Brian Kennelly

Brian has appeared in many of the leading EU competition cases in recent years: Devenish v Sanofi-Aventis (non-availability of exemplary and restitutionary damages), National Grid (abuse of dominance) and Provimi v Aventis (jurisdiction). Brian has particular expertise in regulatory matters and in private antitrust damages actions.  Brian also advises in relation to anti-trust, mergers and State aid as well as all aspects of the internal market, including public procurement. Brian has also acted for individuals subject to EU asset-freezing measures.

• Case C-58/08 R(Vodafone and ors) v Secretary of State for Business Enterprise and Regulatory Reform (8 June 2010)
  Brian acted (as sole advocate) for an intervener supporting the EU’s successful defence of the regulation capping mobile phone roaming charges. This is now a leading case on the use of Article 114 TFEU as a legal base for pro-consumer legislation.
• Case T-121/09 Al Shanfari v Council and Commission (13 July 2010)
  Brian acted for the applicant, a citizen of Oman accused of having assisted the Zimbabwean government, in his successful challenge to EU asset freezing measures.
• Case T-55/08 UEFA, FIFA v Commission (pending)
  Brian acted (as sole advocate) for the UK in resisting 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.
• Case C-139/10 Prism Investments (pending)
  Brian is acting (as sole advocate) for the UK in a reference from the Dutch Hoge Raad relating to the circumstances in which a court may refuse to enforce a judgment on public policy grounds under Regulation 44/2001.
• Case C-16/10 The Number (UK) Ltd v Ofcom and BT plc (pending)
  Brian is acting in this reference from the Court of Appeal relating to scope of the Universal Service Directive in telecommunications.
• Waha Oil Company v Dunlop Oil and Marine Ltd (Chancery Division, pending)
  Brian is acting for the defendant in this claim for damages arising from the Marine Hose cartel decision of the European Commission.
• Sintesi e Ricerca v Royal Dutch Shell (Chancery Division, pending)
  Brian is acting for the defendant in this claim for damages arising from the Paraffin Wax cartel decision of the European Commission.
• Shell UK Ltd v OFT (Competition Appeal Tribunal, pending)
  Brian is acting for Shell in its challenge to the OFT’s finding that it participated in price-fixing in the market for tobacco products contrary to domestic and EU law.
• R(Sinclair Collis Ltd) v Secretary of State for Health (Admin Court, pending)
  Brian is acting for a vending machine supplier challenging the Government’s decision to ban tobacco vending machines on the basis that it contravenes EU free movement rules and the ECHR.
• R (Imperial Tobacco) v Secretary of State for Health (Admin Court, pending)
  Brian is acting 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.
• National Grid v Gas and Electricity Markets Authority [2010] EWCA Civ 114; [2010] UKCLR 386
  Brian appeared for GEMA in the first contested competition infringement decision by a sectoral regulator in the UK. This is now the leading domestic case on the application of Article 102 TFEU to long term exclusivity agreements.
• OFT v "D" (Chancery Division, 19 February 2010)
  Brian appeared for the OFT in obtaining warrants for dawn raids by the European Commission in the automotive electrical distribution systems cartel investigation.
• Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch)
  Brian acted for the defendant in successfully striking out a major public procurement challenge to the award of a PFI waste contract worth £4bn over 20 years.
• Case C-550/07 P Akzo Nobel v Commission (17 November 2009)
  Brian acted for the Law Society in its intervention in this case which addressed the limits of legal professional privilege in EU competition law investigations.
• Hutchison 3G UK Ltd  v Ofcom [2009] EWCA Civ 683
  Brian acted for appellant in its challenge to Ofcom’s finding that it was dominant on the market for calls to its network. This is the leading case on establishing dominance in the mobile telecommunications industry.
• Devenish Nutrition Ltd v Sanofi-Aventis SA & Ors [2009] 3 WLR 198 (Court of Appeal).
  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.
• Grampian v Sanofi-Aventis SA [2009] CAT 29
  Brian acted for the defendant cartelist in resisting successfully an attempt to allow fresh claims to be brought arising out of the Vitamins cartel decision of the European Commission.
• OFT v Lidum Group (2009)
  Brian acted for one of the companies named in the OFT’s construction cartel decision.
• Wm Morrison Supermarkets v Competition Commission [2009] CAT 33; [2010] Comp AR 191
  Brian appeared for the intervener supporting the CC’s successful resistance to an application for interim relief against a merger divestiture remedy.
• Ofcom v Floe Telecom Ltd [2009] EWCA Civ 47; [2009] UKCLR 659
  Brian acted for Floe in this case which established that domestic mobile telephone licences were not a species of legislation amenable to construction pursuant to Marleasing principles of EU law.
• OFT Groceries and Dairy Cartel Investigations
  Brian acted for Sainsbury’s in these major anti-trust investigations.
• OFT v "D" (Chancery Division, 24 October 2008)
  Brian appeared for the OFT in obtaining warrants for dawn raids by the European Commission in the cement cartel investigation.
• 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 101 and 102 TFEU.
• ECGD Corner House complaint re UK export credit scheme
  Brian is acting for the Export Credits Guarantee Department in the European Commission’s investigation under the State aid rules of aspects of the UK export credit regime.

