Killian Flood BL

About this case:

• Court:
  Court of Appeal
• Judge:
  Mr Justice O'Hara

The case had previously been adjourned to allow for further legislation to be enacted which might have disposed of the applicant’s claim. However, after considering the case in detail, the Court of Appeal determined that any new legislation would likely be influenced by the outcome of the litigation.

Further, the court held that the adjournment would “simply not address the issues which relate to the period from 2017 to 2022”. As such, the court ruled that the case should be heard as soon as possible.

Background

The applicant, Mr Thomas Forgrave, was a poultry producer who had entered the RHI scheme in 2014. He was encouraged to convert his energy supply to wood pellet boilers after being led to believe that he would receive a guaranteed 20-year tariff funded by the taxpayer.

For the next three years, the applicant received £26,000 per annum for each boiler he had installed. In 2017, the regulations were amended so that he received £13,000 for each boiler, a reduction of 50 percent in the tariff. The applicant had challenged these regulations in separate judicial review proceedings (“the 2017 proceedings”) which was rejected in the High Court. The 2017 proceedings were appealed to the Court of Appeal.

Subsequently, and before the appeal was heard, the UK government enacted the Northern Ireland (Regional Rates and Energy) Act 2019, which cut the tariff rate to less than 10 percent of the original £26,000. The courts could not strike this legislation down as it was an Act of Parliament. As such, Mr Forgrave issued further proceedings seeking declarations that the 2019 Act was incompatible with his property rights under the European Convention on Human Rights (“the 2019 proceedings”).

The parties had agreed to put a stay on the 2017 proceedings in order to allow the 2019 proceedings to be heard. It was assumed that the losing party to the 2019 proceedings would appeal and therefore the appeals could be heard together.

The 2019 proceedings were delayed for three reasons. First, there was the Coghlin Inquiry in the scheme, which only released its report in March 2020. Second, there were attempts to settle the proceedings in mediation. Finally, the proceedings were delayed due to the pandemic. As a result, the 2019 proceedings were only listed for April 2021.

On that occasion, the State respondents applied to adjourn the 2019 proceedings to a future date. The principle reason provided was that the Executive had decided to open a public consultation about closing the RHI scheme entirely, with compensation to those in the scheme. The resulting legislation would invariably amend or repeal the 2019 Act which was under challenge, it was argued. The adjournment was opposed by the applicant.

The trial judge determined that he should not ignore the utility of the public consultation exercise which might totally alter the impugned legislation in the case. As such, the matter was adjourned on the explicit basis that the court could relist the case if insufficient progress was made on the consultation. The adjournment decision was appealed to the Court of Appeal.

Court of Appeal

In the Court of Appeal, the applicant argued that a declaration of a breach of the ECHR was overwhelmingly likely to result in the breach being remedied by legislation and, therefore, the remedy sought in the 2019 proceedings was not merely academic. The applicant also submitted that, while legislative reform to the scheme may “buy out” his entitlement from 2022, it would not provide any remedy for reductions made between 2017 and 2022. Finally, it was noted that the offer of compensation could be substantially reduced if it was calculated on the 2017 and 2019 reductions.

The court held that these submissions were compelling and overturned the adjournment decision. The court said that “waiting for the potential/probable 2022 legislation will simply not address the issues which relate to the period from 2017 to 2022”. Further, the Executive’s proposals for change to the scheme could be “formulated quite differently” depending on the outcome of the applicant’s proceedings, the court said. As such, the applicant could be in a markedly better position if the litigation resolved in his favour.

The court noted the cases of Miller v Peoples [1995] N1 6 and HRH Prince Abdul Aziz v Apex [2014] UKSC 6, which state that an appeal court should be slow to interfere with the case management orders. However, this was not a strict rule and a detailed analysis of the present case highlighted important points that were not fully developed before the High Court judge.

Conclusion

The court concluded that the High Court judge had been led to believe that the anticipated end of the RHI scheme would dispose of most of the issues in the proceedings. Based on the foregoing analysis, the court said that, if anything, the opposite was true. As such, the court allowed the appeal and remitted the matter to the High Court for review and listing in the current legal term.