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 2015

  • Administrative & Public Law – “He is probably the brainiest junior at the public law Bar, and is incredibly strong on European law issues.” “He is excellent. His ability to explain things to clients in conference is fantastic.”
  • Competition Law – star ranked. “A very impressive barrister with a real depth of competition knowledge.” “He has excellent client skills and is very highly regarded. “
  • European Law – top ranked. “Incredibly charming and incredibly good with clients.” “He grasps a case immediately, and is able to project what the different scenarios are likely to be.”
  • Sport – “He was thorough on the European law aspects, and pleasant to work with – calm, methodical and effective.”
  • Telecommunications – top ranked. “A great telecoms specialist - we really value his opinion and he's great on his feet.”

Legal 500 2014

  • Administrative & Public Law – top ranked. “Imaginative and hardworking.”
  • Banking & Finance – “An exceptional and very user friendly barrister, noted for collective investment schemes.”
  • EU & Competition – top ranked. “A commercial and responsive practitioner.”
  • Media, Entertainment – “Provides clear and well-thought-out advice.”
  • IT & Telecommunications – top ranked. “Smart, commercial and responsive.”

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; Air Cargo, Visa, LIBOR, Copper Fittings, Industrial Bags, Paraffin Wax, Car Glass, Marine Hose, Vitamins (private damages actions) Tobacco (object infringements), Ryanair/Aer Lingus, IRI/Aztec, 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 and domestic courts.

Current and recent work

Competition law

Antitrust

  • Case T-699/14 Topps Europe Ltd v Commission (2015, pending)
    Brian is acting for a collectibles manufacturer challenging the rejection of its complaint that Panini’s licensing arrangements violate Arts 101 and 102 TFEU
  • Case T-460/13 Ranbaxy v Commission (2015, pending)
    Brian is acting for the generic pharmaceutical manufacturer challenging the Commission’s finding that a settlement agreement in patent infringement proceedings breached Art 101 TFEU.
  • Cases T-265, 267/12, Deutsche Bahn, Schenker and others v Commission (2015, pending)
    Brian appeared for the Commission in appeals to the General Court by freight forwarders challenging findings of global price fixing and fines totalling €169 million.
  • LIME v Telecommunications Regulatory Commission (Virgin Islands) (2015, pending)
    Brian is acting for the regulator in this challenge to a finding of dominance relating to ex ante regulation of international connectivity.
  • 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.
  • Commission’s investigation of Apple (distribution agreements) (2014, pending)
    Brian has advised a major telecoms operator in relation to this investigation.
  • Cases T-379/10, T-381/10,  Sanitec, Keramag and others v Commission (16 September 2013)
    Brian appeared for the 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 (16 September 2013)
    Brian appeared for the Commission in successfully resisting an appeal to the General Court by a parent of companies found to have engaged in a global cartel.
  • 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.

Mergers

  • A.C. Nielsen Company Limited v Competition and Markets Authority (2014)
    Brian acted for the CMA in the defence of the decision not to refer the IRI/Aztec merger to Phase II.
  • Universal/EMI Group (2013/2014)
    Brian is acting for companies affected by the divestiture remedies agreed by the parties to this merger.
  • Ryanair/Aer Lingus (Ryanair v Competition Commission [2013] CAT 25)
    Brian has advised and acted for Ryanair since 2011 in this major case involving 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 before the Court of Appeal (2014, pending).

