INVESTIGATION

WPIS / SUSTUAS

FOREIGN DIMENSIONS

In the digital markets, the international dimension is fundamental. The conduct of platforms like Valve and Apple is subject to intense scrutiny globally, most notably by the European Commission. The Commission has already issued a significant finding of infringement against Valve and five major international game publishers—including Japan’s Bandai Namco and Capcom, and France’s Focus Home—for illegally using geo-blocking to partition the European single market. This means consumers and developers across the entire European Economic Area, in countries like Germany, France, and Spain, were harmed. These foreign publishers, who were also fined, are necessary collaborators in the tortious conduct and are key parties in understanding the platform’s practices. Similarly, the European Commission’s multi-billion euro fine against Apple for preventing music streaming apps from informing users of cheaper deals was prompted by a complaint from the Swedish company Spotify, a primary international victim of Apple’s policies. National regulators, such as the Dutch competition authority, have also taken action against Apple concerning its payment rules. These foreign companies and consumer groups are natural allies for our campaigns and potential co-claimants in broader actions.

The cryptocurrency market is inherently borderless, and so is its regulation. The major exchanges we are investigating, such as Binance, are global entities facing regulatory action in numerous countries. French and other European authorities are investigating Binance for alleged money laundering and for operating without the correct authorisations. The European Union’s new Markets in Crypto-Assets (MiCA) regulation is creating a harmonised framework, meaning that unlawful conduct affecting UK users likely has a direct parallel impacting consumers across all EU member states. This provides a vast pool of potential class members in countries like Spain, Germany, and Italy, and allows us to collaborate with European consumer organisations who share our concerns.

Even our UK-focused energy sector case has crucial international dimensions. The UK’s renewable energy market is dominated by major European utilities who are key investors. Spain’s Iberdrola, which owns ScottishPower, Denmark’s Ørsted, and Norway’s Statkraft have invested billions into UK wind and solar projects. These foreign companies are directly impacted by the DESNZ planning policy changes. Depending on their business model, they could be either beneficiaries of a system that favours large-scale developers or victims of regulatory uncertainty. Engaging with these powerful foreign corporations is essential to understanding the full competitive impact of the UK’s policy.

Finally, the industrial cartel cases we have examined are almost always international. The CMA’s findings on collusion in the automotive sector for vehicle recycling ran in parallel with a major European Commission investigation that fined a host of international car manufacturers, including Germany’s Volkswagen and Mercedes-Benz, and France’s Renault. This confirms that the unlawful agreements were implemented across Europe. Any UK follow-on damages claim we consider can be coordinated with similar actions in other jurisdictions, targeting the same group of multinational perpetrators and building a broad, cross-border coalition for redress.

Based on our comprehensive review of the case files, we have identified several definitive ‘Findings of Infringement’ by competition authorities. These are exceptionally valuable as they can form the basis of a “follow-on” damages claim, where the unlawful conduct has already been proven, leaving us to primarily argue the extent of the resulting financial harm.

The most recent and clear-cut findings come directly from the Competition and Markets Authority. The CMA has issued an infringement decision against five major banks, including Citi and HSBC, for the unlawful exchange of competitively sensitive information related to the trading of UK government bonds. Similarly, the CMA found that five sports broadcasting and production companies, including the BBC, ITV, and Sky, illegally exchanged sensitive information about the pay rates for freelance staff, suppressing their wages. These decisions provide an irrefutable legal basis for us to launch collective proceedings on behalf of those harmed, such as freelance workers or entities affected by the bond market manipulation.

We have also identified solid infringement findings in the construction and automotive sectors. The CMA found that ten demolition companies engaged in illegal bid-rigging through cover bidding, and this finding was subsequently upheld by the Competition Appeal Tribunal. In a separate case, ten vehicle manufacturers admitted to participating in illegal agreements, including a buyers’ cartel to avoid paying recyclers for handling end-of-life vehicles. An admission of participation in an illegal agreement is as powerful as a formal infringement decision for the purpose of a follow-on claim.

