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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nobel Oil E&P North Sea Ltd, R (On the Application Of) v Oil Gas Authority (t/a North Sea Transition Authority) [2025] EWHC 1280 (Admin) (01 May 2025)
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Cite as: [2025] EWHC 1280 (Admin)

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Neutral Citation Number: [2025] EWHC 1280 (Admin)
Case Nos: AC-2024-LON-002888
AC-2025-LON-000801

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

The Royal Courts of Justice
Strand
London WC2A 2LL
1 May 2025

B e f o r e :

MR JUSTICE DOVE
____________________

THE KING
(ON THE APPLICATION OF NOBEL OIL E&P NORTH SEA LTD)
Claimant
- and -

OIL GAS AUTHORITY
T/A NORTH SEA TRANSITION AUTHORITY
Defendant
- and -

(1) TOTAL ENERGIES E&P NORTH SEA UK LIMITED
(2) TOTAL ENERGIES E&P INTERNATIONAL K1 LIMITED
(3) TOTAL ENERGIES E&P INTERNATIONAL K2 LIMITED
(4) TOTAL ENERGIES E&P INTERNATIONAL K3 LIMITED
(5) APACHE BERYL I LIMITED
(6) TAQA BRATANI LIMITED
(7) SECRETARY OF STATE FOR ENERGY SECURITY AND NET ZERO
(8) SOJITZ ENERGY DEVELOPMENT LIMITED
Interested Parties

____________________

Digital Transcription by Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)

____________________

MR J MAURICI KC appeared on behalf of the Claimant.
MS K GALLAFENT KC appeared on behalf of the Defendant
LORD KEEN KC and MR D CASHMAN appeared on behalf of the First Interested Party.
MISS V HUTTON appeared on behalf of the Seventh Interested Party.

____________________

HTML VERSION OF JUDGMENT (APPROVED)
____________________

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  1. MR JUSTICE DOVE: This is an application for a stay which would prevent OPRED from granting approval under section 32 of the Petroleum Act 1998 to Total for the cessation of production and, in particular, decommissioning of plant, in circumstances that are set out below. The application is opposed by OPRED and by Total; the NSTA are neutral in relation to this application. Nobel seek a stay but object to giving any cross-undertaking in damages. If one is required, they are on record as saying that they do not pursue their application.
  2. The facts can be briefly stated for the purposes of this judgment in the following terms. The case concerns a floating production storage and offloading vessel (an FPSO) which serves the Gryphon oil field. The Maclure and Ballindalloch oil fields are owned, in part, by Total. The production from this field is serviced by the Gryphon FPSO and tied back into it.
  3. Total decided in early 2023 that they wished to decommission the Gryphon FPSO and so started to take steps to achieve that. There are statutory procedures to be complied with in respect of infrastructure of this kind under the 1998 Act. In essence, section 28A of the 1998 Act prevents abandonment or decommissioning of an offshore installation and to do so is made an offence. Section 29 provides for the preparation of programmes of measures in connection with the abandonment of an offshore installation or pipeline. The terms of section 29 of the 1998 Act are as follows:
  4. 29.— Preparation of programmes.

    (1) The Secretary of State may by written notice require—

    (a) the person to whom the notice is given; or
    (b) where notices are given to more than one person, those persons jointly, to submit to the Secretary of State a programme setting out the measures proposed to be taken in connection with the abandonment of an offshore installation or submarine pipeline (an 'abandonment programme').

    (1A) The power to give a notice under subsection (1) is exercisable—
    (a) on the Secretary of State's own motion, or
    (b) at the request of any person to whom the notice may be given (whether or not the notice is given to that person).
    (2) A notice under subsection (1) shall either specify the date by which the abandonment programme is to be submitted or provide for it to be submitted on or before such date as the Secretary of State may direct.
    (2A) A person to whom a notice under subsection (1) is given—

