The Queen on the application of East Meon Forge and Cricket Ground Protection Association and (1) East Hampshire District Council (2) South Downs National Park Authority [2014] EWHC 3543 (Admin)

Prospect successfully challenges by Judicial Review in the High Court the grant of consent for alterations to a listed building within the South Downs National Park at East Meon (October 2014)

Please see the Judgment and Westlaw Case Summary below.

The Forge – Judgment

The Forge – Westlaw Case Summary

 

For press items relating to the matter, please see below:

http://www.telegraph.co.uk/news/uknews/law-and-order/11202109/High-Court-judge-what-are-sixes-and-fours-in-cricket.html

http://www.bbc.co.uk/news/uk-england-hampshire-29848550

http://www.dailymail.co.uk/news/article-2805971/Caught-Judge-basic-rules-cricket-explained-planning-dispute-involving-village-club.html

http://www.express.co.uk/news/uk/530016/Judge-query-injury-risk-planning-permission-cricket-pitch

 

post

DECC held liable to compensate the Solar PV supply chain industries for its unlawful acts in Prospect Law’s claim for £132 million brought under Human Rights legislation

1.     On 9 July 2014, judgment was handed down in the case of Breyer Group Plc & Ors v. Department of Energy and Climate Change [2014] EWHC 2257 (QB), in which Prospect Law successfully represented 14 solar supply-chain businesses to establish their right in principle to recover substantial damages in relation to government’s attempts to make unlawful retrospective changes to the Feed-in Tariff Scheme, under which generators are paid for generating green renewable energy.

Feed in Tariff Scheme

2.     The Feed-in Tariff scheme (“FITS”) is a subsidy scheme created by the Department of Energy and Climate Change (“DECC”) to encourage the small-scale generation of electricity from renewable sources. It came into force on 1 April 2010

3.     Under the scheme, generators of clean energy would be paid a fixed subsidy per kWh of electricity they produced for 25 years, adjusted yearly for inflation. This subsidy was to allow those adopting such technology to recoup the initial high upfront costs. Without the subsidy the technology was unaffordable and no UK solar industry could have existed.

4.     The original subsidy rate was due to remain in place until 31 March 2012; however, in a consultation released on 31 October 2011, DECC indicated that it would set a ‘reference date’ of 12 December and that anyone installing after this date would only enjoy the current rate until 31 March 2012, at which point it would be reduced by 55%.  The drop was from 43.3p to 21p per kWh

5.     This essentially pulled the rug from under the fledgling industry. With only 6 weeks’ notice of the proposed change, the market endured a catastrophic dislocation until, from 12 December, it collapsed.

 

Judicial Review

6.     Prospect Law was instructed by members of the supply chain industries to mount an urgent Judicial Review challenge to DECC’s proposed changes.  The action was subsequently joined by Friends of the Earth.

7.     The challenge was successful, both in the High Court ([2011] EWHC 3575 (Admin)) and, on DECC’s challenge to this decision, in the Court of Appeal ([2012] EWCA Civ 28).  DECC attempted to appeal to the Supreme Court, but it was refused permission to do so.

8.     What DECC had proposed was unlawful because the statute in question did not permit DECC to introduce secondary legislation with retrospective effect.

 

Compensating the industry

9.     In the aftermath of its successful Judicial Review challenge, Prospect Law was approached by several companies enquiring as to the potential of claiming compensatory damages from the Government for the losses suffered as a result of the 31 October 2011 announcement.

10.  Prospect Law’s analysis was that damages could be claimed pursuant to the Human Rights Act 1998, which permits claims for damages in relation to violations of human rights guaranteed by the European Convention.  The right in question was that of peaceable enjoyment of possessions.

11.  The claim would involve novel aspects. First, it is somewhat counter-intuitive to employ legislation concerned with “human rights” violations to compensate commercial organisations for their losses.

12.  Further, the case-law in relation to crucial matters such as the nature of qualifying “possessions” was under-developed and often contradictory. Nevertheless, Prospect Law evolved a case that would have a reasonable chance of success, and was instructed to issue the first of a series of claims.

