The High Court ordered Viridian Power Limited and Huntstown Power Company Limited, the Commission for Energy Regulation and notice party Gaslink Independent System Operator Limited to bear their own costs after the judicial review proceedings became moot.
Mr Justice Brian J. McGovern’s judgment, delivered on 28 November 2014, dealt only with costs after the applicants withdrew their challenge. They had sought judicial review of directions issued by the Commission on 21 August 2013 and an instruction issued on 13 September 2013. The challenge concerned a Within Day Capacity Direction and a Secondary Transfer Direction.
The applicants had also sought an interlocutory stay of the Within Day Capacity Direction, or an injunction preventing the Commission from implementing it. The court refused that application on 10 January 2014 and reserved the costs.
On 20 February 2014, the Commission issued a Notification to Industry rescinding the Within Day Capacity Direction, which had been due to take effect on 3 March. It said changing circumstances, including power generators’ purchasing patterns and progress towards the Decision’s key objective without implementing the direction, meant it could rescind that part of the Decision. The Secondary Capacity Transfers Direction remained in force.
The applicants’ solicitors then said the rescission had afforded their clients the main relief sought and that they would not pursue the judicial review. They intended to seek their costs. The Commission offered that each side bear its own costs; the applicants did not accept the offer.
The Commission argued that the proceedings were not moot because the challenge also concerned the remaining transfer direction. It also said it had not conceded that the rescinded direction was unlawful. The judge rejected the argument that the remaining direction kept the case alive, referring to the Commission’s earlier position that the measures formed a package and should not be treated in isolation.
The judge found the proceedings had become moot. He then considered whether that followed from the Commission’s decision or external events. Relying on the reasons in the notification and the evidence it contained, he concluded that the rescission reflected underlying changes beyond the Commission’s control. He found the notification supplied sufficient evidence of those changes.
The court directed each party to bear its own costs of the application. It also ordered each party to bear its own costs of the stay motion, despite the applicants’ failure on that motion. The applicants were not entitled to recover its reserved costs.