Competition damages actions

  • Arcadia Group Brands  and ors v Visa Inc and ors [2014] EWHC 3561 (Comm)
    Brian acted for Visa Inc in this successful strike-out application on limitation grounds. Several large retailers claim damages from Visa, alleging anti-competitive behavior. Brian will appear for Visa in the trial of the remainder of the claim est. 2016 (claimed value over £1bn).
  • Emerald Supplies Ltd v British Airways Plc [2014] EWHC 3513 (Ch).
    Brian acts for a defendant airline, accusing of participating in a worldwide air freight cartel. This judgment addressed many significant issues in damages litigation, such as the scope of Pergan and third party access to the file.
  • Deutsche Bahn AG & Others v Morgan Crucible Company PLC & Others (2014)
    Brian acted in the CAT for a defendant to this follow-on claim under the Commission’s Electrical and Mechanical Carbon and Graphite Products cartel decision.
  • 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.
  • Major air transport-related arbitration
    Brian is acting in an LCIA arbitration where competition issues have been raised in a dispute in the EU air transport sector
  • LIBOR (2014, pending)
    Brian is advising in relation to claims arising from the manner in which this benchmark rate was agreed.
  • Bord na Móna v Bischof + Klein (2014)
    Brian acted for the defendant in this claim for damages arising from the Industrial Bags cartel decision of the EU Commission.
  • Major metal-related arbitration (2014)
    Brian acted for defendants in a major competition law damages claim raised in an arbitration (settled).
  • 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.

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.
  • Greater Manchester Waste Disposal Authority (2013)
    Brian has advised the GMWDA in relation to State aid compliance on a number of occasions.

EU law
 
Constitutional law

  • Case C-425/13 Commission v Council (2015, pending)
    Brian acts for the UK in this case which addresses the roles of EU institutions in negotiating international agreements.
  • Case C-427/12 Commission v Parliament and Council (16 June 2014)
    Brian acted for the UK where the CJEU addressed important questions on the balance of power in the EU between the Commission and the Member States. 

Sanction

  • Brian regularly advises companies and individuals in relation to compliance with the EU and OFAC sanctions regimes, particularly with regard to Russia and Iran.
  • Case C-220/14 P Ezz v Council (2015, pending)
    Brian is acting for Mr Ezz and his wives in their appeal against the decision of the General Court in Case T-256/11.
  • Case T-719/14 Tri-Ocean Energy v Council (2015, pending)
    Brian is acting for the applicant, listed on the EU Syrian regulation and decision, for allegedly supplying crude oil to the Syrian government.
  • Case T-709/14 Tri Ocean Trading v Council (2015, pending)
    Brian is acting for the applicant, listed on the EU Syrian regulation and decision, for allegedly supplying crude oil to the Syrian government
  • Brian is acting for individuals subject to the EU Syrian sanctions in their applications for annulment to the General Court.
  • Case T-339/14 Kurchenko v Council (2015, pending)
    Brian is acting for a businessman listed on the EU Ukrainian sanctions regulation and decision for allegedly illegal conduct under the previous regime.
  • Case T-279/13 Ezz v Council (2015, 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 (27 February 2014)
    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 T-145/09 Bredenkamp and Others v Commission (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

  • Vassallo v Secretary of State for the Home Department (2015, pending)
    Brian is acting for the SSHD before the Court of Appeal in this case which relates to the power to deport an EU citizen who relies on rights acquired before accession.
  • Anyaene v Secretary of State for the Home Department (2015, pending)
    Brian is acting for the SSHD before the Court of Appeal in this case which relates to the power to deport the spouse of an EU citizen.
  • Case C-507/12 St Prix (19 June 2014)
    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.
  • NA (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 995
    Brian acted for the SSHD in this appeal relating to the scope of protection for non-EEA abandoned divorcees under the Citizenship Directive (a reference was made to the CJEU).
  • 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.
  • Ahmed N v Secretary of State for the Home Department (2014, pending)
    Brian is acting for the SSHD before the Court of Appeal in this case which relates to the scope of Art 21 TFEU and related issues under Reg 1612/68.
  • Sanchez v King’s College Hospital Trust, SSHD (2014, settled)
    Brian acted for the SSHD in this appeal relating to the scope of the Zambrano right.
  • 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-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.

Jurisdiction and judgments

  • Case C-536/13 Gazprom (2015, pending)
    Brian acted for the UK in this important case on jurisdiction, arbitration and anti-suit injunctions.
  • Case C-649/13 Nortel (2015, pending)
    Brian acted for the UK in this important case on jurisdiction under the Insolvency Regulation.
  • 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 of Reg 44/2001.
  • Case C-350/13 Antonio Gramsci Shipping (5 June 2014)
    Brian acted successfully for the UK in this case relating to the circumstances in which a court may refuse to recognise a judgment on public policy grounds. 