13.  Eventually 18 claimants instructed Prospect Law and the claims were consolidated into a single action in the High Court with a combined value of some £132 million. Subsequently, 3 other companies made independent claims of their own similar to the Prospect Law claims, and the Court decided to deal with them at the same time.

 

Preliminary trial of legal issues, 19-21 May 2014

14.  On Prospect Law’s advice, its clients adopted a split-trial strategy. If certain legal issues were not held in the Claimants’ favour, the costs of a full trial on evidence would be avoided. If, on the other hand, these issues were held in the Claimants’ favour, they could expect to establish significant damages in due course.

15.  DECC on the face of it accepted the split-trial approach, but took the position that it must be a preliminary trial of both factual and legal issues and that the scope of the issues to be decided should be limited.

16.  This was a suggestion to incur significantly more costs for a less decisive outcome, and, so, would effectively have negated the benefit of a preliminary trial of issues. DECC fought hard in relation to these points in two interlocutory hearings, and lost in both instances.

17.  The preliminary trial went ahead on the basis advocated by Prospect Law, and was heard by Mr Justice Coulson in the sitting in the Queen’s Bench Division between 19-21 May 2014.

18.  The four vital issues were:

(i)     Did the Claimants have A1P1 possessions?

(ii)   If so, had DECC interfered with them?

(iii)  If so, had that interference been justified?

(iv)  If not, were the Claimants entitled to damages to put them back into the position they were in before the interference?

19.  The Court answered in the Claimants’ favour on all 4 issues.

20.  DECC had argued that the Claimants had no A1P1 possessions. The Claimants argued that they had, by virtue of having the benefit of contracts, having a legitimate expectation and having marketable goodwill. The Judge accepted that, in each of these three ways, the Claimants had possessions to the extent that they had concluded or binding contracts.

21.  The Claimants submitted that the making of the proposal took effect as a decision, as it had an immediate and catastrophic effect, an effect, moreover, that DECC had anticipated and intended.

22.  DECC argued that there had been no interference, and could not be, because its consultation had been a mere proposal. The “mere proposal” submission found no more favour with Mr Justice Coulson than it had in the judicial review proceedings.

23.  DECC’s submission that the Claimants had caused harm to themselves by not going ahead with contracts was, in effect, to say that the Claimants were at fault for believing that DECC would do what it said it would do.

24.  The Court did not find any merit in such submissions. Further, the Judge held that, as DECC knew and intended the making of its proposal to have an immediate impact by discouraging further installations, it was entirely artificial to seek to deny that it was an act of interference.

25.  DECC had argued that its actions were justified in the public interest. The Court agreed with the Claimants’ submissions that unlawful conduct, such as DECC proposed, could not, as a matter of principle, be in the public interest.

26.  The Claimants maintained that interference was not justified on the facts, even though the trial of this issue proceeded on the basis of facts assumed in DECC’s favour. On these facts, the Judge recognised that DECC had some legitimate aims in seeking to protect subsidy budgets, but considered that these were outweighed by contrary factors.

27.  The Judge accepted that the FIT scheme had been presented as long-term, and yielding a certain return, in order to induce private investment, investment that the Claimants had made on a considerable scale. The Court also noted that DECC had assured the market that it would make no retrospective changes to the FIT scheme, shortly before attempting to do so.

28.  Finally, the Judge fully accepted the Claimants’ submission that the ‘just satisfaction’ remedy available for a rights violation  would be compensatory damages in this case, designed to put the Claimants in the position that they would have been in, but for the interference with their rights.

29.  Prospect Law is now engaged in the exercise of assisting each of the Claimants in establishing the precise amount of the losses that it can expect to recover following the principles set out by Mr Justice Coulson.  The damages sought will be very substantial.

30.  DECC has indicated that it is considering an appeal to the Court of Appeal.

Solar industry companies win High Court victory in £132m damages claim against Department of Energy and Climate Change (DECC) Q&A

Case details

Q1. What is the news?

A1. 14 companies have won victory in a trial of legal issues for their £132 million claim against the Government’s Department of Energy and Climate Change (DECC) for the losses they incurred as a result of the Department’s unlawful cuts to Feed-in Tarrifs in December 2011.