Brian earlier acted for and advised the 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 under section 47A of the Competition Act 1998.

Publications:

• "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).
• "Piggybacking tips: lessons from the section 47A case-law" (2009) Competition Law Journal 180 
• Brian is the author of the competition law chapters in Schmitthoff’s Export Trade (11^th ed.)(2007) and Employee Competition (2007).
• "Regulators and Split Personality" (2007) Legal Week 30
• 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 B Panel in March 2009.

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.

• R(Sinclair Collis Ltd) v Secretary of State for Health (Admin Court, pending)
  Brian is acting for a vending machine supplier challenging the Government’s decision to ban tobacco vending machines on the basis that it contravenes EU free movement rules and the ECHR.
• R (Imperial Tobacco) v Secretary of State for Health (Admin Court, pending)
  Brian is acting 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.
• Barclay Brothers v Secretary of State for Justice (Isle of Sark Shipping) (pending)
  Brian is acting for Sir David and Sir Frederick Barclay in their challenge to the monopoly granted in respect of ferry and sea-freight services to and from the island of Sark.
• Postcomm investigation of Royal Mail (Service Quality)(2010)
  Brian is acting for Postcomm in its investigation of Royal Mail’s compliance with the service quality monitoring obligations under its Licence.
• Ofgem Smart Metering Programme (2010/11)
  Brian is acting for Ofgem in its implementation of the Government’s policy of ensuring the installation of “smart” gas and electricity meters nationally.
• R(ICO Satellite Ltd) v Ofcom [2010] EWHC 2010 (Admin)
  Brian acted for the claimant, a major US satellite operator, in challenging Ofcom’s decision to request the International Telecommunications Union to cancel its right to use certain frequencies.
• R(Hutchison 3G UK Ltd) v Ofcom (2.6GHz  spectrum auction)(2010)
  Brian acted for a Mobile Network Operator challenging Ofcom’s decision to auction certain radio spectrum for use in wireless technology. The decision was ultimately dropped and the judicial review withdrawn.
• Case T-121/09 Al Shanfari v Council and Commission (General Court of the EU, 13 July 2010)
  Brian acted for the applicant, a citizen of Oman accused of having assisted the Zimbabwean government, in his successful challenge to EU asset freezing measures under the ECHR and the EU Charter.
• R(Parish) v Parish Ombudsman [2009] EWHC 969 (Admin)
  Brian acted for the individual in his successful challenge to the decision that where an employment tribunal had considered whether a dismissal had been unfair, the Ombudsman was precluded from investigating whether the employment had been terminated in the interests of efficiency.
• Times Newspapers Ltd v United Kingdom [2009] EMLR 14 (European Court of Human Rights)
  Brian acted for The Times in its challenge under Article 10 ECHR to the rule in English libel law that every re-publication constitutes a fresh tort.
• R(Eisai Ltd) v National Institute of Health and Clinical Excellence [2008] Times Law Reports, 7 May (Court of Appeal)
  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.
• AES Kilroot v NIAUR (Utility Regulator) [2008] NIQB 62
  Brian acted for a major power generation company in Northern Ireland in its challenge to the decision of the Utilities Regulator that the Irish Single Electricity Market will facilitate competition and that proper consultation had taken place
• 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(Vodafone Ltd & Telefonica O2 Europe Plc) v Secretary Of State for BERR [2007] All ER (D) 120
• R(Friends of the Earth) v Food Standards Agency [2007] All ER (D) 300
• R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 (Court of Appeal)
• Brian has also advised the Moriarty Tribunal of Inquiry in Ireland

Publications

Brian is a 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).

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

• Re Bloomsbury International Ltd [2010] EWHC 1150 (Ch)
  Brian acted for the defendant in this major fraud action arising out of the demise of the British Seafood Group. This is a leading judgment on security and cross-undertakings in freezing order cases.
• Ahmad Hamad Algosaibi and Brothers v Maan al-Sanea (judgment of Smellie CJ, 25 June 2010).
  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.
• Datum Finance Ltd v Mulligan (Chancery Division, pending)
  Brian is acting for the claimant in this case arising from alleged substantial property-related frauds.
• Devenish Nutrition Ltd v Sanofi-Aventis SA & Ors [2009] 3 WLR 198 (Court of Appeal).
  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.
• Hutchinson 3G UK Ltd v O2 Ltd & Ors [2008] All ER (D) 80
  Brian acted for the applicant in this leading case on pre-action disclosure.

