Brian Kennelly

Brian acts for claimants, defendants and regulators and has also advised the European Commission. Brian has particular expertise in the regulatory matters and in private antitrust damages actions.

(1) Competition law

Brian advises in relation to anti-trust, mergers and state aid.

Brian acted for a number of the defendant cartelists in the landmark Moy Park and Devenish cases in the Chancery Division and the Court of Appeal, which are leading judgments on remedies in private antitrust actions.

Brian earlier acted for and advised the same defendant cartelists in relation to the first ever damages action brought in the UK by a direct purchaser (Provimi v Aventis) and the first ever damages action brought in the UK by an indirect purchaser (BCL v Aventis). The latter case was also the first damages action brought in the Competition Appeal Tribunal (CAT) under section 47A of the Competition Act 1998.

Brian is acting for the Law Society in its intervention in the appeal of Case C-550/07 P Akzo Nobel v Commission to the ECJ against the CFI’s judgment on the extent of legal professional privilege under EC competition law.

Brian is acting in 2008-2009 for Ofgem in the CAT resisting National Grid’s appeal against the first contested infringement decision taken by a regulator under the Competition Act.

Brian is also acting for one of the major supermarkets in the context of the OFT milk and cheese and groceries cartel investigations and in the context of the Competition Commission investigations into the supermarket industry.

Brian acted for the OFT in the High Court in relation to the worldwide freight forwarding cartel investigation in 2008.

Brian acted for the successful applicants in the case of Software Cellular Network Ltd v T-Mobile (UK) Ltd in the first grant of mandatory interim relief in support of a claim of abuse of a dominant position in the telecommunications industry in the UK.

Brian represented (with Jonathan Sumption QC) the mobile network operator, Hutchison 3G UK, in the first application for pre-action disclosure in the UK in relation to potential claims under Articles 81 and 82 EC.

In 2008 Brian also acted for the claimants in a major judicial review in Northern Ireland involving competition law and the proposed Single Electricity Market in Ireland (AES Kilroot v NIAUR).

Brian advised senior individuals allegedly involved in the EU Commission investigation into cartels in the worldwide aviation industry in 2006.

Brian has acted in two major cases involving the application of the competition rules to sport: ISI Ltd v International Rugby Board (ban on private sports promoters organising international rugby matches) and Westminster Hospitality v RFU (restrictive agreements in the secondary ticketing market).

Brian has advised internet betting exchanges in relation to the compatibility of the Horserace Betting Levy Board’s levy and EC competition law.

Brian acted for English Welsh and Scottish Railways in the Office of Rail Regulation investigation into the alleged abuses of dominant position in the market for rail freight in Great Britain.

Brian has lectured extensively on competition law issues.

In 2000/2001, Brian was seconded to the Legal Service of the European Commission, Competition law section, where he worked on the landmark merger case of MCI/WorldCom/Sprint where the Commission prohibited a major merger in the market for top-level universal Internet connectivity and on the preparation of the case for the Commission before the ECJ in C-83/01 P Chronopost v Ufex and ors [2003] ECR I-6993 in relation to the deregulation of the postal sector. In 2000/2001 Brian also worked in the cabinet of Advocate General Francis Jacobs at the ECJ.

(2) Internal market and Environment

Brian has advised extensively on aspects of the internal market and EC law. Brian will appear in the ECJ in 2009 in Case C-58/08 R(Vodafone and ors) v Secretary of State for Business Enterprise and Regulatory Reform in relation to the use of Article 95 EC as a legal base for pro-consumer legislation.

In 2008, Brian acted before the Court of Appeal in a leading case on the relationship between EU jurisdictional rules under Reg. 44/2001 and international law (especially state immunity): Grovit v De Nederlandsche Bank.

Brian has also advised on environmental issues and regularly acts for the Environment Agency. He has advised the Environment Agency in relation to its general guidelines on the classification of wastes under the Waste Shipments Regulations.

