Developing energy policy in the UK is the preserve of the Government. Whatever one might think of the current strategy, it is undeniably true that the legal relationship between the Government and private energy companies is a complex one. One facet of the relationship is the public law obligation, owed by the Government to private enterprise, not to act illegally, irrationally or with procedural impropriety. If the Government or its agencies fall foul of these obligations, affected parties may be entitled to ask the courts to review the lawfulness of the Government’s decision. Such a claim for judicial review is different from court cases between two private parties about breach of contract or negligence. For example, while witness statements are used in judicial review, witnesses are not normally cross-examined at the hearing in contrast to the procedure in a breach of contract or negligence action. Judicial review is often an unknown quantity for companies that have to decide quickly whether to launch a claim. This article aims to demystify judicial review. It will set out some tips for energy companies bringing judicial review claims, and look at some recent energy-related judicial review cases to give an idea of the types of challenges that are possible.
One point before we start. It is arguable that at least some energy companies perform “public” functions and this begs the question of whether they could be subject to judicial review proceedings themselves. The issue of which entities may be subject to judicial review is difficult and worthy of an article in its own right, because there is no definitive statement regarding this. However, it is generally accepted that only entities which are woven into the fabric of government regulation or without which the government would have to step in and perform their functions itself constitute public bodies for these purposes. This would not apply to the majority of energy companies. This article therefore concentrates on the prospect of energy companies using judicial review to their advantage rather than potentially being subject to it.
The aim of judicial review
When carrying out public functions public bodies owe duties and obligations to those they are dealing with. Examples of these duties include a duty to be fair and a duty to give reasons for any decisions which may impact on private entities. These duties and obligations do not exist if the same act is carried out in the purely commercial world of private companies. Judicial review is one of the legal safeguards that aim to ensure that as far as possible those with power cannot wield it in an unfair and discriminatory fashion to further their own interests. In conducting a judicial review the court looks at the decision-making process rather than the merits of any decision itself. If the claim is successful, the court will not substitute its own decision for the contested decision and in practice the public body may have little option as to the final decision after this. However, it may quash the decision and send the issue back to the public body with directions about how it should reconsider the matter.
The first thing to remember about judicial review is that it is important to move fast. A claim for judicial review must be filed “promptly and in any event not later than 3 months” after the grounds to make the claim first arose. It is therefore important to keep a close eye on any decisionmaking process which could affect your interests so you can move quickly. The grounds to make the claim usually arise when the public body makes the decision. The courts apply the three-month rule strictly, so this is a key consideration in any claim. A case in point is that of R (on the application of Finn-Kelcey) v. Milton Keynes Council1. This concerned a challenge to the grant of planning permission for a wind farm. The Milton Keynes planning committee resolved to grant planning permission on 17 December 2007. The Claimant was present at the meeting at which this took place. Due to internal issues the planning committee did not actually grant the planning permission until 14 January 2008. The Claimant filed its judicial review claim form on 10 April, within three months of the actual grant of planning permission. The court found that the claim had not been filed promptly as the Claimant had been aware of the decision on 17 December, and this was upheld on appeal. As is apparent, sometimes there may be a range of steps which could arguably constitute a decision. It is therefore important that, if a public body’s actions concern you, you do not simply wait until the end of the process to consider your position. It may be too late.
The Pre–Action Protocol
There is also a pre-action protocol which applies in judicial review cases. This means that before issuing a claim a potential claimant should normally write to the defendant identifying the issues in dispute and allowing 14 days for it to respond. In reality therefore a company has around two and a half months, from the date of any decision which it objects to, to decide whether to bring a judicial review claim. Understanding the need to move quickly and the factors impacting on the timing is very important. We are often approached by clients who want to complain about something that took place considerably more than three months ago. While there are some things that we can try to get around the time limit, it is far better not to be in this position if you can help it.
Another issue which might cloud timing considerations is whether there is another or alternative remedy. The general rule is that a company wishing to bring a judicial review must exhaust all other remedies first. Judicial review is a remedy of last resort. You must therefore be sure that in your eagerness to comply with the three-month time limit you do not act prematurely by issuing a claim before exhausting all other ways of attacking the decision which you are unhappy with. In the case of Abbey Mine Ltd v. Coal Authority and another2 the Claimant successfully negotiated this issue. The case concerned an application by Abbey Mine for judicial review of a decision of the Coal Authority to offer an underground coal-mining licence in South Wales to Corus rather than Abbey Mine. The Coal Authority originally made this decision on 9 September 2005. Abbey Mine did not however apply for judicial review of the decision at that point since the Coal Industry Act 1994 provides for statutory review hearings of contested decisions. A statutory review hearing took place on 2 December 2005, and the Coal Authority reconfirmed its earlier decision on 16 December 2005. The judicial review was, correctly, brought against the 16 December 2005 decision. Unfortunately, while Abbey Mine overcame the timing and alternative remedies hurdles, it did not persuade the court to uphold its challenge to the Coal Authority’s decision.
