British Gas Trading Limited, R (on the application of) v Secretary of State for Energy Security and Net Zero
[2023] EWHC 737 (Admin)
Matthew James Cowlishaw & Ors. v Octopus Energy Retail 2022 Limited
30 November 2022
[2022] EWHC 3105 (Ch)
High Court
A company went bankrupt. A buyer wanted to take over. Some other companies complained. The judge said his job was only to pick a date for the takeover to happen, not to decide if it was a good deal. He picked a date, and said if the other companies wanted to stop it, they have to argue it in a different court.
Key Facts
- •Bulb Energy Ltd (the "Company") was in energy supply company administration.
- •Administrators applied to appoint an effective time for an energy transfer scheme under Schedule 21 of the Energy Act 2004, as applied by the Energy Act 2011.
- •Octopus Energy was the proposed transferee.
- •ScottishPower, British Gas, and E.ON opposed the application, raising concerns about the marketing process and the Secretary of State's approval.
- •Judicial review proceedings were commenced against the Secretary of State's decision.
- •The court was asked to determine the scope of its role in appointing the effective time.
Legal Principles
Purposive construction of statutory provisions.
Common ground between parties
The court's role is limited to appointing the effective time of the energy transfer scheme, not approving its substantive merits.
Schedule 21, Energy Act 2004; Energy Act 2011
A scheme falls within section 95(3) if the transfer of a sufficient part of the undertaking is appropriate for achieving the statutory objective of continuing energy supplies.
Section 95(3) Energy Act 2011
The court has discretion in appointing the effective time, primarily focusing on practicalities of a smooth transition.
Schedule 21, paragraph 3(4)
The court's role does not include reviewing the Administrators' compliance with duties to creditors or ensuring the scheme achieves the lowest cost.
Interpretation of Section 95(3) and Schedule 21
Outcomes
The court rejected the opponents' contention that it must be satisfied the scheme achieves the lowest reasonably practicable cost before appointing an effective time.
The court's role is limited to ensuring jurisdictional requirements are met and determining timing. The Secretary of State holds responsibility for approving the scheme's substantive merits.
The court appointed an effective time of 23:58 on 20 December 2022.
This allows sufficient time for preparation while mitigating potential delays from pending judicial review proceedings. The court noted that challenges to the Secretary of State's decision should be addressed via interim relief applications in the Administrative Court.
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