Brian has also advised several waste management companies in relation to the definition of waste and the Waste Incineration Regulations.

Brian has advised certain fishing and food companies in relation to fishing rights in Guernsey waters and the application of EC law to Guernsey.

(3) Factortame claims

Brian has acted for claimants and defendants in Factortame claims. He acted for HMRC in the Hoverspeed litigation and acted for the NUT in two important Factortame cases relating to the failure of the Government properly to implement the Framework Health and Safety Directive and the Working Time Directive.

Interesting cases include:

Devenish Nutrition Ltd v Sanofi-Aventis SA & Ors [2008] EWCA Civ 1086 and Moy Park Ltd & Ors v Sanofi-Aventis SA & Ors [2007] 2 WLR 637 (Ch).
Brian acted for the successful defendant cartelists in this landmark judgment, which established that restitutionary damages, accounts of profits and exemplary damages were not available as remedies in cartel cases where the cartelists had already been subject to a regulatory fining process. This was the first time that these issues had been considered in the UK.

National Grid plc v The Gas and Electricity Markets Authority [2008] CAT 26
This case related to National Grid’s appeal against a finding that it breached the competition rules. Brian appeared in the CAT resisting National Grid’s application for disclosure and in relation to a strike out application taken by a regulator under the Competition Act.

Office of Fair Trading v D (judgment not reported: Floyd J, 24 October 2008)
Brian acted for the OFT in an application for warrants under s. 62 of the Competition Act 1998 to allow the European Commission to conduct “dawn raids” at the premises of certain undertakings suspected of being involved in a world-wide cartel.

Software Cellular Network Ltd v T-Mobile (UK) Ltd [2007] All ER (D) 314.
Brian acted for the successful applicant in the first case in which mandatory interim relief had been granted in support of a claim of abuse of a dominant position in the telecommunications industry in the UK.

Hutchinson 3G UK Ltd v O2 Ltd & Ors [2008] All ER (D) 80.
Brian (led by Jonathan Sumption QC) acted for the applicant in the first application for pre-action disclosure in the UK in relation to potential claims under Articles 81 and 82 EC.

Hutchison 3G UK Ltd v Ofcom [2008] CAT 11 and [2008] CAT 12.
Brian acted for the appellant arguing that Ofcom had erred in its assessment of the competitive conditions in the UK mobile telecoms market and had aggravated the effects of the existing anti-competitive practices of the other operators.

Floe Telecoms v Ofcom, OFT [2006] EWCA Civ 768.
Leading Court of Appeal authority on the jurisdictional limits on the Competition Appeal Tribunal and the proper relationship between the CAT and the regulators.

Achilles Paper Group v OFT [2006] CAT 24.
Brian successfully defended the OFT in this leading case on the power of competition authorities to impose fines which eliminate undertakings.

Provimi and ors v Aventis SA and ors [2003] EuLR 517.
A landmark High Court competition law case which dealt with the circumstances in which a company’s subsidiary may be liable for the breach of EC competition law by a separate subsidiary.

BCL and others v Aventis SA and others [2005] CAT 1.
The leading case on limitation in damages claims before the Competition Appeal Tribunal, applying rule 31 of the CAT’s Rules of Procedure, which extended the jurisdiction of the CAT.

BCL and others v Aventis SA and others [2005] CAT 2.
The leading case on security for costs in damages claims before the Competition Appeal Tribunal where it was suggested that even admitted cartelists (for the purposes of leniency) may not, by virtue of their prior anti-competitive conduct be entitled to security for costs,

Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR.
A leading Court of Appeal judgment on the relationship between EU jurisdictional rules under Reg. 44/2001 and international law (especially state immunity).

Publications:

Brian is the author of the competition law chapters in Schmitthoff’s Export Trade (11^th ed.)(2007) and Employee Competition (2007).

Brian is also the co-author of EU Competition Law: General Principles (2006)

Brian is the 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).