Publications

Brian is a co-author of Schmitthoff’s Export Trade (11th ed.)(2007)

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 is acting for a leading international group of oil traders in a FSA and US Commodities and Futures Trading Commission investigation.

• R(ABS Financial Planning) v Financial Services Compensation Scheme Ltd (pending)
  Brian is acting for the FSCS in this challenge to a levy imposition under the compensation scheme.
• FSCS/Keydata
  Brian is acting for the Financial Services Compensation Scheme in its handling of compensation claims arising from the collapse of Keydata of investors
• Seymour Pierce/UKLA
  Brian acted for the Sponsor in its dispute with the UK Listing Authority and in relation to related FSA issues
• R (on the Application of Kaupthing Bank Hf) v HM Treasury (2009)
  Brian acted for Kaupthing Singer & Friedlander (Isle of Man) in its intervention in this challenge to the Treasury’s handling of the collapse of the Kaupthing Icelandic banking group in 2008.
• Kaupthing Singer & Friedlander (Isle of Man)
  Brian acted for the liquidators of the bank in relation to claims arising from its collapse when the assets of its sister bank were seized in the Icelandic banking crisis
• Bankas Snoras
  Brian acted for a major Russian and Lithuanian banking group in 2009 in a FSA investigation and challenge before the Financial Services and Markets Tribunal
• IG Markets v Taaffe
  Brian acted for the investor in his dispute with IG Markets and the associated issues relating to the contracts for difference used in the transactions.
• LIFFE v Molenbergnatie
  Brian acted for LIFFE in its dispute with a LIFFE nominated warehousekeeper in respect of Cocoa and Robusta Coffee Futures Contracts
• Phoenix/MG Rover
  Brian acted for the directors of Phoenix in relation to issues arising from the investigation into the affairs of MG Rover
• FSA/US CFTC investigation into Vitol Oil Traders
  Brian acted for a leading international group of oil traders in a FSA and US Commodities and Futures Trading Commission investigation in 2009.
• Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR
  Brian acted for the appellant in this leading Court of Appeal case on the relationship between EU jurisdictional rules and the state immunity of central banks.

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

Brian regularly appears before football and rugby arbitral tribunals and before the Court of Arbitration of Sport, as well as the Court of Appeal and the Court of Justice and General Court of the EU in sports cases. Brian was listed in “The World’s 20 Most Influential Sports Lawyers” in SportBusiness International and World Sports Law Report magazine in 2009.

• Case T-55/08 UEFA, FIFA v Commission (pending, General Court of the EU)
  Brian acted (as sole advocate) for the UK in resisting 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.
• Chelsea FC v Adrian Mutu
  Brian acted for Chelsea FC in the Court of Arbitration of Sport (CAS) in 2009 in its (successful) defence in Adrian Mutu’s appeal against the order by the FIFA panel that he pay the club £18m. Mr Mutu claimed that the severity of the compensation and the allegedly discriminatory nature of its assessment breached EC competition law.
• FIFA "6+5" Rule in football (2010)
  Brian advised in relation to this controversial proposal from FIFA regarding nationality restrictions in club sides and its compliance with EC free movement and competition rules.
• FA dispute re new WADA "whereabouts" rules (2010)
  Brian acted for the FA in relation to its dispute with UK Sport and WADA regarding the new World Anti-Doping Association International Standard for Testing to football, which requires each player in the England squad to provide “whereabouts” information including 365 day one hour a day coverage.
• Association of Rugby Agents v Premier Rugby Limited
  Brian acted for the ARA in relation to its dispute with PRL regarding the PRL decision that its member clubs may not be responsible for the payment of agents’ fees for services on behalf of a player.
• Proposed Licensing System for the Rugby League Super League 2012-2014
  Brian acted for the Rugby Football League in relation EC competition law issues and revisions to its licensing system Super League 2012-2014.
• British Horseracing Authority/Phelan (2010)
  Brian acted for the appellants in their challenge to a ban imposed for breach of the rule prohibiting owners laying their horses in English races
• District Government of Dusseldorf v Betfair (2009)
  Brian acted for the internet betting exchange in relation to EU law issues arising from the action taken against it by the German local authority
• Betfair v Horserace Betting Levy Board (2009)
  Brian acted for the internet betting exchange in relation to the latest levy proposed by the HRBLB.
• Football Players’ Agents’ Regulations (2007/2008)
  Brian acted for the football agents 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

During the run-up to Euro 2004, Brian appeared 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 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 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.

