AC-2024-LON-002888 - [2025] EWHC 2139 (Admin)

“28A Restriction on abandonment

A person to whom a notice may be given under section 29(1) in relation to an offshore installation or submarine pipeline may not abandon, or begin or continue the decommissioning of, the installation or pipeline unless an abandonment programme approved by the Secretary of State has effect in relation to the installation or pipeline.

A person who without reasonable excuse contravenes subsection (1) is guilty of an offence.”

Section 29 deals with the preparation of programmes which are related to the abandonment of an offshore installation or submarine pipeline. Whilst section 29(1), as will be seen from the quotation below, refers to the Secretary of State giving notice, it appears that such a notice is in effect given at the commencement of fabrication of the offshore facilities following the grant of a licence so that in practice the process commences with the preparation of a programme for submission to OPRED by the relevant operator. Section 29 of the 1998 Act provides as follows:

“29.— Preparation of programmes.

The Secretary of State may by written notice require—

the person to whom the notice is given; or

where notices are given to more than one person, those persons jointly,

to submit to the Secretary of State a programme setting out the measures proposed to be taken in connection with the abandonment of an offshore installation or submarine pipeline (an “abandonment programme”).

(1A) The power to give a notice under subsection (1) is exercisable—

on the Secretary of State's own motion, or

at the request of any person to whom the notice may be given (whether or not the notice is given to that person).

A notice under subsection (1) shall either specify the date by which the abandonment programme is to be submitted or provide for it to be submitted on or before such date as the Secretary of State may direct.

(2A) A person to whom a notice under subsection (1) is given—

must consult the OGA before submitting the abandonment programme to the Secretary of State, and

must frame the programme so as to ensure (whether by means of the timing of the measures proposed, the inclusion of provision for collaboration with other persons, or otherwise) that the cost of carrying it out is kept to the minimum that is reasonably practicable in the circumstances.

(2B) When consulted under paragraph (a) of subsection (2A) the OGA must (in particular) consider and advise on—

alternatives to abandoning or decommissioning the installation or pipeline, such as re-using or preserving it, and

how to comply with paragraph (b) of that subsection.

A notice under subsection (1) may require the person to whom it is given to carry out such other consultations as may be specified in the notice before submitting an abandonment programme.

An abandonment programme—

shall contain an estimate of the cost of the measures proposed in it;

shall either specify the times at or within which the measures proposed in it are to be taken or make provision as to how those times are to be determined;

if it proposes that an installation or pipeline be left in position or not wholly removed, shall include provision as to any continuing maintenance that may be necessary.

A person who submits an abandonment programme to the Secretary of State under this section shall at the same time pay to him such fee in respect of his expenditure under this Part of this Act as may be determined in accordance with regulations under section 39.

The Secretary of State may exercise his powers under this section notwithstanding that

an abandonment programme has previously been submitted for the installation or pipeline [in question if the Secretary of State has under section 32—]

rejected that programme, or

approved it (whether or not the approval has been withdrawn).”

The question of the approval of programmes by OPRED is governed by section 32 of the 1998 Act which provides as follows:

“32.— Approval of programmes.

The Secretary of State may either approve or reject a programme submitted to him under section 29.

If he approves a programme, the Secretary of State may approve it with or without modifications and either subject to conditions or unconditionally.

(2A) The modifications or conditions may (in particular) include modifications or conditions—

which are intended (whether by means of the timing of the measures proposed, the inclusion of provision for collaboration with other persons, or otherwise) to reduce the total cost of carrying out the programme, provided that they do not increase the total costs to be met by any person who is to be subject to obligations under the programme or under any other abandonment programme;

requiring the persons who submitted the programme to carry out and publish or make available to the Secretary of State and the OGA a review of the programme and its implementation including, where relevant, recommendations as to the contents and implementation of future abandonment programmes.

Before approving a programme with modifications or subject to conditions, the Secretary of State shall give the persons who submitted the programme an opportunity to make written representations about the proposed modifications or conditions.

If he rejects a programme, the Secretary of State shall inform the persons who submitted it of his reasons for doing so.

The Secretary of State shall act without unreasonable delay in reaching a decision as to whether to approve or reject a programme.

Before reaching a decision under this section the Secretary of State must—

consult the OGA, and

take into account the cost of carrying out the programme that has been submitted and whether it is possible to reduce that cost by modifying the programme or making it subject to conditions.

When consulted under subsection (6)(a), the OGA must (in particular) consider and advise on—

alternatives to abandoning or decommissioning the installation or pipeline, such as re-using or preserving it, and

whether section 29(2A)(b) has been complied with and, if it has not been, modifications or conditions that would enable it to be complied with.”

It will be noted that, pursuant to section 32(6) and (7), prior to reaching a decision in respect of either approving or rejecting a plan, OPRED must consult the defendant and that certain features are mandatory requirements of that consultation. These are the cost of carrying out the programme; whether it is possible to reduce the cost by modifying it or making it subject to conditions (see section 32(6)(b)); advice on alternatives to abandoning or decommissioning the installation or pipeline; and whether section 29(2A)(b) has been complied with.

Provision is made within section 42 of the 1998 Act for a challenge to be made in respect of any of the acts of OPRED, and the parameters of such a challenge are framed in the following terms:

“42.— Validity of Secretary of State's acts.

If any person is aggrieved by any of the acts of the Secretary of State mentioned in subsection (2) and desires to question its validity on the ground that it was not within the powers of the Secretary of State or that the relevant procedural requirements had not been complied with, he may within 42 days of the day on which the act was done make an application to the court under this section.

The acts referred to in subsection (1) are—

the giving of a notice under section 29(1);

the approval of a programme under section 32;

the rejection of a programme under section 32;

a determination under section 34;

a determination under section 35;

(ea) the giving of a notice under section 36A(2);

the giving of a notice under section 38(4).”