    (a) must consult the OGA before submitting the abandonment programme to the Secretary of State, and
    (b) must frame the programme so as to ensure (whether by means of the timing of the measures proposed, the inclusion of provision for collaboration with other persons, or otherwise) that the cost of carrying it out is kept to the minimum that is reasonably practicable in the circumstances.
    (2B) When consulted under paragraph (a) of subsection (2A) the OGA must (in particular) consider and advise on—
    (a)alternatives to abandoning or decommissioning the installation or pipeline, such as reusing or preserving it, and
    (b) how to comply with paragraph (b) of that subsection".
  5. It should be noted that the references to the OGA in the legislation equate to references to the NSTA throughout this judgment. As set out above, the power to approve a programme is provided by section 32 of the 1998 Act. Section 32 of the 1998 Act provides as follows:
  6. "32.— Approval of programmes.

    (1) The Secretary of State may either approve or reject a programme submitted to him under section 29.
    (2) If he approves a programme, the Secretary of State may approve it with or without modifications and either subject to conditions or unconditionally.
    …
    (3) Before approving a programme with modifications or subject to conditions, the Secretary of State shall give the persons who submitted the programme an opportunity to make written representations about the proposed modifications or conditions.
    (4) If he rejects a programme, the Secretary of State shall inform the persons who submitted it of his reasons for doing so.
    (5) The Secretary of State shall act without unreasonable delay in reaching a decision as to whether to approve or reject a programme.

    (6) Before reaching a decision under this section the Secretary of State must—
    (a) consult the OGA, and
    (b) take into account the cost of carrying out the programme that has been submitted and whether it is possible to reduce that cost by modifying the programme or making it subject to conditions.
    (7) When consulted under subsection (6)(a), the OGA must (in particular) consider and advise on—

    (a) alternatives to abandoning or decommissioning the installation or pipeline, such as reusing or preserving it, and

    (b) whether section 29(2A)(b) has been complied with and, if it has not been, modifications or conditions that would enable it to be complied with".

  7. The progress in relation to activities in North Sea oil fields is subject to a process of provision of stewardship survey returns by operators. In their stewardship survey return of February 2023, Total advised the NSTA that cessation of production – or "COP" as it has been referred to during the course of this case – would be between summer 2024 and summer 2025. The first draft programme for decommissioning was submitted to OPRED on 5 September 2023. They advised Total that they should expect, typically, that it would take 12 months for the approval process to go through, which by that time, in light of a stewardship survey return of February 2024, fitted Total's envisaged trajectory for close of production by 31 December 2024.
  8. From around March 2023, Nobel were in correspondence with the NSTA, OPRED and Total seeking to understand what, if any, advice had been provided by the NSTA in relation to the decommissioning of the Gryphon FPSO. The details of that dialogue does not especially matter for present purposes, but it is sufficiently clear that discussions between Total and both the NSTA and OPRED were on foot about the decommissioning programme. Nobel and others were involved in meetings, culminating in a key meeting on 6 June 2024, which was to consider alternatives to decommissioning. On the same day, the NSTA sent Total their decision, that Total had fulfilled its obligations made under section 29(2A) of the 1998 Act and demonstrated that it had considered alternatives to decommissioning, including rejecting Nobel's proposed alternative that they should take the infrastructure over.
  9. Nobel discovered that this decision had been made shortly afterwards and JR1 was issued on 22 August 2024.
  10. The relief claimed against the decision under section 29(2A) did not include at that stage any application for a stay. That was issued on 16 January 2025. In the meantime, and in accordance with their earlier programme, on 31 December 2024, Total ceased production at the Gryphon FPSO. At around this time, the NSTA were consulting Nobel on the advice they, the NSTA, would be providing to OPRED pursuant to section 32(7) of the 1998 Act.
  11. The oral permission hearing, which had been ordered in this case, was brought forward in time to 13 February 2025. At that hearing, I granted permission, but the application for a stay did not require an order because it was accepted by OPRED that they could give an undertaking not to make a decision before 13 March 2025 when the matter was due to be reconsidered by the court.
  12. On 7 February 2025, just prior to the permission hearing, the NSTA sent its advice, pursuant to section 32(7), to OPRED. In fact, at a directions hearing, OPRED had extended the undertaking that they had given not to take a decision until four weeks from 4 April 2025 or 2 May 2025, again on the grounds of the practicality of reaching a decision. In the light of the expiration of that undertaking from OPRED, the hearing of Nobel's application was set up for 30 April 2025. The hearing lasted most of that day and I am delivering this judgment the following day, but, importantly, prior to the expiration of the undertaking that has been given until tomorrow. This period, therefore, being close to expiration, the matter has come to a head and the application for the stay must be determined.
  13. On analysis, there are two key issues to be resolved by the court. First, is there jurisdiction to grant a stay in these circumstances and, secondly, if there is jurisdiction, should a stay be granted and, in particular, should a stay be granted subject to a requirement that there be a cross-undertaking in damages?
  14. The application made by Nobel is based upon CPR 54.10, which is in the following terms:
  15. " 54.10—(1) Where permission to proceed is given the court may also give directions.
    (2) Directions under paragraph (1) may include—
    (a) a stay of proceedings to which the claim relates;
    (b) directions requiring the proceedings to be heard by a Divisional Court".

