Wales & West Utilities Limited v Competition and Markets Authority

An appellate tribunal constituted by statute may determine overlapping appeals together, and parties to those appeals may be interested parties in subsequent judicial review proceedings. A party is directly affected where the claim concerns the legal framework governing its own appeal, rather than merely a possible future or collateral consequence.

An interested party supporting a judicial review claim may file detailed grounds on additional grounds under CPR 54.14(1) without obtaining a further permission order. The court must manage fairness, evidence, time and costs, but prior permission is not an implied prerequisite. Case management strike-out is an exceptional step and requires a proper foundation.

Wales & West Utilities Limited challenged the Competition and Markets Authority’s final determination and order concerning appeals against GEMA’s RIIO-2 price-control decision. The claim raised issues concerning the CMA’s statutory appellate function under the Gas Act 1986, including the standard of review and the treatment of statutory duties.

Scottish Hydro Electric Transmission plc, which had been an appellant in the related Cost of Equity appeal, supported the claim and filed detailed grounds illustrating the alleged error in the CMA’s approach. The CMA applied to remove it as an interested party, strike out parts of its grounds, or restrict its participation. The central issues were whether it was a party directly affected by the claim and whether it required permission to advance additional grounds.

1. Interested-party status. The CMA was a tribunal for the purposes of paragraph 4.6 of PD 54A. Its statutory powers to grant permission, receive evidence, quash and remit decisions, substitute decisions and issue reasoned orders demonstrated the character of its appellate jurisdiction.
2. SSEN-T was a party to the relevant proceedings before the CMA. The appeals were required to be considered together as a condition of permission, were dealt with in single provisional and final determinations, and resulted in a single order. There was no principled distinction between jointly managed appeals and formally consolidated appeals.
3. SSEN-T was directly affected under CPR 54.1(2)(f). Unlike the collateral financial consequences in Muldoon, its own appeal was governed by the legal framework challenged in the judicial review. The court distinguished Megarry, Mencap, McVey and Lamot, and treated Telefonica as supporting the relevance of an ongoing effect on future statutory appeals.
4. Additional grounds. CPR 54.14(1) permitted an interested party to file detailed grounds supporting the claim on additional grounds. The rule imposed no requirement for prior permission. The court did not follow the contrary reasoning in McVey and did not share the analysis in Clydesdale that “grounds” had different meanings within Part 54. Fairness required an opportunity for other parties to respond, but that was a matter of case management rather than permission.
5. SSEN-T’s grounds did not constitute a free-standing additional claim or seek different relief. They illustrated the practical effect of Ground One by reference to a ground common to the related appeals. The court declined to strike them out at an interlocutory stage. The CMA’s application was refused in its entirety; the contingent intervention application did not arise.

First-instance interlocutory decision in judicial review proceedings. The substantive claim had received permission from Green LJ on 22 March 2023 but had not yet been listed for hearing.