“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.

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, Hong Kong and the Cayman Islands. Brian was appointed to the Attorney General’s C Panel in February 2004 and has a particular expertise in the EC and regulatory field.

(1) Judicial Review

Brian regularly advises in relation to judicial review challenges in the context of regulatory and Competition Commission investigations, particularly in field of competition, utilities regulation and pharmaceuticals.

Brian acted (in the Admin Court and the Court of Appeal) for one of the successful pharmaceutical companies challenging the decision of the National Institute for Health and Clinical Excellence to advise the NHS not to support funding for its Alzheimer’s disease medication: R(Eisai Ltd) v National Institute for Health and Clinical Excellence.

Brian acted for an intervener in the judicial review brought in 2007 by the UK mobile network operators against the UK’s implementation of the EU Roaming Rates Regulation. This case was referred to the ECJ: R(on the application of) Vodafone Ltd and ors v Secretary of State for BERR

Brian is acting for a major power generation company in Northern Ireland in its challenge to the decision of the Northern Irish Utilities Regulator that the Irish Single Electricity Market will facilitate competition and that proper consultation had taken place: R(AES Kilroot) v NIAUR.

Brian acted for the successful defendant in a challenge by Friends of the Earth against the Food Standards Agency alleging that the FSA had failed to comply with emergency EU rules prohibiting genetically modified rice from entering the food chain: R(on the application of) Friends of the Earth v Food Standards Agency.

Brian acted for the amusement arcades intervening in support of the Government against a challenge by the British Casino Association in relation to the new super casino legislation: R(on the application of) British Casino Association v Secretary of State for Culture,  Media and Sport.

Brian acted for the liquidators of a telecommunications company in an unusual challenge in relation to the lawfulness of a decision by the premium numbers regulator (ICSTIS) to recover certain regulatory fines as debts in a liquidation: ISCTIS v Hornan

Brian regularly advises Government Departments (particularly the Export Credit Guarantee Department) in relation to its consultations.

In the area of utilities deregulation, Brian has advised Royal Mail in relation to Postcomm’s application of the EC Postal Directive (access of third parties to the network) and injunctions in public law cases.

In regulatory matters, Brian has (with Lord Pannick QC) advised a major mobile phone operator in relation to 3G auctions and Spectrum Liberalisation and judicial review of OFCOM.

Brian has advised the Moriarty Tribunal of Inquiry in Ireland (in relation to alleged payments to certain politicians) regarding its investigatory powers in the UK under the Tribunals of Inquiry Act 1921. 

(2) Human Rights

Brian acts (2008) for the University of Oxford in obtaining and defending a series of orders designed to strike the balance between the rights of legitimate animal rights protest under Article 10 ECHR and the rights of students and staff of the University.

In the Floe v Ofcom appeal in 2006 (see above), Brian acted for the respondents on Ofcom’s appeal that the fixing of time limits by regulators did not engage Art. 6 ECHR.

Brian acted for the appellant in the Court of Appeal in the case of Grovit v De Nederlansche Bank NV (see above) in 2008, involved determining whether the application of rules of state immunity complied with Art. 6 ECHR.

Brian acted for the newspaper in the appeal which settled in Al Rajhi Banking & Investment Corpn v Wall Street Journal Europe [2003] EWHC 1776 (QB) which case related to whether the burden of proof on the defendant and the presumption of falsity in libel law was compatible with Article 10 ECHR.

Brian made submissions on behalf of News International to the European Commission and to the Department of Constitutional Affairs in relation to the compatibility with Article 10 ECHR of the proposed harmonised choice of law rules for torts in the EU (“the Rome Convention II”), following which the European Commission substantially amended its proposals (COM (2003) 427 final).

Brian also advised the defendant in Waters v Times Newspapers Ltd. (unreported, High Court of Ireland 22 April 2002) which clarified the defence of fair comment and the application of Articles 6 and 10 ECHR in Irish defamation law.