In 2021 the defendant published the OGA Strategy (“the Strategy”) which was presented to Parliament pursuant to the provisions of the 1998 Act. The purpose of the Strategy is stated to be to enable the principal objective established by section 9A of the 1998 Act to be met. It is also noted that in drafting the Strategy the defendant had regard to, amongst other matters, how the Secretary of State might be assisted in meeting the net zero target. The structure of the Strategy is to set out a central obligation alongside supporting obligations, required actions and safeguards. The central obligation is described in paragraph 2 of the Strategy in the following terms:

Relevant persons must, in the exercise of their relevant activities, take the steps necessary to:

secure that the maximum value of economically recoverable petroleum is recovered from the strata beneath relevant UK waters; and, in doing so,

take appropriate steps to assist the Secretary of State in meeting the net zero target, including by reducing as far as reasonable in the circumstances greenhouse gas emissions from sources such as flaring and venting and power generation, and supporting carbon capture and storage projects.”

At paragraphs 15 to 17 the Strategy deals with the issue of decommissioning, and at paragraph 15 requires that before commencement of planning of decommissioning of any infrastructure the owners must ensure that all viable options for the infrastructure’s continued use (including its repurposing for carbon capture and storage) have been suitably explored. Paragraph 16 requires that decommissioning should occur in the most cost-effective way without prejudicing the maximising of the recovery of economically recoverable petroleum or any reuse or repurposing options. Importantly, paragraph 23 of the Strategy identifies the defendant’s published Stewardship Expectations, to which persons to whom the Strategy applies must have regard when considering how to act in accordance with the Strategy.

The Strategy makes specific provision for actions where a person to whom the Strategy applies decides not to ensure MER. Paragraphs 26 to 30 address the approach to be taken pursuant to the Strategy in circumstances where a person subject to the Strategy has decided not to ensure MER as follows:

Where this paragraph applies, by virtue of paragraphs 27 or 28, relevant persons must allow others to seek to maximise the value of economically recoverable petroleum from their licences or infrastructure including by divesting themselves of such licences or infrastructure to other financially and technically competent persons who are able to recover economically recoverable petroleum.

Where relevant persons are not able to ensure the recovery of the maximum value of economically recoverable petroleum from their licences or infrastructure for financial reasons they must seek to secure investment from other persons, including by allowing others to undertake such investment as a sole risk project. If relevant persons are not able to secure sufficient investment in a reasonable time the obligation in paragraph 26 applies.

The obligation in paragraph 26 applies in all other circumstances where relevant persons decide not to ensure the recovery of the maximum value of economically recoverable petroleum from their licences or infrastructure. This includes where there are technical or other non-economic reasons.

Where a relevant person is seeking to comply with the obligation in paragraph 26, that person must:

provide access to sufficient relevant data and other information, including to allow bona fide persons to establish technical and financial competence;

seek to do so without demanding compensation in excess of a fair market value or unreasonable terms and conditions; and,

in order that other financially and technically competent persons who, including at the time of divestment, are able to recover economically recoverable petroleum may do so.

Where after a reasonable period the relevant person is unable to secure alternative funding or to divest themselves of the licence or infrastructure then, if the recovery of the maximum value of economically recoverable petroleum would achieve a satisfactory expected commercial return they shall surrender the related licences.”

Within the Annex to the Strategy, definitions of certain terms that are used are set out in order to facilitate an understanding of the Strategy’s terms. So far as relevant, the following definitions appear within the Annex:

““Economically recoverable” in relation to petroleum means those resources which could be recovered at an expected (pre-tax) market value greater than the expected (pre-tax) resource cost of their extraction, where costs include both capital and operating costs (including carbon costs) but exclude sunk costs and costs (such as interest charges) which do not reflect current use of resources. In bringing costs and revenues to a common point for comparative purposes a 10% real discount rate will be used. Where relevant, UK Government carbon appraisal values for all greenhouse gas emissions will be used combined with the associated real terms social discount rate;

“Satisfactory expected commercial return” means an expected post-tax return that is reasonable having regard to all the circumstances including the risk and nature of the investment (or other funding as the case may be) and the particular circumstances affecting the relevant person.”

In addition to the Strategy, the defendant also publishes detailed guidelines in relation to the requirements for an approval of a licence “exploration” operator and a field operator. In respect of a company wishing to become a field operator on the UK Continental Shelf (“UKCS”), the guidelines set out the need for such a company to demonstrate its understanding of the development and environmental responsibilities of an operator, and that it is competent both financially and technically to discharge these responsibilities under its agreements with co-licensees. The requirements for technical competence and financial capacity are described along with the need for awareness of environmental requirements. In respect of detailed information requirements there is a list of 19 types of information which will be required by the defendant as part of a submission by a company to become a field operator.

The Issues

It is convenient at this point in the judgment to set out the essence of the issues which arise in the case. There are preliminary issues which are raised against the claimant on the basis that these claims are not justiciable, premature and academic. The approach taken to those points, which have been raised by the defendant, Total and OPRED, is explained below.

In respect of JR1, the claimant relies upon six grounds which are as follows. Ground one is the claim that the section 29 advice rendered by the defendant to Total was predetermined and that notwithstanding extensive attempts by the claimant to engage and obtain information, a decision was arrived at in respect of that advice by the defendant in an at least apparently predetermined manner. The defendant exhibited apparent bias and appeared to make its decision without an open mind. Ground two is the contention that the section 29 decision was reached as a consequence of procedural unfairness in that the defendant did not engage with the claimant or provide them with the information they needed to properly participate in the process. For instance, the defendant did not engage with the claimant in respect of Total’s rejection of the claimant’s proposal to take over the operation of the Gryphon FPSO so as to prolong the ability to extract oil. Ground three is the claimant’s submission that the decision in relation to the section 29 advice was reached without any consideration in the decision of the principal objective of the 1998 Act of achieving MER. This amounted to a breach of statutory duty or alternatively a frustration of the legislative purpose of the 1998 Act. Ground four is allied to ground three, in that it is described as a failure to consider material considerations, those material considerations being the principal objective of the 1998 Act to which the claimant contends the defendant was obliged to have regard.