  16. This power was considered in the case of R v Secretary of State for Education ex parte Avon County Council [1991] QB 558, which related to challenges to decisions taken by the Secretary of State in relation to school reorganisation. In that case, Glidewell LJ concluded that "proceedings" included public law decision-makers and their decisions and was not restricted to courts of law. He said as follows:
  17. "If I am correct in my view that the essential question is whether the phrase 'a stay of proceedings' is apt to include decisions, and the process of arriving at such decisions, made by persons and bodies other than courts of law, and the answer is that it does not include such decisions and processes, it would follow that the courts have no jurisdiction, in judicial review proceedings, to stay decisions of local authorities or other nonjudicial decision-making bodies. In other words, the court's jurisdiction or lack of it to order a stay is not dependent on whether the decision-maker is an officer or minister of the Crown. That the court should have the power to order a stay of a decision of a local authority pending the conclusion of a challenge to the decision-making process by way of judicial review I regard as apparent. I have sought to explain my reasons for concluding that the courts indeed have such a power".

  18. More recently in R (on the application of H) v Ashworth Hospital Authority [2003] 1 WLR 127, a case which concerned questions in respect of the detention of patients at that hospital, further consideration was given to Avon and also the provisions of CPR 54.10. At paragraph 42 of his judgment, Dyson LJ observed as follows:
  19. "42 The purpose of a stay in a judicial review is clear. It is to suspend the 'proceedings' that are under challenge pending the determination of the challenge. It preserves the status quo. This will aid the judicial review process and make it more effective. It will ensure, so far as possible, that, if a party is ultimately successful in his challenge, he will not be denied the full benefit of his success. In Avon, Glidewell LJ said that the phrase 'stay of proceedings' must be given a wide interpretation so as apply to administrative decisions. In my view it should also be given a wide interpretation so as to enhance the effectiveness of the judicial review jurisdiction. A narrow interpretation, such as that which appealed to the Privy Council in Vehicle and Supplies, would appear to deny jurisdiction even in case A. That would indeed be regrettable and, if correct, would pose a serious shortcoming in the armoury of powers available to the court when granting permission to apply for judicial review. As I have said, this extreme position is not contended for by Mr Pleming. Thus it is common ground that 'proceedings' includes not only the process leading up to the making of the decision but the decision itself. The Administrative Court routinely grants a stay to prevent the implementation of a decision that has been made but not yet carried into effect, or fully carried into effect. A good example is where a planning authority grants planning permission and an objector seeks permission to apply for judicial review. It is not, I believe, controversial that, if the court grants permission, it may order a stay of the carrying into effect of the planning permission".
  20. It is contended by OPRED and Total that a stay is not an appropriate remedy here, on the basis that these proceedings are concerned with the section 29(2A) decision and the section 32(7) advice. There is no decision by OPRED to which any order could attach. They note that the second judicial review in relation to the section 32(7) advice is yet to have permission considered: it having been ordered that, in relation to that second judicial review, there would be a rolled-up hearing to deal with the issue of permission and the substantive hearing simultaneously.
