Timing Is Everything ' Finding Of Undue Delay Emphasises Extreme Urgency May Be Required In Commencing Judicial Review Proceedings

• Published date: 18 May 2023
• Subject Matter: Government, Public Sector, Energy and Natural Resources, Compliance, Energy Law, Oil, Gas & Electricity, Constitutional & Administrative Law, Human Rights
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and James Wood

In R. (on the application of British Gas Trading Ltd) v Secretary of State for Energy Security and Net Zero [2023] EWHC 737 (Admin), the High Court refused permission for judicial review where challenges to decisions made by the Secretary of State ("SoS") regarding the transfer of the business of Bulb Energy to Octopus Energy were brought within a matter of weeks. The Divisional Court found there had been undue delay in bringing the applications for judicial review, but in any event would have dismissed the challenges, which were based on public law principles and on alleged non-compliance with the subsidy control principles, on their substance.

Key points

• The Court emphasised the importance of strict time limits in judicial review proceedings in order to protect the public interest in good administration.
• While accepting that the Administrative Court is not normally suited to determine disputes of facts, the Court noted that the judicial review procedures are flexible enough to accommodate such disputes if necessary.
• The Court reiterated that the Administrative Court will adopt a light touch standard of review in the commercial context where the decision makers have particular expertise.

Background

In 2021, Bulb, an electricity and gas supply company with around 1.5 million customers, ran into serious financial difficulties. On 24 November 2021, an Energy Supply Company Administration Order was made by the High Court, and Joint Energy Administrators (the "JEAs") were appointed. The JEAs conducted a sale process to sell Bulb's business. All three claimant energy companies engaged in the early stages of this process, although only British Gas Trading ("BGT") made an indicative offer. At that stage, Octopus made it clear that they would not be making a bid, but subsequently re-entered the process and put forward a bid.

Having considered the position, the JEAs recommended that the bid from Octopus should be accepted. The SoS commissioned an independent review of the JEAs' final recommendations, and also received various assessments concluding that the terms of the Octopus transaction did not contravene the subsidy control principles set out in the EU/UK Trade and Co-operation Agreement ("TCA"). On 29 October 2022, the Government announced its approval of Bulb's acquisition by Octopus and referred to the fact that it involved government funding.

At a hearing in the Chancery Division on 11 November 2022 for an order fixing the effective date of the transfer...