Brian has advised on the compatibility of the BBC licence fee with the ECHR and he has also advised a top five accountancy firm in relation to professional disciplinary procedures and the ECHR in the UK and Ireland. 

R(Eisai Ltd) v National Institute of Health and Clinical Excellence [2008] EWCA Civ 438.
Brian acted for one of the successful appellants in arguing that it was unfair for NICE in its consultations to deny to the pharmaceutical companies the full model used to determine the cost-effectiveness of medicines.

R(Vodafone Ltd & Telefonica O2 Europe Plc) v Secretary Of State for BERR [2007] All ER (D) 120.
Brian acted for an intervener in support of the Government in arguing that the EU mobile telecoms roaming regulation was lawful.

Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR 51
Brian acted for the appellant in this important case relating to the relationship between EU jurisdictional rules under Reg. 44/2001 and customary rules of international law (especially state immunity).

University of Oxford v Broughton and others [2008] EWHC 75 (QB)
Interim relief against animal rights protesters and the balance to be struck between the right to protest, freedom of expression and the rights of others.

R(Friends of the Earth) v Food Standards Agency [2007] All ER (D) 300.
Brian acted for the successful defendant in a challenge by Friends of the Earth against the Food Standards Agency alleging that the FSA had failed to comply with emergency EU rules prohibiting genetically modified rice from entering the food chain.

ICSTIS v Hornan [2007] All ER (D) 114
Brian acted for the liquidators of a telecommunications company in an unusual challenge in relation to the lawfulness of a decision by the premium numbers regulator (ICSTIS) to recover certain regulatory fines as debts in a liquidation.

R(Moreton) v Medical Defence Union Ltd [2006] All ER (D) 370.
Brian acted for the successful defendant in relation to the amenability of the MDU to judicial review and the relationship between the MDU and the State.

R(Gabem Management Limited) v HM Customs and Excise [2006] EWHC 2502 (Admin)
An important case on the test for interim relief in judicial review.

R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600. (Court of Appeal)
The leading case on protective costs orders in judicial review proceedings, which relaxed the test for claimants in cases of general public interest.

Publications

Brian is a co-author of Human Rights Law and Practice edited by Lester & Pannick (2nd ed., 2004 – chapters on Article 6 and 8 ECHR (and the forthcoming 3rd ed.) and Administrative Court: Practice and Procedure (1st ed., 2006).

Brian has substantial experience in the Commercial Court and the Chancery Division and has acted in several cases before the Financial Services and Markets Tribunal and has advised in particular on market abuse.

Brian also has a particular interest in fraud and injunctive work and has acted for claimants and defendants in several cases involving interim relief, including Software Cellular Network Ltd v T-Mobile (UK) Ltd [2007] All ER (D) 314 .

Brian has acted in several cases in the Commercial Court involving EC law including Hutchinson 3G UK Ltd v O2 Ltd & Ors [2008] All ER (D) 80, Provimi and ors v Aventis SA and ors [2003] EWHC 961 (COMM), and Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR 51 (an important case relating to the relationship between EU jurisdictional rules under Reg. 44/2001 and customary rules of international law (especially state immunity).

Brian has a particular interest in financial services and has advised claimants and defendants in 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 advised in 2006 in relation to the SEC investigation of the Riverstone Insurance Group and its implications for enforcement in the UK. Brian advised in relation to the SEC and the FSA enforcement action against Royal Dutch Shell in connection with the group's overstatement of its hydrocarbon reserves.

Brian has lectured on the application in the UK of the Markets in Financial Instruments Directive (MFID) and the Market Abuse Directive.

Brian has substantial High Court experience in sports law (especially in relation to the overlap with competition law). Brian is currently (2008-2009) acting for Chelsea FC in the appeal to the Court of Arbitration of Sport (“CAS”) by Adrian Mutu against the award of damages made against him by the FIFA DRC.