  21. Furthermore, they submit that it is inappropriate for a stay to be obtained against a non-party. They also contend that a stay is not permissible in relation to future decisions, such as the section 32(1) permission or refusal.
  22. I am unable to accept these submissions and consider that it is permissible for the court to issue a stay in the present circumstances and there is jurisdiction to do so. My reasons are as follows: first, it is clearly sufficiently arguable that the structure of the legislation in section 29 and section 32 contemplates a sequence of interlocking decisions leading to the grant or refusal of permission to a proposed programme of decommissioning. Each step in the sequence is interdependent and required for the integrity of the process. This is an administrative decision-making process and, bearing in mind that "proceedings" should be widely interpreted, all the necessary steps in that process are within the scope of the power to stay.
  23. This chimes with the observations in Avon and H about "the process of arriving at decisions" (see Avon) or "not only the process leading up to the decision but the decision itself" (see H). It is also consistent with the wide interpretation of the term "proceedings" that is identified in those cases in order to make judicial review effective. I should note that it is not, in my judgment, insignificant that, first, in relation to the judicial review of the section 29 advice permission was resisted solely on the basis of the decision-making process not being a sequence of interdependent and interlocking decisions, but permission was granted on the basis that the case was arguable on the basis that that was not a sustainable contention.
  24. That conclusion, in context, necessarily contemplates staying future parts of the process or the overall decision-making process. It also contemplates affecting interested parties. This is reflected in Lewis on Judicial Remedies in Public Law and also in the observations of Dyson LJ about a stay of a challenged planning permission which affects an interested party, namely, the developer. As Nobel observed, in a planning context, it is permissible to challenge before permission has been granted and simply on the basis of a resolution to grant permission (see R(on the application of Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593). A stay safeguards the integrity of the process governed by an interlocking statutory framework.
  25. Secondly, Total objects on the basis that, even were the decisions in the first and second judicial reviews unlawful, that would not make any decision to grant the permission under section 32 itself unlawful. I am unable to accept that this submission amounts to a matter of principle affecting the jurisdiction in this instance. The references have already been made to the interlocking sequence of decisions required by the statutory framework and this fundamentally undermines this submission.
  26. My view of these matters is also supported by paragraph 52 of the judgment of Lady Simler in Jaiwantie Ramdass v Minister of Finance (Trinidad and Tobago) [2025] UKPC, para 4, in which she observed as follows:
  27. "52. This is because in general, the exercise of public law powers by a public body is amenable to judicial review where the powers are exercised unlawfully, unfairly or for an improper purpose. Natural justice is concerned with the exercise of power. The requirements of natural justice certainly apply to acts or decisions which produce legal results that in some way alter the legal position of the complainant to his or her detriment. But these requirements may also apply in the case of a preliminary stage which may not itself involve immediate legal consequences but may lead to acts or decisions which do. The protection of procedural fairness might therefore be required throughout a process from the preliminary stage onwards, and in deciding whether a procedure is fair, consideration of whether each successive step is fair to the individual concerned may be necessary".