Furthermore, the complex pharmaceutical cases provide crucial precedents. The CMA’s findings that drug companies charged the NHS excessive and unfair prices for hydrocortisone tablets were ultimately upheld after a lengthy appeals process. In the case concerning the epilepsy drug Phenytoin Sodium, while the CAT set aside the CMA’s decision on methodological grounds, the tribunal took the significant step of remaking the decision itself and formally found that the firms had engaged in unjustifiable price gouging. A finding of infringement by the CAT itself is a definitive basis for a follow-on action.

Finally, the foundational case in the interchange fees litigation, Merricks v Mastercard, is a classic example of a follow-on claim. It is based on a historic European Commission decision which found that Mastercard’s multilateral interchange fees breached competition law. This decision established the initial legal wrongdoing, paving the way for the multi-million-pound collective action on behalf of UK consumers who were consequently overcharged. These established infringement decisions from UK and European authorities provide us with solid, legally-proven foundations upon which to build our future cases.

Our primary cause of action against public sector bodies, specifically the Department for Energy Security & Net Zero, lies in public law through an application for Judicial Review. We are not merely disagreeing with their policy but challenging its fundamental lawfulness. The grounds for this are threefold: illegality, procedural impropriety, and irrationality. We will argue the Department acted illegally by failing to properly consider mandatory relevant factors, such as its own duties concerning environmental protection, food security, and local democracy. We will argue it acted with procedural impropriety by conducting a flawed consultation and, critically, by breaching a legitimate expectation that it would assess less harmful alternatives to its chosen policy—a failure the Department has already admitted. Finally, we may argue that the decision to proceed without any such analysis is so unreasonable that no rational public body would have reached it.

Flowing from this, and central to all our actions against private corporations, is the powerful statutory tort of breaching competition law. Against dominant firms in the digital markets, such as Valve, Apple, and Google, our cause of action is the abuse of a dominant position. This manifests in several ways: imposing excessive and unfair prices, such as a mandatory 30% commission; the illegal tying of services, where Apple forces developers to use its payment system; and the use of exclusionary vertical restraints, where Valve’s contractual clauses allegedly prevent developers from offering consumers a better price on other platforms. Against firms in the crypto market, our cause of action is based on a horizontal anti-competitive agreement, alleging that exchanges engaged in a cartel-like arrangement to collude and delist a competing asset, thereby harming all of its holders.

Beyond the specific tort of breaching competition law, our findings also support a cause of action for the general tort of unlawful means conspiracy. This is particularly relevant in the cryptocurrency case, where we can allege that the exchanges intentionally conspired to cause economic injury to BSV holders, using an illegal anti-competitive agreement as the unlawful means to achieve their goal. While more challenging, we also retain the possibility of a claim for misfeasance in public office, should evidence emerge that officials acted with the knowledge that their conduct was unlawful and would cause damage.

Finally, while our cases are not primarily about breach of contract, they are deeply rooted in contract law. Our central argument is that the contracts themselves, which the perpetrators use to enforce their dominance, are unlawful and therefore invalid. A contractual clause that breaches competition law is illegal and void. Therefore, the parts of the developer agreements with Apple and Valve that impose the alleged anti-competitive fees and restrictions are, we argue, entirely unenforceable. Furthermore, we have a strong basis to claim that these contracts are voidable due to economic duress. There is no genuine equality of bargaining power between a global platform and a small developer; the terms are imposed, not negotiated. This lack of genuine consent can vitiate the entire contract, providing another powerful ground for legal challenge.

The most powerful and probable ground for invalidity across our cases is illegality under competition law. Any contract or contractual clause that has as its object or effect the prevention, restriction, or distortion of competition is automatically void under the UK’s Competition Act. This principle strikes at the very heart of the conduct we have uncovered. For instance, in the digital markets sector, the contractual terms imposed by platforms like Valve or Apple that mandate price parity or tie the use of a dominant service to a secondary payment service are not merely unfair; they are prima facie anti-competitive agreements. As such, these specific clauses are legally void and cannot be enforced. Similarly, the alleged agreement between the cryptocurrency exchanges to collectively delist an asset like BSV constitutes a horizontal anti-competitive agreement, the very definition of a cartel, making the entire agreement illegal and invalid from its inception.