Ground five of JR1 is the claimant’s contention that there has been a breach of the Tameside duty based on the leading case of Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014. It was necessary for the defendant to obtain and have regard to all of the relevant information necessary to bear upon the exercise of its function to provide the advice under section 29 of the 1998 Act. It needed to have full information in relation to the economic viability of both the Gryphon FPSO and also the oil fields which it served prior to forming a view on the question of both alternatives to decommissioning and ensuring that the costs of decommissioning were kept to the minimum reasonably practicable. Further, the defendant needed to take steps to fully inform itself as to the viability of the claimant’s proposal to assume responsibility for the Gryphon FPSO. Finally, ground six is the contention that the section 29 decision failed to provide adequate reasoning to grapple with the issues in dispute between the parties in respect of the decommissioning of the Gryphon FPSO.

Turning to JR2, ground one is that the advice given to OPRED pursuant to section 32 of the 1998 Act by the defendant was vitiated by the illegality of the section 29 advice. Both these stages are interlinked and mandatory in accordance with the framework provided by the 1998 Act, and therefore the illegality in the section 29 advice affected and rendered unlawful the advice provided to OPRED under section 32 of the 1998 Act. Ground two of JR2 is an allegation of predetermination and bias based on the contention that the defendant had, since March 2023, been determined to endorse cessation of production (“CoP”) at the Gryphon FPSO and this approach tainted the section 32 advice which was effectively in identical terms to that of the section 29 advice.

Ground three of JR2 is the contention made on a number of bases that the defendant failed to consider alternatives which were consistent with MER. The particulars of this ground are, firstly, that the defendant ought not to have taken account of UK Government societal carbon appraisal values in undertaking the assessment, on the basis that such carbon values should only be included if they were relevant, and the defendant simply failed to exercise any discretion so as to justify the relevance of this consideration. Secondly, the claimant contends that the economic data that was used when the defendant came to undertake a proper economic analysis of the viability of the oil fields being served by the Gryphon FPSO came from 2022/23 and was out of date. The claimant again relies upon the Tameside duty to support their contention that the most appropriate economic data ought to have been sourced and deployed. Thirdly, the assessment of future integrity risks to the Gryphon FPSO was also flawed because of a failure to properly assess the costs which would be involved. Fourthly, the defendant dismissed the claimant’s economic analysis incorrectly and fifthly, the claimant contends it was inappropriate for the defendant to rely upon Total complying with its Stewardship Expectations in circumstances where Total had actioned CoP without approval for decommissioning.

Ground four contends that the defendant adopted a flawed approach in relation to paragraphs 26 to 30 of the Strategy and failed to properly engage with the proposals which had been made by the claimant to Total to take over the operation of the Gryphon FPSO by other means. The claimant contends that the defendant failed to recognise that, on the basis there still remained petroleum to be recovered economically, these paragraphs of the Strategy required Total to divest its interests. The objections which were raised to the claimant’s proposed solution to ensure continued operation of the Gryphon FPSO were misconceived. Ground five is the claimant’s submission that the defendant failed to comply with its obligation to advise under section 32(7)(b) of the 1998 Act that Total had complied with its obligation to frame its decommissioning programme so as to ensure the cost of carrying it out was kept to a minimum in circumstances where Total had caused itself significant costs as a consequence of failing to obtain approval prior to CoP and had, in the circumstances, breached the defendant’s Stewardship Expectations in respect of cost effective decommissioning.

Finally, ground six of JR2 is the contention that the decision reached by the defendant in respect of the section 32 advice to OPRED is an interference with the claimant’s interests in the Maclure and Ballindalloch fields by way of the licensing and consents that they have been granted by the defendant. These licences and consents are “possessions” for the purposes of Article 1, Protocol 1 of the ECHR and the interference with those possessions arises as a consequence of the unlawful advice by the defendant to Total and to OPRED. This interference has, the claimant contends, led to a significant loss of revenue of around $1 million per month from the end of December 2024.

The Facts

The full history of the events giving rise to these claims arose over a period of around four years, and has given rise to at least the several thousand pages of documentation which have been presented to the court. The narrative of the events disclosed in this material is set out in an Annex to this judgment. The account of the events set out in the Annex is principally based on the documentary evidence in the main hearing bundle on the basis that this is probably the best source. It is supplemented by the extensive witness evidence lodged by the parties, in particular where that is based upon the facts and not argument. It is not intended to be entirely comprehensive, but seeks to record the significant features of the extensive history which provides the background to the claimant’s claims. To fully understand the conclusions which are reached later in this judgment it is obviously important to read the Annex as providing the context for the conclusions which have been reached. Regard has been had to the totality of the documentation in order to reach the conclusions which are set out below. For ease of reading, what follows is a short synopsis of the facts which are fully rehearsed for the purposes of the judgment in the Annex. The quotations include any misspellings or typographical errors from the originals without correction.

After the extension of the class certification of the Gryphon FPSO set out above, in September 2021 Mr Brotherton, the Business Development Manager for the West of Shetland and Northern North Sea at the defendant, wrote to the joint venturers in the Q9GP project setting out that it had become apparent to the defendant that they were struggling to achieve the necessary unanimity to make progress. The letter encouraged the achievement of agreement in relation to future phases of work since the oil assets were within the six year glide path to cessation of production. The letter clarified that the defendant’s priority was the gas resources in the field which should not be detrimentally impacted by the oil potential of about 10-15 mmbbls.

In September 2022 Mr Parra, a Strategy and Business Director for Total, emailed Ms Brenda Wyllie (the defendant’s Area Manager for those oil fields within their Directorate of Operations or Ops team) and recorded their discussions at a recent meeting in relation to the disconnection of the Gryphon FPSO. Following receipt of the email Ms Wyllie wrote to her colleague at the defendant Mr Greenhowe (an Asset Stewardship Lead) advising him that Total were looking to CoP and sail away mid-2024 and that she could not imagine that there were many remaining economic barrels in the field, and the emissions profile was not great. She sought Mr Greenhowe’s confirmation that this proposal was aligned with the defendant’s approach, to which Mr Greenhowe agreed.

