7 May (Court of Appeal)
  • AES Kilroot v NIAUR (Utility Regulator) [2008] NIQB 62
  • University of Oxford v Broughton and others [2008] EWHC 75 (QB)

Commercial

Civil Fraud

Brian has substantial experience in the Commercial Court and the Chancery Division. Brian has a particular interest in arbitrations, fraud and injunctive work and has acted for claimants and defendants in several recent major cases in England and overseas.

Current and recent work

Civil Fraud

  • Sukhoruchkin v Van Bekestein [2013] EWHC 1993 (2014, pending)
    Brian is acting for a Cayman fund in a major fraud case involving complex issues of reflective loss and jurisdiction.
  • Major metal-related LCIA arbitration (2014, pending)
    Brian is acting for defendants in a multi-billion dollar commercial arbitration.
  • Antonio Gramsci Shipping (2014, pending)
    Brian is acting for the UK in this EU case relating to the scope of undertakings protecting defendants in freezing orders.
  • New Look Retailers and ors v Visa Inc and ors (2014, pending)
    Brian is acting for the defendants in this major Commercial Court claim for damages arising out alleged anti-competitive behaviour. 
  • WH Newson v IMI plc, Comap SA (2014, pending)
    Brian is acting for a defendant in this major Chancery Division claim for damages arising out the EU Commission’s copper fittings cartel decision.
  • Bord na Móna v Bischof + Klein (2013/2014, pending)
    Brian is acting for the defendant in this Commercial Court claim for damages arising from the Industrial Bags cartel decision of the EU Commission.
  • Madoff Securities International Ltd and Bernard L. Madoff Investment Securities LLC and ors v Dale and ors (2013)
    Brian acted for the former Finance Director of Bernard Madoff’s UK operation in resisting the claims by the trustee of Mr Madoff’s US businesses for recovery of all of the sums which Mr Madoff obtained by fraud.
  • Ahmad Hamad Algosaibi and Brothers v Maan al-Sanea (2013).
    Brian acted for the defendant in this major fraud case in the Cayman Islands arising from the alleged misappropriation of several billion dollars from a Saudi conglomerate.

Other cases

  • Group Lotus plc v 1MRT and ors [2011] EWHC 1366 (Ch)
  • Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156
  • Re Bloomsbury International Ltd [2010] EWHC 1150 (Ch) 
  • Devenish Nutrition Ltd v Sanofi-Aventis SA & Ors [2009] 3 WLR 198 (Court of Appeal)
  • Hutchinson 3G UK Ltd v O2 Ltd & Ors [2008] All ER (D) 80

Banking and Financial Services

Brian has a particular interest in financial services and has advised claimants and defendants in mis-selling cases, money laundering, pensions transfers and futures and options trading cases. Brian advised in relation to a major class action arising from the demise of Equitable Life. Brian acted for a leading international group of oil traders in an FCA and US CFTC investigation.

Current and recent work

  • Profit Investments SIM (2014, pending)
    Brian is acting for the UK in this important EU case relating to jurisdiction agreements in credit linked notes and bonds generally.
  • Collective investment scheme disputes (2013/2014)
    Brian has advised extensively on these issues and represented clients before the FCA and the Tribunal.
  • FSCS
    Brian regularly acts for and advises the Financial Services Compensation Scheme.
  • LIBOR (2014, pending)
    Brian is acting for investors in their claims relating to losses suffered on products using this benchmark rate.
  • Report of the Independent Commission on Banking (“Vickers Report”)(2012)
    Brian advised a major UK bank on the implications of the Government’s decision, in light of the financial crisis, to ring-fence retail from investment arms of banks.
  • Brian assisted the defendant banks in a major US financial services case arising from the operation of collective investment schemes in the UK: Wells Fargo & Co. v United States of America.
  • R(ABS Financial Planning) v Financial Services Compensation Scheme Ltd [2011] EWHC 18 (Admin)
    Brian acted for the FSCS in resisting successfully this challenge to a levy imposition under the financial services compensation scheme. The case raised the important question of whether the FSCS is under a duty to consult in respect of proposed levy.
  • Nortel Pension Fund (2011)
    Brian advised the Pension Protection Fund as to the status in an insolvency of a financial support direction from the Pensions Regulator.
  • Anderson Ross Group v Financial Services Commission; Financial Services Review Panel (2011, pending)
    Brian is acting for the accountancy firm in this financial services judicial review in Mauritius which arises from a complex international mortgage fraud in which the firm is allegedly implicated.