The claim is being run by Prospect Law, the energy specialist law firm which successfully led the FiTs Judicial Review claim against DECC in 2011 and 2012.

The solar companies case is that DECC’s policy change, which was announced by energy Minister Greg Barker MP in October 2011, resulted in cuts to solar FiTs which were ruled to be ‘unlawful and unfair’ by the High Court, the Court of Appeal and then the Supreme Court in Spring 2012. DECC’s conduct caused:

  • An estimated loss of £132m in revenue and earnings for the claimants
  • Significant reductions in sales orders and profit margins as the industry contracted 25 per cent (Source: Cut Don’t Kill campaign via BusinessGreen.com)
  • Extreme surplus of inventory caused by a sudden reduction in new orders and the cancellation of existing ones
  • The cancellation of high numbers of large scale contracts, including many from social housing providers designed to tackle fuel poverty in vulnerable section of society
  • Direct damage to consumer and investor confidence in solar policy, causing the UK to drop 2 places in the Earnest & Young Renewable Energy Country Attractiveness Index (Source: E&Y RECAI Issue 33, May 2012)
  • An immediate decline in the demand for solar energy with installations dropping from 27,000 per month prior to the cut to 12,000 (Source: Guardian.co.uk) following the premature cuts before falling significantly further

The average size of the Prospect Law claims is £6 million with individual claims ranging in size from £250,000 to tens of millions of pounds.

The extent of the reduction in the solar industry is best illustrated by the installation figures provided by OFGEM:

 

(Source: Feed-in Tariff Annual Report 2012-13, OFGEM)

 

Q2. What is the legal issue that has been decided by the High Court?

A2. Prospect Law has obtained a ruling on the essential legal questions in the case which were heard over 3 days at the High Court in May at a preliminary trial of legal issues.

The case is ground breaking as damages have been sought for losses applying to the FiTs scheme under the Human Rights Act 1998. The legal issues revolved around the question of whether the claimant companies had “possessions” for the purposes of the European Convention on Human Rights (ECHR). Mr Justice Coulson decided (i) that the claimant firms did have possessions, (ii) that these possessions were unlawfully interfered with by DECC’s conduct in 2011, and (iii) that DECC’s conduct caused substantial losses which were not justified.

The judge has ruled (iv) that the companies are entitled to “just satisfaction” for their losses and, the judge having ruled on the legal issues at stake in the case, Prospect Law will now be finalising the quantum of each firm’s claim for damages against DECC.

 

Q3. Why is this happening?

A3. The damages action is being taken to recoup the losses incurred by the companies as a result of the unlawful cuts which DECC attempted to make to FiTs rates, and to enable the companies to invest in the jobs and technological innovation which are needed in the UK renewables industry in order to meet the Government’s carbon reduction commitments.

 

Q4. What was it that DECC did wrong?

A4. DECC made retrospective changes to the Government’s policy on solar FiTs rates, unlawfully bringing forward the date at which the FiT rates were to be reduced, contrary to the requirements of the Energy Act 2008.

DECC’s original policy scheduled solar FiTs to be reduced on the 31 March 2012. As a result of the policy announcement in October 2011, this date was brought forward almost four months to 12 December 2011, two weeks prior to the conclusion of the consultation. Thousands of planned solar installations were cancelled.

On 21 December 2011 Mr Justice Mitting sitting on the Judicial Review case in the High Court stated that, in relation to the FiT cuts, DECC:

  • Acted in an “unlawful and unfair” manner by making sudden and retrospective changes to legislation
  • Made illegal and premature changes to a legal framework which was designed to provide industry and consumers with certainty over investments in renewable energy systems, and which caused the cancellation of numerous contracts
  • Operated outside its code of practice
  • Stifled the performance of one of the few growth industries in the UK’s economy
  • Indirectly discouraged the adoption of solar energy by both UK consumers and businesses

“It doesn’t make economic sense to let the sun go down on the solar industry in the UK. As well as helping to cut carbon emissions, every panel that is installed brings in VAT for the Government and every company that benefits from the support is keeping people in work.