On 1 November 2022 the defendant retired the CoP report process addressing decommissioning and thereafter relied instead on the UK Stewardship Survey (the “UKSS”) to provide the detailed material to replace the sources of information that had previously been provided by the CoP report. On 2 March 2023 at a meeting of the owners of all of the oil fields served by the Gryphon FPSO, Total explained that they were proposing to cease production and for the Gryphon FPSO to sail away between Q3 2024 and Q3 2025. This decision was based on the operational vulnerability of the Gryphon FPSO, its emissions and a desire to have a planned rather than unplanned cessation of production and decommissioning. This was questioned by Mr Nicholas Pogson, the Head of Commercial for the claimant. Mr Pogson challenged how this could be compliant with MER and whether it could be justified to the defendant. At a follow up meeting, Mr Pogson asked Total whether they would be willing to sell their interests in the Gryphon FPSO to the other owners for £1 so that its operation could continue and Total indicated they would be unlikely to be interested. Correspondence ensued following this meeting including a cease and desist letter from the claimant’s solicitors to Total and Sojitz in respect of their proposed actions.

In May 2023 Mr Brotherton and other colleagues at the defendant were discussing the need to make progress with the Q9GP project. In particular they noted that the UKSS data from 1 January 2023 had identified that the volumes of oil for the Gryphon, Maclure and Ballindalloch fields were less significant than had been thought. Given those volumes, he advised Mr Greenhowe that in the light of the volumes being about 1 mmbbls per annum the defendant is “in the right place as this is NOT material”. The position was confirmed by the defendant’s Ms Cyteval who wrote to Mr Greenhowe confirming that Gryphon was “quite low on our priority list as the likely infill potential is quite low”.

In the summer of 2023 representatives of Total and the defendant’s Decommissioning Team met to discuss the decommissioning requirements for the Gryphon FPSO and noted that, as a consequence of the meeting, the process under section 29 of the 1998 Act had commenced. On 14 July 2023, Total wrote as the Gryphon operator to the Maclure and Ballindalloch field owners in the form of a termination notice under clause 6.1 of the POSA giving twelve months’ notice (or such later notice as was provided for by that clause) in relation to the cessation of the provision of services under the POSA. In the meanwhile, in July and August 2023 Mr Brotherton was seeking advice from a specialist at the defendant dealing with licences in relation to the defendant’s powers under the existing licences. This was with a view to increasing the momentum in relation to the Q9GP project. A draft letter was prepared to provide advice to the licensees with the intention of encouraging them to work on the preparation of a design for the Q9GP project. Subsequently on 14 September 2023 all parties to the Q9GP project received a letter from Ms Leanne Oxley (the defendant’s Head of Disputes and Sanctions) confirming that her department had received a referral from the defendant’s Ops team which they were investigating.

On 30 November 2023 Mr Pogson wrote to Mr Wheeler, the Director of Operations at the defendant, having been advised by the defendant’s company secretary that the defendant was now engaged with Total in respect of their advisory obligation under section 29 of the 1998 Act. He set out the claimant’s case in relation to the information to which the defendant should have regard when considering whether the proposed decommissioning was compliant with MER. Mr Pogson noted that Total had previously maintained that CoP at the Gryphon FPSO would be no earlier than the end of 2027, and further noted that Total had not provided any economic analysis in support of their proposal to accelerate CoP. The claimant had undertaken its own modelling based on forecasts of production, capex and opex and he provided the output of that economic analysis demonstrating that the Gryphon FPSO would produce healthy economic returns until at least 2027. He further suggested that there was the opportunity for a transfer of interests to take place to enable oil production to be completed and then a transfer back of those interests to Total and Sojitz to enable them to participate in the Q9GP project.

At around this time Ms Innes, the defendant’s Director of Supply Chain and Decommissioning, commenced work on the decision under section 29 of the 1998 Act. Ms Innes responded to Mr Pogson’s letter of 30 November 2023 (after having sought advice from other colleagues including Ms Wyllie) noting the claimant’s interest in retaining the Gryphon FPSO for ongoing use as an alternative to decommissioning and indicating that this would be included in the defendant’s discussions with Total.

In January 2024 the defendant instigated a corporate governance review of the claimant arising from a request from Ms Wyllie. This arose as a result of her concern that the defendant was getting “zero engagement” from the claimant’s Chief Executive Mr Larry Bates. In particular, the concern related to the stalling of the Q9GP project and that the claimant, amongst others, “have repeatedly blocked the Q9GP from moving forwards”. This corporate governance review followed on from earlier correspondence in December 2023 from Mr Brotherton to the joint venture partners in the Q9GP project again encouraging them to make more fruitful progress in advancing this gas project which was of strategic importance. Mr Brotherton encouraged the partners to reconsider the contents of the Q9GP Pre-Development Agreement (“the PDA”) to permit investors to pursue concepts for the project not supported by all of the joint venturers. At a meeting of the Q9GP joint venture partners on 15 January 2024 there was an inconclusive discussion of the proposal that the PDA should be amended.

On 15 January 2024 Mr Pogson wrote to Total contending that it was Total’s corporate climate change targets which were driving the early CoP of the Gryphon FPSO and setting out a proposal to enable Total to meet its global flaring targets by transferring its oil interests in the Gryphon area to the claimant and other Q9 joint venturers. In summary the proposal was for Total to transfer its interests in the oil phase of the four fields to the claimant to enable the claimant to continue oil production. The consideration for the transaction would be £1. Following economic cessation of oil production from the Gryphon area fields the claimant would transfer back to Total the interests in those fields to permit the development of the Q9GP project. Each party’s share of the decommissioning liability for the oil phase would remain at its current level but deferred until economic oil production had been completed. This offer was rejected by Total on 25 January 2024.

