Wragge & Co's energy and public law and regulation specialists have combined to help longstanding client Infinis secure an important Court of Appeal decision in its favour.
The team advised Infinis on its successful judicial review of a decision by Ofgem not to accredit two generating stations under the Renewables Obligation Order. Having been successful in the High Court, the team subsequently advised Infinis on Ofgem's appeal, which was dismissed by the Court of Appeal.
Head of energy Derek Goodban said "This is a significant decision for the renewables industry. The support mechanisms aimed at encouraging renewable generation have become increasingly complex. The decision shows how important it is that both those seeking to benefit from them and the bodies tasked with their administration have a detailed understanding of their operation."
The renewables obligation is the principal mechanism for encouraging renewable generation in the UK and is of significant importance to developers and operators of renewable energy projects. To benefit under it, generating stations must be accredited by Ofgem.
Ofgem had refused Infinis' applications for accreditation of two of its stations on the grounds that the sites remained subject to extant NFFO (Non Fossil Fuel Obligation) arrangements.
Infinis successfully judicially reviewed the decision to refuse accreditation in the High Court. It also sought and was awarded damages for the losses caused by that refusal on the grounds that it was unlawful and a breach of Infinis' right to property under Article 1 of the First Protocol to the European Convention on Human Rights.
Ofgem appealed the decision to the Court of Appeal. The Court of Appeal upheld the High Court decision in full.
Public law and regulation partner John Cooper said: "The case draws attention to the fact that a company's legitimate expectations can amount to a property right that is protected in public law. Where that expectation is unlawfully frustrated, a company is entitled to be compensated in damages."
"That is a point of great significance in the energy industry, but also much more widely for all industries subject to regulation; and is a reminder to regulators and other public bodies of the importance of compliance with the Human Rights Act."
In addition to partners Derek Goodban and John Cooper, the Wragge & Co team comprised associate Ravi Randhawa and solicitor Chris Warburton. The team instructed Michael Fordham QC and Tristan Jones of Blackstone Chambers.
Wragge & Co's cross-firm Energy team brings together experts from across the firm to provide high-quality advice to clients in the energy sector. Clients include energy companies, project developers, funders, network owners and operators, suppliers, regulators and trade associations. The team has in-depth knowledge of the evolving legal and regulatory regime that underpins the energy sector.
The Public Law and Regulation team advises on a full range of issues including judicial review, the interpretation and application of statutory and regulatory frameworks, human rights and equalities issues, freedom of information and the development of new legislation.