This [premature cuts to FiTs] will stop nine out of ten installations from going ahead, which will have a devastating effect on hundreds of solar companies and small building firms installing these panels across the country.”

Joan Walley MP, Chair of the Environmental Audit Committee

22 December 2011

(Source: Parliament.uk)

“The government’s chaotic mismanagement has put thousands of jobs and businesses in the solar industry in jeopardy, undermined confidence and investment in the whole energy sector and gives lie to the government’s promise to be the ‘greenest government ever'”.

Caroline Flint, Shadow Secretary of State for Energy and Climate Change

22 December 2011

(Source: PoliticsHome.com)

Q5. How important is solar to the UK economy?

A5. There is currently 2.94GW of solar PV capacity installed in the UK as at the end of March 2014 and solar is the forth largest source of renewable energy in the UK, behind Wind, Biomass and Hydro. In its recently published UK Solar PV Strategy, DECC outlined that this will grow to reach up to 20GW by 2020 (Source: DECC.gov.uk). The industry employs over 16,000 individuals (Source: Solar Trade Association).

Q6. Does this have an impact on consumers and energy prices?

A6. Much emphasis at the time of the unlawful policy change was placed on consumer bills. As of 2013 the Feed-in Tariff added ~£7 to an average yearly electricity bill (3,500kWh), with this expected to rise to £17.50 by 2020. This is still less than 3% of an expected 2020 electricity bill. (Source:  Estimated impacts of energy and climate change policies on energy prices and bills, DECC, March 2013).

As stated by the then Energy and Climate Change Secretary, Ed Davey, in November 2012 “The impact of supporting green energy policy is only two per cent on people’s bills at the moment” (Source: BBC Today programme via BusinessGreen).

Solar energy plays an important role in diversifying domestic energy supply and reducing the long term cost of electricity for all. As the price of grid electricity increases year on year, the Feed-in tariff plays a major role in increasing demand for solar power and enabling prices to drop in the long term. It is a medium term demand generating policy which will not be required in the long term once prices have fallen to a level equal to or less than the price of grid electricity (known as “grid parity”).

The return to stable FiT levels for solar provides consumers and businesses with secure and predictable clean energy investment opportunities. This security is in part due to the 2012 legal case which demonstrated the detrimental impact of FiT policy mismanagement and the instability it creates.

Based on 26.4m households in the UK (Source: ONS) the £132m equates to £5 per household, less than a years worth of FiT subsidy cost.

Q7.  What about the UK’s climate change targets?

A7. The 2009 EU Renewable Energy Directive placed a legally-binding target of 15% of all energy usage in the UK, including transport fuels and heating, to come from renewables by 2020. As part of the UK Government “renewables roadmap” the target of electricity generation from renewables is set at 32%. DECC states that £100-110 billion in new investment is required in the electricity sector between now and 2020 to meet this target.  (Source: UK Renewable Energy Roadmap Update 2013, DECC).  Market confidence is the key to unlocking this investment and the threat of retrospective changes to subsidy schemes is devastating to this confidence. Recent retrospective changes to renewables subsidies in Spain, Italy, the Czech Republic and Bulgaria have shown the effect such actions can have on investors (e.g. Source: Cogeneration & On-Site Power Production). This victory in the High Court should reassure investors in the UK renewables sector that such actions will not be an issue here.

The approval rating of Renewable energy in the UK is currently over 80% (Source: Public Attitudes Tracker survey, DECC).

Q8. Who are the claimants?

A8. The 14 companies behind the Prospect Law claim include solar installers, developers, investors and free solar companies:

–        Freetricity Plc

–        Ecovision

–        Cleaner Air Solutions

–        Solarlec

–        Breyer Group Plc

–        New Energy Solutions

–        E-tricity

–        Foz Electrical

–        Green Home Ltd

–        Viscount Solar Ltd

–        Evo Energy

–        Crystal Windows

–        Monitor My Solar

–        Solar Power PV Ltd

Q9. Who is DECC?