On 25 January 2024 Ms Wyllie wrote to Mr Bates seeking a meeting at managing director level and pointing out that she had previously sent him two meeting invites unsuccessfully. Mr Bates responded stating that Mr Pogson was the de facto managing director for the claimant’s UK Continental Shelf (“UKCS”) assets and had delegation from him. Ms Wyllie persisted to seek a meeting in the light of the nature and potential consequences of the defendant’s engagement, and indicated that she would be reviewing her notes on the claimant’s governance arrangements and engaging with the defendant’s Head of Licensee Governance.

A further meeting of the Q9GP joint venture partners occurred on 1 February 2024 at which Mr Brotherton again expressed his concern that continued oil production could potentially jeopardise the development and delivery of the gas project which was the defendant’s priority. Mr Pogson stressed the importance of MER applying equally to all hydrocarbons under the licences and sought clarity as to whether or not the defendant approved Total’s plan for a Gryphon FPSO CoP at the end of 2024. No further progress was made at the meeting.

A further meeting occurred on 21 February 2024 to seek to encourage progress on the Q9GP project. This was followed up by a letter from Mr Knight (the defendant’s Business Development Manager for the West of Shetland and Northern North Sea) encouraging Mr Pogson to give consideration to a sole risk provision in the PDA to cover the situation where unanimous approval was not achieved. Mr Pogson indicated he was studying the PDA in response to the discussion which had occurred at the meeting, and in subsequent emails raised queries about with whom he should be discussing operatorship and the use of a duty holder. Mr Knight responded on 26 February 2024 providing Mr Pogson with links to the defendant’s website and the provisions dealing with operatorship and the guidelines for field operators.

Also on 26 February 2024 Mr Bates wrote to Mr Patrick Pouyanné of Total again explaining the claimant’s proposal in respect of the transfer of the Gryphon FPSO. This proposal was rejected by Total on 12 March 2024 in a letter from Mr Jean-Luc Guiziou, who observed that the Gryphon FPSO CoP was a matter for its owners and not driven by Total’s corporate climate targets. The decision was driven by the vulnerability of the ageing Gryphon FPSO coupled with the low economic value of the fields and the high level of emissions that it generated. Mr Guiziou noted that the claimant’s proposal would require the claimant to be approved by UK regulators as an operator and would also involve Total retaining the decommissioning costs and liabilities for the Gryphon FPSO which was unattractive. Ultimately, Total did not regard the proposal as credible or one which they had any interest in pursuing.

On 26 March 2024 the defendant’s Mr Alasdair Thomas, a Decommissioning Manager, wrote to Mr Ken Watt at Total advising that the defendant was still considering Total’s proposals for the Gryphon FPSO and noting that the claimant had advised the defendant that they were interested in pursuing the continued use of the FPSO. Mr Thomas requested the Gryphon FPSO owners to explore that option and provide further information in relation to it. Alongside this, on 2 April 2024 Ms Wyllie and Mr Knight met Mr Pogson during the course of which Mr Pogson set out the offer which had been made by the claimant to Total. Ms Wyllie noted, after the meeting, that the claimant, TAQA and Apache had not engaged with the defendant about a transfer of the Gryphon FPSO to the claimant. She subsequently contacted her colleague Mr Jones to enquire whether TAQA, Apache or the claimant had been in touch with him for the purpose of the claimant being appointed production operator on the licences. Mr Jones confirmed he had had no contact.

On 10 April 2024 Mr Pogson wrote to Ms Innes setting out the offer which the claimant had made to Total and seeking a meeting to discuss this as an alternative to decommissioning. Ms Innes recognised the email required the defendant to take a different approach. Ms Wyllie responded to Ms Innes setting out her concerns in relation to the claimant’s current proposals with a view to the issues being drawn together in correspondence. Ms Innes indicated that she had involved the defendant’s Senior Policy Manager Mr Alistair Dunbar in an independent review of the work to date. Mr Dunbar reported back with his summary of requirements in relation to decommissioning.

During May 2024 and following further correspondence between the defendant and Total, the claimant and Total, and the defendant and the claimant, Ms Innes commenced preparation of a “Supply Chain and Decommissioning Director minded to decision support paper”. The paper addressed the considerations bearing upon opportunities for viable alternatives to decommissioning. In relation to continued use it noted the efforts to sell the infrastructure which the defendant had been advised of by Total and also the proposal of the claimant to enable continued use. In her comments on the draft Ms Wyllie noted that Total had set out their view and that making them do “anything different is incredibly difficult and not something we’ve ever done before”. The provisional view set out in the draft was that the defendant accepted Total’s assessment that there was no viable alternative to decommissioning.

On 2 May 2024 Ms Innes met with Mr Pogson to discuss the issues in relation to decommissioning and continued use. Following this, Ms Innes spoke to Mr Murdoch at Total on 3 May 2024 and pointed out the concerns expressed by the other owners that Total were not engaging in a collaborative manner in their proposal. She also sought further information about the marketing of the Gryphon FPSO in 2022. Following this, on 8 May 2024, Mr Payer of Total wrote to Ms Innes setting out in detail the interaction between the various parties and details of both the marketing of the FPSO and the process of selecting the approach to decommissioning. He wrote again on the following day further explaining Total’s rejection of the claimant’s offer and setting out their concern in respect of the claimant’s financial and technical capabilities along with their lack of experience as an operator. Total did not regard their offer as credible. On 14 May 2024 Ms Innes had a telephone conversation with Mr Pogson explaining that she had been in contact with Total to explain the claimant’s concerns and seeking further information from them.

Further correspondence ensued in May between Total and the claimant, and the claimant and the defendant, in which the claimant and Total set out their respective positions pertaining to the claimant’s proposals. Ultimately on 29 May 2024 Ms Innes wrote to all of the partners in the Gryphon field inviting them to a meeting so as to provide the opportunity for a discussion about the issues with which the parties were engaged concerning the continued operation of the Gryphon FPSO. The meeting was scheduled for 6 June 2024. At around this time Mr Pogson was continuing his conversations with Mr Knight. He had explained that the claimant’s position was that it was willing to do an exit deal in respect of the Q9GP project on condition that the claimant could continue to operate the Gryphon FPSO. Mr Knight explained to Mr Pogson that a transfer of ownership would be difficult to achieve before the planned CoP at the end of 2024.