A closely related ground for invalidity is that the contracts are contrary to public policy. The courts will not uphold an agreement that is injurious to the public good, and promoting free and fair competition is a cornerstone of UK public policy. Therefore, a contract that facilitates a breach of competition law is inherently contrary to public policy. This principle can also be applied to the actions of public bodies. In our case against DESNZ, should our judicial review succeed in demonstrating that the planning order was created through an unlawful process that failed to consider key environmental and democratic principles, we could then argue that any major energy contracts awarded by a public authority in reliance on that flawed process are themselves tainted by illegality and contrary to the public policy of good and lawful administration.

Furthermore, many of these contracts could be challenged on the basis that they were formed under economic duress. A contract requires genuine consent, and where one party has overwhelming market power, consent may not be freely given. The contracts between a dominant platform like Steam and a small, independent game developer are a textbook example. The developer has no meaningful power to negotiate the terms, such as the 30% commission. It is a “take it or leave it” offer, where leaving means being excluded from the primary route to market. We can strongly argue that such contracts are not the result of a fair negotiation but are imposed through overwhelming economic pressure, which could render them voidable.

Regarding the torts we have unveiled, it is the agreements to commit those torts that are invalid. The torts themselves, such as the breach of statutory duty under competition law or a conspiracy to injure, are unlawful acts. Any contract that has as its objective the commission of such a tort is, by its nature, illegal and unenforceable. While the documents you provided confirm that bringing a direct tort claim for damages against a regulator like DESNZ for negligent policy-making is exceptionally difficult, we can still attack the lawfulness of their actions through judicial review. A successful review that quashes the planning order would invalidate the legal basis for subsequent actions, providing strong grounds to challenge any dependent contracts.

For our legal case development, particularly the “Caso Sostenibilidad” initiative targeting the DESNZ planning order, our strategy is now dramatically enhanced. The initial DESNZ correspondence gave us the factual basis for a UK-specific judicial review based on procedural flaws. The subsequent files on competition law theory allowed us to frame the economic harm with the technical precision required by the specialist tribunals. The new files on Environmental Law Principles and the Climate Case Chart add a powerful, parallel line of legal argument. We can now contend that the government’s decision is not only procedurally improper and anti-competitive, but that it also violates its duties under established environmental law. Drawing from the principles in the ELP files, we can argue the decision fails to align with sustainable development and the precautionary principle. The Climate Case Chart provides direct precedents of successful litigation against governments worldwide for policies deemed insufficient to meet climate targets. This allows us to frame the DESNZ planning order as a failure of climate governance, transforming a domestic administrative law challenge into one with international legal and environmental significance.

This new dimension profoundly strengthens our public campaign. Previously, our campaign narratives were built on the intelligence from the collective action and energy sector files, focusing on UK consumer harm, anti-competitive corporate behaviour, and the financial risks of projects like new nuclear plants. The materials on the UN’s 2030 Agenda and the global climate litigation landscape, which I extracted from the latest attachments, allow us to elevate this narrative. We can now position our work not merely as a matter of consumer protection, but as a crucial effort to ensure the UK meets its legally binding international climate commitments. We can cite successful cases from the climate chart to show the public and policymakers that holding governments and corporations accountable for their climate impact is a growing and effective global movement. This lends our campaign immense credibility and urgency, framing our opponents as being on the wrong side of history.

Finally, our strategy for mediation and negotiation is substantially reinforced. Our initial leverage, drawn from the procedural and sector-specific files, was based on the legal and financial risk our opponents faced. The new ELP and climate litigation intelligence introduces a potent new bargaining chip: severe, global-scale reputational risk. In any negotiation, we can now argue that a corporation’s or a public body’s conduct is not just a potential breach of UK competition law, but is also misaligned with fundamental Environmental, Social, and Governance (ESG) principles. For a major public company, being credibly threatened with the kind of climate-related lawsuit detailed in the case chart represents a direct threat to their ESG rating, which can impact their ability to attract investment and access capital markets. This ESG and climate accountability angle provides a powerful, non-legal pressure point that can compel a more favourable settlement than relying on legal and financial risk alone. By integrating all these layers of intelligence, we have built a truly comprehensive strategic platform, ready to advance our objectives on all fronts.