Other cases

  • R(on the Application of Kaupthing Bank Hf) v HM Treasury (2010)
    Kaupthing Singer & Friedlander (Isle of Man)
  • Bankas Snoras
  • IG Markets v Taaffe
  • LIFFE v Molenbergnatie
  • Phoenix/MG Rover
  • FSA/US CFTC investigation into Vitol Oil Traders
  • Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR

Sport

Brian regularly appears before football and rugby arbitral tribunals and before the Court of Arbitration of Sport (CAS), as well as the Court of Appeal and the Court of Justice and General Court of the EU in sports cases. Brian was appointed to the Sports Advocacy Section of the London 2012 Olympic and Paralympic Pro Bono Legal Advice and Representation Service. Brian was listed in “The World’s 20 Most Influential Sports Lawyers” in SportBusiness International and World Sports Law Report magazine in 2009.

Current and recent work

  • FC Metalist v UEFA (2013)
    Brian acted for the Ukrainian club in its CAS appeal against exclusion for match-fixing from the Champions League play offs.
  • Fenerbache v TFF and UEFA (2013)
    Brian acted for the Turkish club in CAS in respect of its expulsion from the Champions League because of match fixing allegations.
  • Brian regularly acts for the FA in disputes with clubs.
  • Brian has advised the Football Conference on disputes with other leagues and commercial and competition matters.
  • Nike Olympics issues
    Brian assisted Nike in relation to its advertising and marketing before and during the London 2012 Games.
  • Leyton Orient Football Club Ltd v Football Association Premier League (2012)
    Brian acted for the FAPL in resisting Leyton Orient’s claim that it breached competition law in allowing West Ham or Tottenham Hotspur to move to the Olympic Stadium (which is very close to its existing ground).
  • Case T-55/08 UEFA, FIFA v Commission (17 February 2011, General Court of the EU)
    Brian acted for the UK in resisting successfully FIFA and UEFA’s challenge to the decision to list the entire World Cup and European Championships as events of national importance and therefore free to view on terrestrial television under EU law.
  • Group Lotus plc v 1MRT and ors [2011] EWHC 1366 (Ch)
    Brian acted for Lotus sports cars in this major dispute with the Team Lotus Formula 1 racing team relating to the rights to use the name “Lotus” in F1.
  • R (Leyton Orient Football Club Ltd) v Secretary of State for Culture, Media and Sport and ors (2011)
    Brian acted for the Football Association Premier League in its intervention in Leyton’s challenge to the Government’s decision to allow and approve West Ham’s move to the Olympic Stadium.
  • Brian is currently advising a poker website in relation to a very substantial damages claim, which gives rise to complex issues of jurisdiction and choice of law.
  • British Horseracing Authority/Tyrell (2011)
    Brian acted for the appellants in their challenge to a ban imposed for interfering with a horse race in the UK.

Other cases

  • Chelsea FC v Adrian Mutu (2010)
  • FIFA “6+5” Rule in football (2010)
  • FA dispute re new WADA “whereabouts” rules (2010)
  • Association of Rugby Agents v Premier Rugby Limited
  • Proposed Licensing System for the Rugby League Super League 2012-2014
  • British Horseracing Authority/Phelan (2010) 
  • District Government of Dusseldorf v Betfair (2009)
  • Betfair v Horserace Betting Levy Board (2009)
  • Football Players’ Agents’ Regulations (2007/2008)

Other relevant experience

Brian has a particular interest in betting and gaming and is currently advising Gibraltar based operators in relation to restrictions proposed by the UK Government. 

Telecommunications

Brian has appeared in many of the leading telecommunications cases in the UK in recent years, in the CAT, Court of Appeal and Court of Justice of the EU. Brian also acts for the telecommunications regulator of the Virgin Islands. Brian acts for regulators, operators and consumers and specialises in the overlap between telecommunications law and competition law.

