Energy Data Company Ltd v Eyers & Anor

A contractual claim to recover an overpayment is not conditional upon a separate industry administrator first demanding payment from the recipient. A party who wishes to rely on inadequate disclosure must pursue specific disclosure before trial and place evidence of the problem before the trial judge. Where a represented party fails to do so, and the opposing evidence remains effectively unchallenged, a later complaint about disclosure will ordinarily provide no arguable ground of appeal.

Energy Data Company Ltd v Eyers & Anor arose from a contract under which the applicants supplied electricity and the respondent sold it through the National Grid. A wrongly calibrated meter resulted in substantial overpayments. The respondent claimed repayment, a possible balancing charge payable to ELEXON, and losses following premature termination.

At first instance, His Honour Judge Seymour QC ordered the applicants to pay a sum just short of £1.6 million. The applicants renewed their application for permission to appeal, arguing that the case-management order had been misunderstood, that liability and quantum had not been properly determined, and that the trial had been unfair because their specific-disclosure application had not been dealt with. The central issues were whether those matters disclosed any arguable appeal.

1. Application refused. The trial judgment was well founded in law and fact, and the applicants raised no arguable ground of appeal.
2. The case-management order had directed judgment for the respondent for a sum to be determined, subject to the counterclaim. It did not finally determine the amount payable. Issues concerning the amount remained open for argument and decision at trial.
3. The respondent’s contractual entitlement to recover its own overpayment did not depend upon ELEXON or the respondent’s customers requiring payment. ELEXON’s position was relevant to the separate claim for the balancing charge, not to recovery of the money already overpaid by the respondent.
4. The trial judge was entitled to rely on the respondent’s evidence concerning the calculation and operation of the balancing charge. The applicants had filed no evidence, and the material before the judge was effectively unchallenged.
5. The complaint about disclosure was made too late. The applicants had been represented, had not effectively pursued their specific-disclosure application before trial, had not filed evidence explaining the alleged deficiency, and had not sought an adjournment on that basis. If the applicants considered the disclosure inadequate, they should have pursued the issue before trial and, if necessary, given evidence explaining why the documents were required.
6. The stay imposed by Kitchin LJ expired upon rejection of the application. No additional order for the respondent’s costs of the permission hearing was made.

1. Court of Appeal (Civil Division) On 17 November 2015, Dame Janet Smith refused the renewed application for permission to appeal. The decision is reported at [2015] EWCA Civ 1425.
2. High Court of Justice (Queen’s Bench Division) His Honour Judge Seymour QC made an order dated 21 July 2015 requiring the applicants to pay the respondent a sum just short of £1.6 million. No citation for that order is stated in the judgment.