  28. The question in relation to this submission is not whether there will be inevitable illegality as a result of a decision parasitic upon an earlier unlawful decision but whether it could lead to an unlawful decision and, clearly, the situation that is before the court in this case passes that test.
  29. Thirdly, contrary to Total's submission, the grant of a stay at this stage would not circumvent the statutory challenge process under section 42 of the 1998 Act in respect of a decision by OPRED to grant section 32 permission. Section 42 of the 1998 Act provides for a statutory challenge to be launched by a person aggrieved in relation to a decision under section 32 by OPRED. The purpose of the stay in this case will be to hold the ring and permit scrutiny of important decisions on the way to the grant of that permission which would arguably potentially infect the overall decision. The potential availability of a remedy at a later stage under section 42 does not, in principle, preclude a remedy in these proceedings if it is otherwise available.
  30. Fourthly, submissions were made by Total and OPRED seeking to draw a jurisdictional distinction between an injunction and a stay and contending that, since the order sought was akin to an injunction against OPRED, there is no jurisdiction to make that order since the application is made for a stay. Reliance was placed upon the Minister for Foreign Affairs, Trade and Industry v Vehicles and Supplies [1991] 1 WLR 550. I accept Nobel's submissions that this argument adopts a far too narrow and technical approach to the understanding of "proceedings" and the scope of the jurisdiction under CPR 54.10(2). It is inconsistent with the approach identified in Avon and H and, in H, Dyson LJ described the approach in Vehicles and Supplies as "regrettable" leading to "a serious shortcoming in the armoury of powers" available to the court. Avon made clear that this jurisdiction was not confined to court proceedings, but included "decisions and the process at arriving at decisions".
  31. Additionally, in an authority to which I shall return in due course , the case of R v Her Majesty's Inspectorate of Pollution ex parte Greenpeace Limited (No.1) [1994] 1WLR 570, Scott LJ addressed the approach to stay applications, which were akin to injunctions, and concluded that the court should look to the substance and not the form of those applications and apply the correct principles, but he did not say that the court would have no jurisdiction or should reject such applications outright.
  32. Having concluded, for all the reasons that I have set out, that there is jurisdiction for the court to make an order of the kind which is sought, should the court make an order and, if so, in what form, where does the balance of convenience lie and how should it be evaluated? If permission is granted by OPRED under section 32 based on the challenged section 29 and section 37(2) decisions, then Total could proceed beyond the current cessation of production stage and into decommissioning the Gryphon FSPO. Whilst it seems the current position of the FPSO is reversible, once the infrastructure is decommissioned, it is clear on the evidence that irreversible measures could be taken to preclude the recommissioning of the FPSO. In principle, I heard little to dispute that the order was subject to the main arguments about the cross-undertaking in damages and appropriate means to hold the ring prior to trial.
  33. Permission was granted in relation to the first judicial review and, for the reasons given, when that permission was granted, it was accepted by the court that there was at least arguably an interrelationship in the nature of the decisions to which I have already alluded. I do not accept the submission that was, in truth but faintly made, that there was some distinction to be made between the first and second judicial reviews in this context. In reality, there is a serious issue to be tried, at least, on the first judicial review on the basis that it has been granted permission.
  34. As noted above, Nobel's position is that, if an undertaking in damages is required, they will no longer press for this order. This question – namely, the need for cross-undertakings in damages – has been previously considered and is alluded to in textbooks: both the White Book and Lewis on Remedies in Public Law refer to the clear expectation that there will be a cross-undertaking in damages if there is an interested party who is affected by the proposed order.
  35. The authority relied on for this proposition is the Greenpeace case. This case related to a variation of a permission to discharge radioactive waste. In the context of an application for a stay in that case, Scott LJ provided as follows:
  36. "In my opinion, if the real purpose of interlocutory relief in a judicial review case is to prevent executive action by a third party being carried out pursuant to the decision under attack, the more suitable procedure would be to have the third party in question joined and then to seek an interlocutory injunction against that party, rather than to seek a stay of the decision. If, however, the purpose is pursued as it has been in the present case by an application for a stay of the decision rather than by an application for an interlocutory injunction against the third party, the courts should, in my opinion, look to the substance rather than to the form, and apply the same principles to the application as would have been applicable had the application been for an interlocutory injunction".