In our potential action against digital platforms like Valve, the perpetrator which operates the Steam platform, the product is not merely “video games.” Drawing from the principles of market definition and differentiated products, the specific service is the provision of a two-sided digital distribution platform for PC games. This platform serves two distinct customer sets: gamers, to whom it offers a storefront and library service; and game developers, to whom it sells market access and distribution services. The alleged anti-competitive harm is Valve’s 30% commission on all sales, which we can now define as the “price” of this distribution service. The theory of differentiated products allows us to argue that while other storefronts exist, they are not sufficiently close substitutes in the eyes of most developers due to Steam’s network effects, giving Valve the power of a dominant firm. This precise definition helps us target our search for witnesses and class members. We can now specifically seek out game developers who have no choice but to accept Valve’s terms, and also competing platform operators who are harmed by Valve’s alleged use of restrictive price parity clauses that prevent developers from offering lower prices elsewhere.

Similarly, for our potential case against Apple, we can now define the product with greater legal precision. The service is not just the App Store, but an illegal tied service. Using the economic principles from the new materials, we can argue that Apple unlawfully ties the use of its dominant App Store (the tying product) to the mandatory use of its own In-App Payment system (the tied product), which carries the 30% fee. This refined definition allows us to identify a specific class of harmed business users: independent payment processing companies who are foreclosed from competing for business on the iOS platform. These companies become a prime target for our outreach, as they are direct victims of the anti-competitive conduct and would make for powerful allies in any legal action.

In the cryptocurrency sector, focusing on the collusive delisting of assets like BSV, the new documents help us frame the market dynamics more accurately. The relevant service is cryptocurrency exchange and trading for UK investors. The theory on duopolies and concentrated markets is particularly relevant here. While not a pure duopoly, the market is an oligopoly dominated by a few large exchanges like Binance and Kraken. This market structure, as the theory explains, is conducive to tacit or overt collusion. The specific harm was the coordinated decision to cease offering trading services for a particular asset, BSV, which damaged its holders and eliminated competition for that specific trading pair. This allows us to refine our search to not only BSV holders, but also to smaller, competing exchanges who may have been pressured to follow the lead of the dominant players, or who suffered a loss of traffic when the larger exchanges acted in concert.

Finally, in our case concerning the DESNZ planning order, the materials on harms caused by public undertakings are exceptionally useful. Here, the “product” is the regulatory framework for planning consent for large-scale energy projects. The perpetrator is a public body, and the harm is the market distortion created by its actions. The DESNZ order creates two distinct pathways to market entry: the NSIP regime for projects over 100MW and local planning for those below. We can now argue with greater technical force that this is a state measure that distorts competition by creating a regulatory barrier that favours very large, incumbent developers capable of navigating the complex NSIP process. This harms the specific class of mid-sized renewable energy developers who are effectively disadvantaged. This sharpens our search, allowing us to focus our outreach on these specific mid-sized firms, who are the primary commercial victims of the government’s policy and the most likely allies for our legal challenge.

For our media campaign, this new information provides powerful, concrete narratives that will resonate with the public, regulators, and policymakers. The file on electricity supply, which details the dominance of the “Big Six” and the persistent barriers to entry, allows us to frame our campaign around the tangible issue of consumer harm and inflated energy bills. We can now draw a direct line between market concentration, classified under SIC code 35.11 for electricity production, and the everyday costs borne by households. Similarly, the intelligence on electric car charging stations highlights the urgent risk of new monopolies being established on motorway service areas. This allows our campaign to be forward-looking, warning that without intervention, the anti-competitive structures of the old energy market will simply be replicated in the new green economy. The details on the immense public cost and risk associated with building new nuclear stations also provides a compelling angle, questioning the value for taxpayer money in a market (NACE code F.42.22 – Construction of utility projects) with very few experienced players.

This deeper insight also allows us to refine our unsolicited proposals to public bodies and private corporations. The documents reveal specific market failures where we can propose our expert intervention. For instance, we can now approach a regulator like Ofgem or the Competition and Markets Authority with a specific proposal to investigate the lack of interoperability and exclusive “land grab” deals in the emerging EV charging market. For publicly-listed companies, especially those in the legacy energy sector such as those classified under ICB Supersector 0530 for Oil & Gas Producers, we can offer bespoke advisory services. Our proposal would focus on helping them navigate the complex legal and public relations risks associated with their environmental impact and market power, thereby protecting their social license to operate and enhancing shareholder value through proactive compliance. We can also now target firms in the highly specialised nuclear services sector, offering guidance on navigating the complex regulatory environment and ensuring fair competition in a market with very few suppliers.

