Court upholds sale of Bulb to Octopus Energy

Bulb was and remains the first energy supplier to enter a special administration regime. As part of the special administration process, the administrators needed to try and rescue Bulb as a going concern or failing that, transfer the business to another company.

The administrators were unable to rescue Bulb as a going concern and therefore created a bidding process for Bulb’s business. Octopus Energy were the successful bidder and Bulb’s business was transferred to Octopus. The sale involved the first use of an energy transfer scheme under the Energy Act 2004 and also involved funding being provided by the government. Both actions required the Secretary of State’s approval. 

Three energy suppliers sought to judicially review the Secretary of State’s decision on the basis of subsidy control (formerly known as ‘state aid’) and on public law grounds regarding the bidding process (specifically, that the challenging suppliers, when bidding, were not made aware that government funding could be available).

The court refused permission. The court considered the energy suppliers’ claims failed due to their delaying in issuing their claims. The suppliers issued their claims c.1 month after the court considered the Secretary of State had made the relevant (reviewable) decisions. The Civil Procedure Rules required prompt filing, at most, within three months of the grounds arising. The court held that given the “urgent and fast moving situation”, the suppliers should have brought their claims earlier and that “everything depends upon the context”.

R. v Secretary of State for Energy Security and Net Zero [2023] EWHC 737 (Admin)

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