R (Wales and West Utilities Ltd) v Competition and Markets Authority
[2026] EWHC 99 (Admin)
23 Jan 2026
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The High Court has handed down judgment in this claim for judicial review of the CMA's determination of an appeal of the RIIO-2 energy network price control. This is the first judgment to consider the legal framework for statutory energy price control appeals. The Court dismissed the claim and held that the CMA had not erred in its determination of the Claimant’s challenge to Ofgem’s energy licence modifications.
As regards the claimant’s grounds of challenge, the Court held:
- The challenge to the standard of review that the CMA applied to determine whether Ofgem’s decision was wrong (i) was misconceived insofar as it was tied to the CMA’s determination of the cost of debt appeal, and (ii) otherwise was academic [§§136-159]. The Court nevertheless went on to consider the approach adopted by the CMA to determining whether GEMA’s decision was “wrong” on one or more of the statutory grounds. The Court held that, where an appellant suggested an alternative approach to setting the price control, if that alternative approach was one which offered something more than GEMA’s approach (and for that reason was materially better), that would be sufficient to show that GEMA’s approach was wrong for the purposes of the appeal: §§154-159.
- While the CMA had misdirected itself in relation to the proper construction of the statutory financeability duty in section 4AA(2)(b) of the Gas Act 1986, both the CMA and Ofgem had considered the impact on individual licence holders and so the CMA’s misdirection made no difference [§§160-176].
- The CMA’s decision in relation to the cost of debt allowance (and in particular the exclusion of derivatives from that allowance) reflected no error of law [§§177-205].
- The CMA was also entitled to find that Ofgem’s approach to the “tax clawback” policy was not wrong [§§206-210].
Daniel Cashman and Natasha Simonsen acted for Ofgem, the First Interested Party in the claim.
Monica Carss-Frisk KC and Sean Butler acted for SSEN-T, the Sixth Interested Party.
The judgment is available here.
