High Court of Ireland Decisions
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Cite as: [2014] IEHC 614
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Judgment
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Neutral Citation: [2014] IEHC 614 THE HIGH COURT COMMERCIAL [2013 No. 864 J.R.]
[2013 No. 175 COM] BETWEEN VIRIDIAN POWER LIMITED AND HUNTSTOWN POWER COMPANY LIMITED APPLICANT AND
THE COMMISSION FOR ENERGY REGULATION RESPONDENT AND
GASKINK INDEPENDENT SYSTEM OPERATOR LIMITED NOTICE PARTY JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 28th day of November 2014 1. This judgment concerns an application for costs made by the applicant in judicial review proceedings which have been withdrawn following a decision made by the respondent to rescind what is referred to in the proceedings as the “Within Day Capacity Direction”. In the judicial review proceedings, the applicant challenged the Within Day Capacity Direction and a Secondary Transfer Direction made by the respondent on 21st August 2013, and the “Commission’s Instruction” issued on 13th September 2013, whereby the respondent issued directions to Gaslink Independent System Operator Ltd. (“Gaslink”) to take certain steps to give effect to the Decision. 2. The applicant was given leave to apply for judicial review and the hearing of the substantive application was fixed for 13th May 2014. In an interlocutory motion before the Court, the applicant sought a stay on the implementation of the Direction, or, in the alternative, an injunction restraining the respondent from purporting to give effect to the Direction. In a judgment delivered on 10th January 2014, I refused the application for a stay and reserved the costs of the application. 3. By a Notification to Industry made on 20th February 2014 (“the Notification Decision”), the respondent stated that the Within Day Capacity Direction which was to have come into effect on 3rd March 2014 was being rescinded. The Notification Decision explained that due to changing facts and circumstances, including purchasing patterns by a number of power generators and the perceived future role for power generation units required in the Dublin region, and following discussions between the respondent and EirGrid, there had been material progress towards the respondent realising the key objective of the Decision without the implementation of the Within Day Capacity Direction. Accordingly, the respondent rescinded that part of the Decision comprising the Within Day Capacity Direction. The remaining part of the Decision, namely, the Secondary Capacity Transfers Direction, remained in full force. 4. On 28th February 2014, the applicant’s solicitors wrote to the respondent as follows:
6. I have been referred to the jurisprudence on the subject of costs to be awarded where proceedings have been discontinued in circumstances such as arise in this case. From the authorities cited to me, it appears that three questions arise:
(b) Were the proceedings rendered moot by the actions of one party? (c) Were these actions due to some intervening external event? 8. I am satisfied that the respondent’s argument relating to the Secondary Capacity Transfers Direction is not well-founded. In my earlier judgment, I referred to the fact that it was an important part of the respondent’s case in the interlocutory application that the reforms prompting the Decision and Directions were a complete package involving the Within Day Capacity Direction and the Secondary Capacity Transfers Direction and that they were not to be treated in isolation (see paras. 25 and 29 of my judgment, 10th January 2014). 9. If the case becomes moot, then there are three broad categories into which it could fall:
(b) the case could become moot due to wholly external events beyond the control of either party, in which case the appropriate order will usually be no order as to costs (see Telefonica O2 Ireland Ltd. v. Commission for Communications Regulation [2011] IEHC 380); or (c) as considered in Cunningham v. President of the Circuit Court, the case may become moot due to a decision of one party to the proceedings which, it was claimed, was due to external events. Current jurisprudence suggests that in such a case, the Court, should, in the absence of significant countervailing factors, ordinarily lean in favour of making no order as to costs. 10. In Cunningham v. President of the Circuit Court, Clarke J. stated at para. 26:
[27] If there were no change in underlying circumstances and if the statutory officer or body had simply changed his or its mind or adopted a new and different view, then such a characterisation might be appropriate. Where, however, there is an underlying change of circumstance, it is necessary to consider the extent to which it can properly be said that the proceedings have become moot by reason of the unilateral act of one party, on the one hand or, in reality have become moot by reason of a change in underlying circumstances outside the control of either party, on the other hand. The result of any such analysis should play an important role in the court's consideration of the justice of where the costs of proceedings rendered moot should lie.” 12. In this case, it seems to me that the issue in the judicial review proceedings has become moot, notwithstanding the arguments made to the contrary by the respondent. 13. Accepting, as I do, that the proceedings are now moot, it is necessary to see whether or not they have become moot by a decision of the respondent which was made due to external events. 14. The applicant has withdrawn its application for judicial review following upon the Notification Decision made by the respondent on 20th February 2014. That appears to be beyond dispute and confirmed by the applicant’s solicitors in their letter of 28th February 2014 quoted above. 15. The Notification Decision sets out in clear terms why the respondent decided to rescind the Within Day Capacity Provision of the Decision. It is not necessary to repeat what is said in the Notification Decision beyond stating that detailed reasons for the rescission were set out. The respondent had noted evidence of a trend that the volume of revenues from the power sector was exceeding that which was anticipated and that the key objective underlying the Decision was materially being achieved in the absence of the implementation of the Within Day Capacity Provision. Having regard to the matter set out in the notice, the respondent considered that it was “now possible and proportionate to rescind the Within Day Capacity Provision on the basis that it no longer had the particular level of necessity the CER considered it to have at the time by making the Decision”. 16. In my view, the matters set out in the Notification Decision established that the decision of the respondent to rescind the Within Day Capacity Provision of the Decision was made due to an underlying change of circumstance outside its control and reflected the adoption of a changed position reflecting new circumstances and taking those circumstances into account. 17. Furthermore, the respondent has adduced sufficient evidence of the underlying change in circumstance sufficient to justify the Decision notified on 20th February 2014. The contents of the notice are sufficient evidence for the purpose of satisfying the onus imposed on it by virtue of the decision in Cunningham v. President of the Circuit Court. 18. Accordingly, the appropriate order is to direct that each party bear their own costs of the application. So far as the reserved costs of the motion for a stay are concerned, it seems to me that they should also be borne by each party, notwithstanding the fact that the applicant failed in that application. Since the Notification Decision of 20th February 2014, the respondent has made it known that it was prepared to pay its own costs in these proceedings. In circumstances where the applicant failed in the application for a stay, I do not believe it would be entitled to the reserved costs of that application. 19. I therefore direct that each party shall bear their own costs in the costs reserved from the motion for a stay. |
