The High Court has refused an interim stay or injunction sought by Viridian Power Limited and Huntstown Power Company Limited against changes to access to Ireland’s gas transmission system. The substantive judicial review is listed for hearing on 13 May 2014; the court’s ruling concerned only interim relief pending that hearing.
The companies challenged a Commission for Energy Regulation decision of 21 August 2013 and directions issued to Gas Link Independent System Operator Limited in December. The measures included removing sales of short-term Within Day Capacity and restricting certain transfers of secondary capacity. The applicants sought relief specifically concerning the Within Day Capacity Direction, including to prevent Gas Link from changing its Code of Operations to implement it.
The applicants said access to Within Day capacity allowed them to match gas capacity purchases to electricity generation demand after market dispatch forecasts became available. They argued that losing this flexibility could cause severe and irreversible losses, estimated at about €15 million, if they could not recover overrun costs through the electricity market’s pricing mechanism.
The regulator disputed that the applicants had shown, on the balance of probabilities, that those losses would occur. The judge noted that the claimed losses depended on whether the companies could recover overrun costs through the Single Energy Market mechanism. The applicants said they could not give an undertaking to compensate other users for losses if a stay were granted.
The regulator argued that the reforms formed an integrated package, including a secondary capacity transfer measure already in effect since 1 October 2013. It said suspending the Within Day measure could undermine the planned recovery of network costs, require tariff adjustments and prolong an inequitable distribution of those costs among gas users, including residential customers.
Justice Brian J. McGovern accepted that the applicants had an arguable case, but found they had not established a real risk of injustice to them if interim relief were refused. He weighed their potential losses against the asserted substantial harm to other users and the public interest, the regulator’s statutory role, the absence of an undertaking as to damages and delay in bringing the proceedings. He concluded that the applicants had not met the applicable tests for interim relief.
The court refused the reliefs sought in the interlocutory motion. It did not determine the legality of the challenged measures; the substantive judicial review remained to be heard.