Pharmaceuticals

  • Case T-44/13 AbbVie v European Medical Agency (17 July 2014)
    Brian acted in this major case about transparency within the EMA and clinical trials information on behalf of the British Medical Association.
  • 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 Scandinavian broadcasters in relation to these issues.

Internal market

  • Case C-312/14 Banif Plus Bank (2015, pending)
    Brian is acting for the UK in this important case on the internal market for financial services in the EU.
  • Case C-162/13 Vnuk (2015, pending)
    Brian is acting for the UK in this case on the internal market for motor insurance in the EU.
  • R(Gibraltar Betting & Gaming Association) v HM Treasury (2015, pending)
    Brian is acting for the claimant in this challenge to the new remote gambling taxation, which engages the EU freedom to provide services.
  • R (Philip Morris Brands Sarl and ors) v Secretary of State for Health [2014] EWHC 3669
    Brian is acting for Imperial Tobacco in its challenge to the EU’s Second Tobacco Products Directive (a reference to the CJEU has been ordered).
  • R(Gibraltar Betting & Gaming Association) v Secretary of State for DCMS [2014] EWHC 3236 (Admin)
    Brian acted for the claimant in this challenge to the new remote gambling licensing regime, which engaged the EU freedom to provide services.
  • Churchill Insurance Co. Ltd. v Wilkinson (Court of Appeal, Supreme Court, 2014)
    Brian acted for the UK Government in defending the domestic motor insurance rules as compatible with EU law (settled).
  • 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.
  • 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.

Francovich damages actions

  • Delaney v Secretary of State for Transport [2014] 3 CMLR 32
    Brian acted 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

  • London Olympic Stadium (2012)
  • 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 C-139/10 Prism Investments [2011] ECR I-9511
  • Case C-308/11 Chemische Fabrik Kreussler & Co GmbH (6 September 2012)
  • R (Sinclair Collis Ltd) v Secretary of State for Health [2011] 3 CMLR 37
  • Case C-16/10 The Number (UK) Ltd v Ofcom and BT plc [2011] ECR I-691
  • Case T-121/09 Al Shanfari v Council and Commission (order, 13 July 2010)
  • Case T-55/08 UEFA, FIFA v Commission [2011] ECR II-271
  • 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 CMA 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. 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(Gibraltar Betting & Gaming Association) v HM Treasury (2015, pending)
    Brian is acting for the claimant in this challenge to the new remote gambling taxation, which engages the EU freedom to provide services.
  • Federation of Independent Practitioner Organisations v Competition and Markets Authority (hearing 2015)
    Brian is acting for the claimant challenging the remedies imposed on hospital consultants under the Private Healthcare Investigation Report.
  • LIME v Telecommunications Regulatory Commission (Virgin Islands) (2015, pending)
     Brian is acting for the regulator in this challenge to a finding of dominance relating to ex ante regulation of international connectivity.
  • Brian is currently (2014/2015) advising individuals and companies whose assets have been frozen in the UK pursuant to the EU sanctions regime in relation+ to Russia, Syria and Egypt.
  • R(Shell) v Secretary of State for Energy and Climate Change (2015, pending)
    Brian is acting for Shell in its challenge to the Commission’s decision on allocation of “carbon credits” in the EU emissions trading scheme.
  • R(Digicel and LIME) v Telecommunications Regulatory Commission (Virgin Islands) (2015, pending)
     Brian is acting for the regulator opposing the operators’ judicial reviews of decisions taken to stop anti-competitive conduct.
  • R (Philip Morris Brands Sarl and ors) v Secretary of State for Health [2014] EWHC 3669
    Brian is acting for Imperial Tobacco in its challenge to the EU’s Second Tobacco Products Directive (a reference to the CJEU has been ordered).
  • R(Gibraltar Betting & Gaming Association) v Secretary of State for DCMS [2014] EWHC 3236 (Admin)
    Brian acted for the claimant in this challenge to the new remote gambling licensing regime, which engaged the EU freedom to provide services.
  • R(Europäisch Iranische Handelsbank) v HM Treasury (2014)
    Brian acted 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 (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.
  • R(Barbara Gordon-Jones) v Secretary of State for Justice (2014, pending)
    Brian acted for the Secretary of State in this challenge to the policy of restricting access to parcels (including those containing books) in prisons.
  • R(True Matrix Ltd) v Secretary of State for Justice (2014, pending)
    Brian acted for the Secretary of State in this challenge to the refusal to give non-qualified legal advisers equal access in prisons as qualified lawyers.
  • R(Richards) v Secretary of State for Justice (2014, pending)
    Brian acted for the Secretary of State in this challenge to the application of the incentives and privileges policy to sex offenders.
  • International Committee of the Red Cross and the proposed EU data protection regulation
    Brian advised the ICRC in relation to this proposed EU legislation, which threatens the ICRC’s rights under international human rights and humanitarian law. 
  • Ryanair v CMA (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.