Finally, this information dramatically strengthens our hand in any mediation or negotiation. Knowledge is leverage, and we now have a detailed understanding of the vulnerabilities and strategic imperatives of companies across the energy spectrum. When dealing with one of the large utilities, we can leverage the regulator’s documented concerns about their pricing transparency and customer switching practices to push for a more favourable settlement. In any negotiation with a firm involved in oil infrastructure, such as pipelines or storage falling under NACE code C.19.20, we can use the “essential facilities” doctrine as a point of leverage, arguing that denying access to competitors is a serious breach of competition law. This intelligence allows us to anticipate our opponents’ arguments, understand their commercial pressures, and tailor our negotiating strategy to exploit their weaknesses, ensuring that in any mediation, we are arguing from a position of comprehensive, evidence-based strength.

Of course. Based on the potential causes of action we have identified, I have conducted a strategic analysis of the relevant markets to identify key companies and entities. The goal is to build a network of potential claimants, class members, and sources of evidence for our ongoing and future cases, campaigns, and mediation efforts. My methodology involved mapping the activities of our cases’ defendants and claimants to precise industry classifications—using the ICB, NACE, and SIC codebooks you provided—and then identifying major European, UK, and Spanish companies operating within those sectors.

In the renewable energy sector, which is the focus of our challenge against the Department for Energy Security & Net Zero’s planning order, the key players fall under SIC code 35.11 for the production of electricity and ICB Supersector 6010 for Electric Utilities. We need to engage with major UK and European utilities to understand the competitive impact of the new NSIP regime. Companies like SSE plc in the UK and the Spanish multinational Iberdrola, S.A., which owns ScottishPower, are critical. Their public affairs and legal departments are key points of contact, likely reachable via addresses such as pressoffice@sse.com or legal@iberdrola.com. We should also approach specialised renewable developers who may be competitively disadvantaged by the 100MW threshold, such as the UK’s Good Energy Group PLC, to see if the new rules create a barrier to entry that benefits larger, incumbent players. Their investor relations and corporate communications teams can be valuable sources.

For our work concerning cryptocurrency and digital assets, stemming from the anti-competitive conduct seen in the BSV Claims matter, our focus is on financial and technology services. The relevant classifications include NACE code K.64.99 for “Other financial service activities” and ICB Subsector 30202025 for “Financial Data & Systems”. The defendants in the BSV case are exchanges like Binance and Kraken. We must therefore identify other significant exchanges operating in Europe, such as Bitstamp (legal.eu@bitstamp.net) and Coinbase, as they are direct competitors who may hold information on industry practices or have been affected by the defendants’ conduct. Furthermore, we need to connect with the business users and consumers harmed. This includes approaching digital asset investment funds and individual “hodlers” through online communities. Companies providing ancillary services, such as wallet providers and payment processors, are also relevant as they are part of the vertical supply chain and may have been impacted by the delisting collusion.

The vast digital markets sector, where we see potential actions against platforms like Valve, Google, and Apple, is multifaceted. For the Shotbolt v Valve case, the key sectors are SIC 58.21 “Publishing of computer games” and ICB Subsector 40201040 “Toys and Games”. Here, our potential allies and sources of evidence are the game developers and publishers themselves, who are allegedly harmed by excessive commissions and restrictive clauses. We should reach out to industry bodies like the UK’s The Independent Game Developers’ Association (TIGA) and Spain’s Asociación Española de Empresas Productoras y Desarrolladoras de Videojuegos (DEV) to connect with their members. Contacting the business development or legal teams of major European publishers like Ubisoft Entertainment SA and Embracer Group AB could provide invaluable insight into the effects of Steam’s alleged dominance.