At the meeting of 6 June 2024 Total explained their rationale for proceeding with CoP at the end of 2024 and the claimant resisted this position, reinforcing that this did not achieve MER and that in those circumstances the Strategy required that others should be permitted to continue oil production so as to achieve MER. Total should be required to divest themselves of their interests. Apache and TAQA expressed the view that Total had not provided sufficient information to justify the decision. Following the meeting Ms Innes emailed Total asking if they had heard anything at the meeting which enabled them to reconsider their position in relation to the Gryphon FPSO, or whether their preferred pathway remained decommissioning. Mr Payer responded that the preferred pathway did indeed remain decommissioning the Gryphon FPSO in 2025.

Shortly after this exchange Ms Innes provided Mr Payer with a letter recording that the defendant was satisfied Total had fulfilled its obligations under section 29(2A) of the 1998 Act and paragraph 15 of the Strategy. The details of this letter so far as material are set out in the Annex. The following day she advised OPRED of this decision. It seems that the claimant became aware of the decision, albeit not its contents, shortly afterwards, and not from the defendant. On 12 June 2024 Mr Bates wrote to the defendant expressing his concerns in relation to this decision. He considered that if the defendant had communicated its decision to Total on 6 June 2024 it would appear that the defendant was acting disingenuously and at worst that it had acted in bad faith. On 16 July 2024 Ms Innes replied to Mr Bates responding to his specific questions in respect of the decision reached by the defendant under section 29. She set out that the defendant considered that Total had demonstrated it had assessed viable alternatives to decommissioning, and in relation to continued use it had rejected the claimant’s offer. She observed that the defendant was continuing to engage with Total on its decommissioning proposals and expected Total to engage with the owners of the tie-back fields.

In the summer of 2024 Total issued a consultation draft of the Gryphon FPSO decommissioning programme which was the subject of discussion between Total and the defendant, as well as Total and OPRED. Ms Claire Hepworth of the defendant’s Decommissioning Team took up the task of preparing the section 32 advice from the defendant and raised further enquiries including of Ms Wyllie. On 17 October 2024 the defendant corresponded with Total, the claimant, Sojitz, TAQA and Apache to confirm they intended to consult with them prior to submitting the advice pursuant to section 32 of the 1998 Act to OPRED. They sought further information from the claimant in relation to its proposal and from Total in relation to the marketing exercise for the Gryphon FPSO. Mr Pogson responded to the letter of 17 October 2024 pointing out, as he had done previously in earlier correspondence, that no economic analysis had been shared with the claimant in relation to the assessment of CoP and the only economic analysis had come from the claimant. Mr Pogson again made his case in relation to the continuation of production being consistent with MER and the terms of the claimant’s proposal to allow continued use of the Gryphon FPSO. He drew attention to the use of Petrofac as a duty holder as part of the proposed arrangement. In response to internal queries raised by Ms Hepworth on 29 October 2024 the relative immateriality of the remaining recoverable Gryphon hub oil resources was further reiterated by her colleagues at the defendant.

On 30 October 2024 Mr Antony Moulds, the Head of Economics at the defendant, circulated economic modelling to assist in the assessment of CoP. On 8 November 2024 Total provided a confidential note to the defendant recording that previous economic analysis undertaken and provided demonstrated that the Tullich field began to have a negative cashflow in 2023, which became more substantial in 2024, leading to CoP of the Tullich field and the transfer of costs related to the Gryphon FPSO to the other remaining fields leading them to be in negative cashflow from 2025 onwards. Total relied upon this to demonstrate that CoP at the end of 2024 was compliant with the Strategy. On 4 November 2024 Mr Moulds set out a summary of his review of the economic data, which was worked up into a note on 21 November 2024. He essentially supported the decision which had been made to CoP the Gryphon FPSO from the end of 2024. Mr Mould’s advice was worked into the response to Ms Hepworth from the Ops team which was supportive of the decision to CoP the Gryphon FPSO at the end of 2024.

On 4 December 2024 the defendant circulated to the various field owners their draft advice to OPRED pursuant to section 32(7) of the 1998 Act. Alongside the consultation process the defendant had been seeking the permission of Total to disclose the economic data they had provided to the other parties including the claimant to assist in the consultation exercise. An extensive debate then ensued about the appropriate form of undertakings to be given to Total to enable this to occur, ultimately leading to this material being disclosed on 22 December 2024. On 31 December 2024 CoP occurred at the Gryphon FPSO.

The claimant provided an extensive response to the consultation criticising the economic analysis undertaken by the defendant and contending that MER could be achieved by Total accepting the offer that the claimant had made in its most recent iteration on 28 October 2024.

On 30 January 2025 the defendant’s economic analysts provided a further paper to inform the defendant’s decision-making on the draft advice. This paper deployed the available information and was based on a range of scenarios, and taking account of modelling uncertainty, the economics team remained of the view that it was appropriate to conclude that the Gryphon hub area could reach economic CoP by the end of 2024, or remain economically viable for around one additional year under higher hydrocarbon price assumptions. This material was incorporated in Ms Wyllie’s submission of the Ops team’s update to Ms Hepworth on 30 January 2025.

On 5 February 2025 the defendant delegated to Mr Andy Brooks, their Director of New Ventures, the responsibility of being the accountable person for reviewing the FPSO decommissioning programme. He reviewed the draft advice which had been prepared and sought further clarification in particular in respect of the economic analysis, holding a meeting with Mr Moulds for that purpose. Following this, Mr Brooks concluded that he was content with the draft advice. On 7 February 2025 the defendant published their draft advice to OPRED pursuant to section 32(7) of the 1998 Act. The terms of the advice so far as material are set out in the Annex.

