Solaria Energy UK Ltd v Department for Business, Energy And Industrial Strategy [2020] EWCA Civ 1625

“52. In the light of the decision in Murungaru, which was followed by Coulson J in Breyer, I regard the key question to be whether or not the contractual rights which Solaria enjoyed under the contract had a monetary value which could be marketed for consideration. Although Solaria had negotiated with GBBS a contract which had an economic value to it at the date of the Proposal (and in that respect this business contract was clearly in a different category from Dr Murungaru’s ongoing medical treatment) the weight of authority indicates that, as with goodwill, whether or not that value is marketable is the central consideration. I have already noted that Lewison J said that transmissibility was not necessarily the touchstone but he said it is “a highly relevant factor” and went on to note the significance which the Court of Appeal in Malik had attached to rights which were not transferable and therefore lacked economic value. The bundle of rights could not be viewed as an “asset”

“76. In truth, Solaria has no intelligible answer to that question. The facts show that instead of promptly bringing its A1P1 claim against the DECC, before October 2012, Solaria continued to deliver PV panels to GBBS until July 2012. It did so in return for being paid at the rate of £1.10 per watt, rather than £1.35 per watt, but on its own case upon the post-Proposal agreement reached with GBBS it did so in circumstances where (the Proposal having subsequently foundered) it should have been entitled to payment at the full rate. Indeed, in July 2013 Solaria issued an invoice to GBBS for the greater part of what it now seeks to recover from the Department under the categories (1) and (2) heads of loss; and on 26 August 2014 it issued proceedings against GBBS for recovery of the difference. As I have already noted, those proceeding were stayed following the appointment of administrators of GBBS in March 2015.”

“106. The failure to bring proceedings over the Proposal before the effective date of the Standstill Agreement (namely 21 December 2016 when the letter of claim was sent) clearly has prejudiced the Department. Within weeks of the Proposal being published Solaria knew of the legal challenge to its proposed implementation. If Solaria had acted promptly by looking to the DECC for the loss that had in fact resulted from it receiving from GBBS the lower rate of £1.10 per watt for PV panels (even if that should not have been the legal consequence of its agreement with GBBS) its claim could have been managed alongside the ones in Breyer. 107. As things now stand, however, the Department would be faced with the prospect of the evidential and financial implications of a claim commenced only at the conclusion of the Breyer litigation. I accept Mr Weisselberg’s submission, which is supported by the evidence from Mr Olsen of the GLD, that the evidential difficulties would not only reflect the inevitable consequences of further fading memories on the part of those behind the publication of the Proposal but also the difficulties likely to be encountered in disentangling the effect of the Proposal from a falling market in PV installations caused by the revised one which took effect, without challenge, whilst Solaria continued to supply GBBS. As to that, I have already referred to the apparent strength of the Department’s likely defence based upon GBBS’s novus actus. Yet the Department would be expected to attempt to adduce evidence from the officers or representatives of GBBS, to explore the reasons why Solaria were not paid the full £1.35 per watt, when that company went into administration over 4 years ago. Mr Olsen also makes the incontrovertible point (which chimes with what Rix LJ said in M) that bringing this very late claim is at odds with the public policy objective of encouraging the efficient use of public resources which I believe I am entitled to assume was in the Department’s mind when reaching its settlement with the Breyer claimants.”

“… The licence itself is not the “possession” and…whether the economic interests that flow from it are a possession depends on the facts, one of which may be the marketable goodwill that can flow from the exercise of a licensed trade…”

