Matthew James Cowlishaw & Ors. v Octopus Energy Retail 2022 Limited
[2022] EWHC 3105 (Ch)
British Gas Trading Limited, R (on the application of) v Secretary of State for Energy Security and Net Zero
31 March 2023
[2023] EWHC 737 (Admin)
High Court
Three energy companies sued the government over its sale of a failing energy company, Bulb, to Octopus. The government argued the companies waited too long to sue. The judge agreed and threw out the case, saying the sale was fair and followed the rules, even though it involved government help for Octopus.
Key Facts
- •Bulb Energy Limited (Bulb) faced serious financial difficulties and entered into a Special Administration Regime (SAR) in 2021.
- •Joint Energy Administrators (JEAs) initiated a sales process for Bulb's business.
- •Octopus Energy Group Limited (Octopus) was ultimately selected as the buyer.
- •The Secretary of State for Energy Security and Net Zero (SoS) made two key decisions: the Funding Decision (providing financial support) and the Approval Decision (approving the Energy Transfer Scheme).
- •British Gas Trading Limited (BGT), ScottishPower, and E.ON challenged these decisions through judicial review.
Legal Principles
Promptness and undue delay in judicial review applications.
CPR 54.45, Section 31(6) Senior Courts Act 1981
Principles of fairness in administrative decision-making.
R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531
Standard of review in judicial review of administrative decisions, particularly in commercial contexts.
Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521; State of Mauritius v CT Power Ltd [2019] UKPC 27
Duties of energy administrators under the Energy Act 2004 and 2011.
Energy Act 2004, sections 158, 165; Energy Act 2011, sections 94, 95
Subsidy control principles under the Trade and Cooperation Agreement (TCA).
Trade and Cooperation Agreement, Articles 303, 363-374
Outcomes
Permission for judicial review refused.
Undue delay in bringing the claim.
Public Law grounds rejected.
No arguable prospect of success; SoS reasonably relied on JEAs' advice.
Subsidy Control grounds rejected.
Decisions complied with TCA principles; M&A process was sufficiently open and competitive; subsidies were proportionate and for legitimate purposes.
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