On 7 March 2025 OPRED raised a number of queries in relation to the draft advice including questions about the detailed assumptions in the economic analysis. This led to a meeting between OPRED and the defendant on 17 March 2025. On 10 April 2025 the defendant provided responses to these requests. Thereafter on 25 April 2025 the defendant wrote to the court and the parties explaining that they had identified an issue in relation to the opex assumptions in the section 32 advice. In essence, the manner in which Total had completed their UKSS documentation had incorporated an element of double counting relating to the payment by the Gryphon field itself for the services of the FPSO. This had led to factual inaccuracies in the analysis set out in paragraphs 2.23 and 2.25 of the section 32 advice. This prompted a review of the section 32 advice ultimately leading to Mr Brooks undertaking a further consideration of the section 32 advice as the accountable person on behalf of the defendant. He concluded, for reasons which are set out more fully in the Annex, that the central conclusions of the section 32 advice were unaffected by the errors in the data which had been used.

Submissions and Conclusions

Preliminary objections to the court exercising its jurisdiction were raised on behalf of the defendant, Total and OPRED independently of any submissions on the merits of the claim (with OPRED’s submissions being limited to these preliminary points).

The first submission made in this respect was that neither the advice pursuant to section 29 of the 1998 Act nor the advice under section 32 of the 1998 Act had any substantive legal consequences and as such they are not justiciable. The advice pursuant to section 29 of the 1998 Act was not advice given to the decision-maker, OPRED, but was advice solely given to Total. It did not give rise to any obligation for Total to follow the advice, nor did it give rise to any new legal rights or powers or curtail any existing legal rights or interests. In relation to advice given under section 32 of the 1998 Act, the submission was again that whilst the decision-maker, OPRED, will take that advice into account, it does not give rise to any new legal rights or powers, nor does it restrict any existing rights or interests. As such, therefore, the observations of Carnwarth LJ in Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government [2008] EWCA Civ 148; [2008] 3 All ER 548 were apposite. At paragraphs 32 to 33 of his judgment, Carnwarth LJ pointed out that judicial review was generally concerned with actions or other events which had or will have substantive legal consequences, for example by conferring new legal rights or powers or restricting existing legal interests or entitlements. Judicial review proceedings may come after the substantive event or decision for the purpose of having it set aside, or in advance of the decision when it is in prospect or preparation with a view to having it stayed or prevented. It is submitted that in the context of the present case these observations indicated that the advice given under both section 29 and section 32 of the 1998 Act were not susceptible to judicial review.

In response to these submissions the claimant submits that both the section 29 and section 32 advice stages have substantive legal consequences because they are mandatory stages of a single statutory process culminating in OPRED’s decision on the decommissioning plan. The 1998 Act purposely sets them out as a sequence in an overall staged decision, and each of those stages needs to be lawfully carried out so as not to imperil the lawfulness of OPRED’s ultimate decision. If the defendant’s advice either at the section 29 or section 32 stage were negative, it would be inconceivable that the defendant would approve the decommissioning plan in the teeth of such responses. Furthermore, the claimant submits that the observations of Carnwarth LJ in Shrewsbury have to be read in the context of the footnote to paragraph 32, in which Carnwarth LJ expressly acknowledged that his observations were an expression of “the primary function of judicial review, notwithstanding its gradual evolution in recent times to cover a much wider range of discretionary decisions or actions”.

The claimant draws attention to the decision of Lang J in R (Swainsthorpe PC) v Norfolk County Council [2021] EWHC 1014 in which the consultation response of a highway authority in relation to an application for planning permission was quashed. Lang J rejected the submission that there was an alternative remedy in the form of the claimant making its own representations to the planning authority since they would be “no substitute for a statutory consultation response by an expert highways authority”. Thus, the claimant observes, there is clear authority for the justiciability of advice being provided to a decision-maker. The claimant submits this is unsurprising in the light of the many examples of such a situation given in paragraph 5.2.10 of Fordham’s Judicial Review Handbook, and the recent decision of the Privy Council in Ramdass v Minister of Finance [2025] UKPC 4, which concerned a challenge brought to a minister’s recommendation to appoint an investigation team to report on the conduct of the Auditor General in relation to a statement in the Ministry of Finance’s public accounts.

The defendant, Total and OPRED also submit that these applications for judicial review are premature. In particular, the defendant notes that whilst it concluded its advice-giving role in respect of Total in June 2024, the advice-giving role so far as OPRED is concerned pursuant to section 32 of the 1998 Act has been subject to continuing requests. The defendant draws attention to the further enquiries which have been noted above raised by OPRED, leading to the defendant continuing to provide advice and information to OPRED in order to support their decision-making process. These submissions are supported by OPRED who note in particular that judicial review is intended to be a remedy of last resort and who express the concern that, given there are many potential examples of staged decisions, there is the prospect of a significant flood of claims of this kind were the court to conclude that these decisions were apt to be the subject of judicial review at this stage of the decision-making process. Allied to this point, OPRED observe that the Secretary of State is not bound by the advice received as part of this process and that it is entirely open to him to form his own view of the merits of these issues independently. In effect, the submissions made by the parties in respect of prematurity are predicated on the basis that the appropriate opportunity to challenge any decision is in the context of a decision by OPRED to approve the decommissioning plan.

Furthermore, in addition to these submissions, it is also submitted that the challenge in JR1 is now academic since it has been completely overtaken by the decision reached by the defendant in relation to the section 32 advice and thus the court should not entertain adjudicating upon it.

These preliminary submissions raise issues of considerable complexity and are far from clear cut. The decision-making process adopted by Parliament in section 29 and 32 of the 1998 Act needs to be taken into account, as Parliament clearly created a series of steps in this process. As the claimant has observed, this raises the issue of the subsequent effect on steps later in a statutory decision-making process of earlier decisions or steps which have been taken unlawfully. The potential ambiguity in the authorities in respect of situations of this kind will be evident from what has already been set out above. The question of whether or not an earlier decision in a sequence of decisions infects later decisions with illegality is highly context specific and not straightforward.