Current and recent work

  • Spectrum annual licence fees (2014, pending)
    Brian is advising the mobile operator Three in relation to Ofcom’s proposals.
  • International Roaming (2014, pending)
    Brian has advised in relation to the EU Commission’s legislative proposals.
  • EU Commission Apple Inc investigation (2014, pending)
    Brian is advising a mobile operator in relation to this anti-trust investigation into Apple’s distribution practices.
  • Digicel and LIME v Telecommunications Regulatory Commission (Virgin Islands) (2014, pending)
    Brian is acting for the regulator in this major margin squeeze case in the Caribbean.
  • Cable & Wireless v Communications Commission of the Isle of Man (2013)
    Brian acted for the complainant in this dispute with the Isle of Man CC regarding its failure to prevent an anti-competitive margin squeeze.
  • Business Connectivity Market Review (2013/2014)
    Brian has advised in relation to Ofcom’s proposals in this area.
  • British Telecommunications plc v Ofcom (MCT) [2013] EWCA Civ 154
    Brian acted for the mobile operator Three in relation to its successful defence of Ofcom and the CC’s decisions in relation to wholesale Mobile Call Termination.
  • 4G Spectrum refarm and new spectrum auctions (2013)
    Brian advised Three in relation to the spectrum-related disputes arising from EE’s roll out of 4G services and the auctions of 4G spectrum.
  • Mobile Wallet Joint Venture (2012)
    Brian acted for Three in its complaint to the EU Commission regarding the mobile phone payment joint venture between the other UK mobile operators.
  • Case C-16/10 The Number (UK) Ltd v Ofcom and BT plc (17 February 2011)
    Brian acted for the applicant in this reference from the Court of Appeal relating to scope of the Universal Service Directive in telecommunications.
  • British Telecommunications plc v Ofcom (MCT) [2011] EWCA Civ 245
    Brian acted for the intervener in this important appeal relating to the right of an appellant to rely on material in the CAT not previously put to Ofcom in a dispute under s. 185 of the Communications Act 2003.
  • British Telecommunications plc v Ofcom (MCT) [2011] CAT 31
    Brian acted for the intervener in this appeal relating to the admissibility of materials before the Competition Commission in a price control.
  • Everything Everywhere Ltd v Ofcom (0845/0870) [2011] CAT 26
    Brian acted for the intervener in this appeal relating to the appropriate relief where the regulator’s decision had been set aside by the CAT.
  • British Telecommunications plc v Ofcom (080) [2011] CAT 15
    Brian acted for the intervener in this appeal relating to the ability of Ofcom to rule on disputes referred to it under the Communications Act.

Other cases

  • Case C-58/08 R(Vodafone and ors) v Secretary of State for Business Enterprise and Regulatory Reform (8 June 2010, Court of Justice of the EU)
  • Vodafone Ltd v British Telecommunications Plc [2010] EWCA Civ 391
  • British Telecommunications Plc v Ofcom [2010] CAT 17 
  • Ofcom v Floe Telecom Ltd [2009] EWCA Civ 47; [2009] UKCLR 659
  • Hutchison 3G UK Ltd  v Ofcom [2009] EWCA Civ 683
  • Hutchison 3G UK Ltd v Ofcom [2009] CAT 11
  • Vodafone Ltd v Ofcom [2008] CAT 22
  • Hutchison 3G UK Ltd v Ofcom [2008] CAT 10, [2007] CAT 33
  • Hutchison 3G UK Ltd v Ofcom [2008] CAT 5
  • Software Cellular Network Ltd v T-Mobile (UK) Ltd [2007] All ER (D) 314

Media and Entertainment

Brian has extensive experience in broadcasting litigation, particularly in the overlap between media/broadcasting law and EU law.

Current and recent work

  • Impala/Merlin (2013)
    Brian has advised independent music companies on competition issues arising from the Universal/EMI merger. 
  • EU broadcast listed events (2013/2014)
    Brian has advised DCMS in relation to threatened EU Commission infraction proceedings.
  • AVMS Directive advertising restrictions (2013)
    Brian has advised Scandanavian broadcasters in relation to these issues.
  • ASA restrictions on website advertising (2013/2014)
    Brian has advised a mobile operator in relation to a number of cases brought against it by the ASA.
  • Advising a prominent video streaming service in relation to the application of the AVMS Directive to a paid-for movies-on-demand service (2012).
  • Case T-55/08 UEFA, FIFA v Commission [2011] ECR II-271
    Brian acted for the UK in resisting successfully FIFA and UEFA’s challenge to the decision to list the entire World Cup and European Championships as events of national importance and therefore free to view.
  • R(ICO Satellite Ltd) v Ofcom [2011] EWCA Civ 1121
    Brian acted in the Court of Appeal for a major US satellite operator challenging Ofcom’s decision to request the International Telecommunications Union to cancel its right to use certain frequencies.

Other cases

  • University of Oxford v Broughton and others (2010/2011) 
  • Times Newspapers Ltd v United Kingdom [2009] EMLR 14 (European Court of Human Rights)
  • Channel 6 (2009)
  • BBC Trust/Freesat

Private International Law

Brian has extensive experience of conflicts of laws cases, and was involved in the pre-legislative consultation on “Rome II”.