Other cases

  • R(Cable & Wireless) v Communications Commission of the Isle of Man (2013)
  • BT plc v Competition Commission [2013] EWCA Civ 154
  • R(Barco de Vapor) v Thanet DC [2012] EWHC 3429
  • R(Leyton Orient Football Club Ltd) v Secretary of State for DCMS (2012)
  • R (Imperial Tobacco) v Secretary of State for Health (2012)
  • R(Sinclair Collis Ltd) v Secretary of State for Health [2011] 3 CMLR 37
  • 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

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

  • Major metal-related LCIA arbitration (2014)
    Brian acted for defendants in a multi-billion dollar commercial arbitration.
  • Arcadia Group Brands  and ors v Visa Inc and ors [2014] EWHC 3561 (Comm)
    Brian acted for Visa Inc in this successful strike-out application on limitation grounds and will appear for Visa Inc in the trial. This is major Commercial Court case worth in excess of £1bn.
  • Emerald Supplies Ltd v British Airways Plc [2014] EWHC 3513 (Ch).
    Brian acts for a defendant in this Chancery Division case, sued for damages by victims of allegedly anti-competitive conduct.
  • Deutsche Bahn AG & Others v Morgan Crucible Company PLC & Others (2014)
    Brian acted in the CAT for a defendant in this damages case claiming loss allegedly caused by the carbon and graphite products cartel.
  • 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.
  • Major air transport related arbitration
    Brian is acting in an LCIA arbitration where competition issues have been raised in a dispute in the EU air transport sector.
  • Sukhoruchkin v Van Bekestein [2013] EWHC 1993
    Brian is acting for a Cayman fund in a major fraud case involving complex issues of reflective loss and jurisdiction.
  • 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

  • Case C-312/14 Banif Plus Bank (2015, pending)
    Brian is acting for the UK in this important case relating to the regulation of the UK bond markets.
  • Case C-536/13 Gazprom (2015, pending)
    Brian acted for the UK in this important case on jurisdiction, arbitration and anti-suit injunctions in commercial cases.
  • 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.
  • 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.

Other cases

  • Advice on the Report of the Independent Commission on Banking (“Vickers Report”) (2012)
  • Anderson Ross Group v Financial Services Commission; Financial Services Review Panel (2011)
  • R(ABS Financial Planning) v Financial Services Compensation Scheme Ltd [2011] EWHC 18 (Admin)
  • 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

  • Chelsea v Juventus and Livorno (2015, pending)
    Brian acted for Chelsea in the CAS appeal by the Italian clubs seeking to avoid their liability for the damages award made in relation to Adrian Mutu.
  • 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).