“45. Some of the characteristics of the contract in the present case are not in doubt. First, the benefit of the contract is incapable of assignment. Dr Murungaru could not confer the right to medical treatment on anyone else. Second, as a contract for personal services it cannot be vicariously performed. No other doctor could perform the treatment. Third, if, for example, Dr Murungaru were to become bankrupt under English law, the contract would not vest in his trustee. If he died, his personal representatives would not be able to take advantage of the contract. Fourth, it is incapable of being enforced by injunction or specific performance. Fifth, there is no suggestion that Dr Murungaru has paid for any medical treatment in advance. If, having received medical treatment, Dr Murungaru refused to pay for it, the doctors would be entitled to recover the agreed payment by action. The debt would be a chose in action which the doctors would be entitled to assign to someone else. Likewise, if the doctors refused to treat Dr Murungaru, he would be entitled, at least in theory, to recover damages for breach of contract, and his right to damages would itself be a chose in action capable of being assigned to someone else. But although breach of the contract may give rise to claims capable of being choses in action, I doubt whether the underlying contract itself is a chose in action. To take an analogy: a claim for damages for personal injury (say, a broken leg) is undoubtedly a chose in action. But one would hardly say that the fracture itself is property… 58. In the present case, Dr Murungaru's contractual rights have none of the indicia of possessions. They are intangible; they are not assignable; they are not even transmissible; they are not realisable and they have no present economic value. They cannot realistically be described as an "asset". That is the touchstone of whether something counts as a possession for the purposes of A1 P1. In my judgment Dr Murungaru's contractual rights do not.”

“49. As I have said, the distinction between goodwill and loss of future income is not always easy to apply. But in my view, the judge was right to see a clear line separating (i) possible future contracts and (ii) existing enforceable contracts. Contracts which have been secured may be said to be part of the goodwill of a business because they are the product of its past work. Contracts which a business hopes to secure in the future are no more than that. For this reason, I would uphold the judge's classification.”

“7 Proceedings. (5) Proceedings under subsection (1)(a) must be brought before the end of— (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question…”

“20. Thus section 7(5) of the HRA itself recognises by that language that it is dealing with a time limit just like any Limitation Act time limit and recognises also that a Limitation Act time limit may be stricter than a time limit imposed by section 7(5) itself. That, it seems to me, is a critical and decisive answer to Mr Simblet's submission. But I would go on to observe, although it is not necessary to my decision, that if Mr Simblet's submission were correct, then the argument for saying that the need for a claimant to be a victim of the unlawful act referred to at the end of section 7(1) would itself be a matter going to jurisdiction. Mr Simblet himself seemed to accept that such a conclusion would be counterintuitive even though, given the language of the Act, there would be a stronger case for saying that the need for the claimant to be a victim went to jurisdiction than to say that a time limit which is so much akin to an ordinary Limitation Act time limit went to jurisdiction. However subsections (3) and (4) of section 7 indicate that the need for the claimant to be a victim related, in effect, to what, in the context at any rate of judicial review, would be considered to be a sufficient interest in England or a title and interest to sue in Scotland. It seems to me that these considerations support the view that section 7(5) is not dealing with a jurisdictional matter. It would be very surprising if every Human Rights Act claim by an alleged victim which was opposed on the ground that the claimant was not a victim was a matter which had to be dealt with under Rule 11 of the CPR. 21. Therefore I would reject Mr Simblet's first ground of appeal to the effect that the defendants had failed to take a jurisdictional point in time. There is, in my judgment, no jurisdictional point. It also follows from what I have said about Mr Simblet's attempt to distinguish the language of section 7(5) and that of the Limitation Act, that there is nothing in the distinction between section 7(5) limitation and limitation in the Limitation Act to raise a critical interpretative difference of approach for the court.”

“23 . It seems to me that there is that difference in language but that the burden remains, as Mr Simblet accepts, acknowledging in this respect the decision of Sir Michael Turner in Cameron v Network Rail, on the claimant to bring himself within section 7(5)(b), and that being the case, the burden must be the normal burden of someone who wishes to persuade the court to adopt an approach to its discretion which he is advocating. The judge, of course, has to balance all the factors which are in play in the light of all the circumstances of the case. The burden is that of the ordinary civil burden of proof where matters of fact are in issue and otherwise it is a burden of persuasion. Quite how the burden of persuasion is discharged by a claimant must ultimately depend not upon the particular form of the statute in question but upon the nature of the factors in play before the court.”

“167. It has been held in Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB), [2007] 1 WLR 163, para 47 that the burden of establishing that it is equitable to extend time under s 7(5) is on the party seeking the extension.