  37. The effect of the observations of Scott LJ was to introduce the requirement in that case of a need for a cross-undertaking in damages. Nobel resist the requirement for a cross-undertaking in damages on a number of grounds. The first is that any losses that may have been incurred by Total are said by Nobel to be a self-inflicted wound generated by Total's premature decision to cease production on 31 December 2024 and not restart production, which they could easily do in order to mitigate any losses concerned. Nobel further submits that Total were warned by OPRED not to make any financial commitments prior to the grant of permission and, in effect, they implemented COP without regard to regulatory requirements and unilaterally. Total disputes these suggestions and notes that the path for decommissioning had been set for summer 2024 to summer 2025 as long ago as February 2023 and that Nobel had been advised long in advance of COP at the end of last year. Total submits that there is no regulatory requirement to have COP approved, but, in any event, its proposals in that connection had been the subject of discussion with both the NSTA and also OPRED. Total had been told that it will be likely to take 12 months from their engagement with OPRED in November 2203 to obtain approval. Given the complex, large scale and long timescales involved in the overall programme, Total submits that it is inevitable that delay will give rise to extensive costs, not only in terms of retaining the FPSO in situ. Total relies on evidence that they have submitted from Mr Hillyard, whom in his witness statement at paragraphs 11 to 16, which it is unnecessary for me to quote, sets out the many issues in relation to maintenance, procurement, supplies, health and safety and staffing, in relation to which any delays will give rise to additional costs.
  38. In support of their submissions, Nobel rely upon the case of VB Football Assets v Blackpool Football Club (Properties) Limited [2018] EWHC 1232, which was a case concerning a freezing order in which the respondent sought a cross-undertaking in damages. The judge refused this, reliant on the freezing order having been the result of the respondent's own conduct in failing to realise assets so as to discharge the judgment debt which the freezing order secured. In my view, this is a long way from the present case. Indeed, on behalf of Nobel Mr  Maurici accepted that it did not create, nor was there any principle that, if losses arose as a self-inflicted wound or as a result of a party's conduct, then there was no entitlement to a cross-undertaking in damages.
  39. I accept, as he submitted, that it is a relevant factor to consider in the exercise of my discretion as to the extent to which a party may have brought losses upon themselves, but, in my judgment, for the reasons I shall give shortly, it is a factor of very limited weight in the assessment of balance of convenience in this case,
  40. The evidence that any losses arising from the delay caused by Nobel's application, if ultimately unsuccessful and that they were the fault of Total, is far from clear cut. On one view, it is clear from the evidence that it is inevitable that delays would add cost and expense to the decommissioning project. The issue of whether Total was responsible for infringing the statutory framework when they implemented COP is also the subject of heated debate about which it is not possible for the court at this stage of the proceedings to provide any concluded view. These and the other issues raised are not matters about which the court can arrive at conclusions at this stage of the proceedings and they are matters which would no doubt be explored in greater detail if there were to be an enquiry into damages under any cross-undertaking in due course.
  41. The controversial nature of these issues are such that this does not amount, in my judgment, to a reason to refuse an undertaking in damages in this case. This is a factor but it is neither dispositive nor weighty. It cannot be said that there will be no losses caused by the delays as a result of the judicial review action that has been brought and none into which any enquiry could possibly be made. The precise nature of how that dispute, which is present on the papers, might be resolved is, as I have said, not a matter about which either I can speculate or, perhaps, more pertinently, about which form a concluded view at present.
  42. The second point taken by Nobel is that, unlike Greenpeace where BNFL had the benefit of a permission to discharge which the claimants sought to stay, in this case Total does not have the legal right to undertake any decommissioning programme. Thus this case can be distinguished and a cross-undertaking in damages should be refused.
  43. In my view, the difficulty with this submission is the particular statutory context of this case, namely, the interlinked decisions under section 29, section 32(7) and section 32. At present, subject to the challenges and their outcome, Total has the benefit of supportive decisions made under section 29 and section 32(7), Whilst, of course, OPRED will exercise its own evaluation, it could not under the statutory regime begin to make any decision without those earlier decisions being in principle, supportive. The distinction which Nobel seeks to draw is not, therefore, one which is either clear cut or of great significance, bearing in mind the interconnected nature of the decisions and where Total finds itself in that decision-making process.
  44. It follows that, first, I have the jurisdiction to make the order, but, assessing the overall balance of convenience, I do not accept it would be just or appropriate to depart from the usual principle to do without the cross-undertaking in damages in this case. I have dealt in detail with the reasons why Nobel have suggested a cross-undertaking in damages is not required, but I am unable to accept the objections that they have advanced. As Nobel have made it clear that they will not provide a cross-undertaking in damages and, were one to be required, the application would not be pursued, it follows that this application for a stay must be dismissed.
  45. ____________

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