UK: Breach of Electricity Generator’s Human Rights

(Eversheds' Clean Energy and Sustainability Briefing)
Last Updated: 23 September 2011
Article by Nicola Williams

Originally published 30th August 2011

In recent judicial review proceedings - R (on the application of Infinis and Infinis Re-Gen Limited) v the Gas and Electricity Markets Authority1, the High Court has found that Infinis should be entitled to damages in respect of breaches of its human rights by the Gas and Electricity Markets Authority (Ofgem). The case may set a potentially dangerous precedent for the regulator to ensure that it interprets the complex secondary legislation underpinning the renewables obligation certificates ("ROCs") regime very carefully. If you would like to discuss the approach taken in this case or have faced similar issues in connection with the non award of ROCs on original NFFO contracts please feel free to contact us.
The human right in question was Article 1 of the First Protocol to the Human Rights Convention – which provides that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law. Under section 8(2) of the Human Rights Act 1998, the Court has the power to award damages, or the payment of compensation for breaches of rights. Cases in which damages are awarded, however, are rare.


The case relates to the question of the correct interpretation of what constitutes an "excluded generating station" for the purposes of being able to claim ROCs under the Renewables Obligation Orders 2004 and 2006.

The Claimants, Infinis and Infinis Re-Gen Limited, are the current owners of two power stations fuelled by landfill gas, which had entered into Replacement Power Purchase Agreements ("RPPAs") with the Non-Fossil Purchasing Agency ("NFPA") under the Non Fossil Fuels Obligation ("NFFO") scheme set up under the Electricity Act 1989. The commencement date for the RPPAs was dependent on the fulfilment of certain conditions precedent, and owners of the facilities were under a "reasonable endeavours" obligation to ensure that the conditions precedent were satisfied by the effective long-stop date in respect of each agreement.
The problem in this case was that the relevant conditions precedent were not satisfied within the permitted timescale in respect of either of the RPPAs. The NFPA accepted that in the case of each power station, the Claimant had used reasonable endeavours to try to meet the conditions precedent, and eventually agreed that in respect of each RPPA, the agreement could be terminated on the basis that the relevant conditions precedent could not be met.

The NFFO statutory scheme was amended under the Utilities Act 2000, and replaced with the renewable obligation scheme. The Renewables Obligations Orders 2006 and 20092 set out the requirements for the new scheme. Under Article 5(1) of the 2006 Order, electricity was not to be treated as being generated from an eligible renewable source for the purpose of earning ROCs if it had been generated by an excluded generating station. Article 6 went on to clarify that generating stations were to be excluded where they were, or had been, "qualifying arrangements" under the NFFO scheme. The key issue for the Claimants was therefore whether the two generating stations in question still constituted "extant qualifying arrangements" for the purposes of Article 6(3), which would prevent the generating stations being able to benefit under the revised ROC scheme.

A company's "human rights"

Perhaps contrary to expectations, there is clear case law supporting corporate entities having rights under the Human Rights Act 1998 and the European Convention on Human Rights. Although such cases are still relatively rare, the most common way in which a corporate entity is likely to consider its rights have been infringed is in relation to the right to peaceful enjoyment of property enshrined in Article 1 of Protocol 1. For compensation to be payable, the Claimant needs to show that there has been a clear violation of rights. The Court is likely to order that a fair and equitable assessment of what damages should be awarded needs to be carried out, with the aim of putting the claimant back in the position they would have been in had the violation of rights not occurred.

Application to the facts of this case

The issue in this case was whether, despite failure to achieve the fulfilment of the conditions precedent under the RPPAs within the requisite time frame in respect of each of the RPPAs, there remained extant "NFFO arrangements" which would be caught by the Renewables Obligations Orders, preventing the generating stations from benefitting from the new ROC scheme.

The Court held that the RPPAs had ceased to continue in existence by agreement between the parties (the then owners of the generating stations and the NFPA), once it had become clear that the conditions precedent would not be able to be met. At that point, the RPPAs ceased to be in force and effect, and so could not be said to be "extant" for the purposes of the Renewbles Obligation Orders.
Accordingly, the Court found that Ofgem had acted in error when it refused to accept that the RPPAs had ceased to have effect for all purposes, and therefore found that they were "excluded generating stations" and therefore concluded that the generating stations were not eligible to gain credits for the generator under the ROC scheme. Ofgem's decision was therefore unlawful and was formally quashed by the Court. Mandatory relief in respect of retrospective accreditation for both generating stations was also granted with effect from dates in 2009.
In addition, the Judge found that the Claimants' human rights (under Article 1 Protocol 1 of the ECHR) had been breached, and agreed that the Claimants should be eligible for compensation, on the basis that they had been denied their statutory entitlement under the scheme. The Judge accepted the concerns raised on behalf of the Defendant that there might be a flood of similar claims, but found that the Claimants were entitled to damages as a result of Ofgem having misapplied the statutory scheme. The precise sum to be awarded may be the subject of another hearing after 1 September 2011.


It is not yet clear whether Ofgem will seek to challenge the outcome of this case. If it does not appeal, or in the event that the appeal is unsuccessful, the case will set a potentially dangerous precedent and act as a salutary warning to the regulator to ensure that it interprets the complex secondary legislation underpinning the ROCs regime very carefully. To avoid further payouts, Ofgem must ensure that its decision-making is neither illogical nor unreasonable, and that it is consistent with the statutory scheme underpinning the regime.
In the meantime, it will be interesting to see whether the concerns raised by Ofgem's barrister during the hearing that there would be a large number of similar claims for compensation will come to fruition.

1 [2011] WHC 1873, judgment of M. Justice Lindblom dated 10 August 2011. The Non-Fossil Purchasing Agency was an Interested Party in these proceedings.

2 SI 2006/1004 and 2009/78

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.