Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change

The Court of Appeal (Longmore, Aikens and Elias LJJ) has given judgment in this case concerning the consequences, in public law terms, of an error by a decision-maker granting an allocation of an environmental subsidy in a competitive market.  The case related to the allocation of Renewables Obligation Certificates to generators of electricity from renewable energy sources under the Renewables Obligation Order 2009.

At first instance, the Administrative Court (Moses LJ) had accepted that but for a calculation error by the Secretary of State, the appellant would have received a higher allocation of ROCs.  It decided, however, that because of a subsequent increase in electricity revenue, the grant of the higher allocation would now amount to an over-subsidy to the appellant contrary to EU State aid rules.

On appeal, the Court of Appeal held in the appellant’s favour that there would not be any improper subsidy for State aid purposes were the allocation to be increased.  The Court went on to hold, however, that there was no principle of public law requiring a public body which had made its decision in error to place the wronged party in the position in which it would have been had no error been made.  On that basis, the Court of Appeal dismissed the appeal.

Michael Fordham QC and Emma Dixon were counsel for Tate and Lyle.