Nuclear Energy in UK Law

In my judgment there is no reason that precludes the Secretary of State from being able to have regard to, and rely upon, the existence of a stringently operated regulatory regime for future control. Because of its existence, he was satisfied, on a reasonable basis, that he had sufficient information to enable him to come to a final decision on the development consent application.

The principles of equal treatment, non-discrimination and transparency require a contracting authority that has adopted a decision-making procedure for assessing bids to comply with it once it has begun to do so. A different way of expressing the same principle is to state that a contracting authority that has set rules for that procedure must follow them, applying those rules in the same way to the different bidders.

In my judgment this proposed transaction is not the kind of transaction which the Regulations and the Directive were enacted to facilitate. The Regulations as a whole and Reg 2 in particular have to be interpreted having regard to the purpose for which the Regulations was enacted. 2 when it is properly interpreted and does not fall in the jurisdiction of the court. While it can be said to be a merger, it is not, in reality, a cross-border merger at all.

Conversely, however, part at least of Buxton LJ's dictum as to the status of the claim under the Regulations does seem to me to form part of the essential reasoning leading to the decision. The Regulations provide for a cause of action for breaches of the provisions of parts 1–8 of the Regulations, which must be regarded in these courts as an action for breach of statutory duty.

That is, as was discussed in the course of submissions, to secure and restrict a first-class mechanic as distinct from securing and restricting anyone with a real commercial involvement. In my judgment, the submission really seems to demonstrate the improbability of parties such as these making such an agreement. Moreover there were restrictions on a change of Agent and Security Trustee provided for in the Restated Credit Agreement (clause 19.15) and the Intercreditor Deed (clause 12.11).

In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went "clearly and radically" wrong.

The majority in Burnie commented that the scope of the Rylands v Fletcher principle has been progressively restricted from within and without. Both those observations are correct up to a point, but the process has not been entirely one-way traffic.