A9. The Department of Energy and Climate Change (DECC) is the government department responsible for the management and overseeing of Britain’s energy economy. In this role, DECC is responsible for incentivising the adoption of green energy generation among businesses and consumers, helping encourage innovation and growth among businesses supplying these products and services.

Q10. Why is this so significant?

A10. The illegal action by DECC reduced the demand for solar causing the loss of sales and jobs, effectively halting one of the UK’s fastest growing sectors for a number of months in 2012.

“With something like a third of all our growth accounted for by green business last year, the UK could be a global front-runner in the shift to low-carbon. In the search for growth, we’re digging for goldmines – and one of them is green. Get our energy and climate change policies right, and we can add £20bn extra to our economy and knock £0.8bn off the trade gap, all within the lifetime of this Parliament.”

John Cridland, CBI Director-General, 5th of July 2012 (Source: CBI.org.uk)

The UK Government has legally binding carbon reduction targets to be achieved by 2020 for which solar plays a large part in achieving. To achieve these targets the Government must provide clear, stable and secure policy to support and encourage wider adoption of clean technologies like solar which DECC failed to do in this case.

Q11. Has the solar industry recovered from this and is solar a good investment now?

A11. The solar industry is now recovering thanks to falling solar prices and the commitment of individuals and businesses working in the solar energy sector.  FiT levels are now stable and secure and solar is widely considered as a good investment for consumers and businesses.

To calculate returns go to The Energy Savings Trust website

-ENDS-

Solar companies win High Court victory in £132m damages claim against Government

Wednesday 9th July 2014, London – The High Court has today ruled in favour of 14 British solar and construction companies represented by energy specialist firm Prospect Law giving them victory in the critical legal issues trial of their damages claim against the Government. This follows the 2011 unlawful policy changes to the payment for generating clean electricity, the Feed-in Tariff (FIT).

The companies issued the ground breaking claim in 2012. They called on the Government to rectify the damage caused to solar PV businesses by unlawful policy changes announced by Energy Minister Greg Barker MP in October 2011. The group are seeking £132 million in compensation from the Department of Energy and Climate Change (DECC) following the decision to retrospectively introduce early cuts to the Feed-in Tariff, the payment to clean electricity generators, that devastated the fledgling industry at the time and lead to chaotic trading conditions, shattered consumer confidence and thousands of redundancies.

With 500,000 solar installations at present, the UK needs to grow the number of homes and businesses powered by solar to many millions to reach the UK’s target of 20GW of solar power by 2020.  Many of the projects cancelled in 2011 and 2012 were for social housing providers using solar energy as a way of providing much needed assistance to those suffering fuel poverty in the wake of huge rises to the cost of home energy.

Solar power is one of the fastest growing industries in the world and is now broadly witnessing a recovery in the UK, with a stable and healthy Feed-in Tariff secured in the original High Court battle against the cuts, firmer policy commitments, and growing consumer demand. However, the impact on clean technology companies of DECC’s unlawful conduct in 2011 was catastrophic, with the handling of changes to FiTs creating a major setback to confidence, removing opportunities to invest in jobs, training, and new technology development within the crucial renewable energy sector.

​ ​The sector could have been well on its way and employing substantially more than the 16,000 workers it does today, down from 25,000 at the time of the cuts, if the Government had acted in a legal and responsible way in 2011.

​The Hon. Mr Justice Coulson, the High Court Judge on the case, today said​:

“Although the entitlement to damages will ultimately depend on the facts, as a matter of general principle, the claimants have demonstrated an entitlement to damages assessed by reference to the loss of those possessions for which recovery is permissible, namely signed/concluded contracts and/or the marketable goodwill referable to such contracts.”

​Nick Keighley of ​Solarlec, one of the claimants firms, said:

“The good news is that small scale solar power generation is now on the road to recovery. The Feed-in Tariff is now stable and the costs of solar PV are slowly reducing, representing increasingly better value for consumers and a very cost-effective way of generating green energy.  Public support for solar remains high and the Government now want solar to play a big role in our energy mix. The fact is however that the industry was treated very badly by DECC, and their actions in 2011 damaged the growing industry and severely harmed the ability of companies such as ours in a key growth sector from investing, innovating and creating much-needed jobs as well as contributing the to UK carbon reduction commitments.”

