Drama as Grabiner speaks out at football shirt price-fixing appeal

Leading silk accuses Competition Appeals Tribunal of becoming a ‘legal jamboree’; Monckton Chambers junior slapped down

The appeal against the Office of Fair Trading’s (OFT) ruling in the football shirts price-fixing inquiry kicked off at the end of last month, with fireworks from JJB Sports’ barrister Lord Grabiner QC and a slap in the face for CMS Cameron McKenna’s Sports Soccer.

In August, the OFT fined 10 companies, including Manchester United, Umbro, JJB Sports/Allsports and Sports Soccer, a whopping £18.6m for price-rigging. The first four lodged furious appeals with the Competition Appeals Tribunal (CAT).

The public appeal started with a case management hearing on 23 October. In a highly unusual move, Sports Soccer (recently rebranded as Sportsworld International), which was the whistle-blower in the OFT’s investigation and received only a small fine, asked for leave to intervene on behalf of the OFT.
Instead of Rupert Anderson QC from Monckton Chambers, the CAT got his junior Andrew McNab for Sportsworld. His first task was to explain his own presence and the absence of Anderson. Unfortunately, his second task was to tell tribunal president Sir Christopher Bellamy: “Please ignore any references to bundles in my skeleton argument, there is not, in fact, a bundle.”

In support of his case for intervention, McNab argued: “You may say, ‘well of course, the OFT can do that job for you’, but the interest of the OFT as a responsible public body may not necessarily be the same as those of Sportsworld, and the OFT, as a responsible public body, may not be quite so astute to seek to protect the reputation of Sportsworld, as Sportsworld’s own legal advisers.”

On behalf of JJB, One Essex Court’s head of chambers Grabiner shot back: “Although we’re all enjoying the jamboree from this side of the room, it cannot have been intended that this procedure should result in a legal jamboree.”

Kelyn Bacon of Brick Court, on behalf of Umbro, argued: “The only point I could find in his [McNab’s] skeleton on which Sportsworld has an interest in Umbro’s appeal is what I would term the ‘Schadenfreude’ point.” Bellamy declined to allow Sportsworld to intervene.

Grabiner, at £1,000 per hour, has never appeared in front of the CAT before but seemed to be enjoying his first time at the tribunal. After telling Bellamy. “I apologise for so to speak, teaching the tribunal to suck eggs, because I’m in the learning process myself,” he went on to help DLA to a bit of Schadenfreude.

DLA, which is representing JJB, also represented Littlewoods on the toys and games price-fixing inquiry. In that case, the firm argued before the CAT that the OFT’s witness statements were defective, but the tribunal gave the regulator leave to amend them.

In the JJB case, the firm declined to submit the usual 50-page skeleton argument and Grabiner successfully argued that he did not have to. Bellamy replied: “Lord Grabiner, without debating exactly what the minimum legal requirement is, it is very helpful for us to have that sort of approach.” Ultimately, JJB had to answer simply yes or no to the OFT’s points rather than submit the full skeleton.