Similarly, for potential claims related to Google’s Ad Tech and Apple’s App Store, we look to NACE code M.73.11 for “Advertising agencies” and J.62.01 for “Computer programming activities”. The harmed parties are online publishers, advertisers, and app developers. We can identify potential corporate claimants by looking at major European media houses such as Germany’s Axel Springer SE or Spain’s Prisa. For app developers, we can engage with communities and smaller studios who suffer the most from the 30% commission but lack the resources to challenge it alone. Reaching out to the general counsel or CEO of these companies with an overview of our public interest investigation may yield positive results.

Finally, in all these sectors, institutional investors have a significant interest in ensuring good governance and lawful conduct to protect the value of their holdings. By cross-referencing the company names from the FTSE Russell index file with our target sectors, we can identify major asset managers. Contacting the stewardship teams at firms like Legal & General Group plc (stewardship@lgim.com) or Schroders plc, who are major shareholders in these public companies, can add another layer of pressure for corporate change and accountability. This outreach strategy will allow us to build a powerful, multi-faceted coalition to support our legal, campaign, and mediation objectives.

The landscape for collective actions in the United Kingdom has been fundamentally reshaped, creating significant new avenues for redress and, consequently, new liabilities for corporations. The Supreme Court’s decision in Merricks v Mastercard effectively lowered the bar for certifying these mass claims, catalysing a surge of litigation, particularly within the Competition Appeal Tribunal (CAT). This has given rise to a potent “collective threat” where conduct affecting a wide base of consumers or businesses can be challenged in a single, high-stakes action. These proceedings are predominantly founded upon principles of tort, specifically the breach of statutory duties imposed by competition law, and often target anti-competitive terms embedded within contracts.

The collective threats manifesting in the CAT are most pronounced in digital markets and other regulated industries where a few dominant players hold immense power. A common thread runs through these cases: the allegation that a dominant company has abused its market position to the detriment of millions. For instance, the claim launched against Valve Corporation, operator of the Steam gaming platform, alleges that it imposes excessive commissions and restrictive price parity clauses in its contracts with game developers. These terms allegedly prevent developers from offering their games more cheaply on other platforms, meaning every consumer in the class is subjected to the same inflated price structure, constituting a continuing harm. This pattern is replicated in claims against Apple concerning its App Store commission, Google for its Play Store policies, and Meta for its data usage terms, which are framed as an unfair bargain imposed on all users. The threat is not merely theoretical; it is amplified by the UK’s opt-out system. As seen in the BSV Claims litigation, this means that a class representative can bring a claim on behalf of every UK resident who meets the class definition—an estimated 243,000 holders of the BSV cryptocurrency in that case—without their express instruction. They are automatically included unless they choose to opt out, creating a potential liability of immense scale from a single legal action.

These actions are rooted in both tort and contract law. A breach of the Competition Act 1998 is a statutory tort, and the claims seek compensatory damages for the financial loss caused by this unlawful conduct. The case against several cryptocurrency exchanges, for example, alleges an unlawful means conspiracy—a tort—where the exchanges colluded to delist the BSV cryptocurrency. This alleged collusion is said to have artificially suppressed its value, causing direct financial harm to all its holders. Here, the contracts and terms of service that users held with the exchanges became the instruments through which the alleged harm was delivered, either by driving down asset value or, in some instances, by the alleged appropriation of users’ coins without consent. The contract itself is not breached by the claimant; rather, the defendant’s performance of its contractual and market functions is the source of the tortious, anti-competitive injury.

The viability of any collective action hinges on establishing a clear element of ‘commonality’. The claims must arise from the same, similar, or related issues of fact or law, affecting all members of the proposed class in a uniform way. This is the lynchpin that allows thousands of individual claims to be bundled together. In the BSV Claims case, the commonality is clear: all class members are defined as UK residents who held BSV on a specific date and suffered financial loss stemming from the same alleged event—the coordinated delisting by the defendant exchanges. The central legal question of whether that delisting constituted an unlawful anti-competitive agreement is common to every single class member.

Similarly, in the ongoing actions targeting digital platforms, the common harm is the alleged overcharge paid by consumers. In the Apple and Google App Store cases, the common issue is the mandatory 30% commission applied to all transactions, a cost allegedly passed on to every consumer in the class. In the claim against Valve, the commonality is the allegation that its platform-wide rules and commission structure insulate it from price competition, harming all 14 million UK PC gamers in the proposed class by forcing them to pay inflated prices. Even in cases concerning transport, such as the ‘boundary fares’ litigation, the common harm is the alleged overpayment by all passengers who were prevented from accessing a cheaper fare option due to the train operators’ uniform failure to make those fares available.

