The High Court has refused an application by Viridian Power Limited and Huntstown Power Company Limited for discovery of internal correspondence held by the Commission for Energy Regulation in their judicial review challenge to directions concerning a carbon levy on electricity generation.
The companies were given leave to bring the judicial review in November 2010. They seek to quash directions issued by the Commission on 8 October 2010, which required each company to exclude from its Commercial Offer Data any amount for the levy paid or payable to the Commission under section 40D of the Electricity Regulation Act 1999, as amended. They contend that the directions were beyond the Commission’s powers and that the levy is an “opportunity cost” they may include when bidding to supply electricity to the single electricity market. Those claims remain part of the underlying judicial review; this judgment did not decide them.
The companies asked for discovery after internal Commission correspondence was included among documents exhibited to affidavits opposing the judicial review. They argued that further documents could show what considerations the Commission took into account and the weight it gave them. The Commission opposed the request, saying the companies’ concern about government policy and the decision-making process went beyond the grounds on which they had been granted leave.
Mr Justice Brian J. McGovern said discovery in judicial review is granted only in exceptional circumstances and must be necessary to deal fairly with the application. He accepted the Commission’s submission that the request went beyond documents relevant and necessary to the issues defined in the statement of grounds. The concern about an overriding regard to government policy also fell outside the case made when leave was sought and granted.
The judge found no cogent evidence that the Commission’s affidavits contained material inaccuracies and no factual dispute of sufficient substance to make a fair hearing impossible without discovery. He said the issue in the judicial review was how the Commission interpreted the companies’ licences and the Bidding Code of Practice. He also noted that the Commercial Court had already undertaken extensive case management and fixed the substantive hearing for April 2011.
The court refused the discovery application. It did not determine the merits of the judicial review or the lawfulness of the Commission’s directions.