Court of Appeal Success For Baker & McKenzie Public Law Team

Major Decision for Inset Appointments In The Water And Sewerage Industry

London, UK, 30 January 2012 – Global law firm Baker & McKenzie's London Public Law Team has advised and acted successfully for Independent Water Networks Limited (IWNL) in a major decision for Inset Appointments. This case demonstrates our continuing success in expanding beyond our traditional strength in telecoms regulatory work and establishes our place at the cutting edge of developments in the regulated industries sector.

IWNL, a relatively new entrant in the water and sewerage undertaker industry, was an interested party in a judicial review by Thames Water Utilities Limited (TWUL) challenging a decision by the Water Services Regulation Authority (OFWAT) to award an inset appointment to IWNL in relation to providing water and sewerage services to the majority of the 67-acre King's Cross Development site, which falls within TWUL's regional monopoly.

This judicial review had wider implications for developers, the water industry and in particular other new entrants, as it could have made it effectively impossible for inset appointments to be granted for new entrants to supply 'Brownfield' sites.
 
OFWAT awarded IWNL the inset appointment for both water and sewerage services in relation to the majority of the 67-acre regeneration site in April 2010 after applying the relevant statutory criteria and finding them satisfied. TWUL challenged this decision on the basis that OFWAT was not authorised to appoint IWNL under either of the relevant criteria.  TWUL lost on both grounds at first instance but was given permission to appeal. 

On 25 January 2012 the Court of Appeal dismissed the appeal on both grounds. The Court found that OFWAT's decision on one of the criterion was "unimpeachable" and likewise that OFWAT, in exercising its discretion as regulator, was authorised to find that the other criterion had been satisfied.

Baker & McKenzie Partner Richard Pike commented, "Had the appeal by Thames Water succeeded, it would have stifled competition in the water sector at least until long-trailed reforms were made to its regulation."

IWNL is a member of the larger group of Inexus companies, spanning the provision of services in the gas, electricity, water and telecoms sectors.  Baker & McKenzie has acted for different companies in the Inexus Group for over seven years.

The Baker & McKenzie team was led by Richard Pike, with Associate Yindi Gesinde. Ben Rayment of Monckton Chambers at first instance and Alan Maclean QC of Brick Court Chambers on appeal were counsel appearing for IWNL.

OFWAT was represented by its in-house legal team. Counsel for OFWAT was Monica Carss-Frisk QC and Kieron Beal of  Blackstone Chambers.

Baker & McKenzie's London Administrative and Public Law Team works for clients in a range of industry sectors which interact with public bodies and also for the public sector in a vast range of work.  The team is made up of 30 lawyers from across both the Dispute Resolution and Competition Law teams.