Feed-in Tariff appeal could clear the way for solar industry damages claims

Government ministers have been warned they have passed the point of no return with their appeal bid to the Supreme Court as last week’s ruling has wider implications for other Whitehall departments.

The Department for Energy and Climate Change (DECC) has found itself compelled to challenge the decision of three Appeal Court judges who upheld an original High Court ruling that its rushed cuts to the Feed-in Tariff (FiT) were unlawful.

However, an unsuccessful final appeal could clear the way for the UK’s solar industry to argue for damages and loss of earning with a claim of tort that secretary of state Chris Huhne failed in his duty of care.

One senior lawyer said: “It is usual to sue another party under contract law but there is no contract here, only a legislative subsidy. However, it may be possible to bring a successful court action against DECC for damages with a claim of tort.

“A stampede to the courts may not be in the industry’s best interests currently as it may nudge the
Supreme Court towards allowing the appeal if they believe the Government is facing the prospect of a huge raft of damages claims.”

Many in the sector had criticised DECC’s decision to apply direct to the Supreme Court after its legal team were denied leave to appeal on Wednesday. Some suggested it was a political stunt to kick the issue into the long grass, while the new contingency date of March 3 nears.

However, according to the lawyer, there is no going back for energy ministers as the Court of Appeal ruling touched on issues of constitutional law and may have laid down a precedent with far-reaching consequences for other departments.

The lawyer told GreenWeek the DECC legal team is well within its right to seek a Supreme Court appeal, and added: “The problem is the Court of Appeal judgement was based on a point of constitutional law. The appeal court judges may have laid down a precedent by ruling on whether the secretary of state acted within his powers – this has much wider implications for the government and decision-makers.”