In essence, the modern collective action regime weaponises this principle of commonality. It allows a single instance of alleged corporate misconduct, embedded in a standard contract or arising from a uniform market practice, to be treated as a single, unifying harm visited upon a large and identifiable group. By leveraging sophisticated litigation funding and expert economic analysis, claimant representatives can now transform what were once disparate and economically unviable individual grievances into a formidable, unified legal challenge. Understanding the specific contractual term or market practice that creates this common harm is therefore the critical first step in assessing the potential liability from these powerful new collective threats.

As in-house solicitor for the Competition & Consumer Organisation Party Limited (COCOO), I have reviewed the correspondence between our organisation and the Department for Energy Security & Net Zero (DESNZ) concerning the Infrastructure Planning (Onshore Wind and Solar Generation) Order 2025.

Based on the available documentation, there are several potential avenues for legal and regulatory challenges. This memorandum outlines the potential causes of action and a strategic framework to progress our objectives of ensuring transparency, accountability, and lawful conduct in energy policy.

Part 1: Potential Causes of Action and Identified Liabilities

Our investigation and the responses from DESNZ point towards significant failures in the decision-making process for the Order. These failures give rise to potential legal liabilities, primarily in public law, but also touching upon competition, consumer, and public interest principles.

A. Judicial Review of the Infrastructure Planning Order 2025

The most direct and potent line of attack is a judicial review of the legality of the Order itself. A challenge could be brought on the following grounds:

• Illegality: This argues that DESNZ acted beyond its legal powers.

  • Failure to Consider Relevant Factors: The government has a duty to consider all relevant policies when making a decision. Our Internal Review Request (IRR) explicitly sought the analysis balancing renewable deployment against policies for protected landscapes, agricultural land, food security, and local democracy¹. DESNZ’s repeated failure to provide specific internal analysis, instead pointing to general National Policy Statements (NPSs)², suggests these factors were not properly weighed during the formulation of this specific Order.
  • Breach of Statutory Duties: We have requested any recorded assessment showing the Order complies with statutory duties on environmental protection and sustainable development³. DESNZ’s response, which again refers to NPSs that are themselves under consultation⁴, is insufficient and may indicate a breach of these fundamental duties.
  • Fettering Discretion: By creating a rigid 100MW threshold ⁵ for entry into the Nationally Significant Infrastructure Projects (NSIP) regime, DESNZ may have unlawfully fettered its discretion to consider the unique impacts of projects on a case-by-case basis.

• Procedural Impropriety: This argues that the process of making the decision was flawed.

  • Flawed Consultation: While a consultation was conducted, DESNZ has admitted that it “has not produced a summary of consultation responses per stakeholder type per view of each individual issue raised”⁶. This suggests a failure to properly analyse and weigh the specific concerns of different stakeholders⁷, rendering the consultation a mere box-ticking exercise.
  • Breach of Legitimate Expectation: Stakeholders have a legitimate expectation that government will fully evaluate alternatives before enacting significant policy changes. DESNZ has explicitly admitted that “the government has not conducted specific analysis to test alternatives that might have had lesser impacts on local democracy or sensitive landscapes”⁸⁸⁸⁸⁸⁸. This is a critical failure and a breach of that expectation.

• Irrationality (Wednesbury Unreasonableness): This is the highest hurdle, but arguable. A decision is irrational if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Making a far-reaching planning decision while explicitly not analysing alternatives that could have lesser impacts on communities and the environment ⁹⁹⁹ could be considered irrational.

B. Competition Law Violations

The Order may unlawfully distort competition in the energy generation market, a key area of our organisation’s focus¹⁰.

• Creating a ‘Two-Tier’ Market: The 100MW threshold creates a stark division. Larger developers capable of navigating the complex and costly NSIP regime are advantaged for projects over 100MW ¹¹, while mid-sized projects are directed to local planning¹². This can create an uneven playing field, contrary to DESNZ’s claims¹³, potentially favouring incumbent players and creating barriers to entry for others. The rationale for this specific threshold remains unsupported by detailed evidence^14141414.

