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.
As everyone who practises in the field of public law knows, judicial review has a habit of giving rise to the occasional pyrrhic victory – the apparent success that is actually a defeat. This can happen for a range of reasons. Since relief is discretionary, it is not always granted even where unlawfulness has been made out. When it is granted, it will not necessarily change the ultimate outcome. And, occasionally, success can simply come too late for any effective remedy to be available.
This last situation is the one considered by the Supreme Court in Hunt v North Somerset Council, where the question that arose was how to deal with costs when the claimant won on the law, but got no effective remedy. Put simply, for costs purposes in public law cases, is a pyrrhic victory really a victory or actually a defeat?
Continue reading Hunt v North Somerset – Judicial Review, Pyrrhic Victories, and Costs
The argument that sex shop operators should not have to pay the full costs of regulating their own industry, but that these should be met instead out of general public funds, is hardly the stuff of which causes célèbres are made. So perhaps it is unfortunate that the first test case on the important Provision of Services Regulations 2009 should arise from precisely these facts.
Nonetheless, the case, which is the subject of a recent Supreme Court judgment in R (Hemming) v Westminster City Council, is likely to be significant beyond the narrow limits of its factual context.
Not only does Hemming have something to say about how regulatory systems in general are funded – as evidenced by its raft of interveners which included the Law Society, Bar Council, Local Government Association and HM Treasury – but it also draws attention to the largely neglected subject of how the Provision Of Services Regulations 2009 cut across well-established areas of UK regulatory law, with uncertain future consequences.
Continue reading R (Hemming) v Westminster – A Lesson in the Unintended Effects of EU Law
In Nzolameso v City of Westminster, the Supreme Court addressed itself to two related and important questions in public law. Where a public authority gives reasons for a decision, what standard of reasoning is expected of it? And where its reasons are silent about a matter to which it needed to have regard, how are the courts to interpret that silence?
The case is part of a wider trend in public law to raise the bar on the standard required of decision-making, and is therefore of considerable significance beyond its immediate context.
Continue reading Nzolameso v Westminster – The Duty to Give (Good) Reasons
Sometime between 1am and 7am on 11 May 2009, Renford Braganza, the chief engineer aboard the MV ‘British Unity’, stepped out of his cabin. The ship, an oil tanker, was in the middle of the North Atlantic. He was never seen again.
How Mr Braganza’s employers, BP, responded to the unsolved mystery of his disappearance was the subject of the Supreme Court judgment in Braganza v BP Shipping Limited  UKSC 17. The Supreme Court held that fundamental principles of public law governing the exercise of discretion by public authorities can be equally applicable in private law to the exercise of discretion by one of the parties to a contract.
Continue reading Braganza – Using public law principles in contractual disputes