Brian successfully obtained interim relief in the Court of Arbitration of Sport (“CAS”) in 2006 on behalf of the Lithuanian national dance team in Danuite v International Dance Sport Federation. Brian acted for the applicants before CAS in 2007  Brian acted for the claimants in two major High Court sport and competition law damages actions in 2006 (which settled before trial): ISI Ltd v International Rugby Board (ban on private sports promoters organising international rugby matches) and Westminster Hospitality v RFU (restrictive agreements in the secondary ticketing market).

(1) Football

Brian acted for the football agents in 2007 in a major potential challenge under the competition rules to the new FA players’ agents regulations. These regulations were withdrawn by the FA and substantially revised. Brian has extensive experience of representing football agents and arbitrating a wide range of issues including the fairness of the agents’ exams and assessments and the FA’s compliance with FIFA guidance. He also recently advised a major football agency in relation to a claim brought against a former employee under restrictive covenants and the confidential information rules. During the run-up to Euro 2004 Brian appeared (with Adam Lewis) on behalf of UEFA on a number of injunctions against various unauthorised sports travel and hospitality businesses which had been offering Euro 2004 tickets for sale and in promotions. These cases were part of UEFA’s drive to address the widespread unlawful and/or illegal practice of trading in tickets. Injunctions were obtained in all the contested hearings in this matter. Brian has advised several international Premiership and first division footballers in relation to the compatibility of certain FIFA rules with EC competition law. 

(2) Rugby

Brian has advised Newport RFC, with Michael Beloff QC, in relation to a high profile rugby league convert and has advised a Welsh Premiership club in relation to the legality of subsidies given to other clubs by the WRU. Brian has advised on the compatibility of the English Premiership rugby salary cap and the RFU foreign player rule with domestic and EC competition rules. Brian advised the Rugby Football League in relation to revisions to its licensing system. Brian acted for Mark Connors, the celebrated Australian rugby player, in his claim against Bath RFC and for Bristol RFC in a claim against the RFU relating to breach of contract. 

(3) Formula One and motorsport

Brian advised (with Ian Mill QC) a number of teams in relation to the competition law implications of proposed changes to Formula One and in relation to the Concorde Agreement governing the commercial exploitation of the sport. 

(4) Betting and gaming

Brian has a particular interest in betting and gaming and has advised widely on the implications of the Gambling Act for on-line and off-line operators.  Brian has advised Party Poker, the largest on-line internet poker company in the world, in relation to a series of international issues. Brian has also acted for the Tote in relation to securing interim relief against off-shore internet gaming websites. Brian appeared for the successful betting exchange in R (on the application of Sporting Options plc) v Horserace Betting Levy Board and ors [2003] EWHC 1943 (Admin) where the annual levy imposed on bookmakers was challenged on the basis of domestic rules of rationality and procedural fairness and on the basis of the EC State aid rules. Brian advised the major racecourses in the UK in relation to the Attheraces case before the Office of Fair Trading and advised on the competition law implications of the establishment of Racing TV.

Publications:

Brian is the major author of the chapter on competition law in the forthcoming 2^nd edition of Sport: Law and Practice (eds. Lewis and Taylor).

Brian acts for regulators, operators and consumers and specialises in the overlap between telecommunications law and competition law.  Brian has lectured to Ofcom in relation to fairness in their consultation processes.

Brian has acted and is acting for Hutchison 3G UK Ltd (“H3G”) in a series of major appeals before the CAT and the Competition Commission against Ofcom’s findings of significant market power on the part of H3G and in relation to mobile termination rates.  Brian is acting for H3G as intervener in Vodafone’s appeal in the CAT against Ofcom’s decision on mobile number portability. Brian represented H3G in the Commercial Court in the first application for pre-action disclosure in the UK in relation to potential claims under Articles 81 and 82 EC against the other major mobile network operators in the UK. Brian is acting for H3G in relation to the challenges brought by a number of other operators in relation to Ofcom’s decisions on mobile spectrum.