He added:

“2012 and 2013 should have been years for continued growth, innovation, investment and training in the solar sector, instead DECC’s conduct caused us two years of cut backs, customer confusion, part time working, stress and redundancies. Many in the industry had to let staff go in the weeks following Greg Barker’s announcement. We asked for compensation to be paid to us to help us get up to speed again and to help secure the clean and affordable energy supply we need. We’ve just about made it through and our focus is now on investing in a much diminished workforce and planning for the future. If the Government really does support solar, it needs to compensate businesses for the losses it caused and move forward with the industry.”

In May 2012 it was reported that 6,000 people had lost their jobs in the industry as a direct result of the illegal cuts and that the industry as a whole had shrunk by 25 per cent. Many believe this to be a gross underestimate of the industry’s retraction, with the Government’s own Environmental Audit Committee and Energy and Climate Change Committee condemning the incident as “panicky” and agreeing that such action seriously “undermines confidence”.

In a policy shambles deemed unlawful and unfair by the High Court, the Court of Appeal and finally by the Supreme Court in Spring 2012, the ‘Feed-in Tariff fiasco’ of 2011 caused the retraction of one of the UK’s then few growing areas of employment. The claim is being led by Prospect Law who previously defeated the Government over the cuts in a Judicial Review challenge to DECC’s conduct.

The £132 million claim reflects the extent of commercial damage inflicted by the Government’s policy mismanagement in 2011 and Prospect Law can now pursue the quantum side of the claim on behalf of its clients.

The exact damages awarded will be decided according to the value of contracts lost as a result of the Governments illegal actions. This is to be confirmed in the coming months following a submission to the courts by Prospect Law.

-ENDS-

 

 

Press contact:

Charlotte Webster, Good Shout Studio

Tel: 07990 583 307

E: charlotte@goodshoutstudio.com

 

Notes to Editors:

The organisations claiming damages include:  Freetricity Plc, Ecovision, Solar Power PV Ltd, Solarlec, Crystal Windows and Doors, Breyer Group Plc, E-tricity, Foz Electrical, Viscount Solar Ltd, New Energy Solutions, Green Home Company, Evo Energy, Monitor My Solar, and Cleaner Air Solutions.

The average size of the claims is £6 million with individual claims ranging in size from £250,000 to tens of millions of pounds.

Policy and case details:

The 2008 Energy Act and the Feed-in Tariff provide a set of rules for delivering the UK’s clean energy future via small scale renewable energy generation. Prospect Law’s High Court challenge in 2011-12 established that the way in which DECC attempted to apply retrospective cuts to FiTs rates was unlawful and ignored the Government’s own policy framework. By casting aside the rules under which the solar industry operated, the Government caused major financial losses to solar PV firms, and materially harmed the confidence of both consumers and the industry. Prospect Law’s damages claim against DECC has been upheld on all 4 of the key legal issues at stake: First, the judge has found that contracts to deliver solar PV installations for FiTs payments were “possessions”; Secondly, that DECC’s attempted retrospective changes to FiTs in October 2011 amounted to an “unlawful interference” with these possessions; Thirdly, that this interference was not justified; and Fourthly, that the solar PV firms are entitled to “just satisfaction” in order to compensate them for their losses. The judge has said that DECC must now face a full claim for the quantum of the losses that were suffered.

About Prospect Law:

Prospect Law is a Legal Disciplinary Practice with specialist expertise in the energy and environmental sectors, and particularly in the renewable and nuclear energy industries. The firm combines the expertise of both solicitors and barristers within a single organisation, and is closely involved in some of the most topical areas of commercial development activity in the UK and overseas, providing legal advice and advocacy in the areas of planning and environmental, public, commercial and property law, as well as dispute resolution and regulatory compliance and defence. Prospect Law led the High Court Judicial Review challenge against DECC on the proposed alterations to the FiTs scheme in 2011-12, and the firm was awarded ‘Law Firm of the Year’ by Business Green in July 2012. www.prospectlaw.co.uk