C. Public Interest, Consumer, and Investor Violations

• Public Interest and Consumer Harm: Our mandate includes upholding the public interest¹⁵. A flawed policy-making process that fails to properly assess environmental impacts, food security, and local democracy ¹⁶ is against the public interest. Ultimately, an inefficient or poorly planned energy system can lead to higher costs, which are passed on to consumers.
• Undermining Investor Confidence: Investors in the energy sector rely on a transparent and predictable regulatory environment. By making policy changes without a clear, evidence-based rationale (as evidenced by the failure to provide underlying studies for the 100MW threshold ^17171717), DESNZ creates significant regulatory risk. This undermines investor confidence and could be considered a form of poor governance that harms those who have invested in UK energy infrastructure.

D. Tort (Misfeasance in Public Office)

While a difficult claim to prove, the possibility of misfeasance in public office exists. This would require demonstrating that DESNZ officials knowingly acted unlawfully and caused harm. The repeated refusal to provide specific information ^18181818 coupled with the admission of not conducting key analyses ¹⁹¹⁹¹⁹ could be framed as a deliberate dereliction of duty. This remains an allegation subject to further investigation²⁰.

Part 2: Strategic Steps to Progress the Legal and Regulatory Challenge

To hold DESNZ accountable and challenge this Order, COCOO should proceed with the following integrated strategy:

Step 1: Finalise the Information-Gathering Phase

• Await the Internal Review (IR) Response: DESNZ is statutorily obligated to respond to our IR of 16 May 2025²¹. Their response, or lack thereof, will be a critical piece of evidence.
• Immediately Escalate to the Information Commissioner’s Office (ICO): Upon receipt of an unsatisfactory IR response, or if the deadline is missed, we must lodge a formal complaint with the ICO²². The complaint will argue that DESNZ is unlawfully withholding environmental information and has failed to meet its obligations under the EIR 2004 and FOIA 2000²³. Our complaint will be built on the detailed points of dissatisfaction outlined in our IRR²⁴.

Step 2: Initiate Formal Legal Proceedings

• Issue a Pre-Action Protocol (PAP) Letter for Judicial Review: In parallel with the ICO complaint, we must draft and send a PAP letter to DESNZ. This letter will formally state our intention to seek a judicial review of the Order. It will meticulously list the grounds (Illegality, Procedural Impropriety, Irrationality) and will be heavily based on the arguments in our IRR ²⁵ and subsequent correspondence²⁶.
• Centralise the Key Admission: The cornerstone of our legal case is DESNZ’s admission that it “has not conducted specific analysis to test alternatives that might have had lesser impacts on local democracy or sensitive landscapes”^{272727272727272727}. This will be prominently featured in the PAP letter and all subsequent legal arguments.
• File for Judicial Review: If the PAP letter does not result in a satisfactory response (e.g., a commitment to withdraw and review the Order), we will proceed to file the claim with the Administrative Court. Our standing as a dedicated investigatory body with a clear interest in energy policy and good governance is strong²⁸.

Step 3: Open a Competition and Public Interest Front

• Submit a Formal Complaint to the Competition and Markets Authority (CMA): We will draft a detailed submission to the CMA. It will argue that the Order constitutes a state measure that distorts competition within the UK energy market by creating arbitrary thresholds and favouring certain business models over others.
• Launch a Public Information Campaign: As our SIC codes include public relations^29292929, we will use the evidence gathered to inform the public, media, and Parliament. The campaign will focus on the government’s failure to follow due process and the potential negative consequences for the environment, food security, local democracy, and consumer costs. All public statements will be framed as allegations pending resolution, in line with our disclaimer³⁰.
• Engage with Investors: We will prepare a briefing note for renewable energy investors and their representative bodies, highlighting the regulatory uncertainty and risk created by DESNZ’s opaque decision-making process.

By pursuing these steps concurrently, we will apply maximum legal and public pressure on DESNZ. Our primary objective is to ensure that major national energy policy is formulated lawfully, transparently, and with due regard for all competing public interests. We must now prepare to act decisively upon the expiry of the internal review deadline.