Other cases

  • Case T-55/08 UEFA, FIFA v Commission (17 February 2011, General Court of the EU)
  • Group Lotus plc v 1MRT and ors [2011] EWHC 1366 (Ch)
  • R(Leyton Orient Football Club Ltd) v Secretary of State for Culture, Media and Sport and ors (2011)
  • British Horseracing Authority/Tyrell (2011)
  • 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

  • LIME v Telecommunications Regulatory Commission (Virgin Islands) (2015, pending)
    Brian is acting for the regulator in this challenge to a finding of dominance relating to ex ante regulation of international connectivity.
  • Ofcom’s proposed allocation of the L-Band spectrum (2014/15)
    Brian is advising and assisting Three on these and related issues.
  • Ofcom’s investigation into alleged breaches of General Condition 14 (2014)
    Brian advised and appeared for Three in this investigation.
  • Ofcom’s consultation on annual licence fees for 4G spectrum (2014)
    Brian advised and assisted Three in this consultation.
  • Brian has advised the telecommunications regulator of the BVI in relation to allocation of spectrum, misuse of spectrum and international connectivity issues.
  • 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.
  • Business Connectivity Market Review (2013/2014)
    Brian has advised in relation to Ofcom’s proposals in this area
  • 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.
  • 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.

Other cases

  • Mobile Wallet Joint Venture (2012)
  • Case C-16/10 The Number (UK) Ltd v Ofcom and BT plc (17 February 2011)
  • British Telecommunications plc v Ofcom (MCT) [2011] EWCA Civ 245
  • British Telecommunications plc v Ofcom (MCT) [2011] CAT 31
  • Everything Everywhere Ltd v Ofcom (0845/0870) [2011] CAT 26
  • British Telecommunications plc v Ofcom (080) [2011] CAT 15
  • 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

  • BPI/internet search engines (2014/15)
    Brian has assisted BPI in its examination of on-line treatment of illegal music sites
  • Draft EU Regulation on Indices used as Benchmarks  in  Financial  Instruments  and  Financial  Contracts (2014)
    Brian advised the UK financial media on legal issues arising from this EU legislation
  • EU broadcast listed events (2013/2014)
    Brian has advised DCMS in relation to threatened EU Commission infraction proceedings.
  • Impala/Merlin (2013)
    Brian has advised independent music companies on competition issues arising from the Universal/EMI merger.
  • AVMS Directive advertising restrictions (2013)
    Brian has advised Scandinavian 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).

Other cases

  • Case T-55/08 UEFA, FIFA v Commission [2011] ECR II-271
  • R(ICO Satellite Ltd) v Ofcom [2011] EWCA Civ 1121
  • 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-536/13 Gazprom (2015, pending)
    Brian acted for the UK in this important case on jurisdiction, arbitration and anti-suit injunctions
  • Case C-649/13 Nortel (2015, pending)
    Brian acted for the UK in this important case on jurisdiction under the Insolvency Regulation.
  • 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 of Reg 44/2001.
  • Case C-350/13 Antonio Gramsci Shipping (5 June 2014)
     Brian acted successfully for the UK in this case relating to the circumstances in which a court may refuse to recognise a judgment on public policy grounds.
  • Bord na Móna v Bischof + Klein (2013)
    Brian acted 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

  • MHRA
    Brian has advised and represented a number of operators before the MHRA in relation to compliance issues under the Human Medicines Regulations 2012.
  • Case T-460/13 Ranbaxy v Commission (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 (17 July 2014)
    Brian acted in this major case about transparency within the EMA and clinical trials information on behalf of the British Medical Association.
  • 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.

Other cases

  • Mercury Pharma/Shire v Department of Health (2013)
  • Case C-308/11 Chemische Fabrik Kreussler & Co GmbH (6 September 2012)
  • R(Napp Pharmaceuticals) v Home Office (2012)
  • R(Eisai Ltd) v National Institute of Health and Clinical Excellence [2008] EWCA Civ 438

Other relevant experience

Publications:

  • Co-author of EU Competition Law: General Principles (2015 forthcoming)
  • Counting the pennies in sport: UEFA’s Financial Fair Play Regulations under the competition law microscope (2014, CPI Anti-Trust Journal)
  • "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