Category: Energy

Damages and the Competence of the Administrative Court

The award of damages is not a remedy traditionally available in judicial review. In public law proceedings, the purpose of a claim is to identify unlawfulness and bring it to an end, not to compensate those who have been affected by it.

In recent years, however, the non-financial purity of judicial review has been eroded by a number of developments. In particular, monetary compensation is now available in some cases where the source of the wrong was non-compliance with either EU law (Francovich damages) or the European Convention on Human Rights (under section 8 of the Human Rights Act 1998).

But does the Administrative Court, without any real track record in this area, have the competence to carry out an assessment of damages in a complex case?

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Drax v HM Treasury – How Green (or any other) Subsidies Can Be Withdrawn Without Notice

Renewable energy has been subsidised in the UK for at least 25 years. However, the nature, scope and level of the subsidy has been subject to significant change over time. In recent years, due to a range of fiscal and political pressures on the government, various support schemes have been either scaled back or abandoned.

Government subsidies provide an incentive to invest in commercial activities which would otherwise be uneconomic. That is their point. So what happens if a business, having made those investments in the expectation of a subsidy, finds that it is then withdrawn with little or no warning? Does it have any legal right to a notice period, or compensation in lieu of one?

This was the question considered by the High Court in the recent case of Drax v HM Treasury, which has important implications for business planning in any industry which currently benefits from government financial support.

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Four Short Points on Interpretation

The rules of interpretation in public law, though apparently of little interest to academic lawyers, and never taught in law schools, are fundamental to the day-to-day work of anyone practising in the area.

This is not only because most public authorities operate within a statutory framework which must be properly understood if they are to act intra vires, but because they themselves generate huge volumes of written documents – orders, directions, regulations, consents, licences, authorisations, policies, approvals, determinations, guidance (and so on) – all of which fall to be interpreted within a public law context.

Because public law is, as Martin Loughlin of the LSE observes, ‘an autonomous discipline with its own distinctive methods and tasks’, its principles of interpretation differ in important respects from those applying to private law documents. In two cases decided on the same day, the Supreme Court has emphasised four important elements of these principles.

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RWE v Ofgem – Discrimination and Deference in Energy Regulation

There are many things that seem unsatisfactory about the judgment of the High Court in RWE Generation v Gas and Electricity Markets Authority, apparently reflecting the judge’s own evident dissatisfaction with aspects of the claim.

However, in spite (or perhaps because) of this, the case has important things to say about how the courts treat discrimination claims in complex regulatory cases, both in the energy industry and beyond.

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