We recognise that, like all other markets, the clean energy sector is not immune to commercial disputes. Where possible, we work with our clients to develop strategies to avoid disputes, using our expertise to identify potential claims so that they can be resolved at an early stage, thereby reducing costs and management time. We achieve this through our collegiate approach, with our commercial, corporate, finance and disputes experts working closely together.
Inevitably there are cases where formal litigation cannot be avoided. We are well equipped to advise on such matters and have a wide experience of handling disputes in the commercial courts. We outline below two arenas where litigation is widespread. Further examples of our experience in relation to offshore wind projects appear on our case studies page.
1. Judicial review
Anyone doing business in a heavily regulated sector like energy is likely at some stage to come into conflict with the regulatory authorities. We have experience of advising both the regulators and regulated.
When a leading developer of onshore wind farms discovered that public funds were being awarded to a competitor to enable it to help local governments and other public bodies develop land for onshore wind generation we were able to advise our client on ways to address the fact that it was not competing on a level playing field.
This involved the judicial review of the government department providing the aid and a complaint to the European Commission. Through those proceedings we were able to obtain disclosure of key documents from the public authorities involved and buy our client valuable time to respond to the commercial threat.
We are currently advising a client in relation to possible judicial review proceedings in relation to accreditation under the Renewable Heat Incentive Scheme Regulations.
From a regulator’s perspective, we have advised a certification body active in the clean energy sector in its successful defence of judicial review proceedings in relation to a decision it had taken to investigate a business in the domestic solar PV sector.
We advised an overseas engineering company listed on the Malaysian stock exchange in respect of the recovery of its assets following the insolvency of UK sub contractor.
Our client wished to enter the domestic solar PV market with a view to taking advantage of Feed in Tariffs then available for domestic rooftop solar PV systems. Under a turnkey agreement its UK sub contractor agreed to identify residential properties suitable for rooftop PV solar panels, install our client’s systems and arrange the lease of the roofspace to our supplier client who would retain ownership in the panels and the system. The sub contractor went into administration followed by liquidation leaving many unsecured creditors. Its director was subsequently disqualified.
During the administration it was discovered that systems owned by our client had been sold to third parties. We were instructed to secure the remaining assets, recover monies received in payment for our client’s goods and assist in the protection of our client’s rights and interests both in respect of its leasehold property interests and its renewable energy benefits under the FiT regime. The sub contractor had installed our client’s systems at more than 1000 properties but had failed to keep accurate records of their location – a problem aggravated by the fact that our client was not the sub contractor’s only supplier.
Through a combination of court proceedings, negotiation and mediation we were able to secure our client’s proprietary rights over its assets and FiT benefits.