Solaria Energy UK Ltd v Department for Business, Energy And Industrial Strategy

For A1P1 purposes, a signed and part-performed commercial contract is prima facie a possession, although possible future contracts and mere expectations of income are not. Assignability is one factor among several and is not an automatic threshold. A restriction requiring consent to assignment or sub-letting may reduce value without removing possession status. Status and quantification must be kept distinct.

Under the Human Rights Act 1998, section 7(5)(b) is a limitation provision read with section 7(5)(a). The claimant must show that a longer period is equitable having regard to all the circumstances. The issue may be decided interlocutorily. Long, unexplained delay and resulting evidential prejudice may suffice, without applying laches or another limitation period by analogy.

Solaria claimed damages under A1P1 for alleged interference with contractual rights arising from a 2011 proposal to reduce feed-in tariff subsidies. The Department applied to strike out the claim, contending that the sub-contract was not a possession because assignment required consent, and that the claim was out of time under the Human Rights Act 1998.

HHJ Russen QC struck out the claim in [2019] EWHC 2188 (TCC). The appeal concerned whether the commercial sub-contract was capable in principle of being a possession and whether the late claim could proceed under section 7(5)(b).

1. Disposition. The appeal was dismissed. The judge had erred in striking out the A1P1 claim on the possession issue, but his conclusion on limitation was correct and independently disposed of the claim.
2. A1P1 possession. A signed and part-performed commercial contract is prima facie a possession. The relevant distinction is between existing enforceable contracts and possible future contracts. The latter may generate future income but do not ordinarily constitute possessions. The 300 potential future installations were too speculative. Murungaru confirmed that a contract may be a possession, but its reference to assignability was one factor among several, not an automatic rule. A contract requiring prior consent to assignment remains capable of assignment in law. Restrictions may affect value or quantification, but do not necessarily defeat possession status. (See [2008] EWCA Civ 1015 and [2015] EWCA Civ 408.)
3. Limitation. Section 7(5)(b) of the Human Rights Act 1998 is a limitation provision. It must be read with section 7(5)(a), so the question is whether a period longer than one year is equitable having regard to all the circumstances. The claimant bears the burden of establishing entitlement to the longer period. The inquiry is open-ended, but ordinarily focuses on the length and explanation of delay, the defendant’s conduct, and the effects on the parties and any future trial. Prejudice is relevant but is not the sole or necessarily dominant factor. The court may decide the issue at an interlocutory stage, although pleadings and disclosure may be needed in some cases. The merits are generally assumed in the claimant’s favour on a strike-out application.
4. Other limitation concepts. No six-year limitation period applied by analogy. The equitable doctrine of laches had no application to the statutory scheme.
5. Application. Solaria gave no proper explanation for a delay of four years and eleven months beyond the primary period. The Department suffered evidential prejudice, including difficulty disentangling causation and obtaining evidence concerning GBBS. Those findings were open to the judge and were sufficient to make it inequitable to extend time to 21 December 2018. The strike-out therefore stood.

• Court of Appeal (Civil Division). Appeal from the strike-out decision dismissed under [2020] EWCA Civ 1625.
• High Court of Justice, Queen’s Bench Division, Technology and Construction Court. HHJ Russen QC struck out the claim on both the A1P1 possession and limitation grounds in [2019] EWHC 2188 (TCC).