Because of the potential for abuse of the judicial review procedure, the courts use a first filter. Claimants must get the court’s permission to bring the judicial review claim. The focus at this stage will be on timing and whether the claimant has a sufficient interest in the decision of the public body that it wants to challenge. What constitutes a sufficient interest is not defined, but in practice it is broad and flexible. It is clear than any individual or entity directly affected by a decision will have sufficient interest in it. The less clear the link between the claimant and the contested decision the less clear it becomes whether a sufficient interest exists. A judge considers whether permission should be granted based on the judicial review claim form and any documents filed by the claimant and any response and documents received from the defendant. It is likely the papers considered by the court at this stage will be relatively limited, often amounting to only one or two files. This is a fraction of the likely paperwork for a standard court case. Only if the court refuses permission and the claimant appeals against this decision will there be a hearing on this issue.
Another way in which judicial review cases are different from other types of court cases concerns “interested parties”. When the claimant issues a judicial review claim form it must indicate if there are any third parties which it considers will or may be affected by the proceedings. The defendant public body must also answer this question when it files its response to the claim. Copies of the claim form and the defendant’s response must be served on the third parties identified as interested parties, and they can become involved in the proceedings if they want to. This can be illustrated by the case of R (on the application of North Devon District Council) v. Secretary of State for Business Enterprise and Regulatory Reform3. In this case North Devon District Council challenged decisions of the Secretary of State to grant consent for a wind turbine generating station in North Devon and to direct that planning permission be deemed granted for that development. As you might expect, the company that had made the application for consent and deemed planning permission was named as an interested party in the case, received the papers and became involved in the proceedings.
Grounds for challenge
Once the court has given a claimant permission for judicial review, attention turns to the substance of the claim. To succeed with the claim the claimant must persuade the court that the decision-maker acted either illegally, irrationally or with procedural impropriety when making the decision. Each of these grounds is wide-ranging, and it is possible to allege more than one at once when challenging a decision. Such challenges can therefore lead to the court undertaking an extremely detailed review of the public body’s actions.
In short a decision-maker acts illegally when it makes a decision that is outside its powers. This can be shown in the case of R (on the application of Teesside Power Ltd and others) v. Gas and Electricity Market Authority4. Denton Wilde Sapte acted for the successful claimants in this case, which stemmed from the proposed introduction of zonal transmission loss charging in the electricity generation market. The claimants brought proceedings against the electricity regulator, the Gas and Electricity Market Authority (GEMA). They proved to the court’s satisfaction that GEMA had misinterpreted its powers in relation to the timetable for modifying the Balancing and Settlement Code, which governs the relationship between National Grid and electricity generating companies and suppliers.
If a decision-maker acts in contravention of the principles of natural justice or without procedural fairness then it has acted with procedural impropriety. In the case of R (on the application of Greenpeace Ltd) v. Secretary of State for Trade and Industry5, Greenpeace challenged a decision of the Secretary of State. The relevant decision was to support nuclear new build as part of the UK’s future electricity generating strategy. Greenpeace alleged that the consultation leading to the decision was flawed. Greenpeace argued the Government had promised there would be “the fullest public consultation” before it took the decision about whether to support nuclear new build, but this had not occurred. The judge considered documents published by the Government in detail, and decided that there were serious flaws in the consultation exercise. The court therefore made a declaration that the Secretary of State’s decision to support nuclear new build was unlawful.
A decision is irrational if it is beyond the range of responses open to a reasonable decision maker. Irrationality was one of the grounds which Gamesa Energy UK Ltd used to challenge a decision in the case of R (on the application of Gamesa Energy UK Ltd) v. National Assembly for Wales and another6. This case concerned a tendering process used by the Forestry Commissioners. Gamesa alleged there was no rational or intelligible justification for certain elements of the marking scheme the Forestry Commission used to assess tenders. For example, it penalised tenderers for giving too much detail about developments it had conducted in the past and projects which were in an early stage of development. The court agreed that it was arguable that certain parts of the tender process had the potential to produce irrational marks. However, the court rejected Gamesa’s challenge as it found the tender process was not amenable to judicial review as the issue did not have enough public law relevance. As an aside, another useful aspect of judicial review highlighted by this case is that it is possible to apply to the court for expedition. In cases of urgency the court can be moved to intervene and decide very quickly.
If a party is not happy with the court’s decision on a judicial review then it can apply for permission to appeal against it. If permission is granted then the Court of Appeal will review the court’s decision to check that it is correct in law. Once the Court of Appeal has given its view then there is a further opportunity for appeal to the House of Lords if permission to do so is granted. If the case does proceed to that stage then the House of Lords’ decision will be final.
A useful tool
Judicial review is a useful tool for companies in regulated industries to hold public bodies to appropriate standards. Often the prospect of judicial review proceedings and associated scrutiny, provided it is based on justifiable grounds, is enough to encourage the relevant authority to reconsider and find a solution that is acceptable to all. Of course these instances are rarely, if ever, publicised. But they do occur. In the current climate, industry participants are increasingly vigilant about regulatory and governmental issues. Judicial review – or its prospect – plays an important part in the overall package of checks and balances designed to ensure fair and good decision making.