ENERGIEKONTOR UK LTD AGAINST (FIRST) ADVOCATE GENERAL FOR SCOTLAND, ON BEHALF OF THE MINISTRY OF DEFENCE (THIRD) CWL ENERGY LTD [2021] ScotCS CSIH_40 (30 July 2021)

ENERGIEKONTOR UK LTD AGAINST (FIRST) ADVOCATE GENERAL FOR SCOTLAND, ON BEHALF OF THE MINISTRY OF DEFENCE (THIRD) CWL ENERGY LTD [2021] ScotCS CSIH_40 (30 July 2021)

The proceedings were tainted by procedural unfairness because the petition was not intimated to affected parties, and the Lord Ordinary did not have all relevant circumstances before him when exercising discretion to extend the time limit. The remedy granted was discriminatory and not properly pleaded. The decree of reduction cannot stand.

Citation
[2021] ScotCS CSIH_40
Parties
Petitioner and Respondent: Energiekontor UK Ltd; First Respondent: Advocate General for Scotland, on behalf of the Ministry of Defence; Third Respondent and Reclaimer: CWL Energy Ltd
Jurisdiction
Scotland
Judgment Date
30 July 2021
Procedural Posture
Judicial Review / Appeal (reclaiming Motion)
Outcome
Appeal allowed in part; decree of reduction set aside for procedural unfairness.
Legal Topics
Natural Justice, Procedural Fairness, Judicial Review, Time Bar, Retrospective Remedies, Legitimate Expectation
Administrative Law Planning Law Environmental Law Natural Justice Procedural Fairness Judicial Review Time Bar Retrospective Remedies +1 more

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Parties

Energiekontor UK Ltd

Petitioner and Respondent

Advocate General for Scotland, on behalf of the Ministry of Defence

First Respondent

CWL Energy Ltd

Third Respondent and Reclaimer

Procedural Posture

Judicial Review / Appeal (reclaiming Motion)

Legal Issues

  1. 1 Whether procedural unfairness occurred due to lack of intimation to affected parties
  2. 2 Whether the Lord Ordinary erred in extending the time limit for judicial review
  3. 3 Whether the remedy granted was discriminatory and irrational

Ratio Decidendi

The proceedings were tainted by procedural unfairness because the petition was not intimated to affected parties, and the Lord Ordinary did not have all relevant circumstances before him when exercising discretion to extend the time limit. The remedy granted was discriminatory and not properly pleaded. The decree of reduction cannot stand.

Court Disposition

Appeal allowed in part; decree of reduction set aside for procedural unfairness.

Orders

  • Declarator that MOD's policy is unreasonable, ultra vires and unlawful stands.
  • Reduction of MOD's decision dated 11 January 2018 regarding Faw Side and the waiting list entitled 'Eskdalemuir Applications Since Budget Breached' is set aside.