Brian will appear for an intervener in the ECJ in 2009 in Case C-58/08 R(Vodafone and ors) v Secretary of State for Business Enterprise and Regulatory Reform in support of the legal validity of the EU Roaming Regulation which is challenged by the major UK mobile network operators.

Brian acted for the successful applicants in the case of Software Cellular Network Ltd v T-Mobile (UK) Ltd. Brian represented a VoIP start-up which had been refused access to T-Mobile’s numbers. This was the first time that mandatory interim relief had been granted in support of a claim of abuse of a dominant position in the telecommunications industry in the UK Brian acted for the liquidators of a telecommunications company in an unusual challenge in relation to the lawfulness of a decision by the premium numbers regulator (ICSTIS) to recover certain regulatory fines as debts in a liquidation: ISCTIS v Hornan.

Brian acted for the respondents in Ofcom v Floe Telecommunications in the Court of Appeal in 2008. In this appeal, Ofcom challenges the decision of the CAT in relation to the correct legal approach to GSM gateway technologies and allegations of abuse of a dominant position.

Vodafone Ltd v Ofcom [2008] CAT 22
Brian acted for an intervener in this case where the CAT set aside Ofcom’s decision requiring a new method of delivering mobile number portability.

The Number Limited v Ofcom [2008] CAT 33. Brian acted for the directory enquiries provider in a successful challenge to an Ofcom decision which threatened the ability of the undertaking to obtain data from BT.

Software Cellular Network Ltd v T-Mobile (UK) Ltd [2007] All ER (D) 314. Brian acted for the successful applicant in the first case in which mandatory interim relief had been granted in support of a claim of abuse of a dominant position in the telecommunications industry in the UK.

Hutchinson 3G UK Ltd v O2 Ltd & Ors [2008] All ER (D) 80. Brian (led by Jonathan Sumption QC) acted for the applicant in the first application for pre-action disclosure in the UK in relation to potential claims under Articles 81 and 82 EC.

Hutchison 3G UK Ltd v Ofcom [2008] CAT 11 and [2008] CAT 12 (significant market power and termination rate disputes). Brian acted for the appellant arguing that Ofcom had erred in its assessment of the competitive conditions in the UK mobile telecoms market and had aggravated the effects of the existing anti-competitive practices of the other operators.

Hutchison 3G UK Ltd v Ofcom [2008] CAT 10, [2007] CAT 33 (important cases on the extent to which a party may amend its pleading in the CAT).

Hutchison 3G UK Ltd v Ofcom [2008] CAT 5 (important case on the meaning of “specified price control matters” which must be referred to the Competition Commission).

ICSTIS v Hornan [2007] All ER (D) 114. Brian acted for the liquidators of a telecommunications company in an unusual challenge in relation to the lawfulness of a decision by the premium numbers regulator (ICSTIS) to recover certain regulatory fines as debts in a liquidation.

Floe Telecoms v Ofcom, OFT [2006] EWCA Civ 768, (leading Court of Appeal authority on the jurisdictional limits on the Competition Appeal Tribunal and the proper relationship between the CAT and the regulators).

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

Brian appeared for the appellants in the Court of Appeal in Grovit v De Nederlansche Bank NV which is a leading case on the relationship between the Judgments Regulation and international law rules of state immunity. Brian made submissions on behalf of News International to the European Commission and to the Department of Constitutional Affairs in relation to the compatibility with Article 10 ECHR of the proposed harmonised choice of law rules for torts in the EU (“the Rome Convention II”), following which the European Commission substantially amended its proposals (COM (2003) 427 final).  

Brian has advised (with Christopher Greenwood QC) in relation to the Bilateral Investment Treaty between the UK and Hong Long.

Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR
A leading Court of Appeal judgment on the relationship between EU jurisdictional rules under Reg. 44/2001 and international law (especially state immunity).