Publications

Brian is the major author of the chapter on competition law in the 2nd edition of Sport: Law and Practice (eds. Lewis and Taylor) (2008).

Brian has appeared in the majority of the leading telecommunications cases in the UK over the last seven years, in the CAT, Court of Appeal and Court of Justice of the EU. Brian acts for regulators, operators and consumers and specialises in the overlap between telecommunications law and competition law. 

• 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)
  Brian acted (as sole advocate) for an intervener supporting the EU’s successful defence of the regulation capping mobile phone roaming charges. This is now a leading case on the use of Article 114 TFEU as a legal base for pro-consumer EU telecommunications legislation.
• Case C-16/10 The Number (UK) Ltd v Ofcom and BT plc (pending, Court of Justice of the EU)
  Brian is acting in this reference from the Court of Appeal relating to scope of the Universal Service Directive in telecommunications.
• Vodafone Ltd v British Telecommunications Plc [2010] EWCA Civ 391
  Brian appeared for an intervener in this important case relating to the retrospective effect of Ofcom’s price fixing rulings.
• British Telecommunications Plc v Ofcom [2010] CAT 17
  Brian acted for the intervener in this important case relating to the limits on the use of previously un-used material in a merits appeal before the CAT.
• Ofcom v Floe Telecom Ltd [2009] EWCA Civ 47; [2009] UKCLR 659
  Brian acted for Floe in this case which established that domestic mobile telephone licences were not a species of legislation amenable to construction pursuant to Marleasing principles of EU law.
• Hutchison 3G UK Ltd  v Ofcom [2009] EWCA Civ 683
  Brian acted for appellant in its challenge to Ofcom’s finding that it was dominant on the market for calls to its network. This is the leading case on establishing dominance in the mobile telecommunications industry.
• Hutchison 3G UK Ltd v Ofcom [2009] CAT 11
  Brian acted for the intervener supporting the Competition Commission where the CAT held that a party did not have a right to an oral hearing when the CAT reached the stage of deciding whether it should set aside all or part of a determination by the Competition Commission of price control matters.
• 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.
• Hutchison 3G UK Ltd v Ofcom [2008] CAT 10, [2007] CAT 33
  Brian acted for the appellant in these cases on the extent to which a party may amend its pleading in the CAT.
• Hutchison 3G UK Ltd v Ofcom [2008] CAT 5
  Brian acted for the appellant in this important case on the meaning of “specified price control matters” which must be referred to the Competition Commission.
• 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.
• 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.

Brian is acting for Hutchison 3G UK Ltd (“Three”) in relation to all spectrum issues arising out of the Digital Britain Act and spectrum re-farm under EU law in 2010/2011. Brian also acted for Three in the Expert Dispute Resolution process addressing the network integration agreement required by the European Commission in order to permit the T-Mobile/Orange merger in 2010.

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

• Scandinavian Broadcasters/Ofcom (2010/2011)
  Brian is acting for a group of broadcasters based in the UK but broadcasting abroad in relation to Ofcom proposed changes to the advertising minutage rules.
• Case T-55/08 UEFA, FIFA v Commission (pending)
  Brian acted (as sole advocate) for the UK in resisting 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.
• R(ICO Satellite Ltd) v Ofcom [2010] EWHC 2010 (Admin)
  Brian acted for the claimant, a major US satellite operator, in challenging Ofcom’s decision to request the International Telecommunications Union to cancel its right to use certain frequencies.
• Broadcasting Product Placement (2010)
  Brian advised (with James Eadie QC) the Department of Culture, Media and Sport in relation to the proposed changes to the rules restricting product placement in UK broadcasting.
• Channel 6 (2009)
  Brian advised this Irish broadcaster in relation to its dispute with BSkyB in relation to its position on the Sky Electronic Programme Guide ("EPG").
• BBC Trust/Freesat
  Brian advised the BBC Trust in relation to the BBC Freesat proposal in 2007/2008

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

• R(Napp Pharmaceuticals) v Home Office (2009/2010)
  Brian acted for the Home Office in relation to Napp’s challenge to Government policy on the import of oxycodone to the UK, with particular reference to import for re-export.
• R(Eisai Ltd) v National Institute of Health and Clinical Excellence [2008] Times Law Reports, 7 May (Court of Appeal)
  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.

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

Grovit v De Nederlandsche Bank N.V. & Ors [2008] 1 WLR 51
Brian appeared (as sole advocate) in this leading Court of Appeal case on the relationship between EU jurisdictional rules under Reg. 44/2001 and international law (especially state immunity).