Current and recent work

  • Case C-366/13 Profit Investments SIM (2014, pending)
    Brian is acting for the UK in this important CJEU case relating to the requirements of Arts 5(1), 6(1) and 23 of Reg. 44/2001.
  • Case C-350/13 Antonio Gramsci Shipping (2014, pending)
    Brian is acting for the UK in this CJEU case relating to the circumstances in which a court may refuse to recognise a judgment on public policy grounds.
  • Case C-139/10 Prism Investments [2011] ECR I-9511
    Brian acted for the UK in this CJEU case relating to the circumstances in which a court may refuse to enforce a judgment on public policy grounds.
  • Bord na Móna v Bischof + Klein (2013, pending)
    Brian is acting for the defendant in this competition damages case resisting jurisdiction under Arts. 5(3) and 6(1) of Reg. 44/2001.
  • Ahmad Hamad Algosaibi and Brothers v Maan al-Sanea (2013).
    Brian acted for the defendant in his jurisdiction challenge in this major fraud case in the Cayman Islands arising from the alleged misappropriation of several billion dollars from a Saudi conglomerate.
  • Sintesi e Ricerca v Royal Dutch Shell (2013)
    Brian acted for the defendant in this claim for damages arising from the Paraffin Wax cartel decision of the European Commission. The case gave rise to complex questions of jurisdiction and choice of law as the cartel members, relevant activities and victims are spread across several jurisdictions.

Other cases

  • Re Bloomsbury International Ltd [2010] EWHC 1150 (Ch) 
  • Provimi v Aventis SA.
  • Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR 51

Pharmaceuticals

Brian has extensive experience in appearing for and against the regulatory authorities in the UK and EU in all aspects of pharmaceuticals litigation, including licensing, health issues, parallel importation and economic assessments by NICE.

Current and recent work

  • Case T-460/13 Ranbaxy v Commission (2013/2014 pending)
    Brian is acting for the generic pharmaceutical manufacturer challenging the EU Commission’s finding that a settlement agreement in patent infringement proceedings breached Article 101 TFEU.
  • Case T-44/13 AbbVie v European Medical Agency (2014, pending)
    Brian is acting in this major case about transparency within the EMA and clinical trials information on behalf of the British Medical Association.
  • Case C-308/11 Chemische Fabrik Kreussler & Co GmbH (6 September 2012)
    Brian acted for the UK in this reference relating to the extent to which national authorities may have regard to Commission guidance on medical devices in determining whether a medicinal product has a pharmacological action.
  • Case C-109/12 Laboratoires Lyocentre (3 October 2013).
    Brian acted for the UK in this leading case on the regulation of medical devices and medicinal products in EU law.
  • Mercury Pharma/Shire v Department of Health (2013, pending)
    Brian is acting for the Department of Health in this appeal under the PPRS.
  • R(Napp Pharmaceuticals) v Home Office (2012)
    Brian acted for the Home Office in relation to Napp’s challenge to Government policy on the import of oxycodone to the UK. 

Other cases

  • R(Eisai Ltd) v National Institute of Health and Clinical Excellence [2008] EWCA Civ 438

Other relevant experience

Publications:

  • "Judicial Review of Sanctions Decisions: “The Wrong Point in the Wrong Court with the Wrong Defendant?”(2013) Judicial Review
  • “Competition Law: Review of 2011” (2012) Competition Law Journal 7
  • “Anti-trust forum-shopping in England: is Provimi Ltd v Aventis correct?” (May 2010) CPI Anti-Trust Journal 46 (cited in Cooper Tire & Rubber Co v Shell Chemicals UK Ltd [2010] EWCA Civ 864 and Toshiba Carrier UK Ltd v KME Yorkshire Ltd [2011] EWHC 2665 (Ch) at [30]). 
  • Co-author of Human Rights Law and Practice edited by Lester & Pannick (3rd ed., 2009) – chapters on Article 6 and 8 ECHR and Administrative Court: Practice and Procedure (1st ed., 2006).
  • “Piggybacking tips: lessons from the section 47A case-law” (2009) Competition Law Journal 180
  • Major author of the chapter on competition law in the 2nd edition of Sport: Law and Practice (eds. Lewis and Taylor)(2008).
  • Author of the competition law chapters in Schmitthoff’s Export Trade (11th ed.)(2007) and Employee Competition (2007).
  • Co-author of EU Competition Law: General Principles (2006)
  • Co-author (with David Vaughan QC) of Competition Law: Abuse of a Dominant Position (2005) in the Encyclopedia of EU Law (eds Vaughan and Robertson).
  • “Regulators and Split Personality” (2007) Legal Week 30
  • “Judicial Review and the Competition Appeal Tribunal” (2006) Judicial Review.
  • “Damages actions before the CAT and the passing on defence” (2004) Competition Law Journal 238.

Other Information

VAT registration number:  757123529