Alaska Energy Limited: judicial review of decision to amend the time period for assessment of supply licence applications and to remove tacit authorisation
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Ofgem has received permission from the Administrative Court to publish a Court Order in which Ofgem successfully resisted permission for judicial review proceedings brought by Alaska Energy Limited.
The judicial review was brought against two decisions of Ofgem: Rising wholesale energy prices and implications for the regulatory framework and Supply licence applications: reasons for the decision to amend the time period for assessment and to remove tacit authorisation. In short, Ofgem (i) amended the period for assessment of supply licence applications; and (ii) disapplied tacit authorisation for supply licence applications as an interim measure. The Claimant argued that (i) the amendment to the time period for assessment of supply licence applications was ultra vires; (ii) Ofgem failed to give reasons for its decisions; (iii) Ofgem breached the Claimant’s legitimate expectation; and (iv) Ofgem acted unreasonably.
The claim was dismissed at the permission stage due to the challenge being brought out of time, but Mrs Justice Cutts DBE nonetheless considered the merits of the application for permission to bring judicial review proceedings. This provided some helpful clarification on a number of points which can be found in the order itself.
In particular, the order considered Regulation 19 of the Provision of Services Regulations 2009 ("PSRs"). The Claimant argued that Regulation 19 of the PSRs rendered Ofgem's decisions to amend the period for assessment of supply licence applications, ultra vires. However, the Court noted that Regulation 19(5) of the PSRs makes specific provision for different arrangements to be in place. Regulation 19(6) of the PSRs states that these must be justified for overriding reasons relating to the public interest, including the legitimate interest of third parties. Mrs Justice Cutts DBE considered it unarguable that Ofgem was unjustified in pausing the licensing process while a review was conducted as to the regulatory framework in the circumstances of this case.