Ultimately it appears prudent in the circumstances of this case not to start with these issues but actually commence with an examination of the merits of the claimant’s claims. There are questions of principle as well as pragmatic issues which commend that approach. Firstly, in principle, it was of concern that the parties raising these preliminary objections were not agreed as to whether or not the merits of the earlier decisions in the sequence could be raised by way of a statutory challenge under section 42 of the 1998 Act. The claimant draws attention to the fact that there is no ouster clause in section 42 of the 1998 Act as there are in relation to other similar statutory review provisions which provide that any challenge related to such a decision can only be raised through the statutory review process. The defendant made clear that it did not have a view on whether the decisions on advice under section 29 and advice under section 32 could be challenged pursuant to section 42. Total’s position was that a section 42 challenge could only be made in respect of a decision not within the powers of the Secretary of State under the 1998 Act. This left it unclear as to whether or not illegality specific to the section 29 advice or the section 32 advice could be raised pursuant to such a challenge. By contrast, OPRED submitted that within the scope of a section 42 challenge the claimant could raise all of the points which they now raise in respect of the section 29 advice and the section 32 advice in so far as it vitiates OPRED’s decision under section 32.

This lack of clarity has consequences. Either the claimant would be left with no opportunity to raise any challenge to the specific legality of the section 29 advice or the section 32 advice at all, or, alternatively, the court dealing with a challenge under section 42 of the 1998 Act would have to re-hear and reconsider all of the submissions which were heard by the court about the merits of those decisions in the context of the current proceedings. This gives rise to the pragmatic consideration that in the circumstances it makes sense to consider the merits of JR1 and JR2 prior to, if necessary, grappling with the specific complexities raised by these preliminary points.

In addition, it is necessary to observe that the nature of the case raised by the claimant has given rise to a wide range of points being pursued, and their case has evolved over the course of the proceedings driven to some extent by the emergence of documentation through the process of disclosure by the defendant. It is unrealistic to expect the court to deal comprehensively with each and every point that the claimant may have raised during the currency of this complex litigation (see, for instance, Richardson v North Yorkshire County Council and others [2003] EWCA Civ 1860 at paragraph 80). The points which are addressed in what follows are the most significant points raised and responded to in the skeleton arguments for the hearing and which were subsequently developed orally.

JR1 Ground One

Ground one and ground two of JR1 are allegations of predetermination or bias and procedural unfairness. The legal principles in relation to this kind of allegation are well settled. It is appropriate to set out the law in relation to both of these issues at this stage since, as is reflected in the helpful agreed analysis of the relevant legal instruments and principles provided by the parties, it is noted that there is a close relationship between predetermination and bias as a matter of law.

It is well settled that a decision-maker will act unlawfully if it predetermines a matter which it must decide by having either actually or apparently a closed mind, with the effect that it is unable to apply its judgment properly to the decision at hand, or it acts in such a way that it gives rise to the appearance of predetermination. The court should have regard to all of the facts bearing upon any suggestion of predetermination and then ask whether in those circumstances a reasonable fair minded and well-informed observer, having considered all of those facts, would conclude that there was a real possibility of predetermination.

The principles involved in assessing predetermination and bias were helpfully distilled by Leggatt LJ (as he then was) in the case of Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 in the following terms:

The legal test for apparent bias is very well established. Mr Faure reminded us of the famous statements of Lord Hewart CJ in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256 at 259 that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” and that “[n]othing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” These principles remain as salutary and important as ever, but the way in which they are to be applied has been made more precise by the modern authorities. These establish that the test for apparent bias involves a two stage process. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the judge was biased: see Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, paras 102-103. Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case: see Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, para 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117; [2008] 1 WLR 2528, para 53.

Further points distilled from the case law by Sir Terence Etherton in Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515; [2014] 1 WLR 1943, at para 35, are the following:

The fair minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Lawal v Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856, para 14 (Lord Steyn).

The facts and context are critical, with each case turning on “an intense focus on the essential facts of the case”: Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416, para 2 (Lord Hope).

If the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case and considerations of inconvenience, cost and delay are irrelevant: Man O' War Station Ltd v Auckland City Council (formerly Waiheke County Council) [2002] UKPC 28, para 11 (Lord Steyn).

In Helow v Secretary of State for the Home Department Lord Hope observed that the fair minded and informed observer is not to be confused with the person raising the complaint of apparent bias and that the test ensures that there is this measure of detachment: [2008] UKHL 62; [2008] 1 WLR 2416, para 2; and see also Almazeedi v Penner [2018] UKPC 3, para 20. In the Resolution Chemicals case Sir Terence Etherton also pointed out that, if the legal test is not satisfied, then the objection to the judge must fail, even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done: [2013] EWCA Civ 1515; [2014] 1 WLR 1943, para 40.”

It was made clear in R (Lewis) v Redcar [2009] 1 WLR 83 by Pill LJ giving the leading judgment in the Court of Appeal that whilst reference was made to the fair minded observer “the court was putting itself in the shoes of that observer and making its own assessment of the real possibility of predetermination” and that the court “with its expertise, must take on the responsibility of deciding whether there is a real risk that minds were closed”.

Prior to addressing the claimant’s submissions here and elsewhere in relation to apparent bias and predetermination it is important to set out the wider context in which these allegations are made. As will already be readily obvious, the defendant was a regulator with important responsibilities for supervising the delivery of MER and the central obligation in the operations undertaken in the UKCS. As a regulator it is clear that it had, and it needed to have, a strategy in mind for the petroleum resources it was supervising, addressing the lifetime of the oilfield, which would also find its articulation in the day to day regulatory activities which the defendant undertook. This strategy would also be relevant to the prioritisation of the resources which the defendant allocated to particular regulatory issues bearing in mind their resources were not infinite. It was clear throughout the length of the narrative of events that the defendant’s strategy placed a high priority on the Q9GP project, and that in that context this strategically important gas project should not be “detrimentally impacted by the potential oil opportunity”.

This is important background to the allegations which the claimant makes. As a regulator it was necessary for the defendant to have an open mind but it was not necessary for them to have an empty mind. They were entitled to have a clear strategic view of the kind set out above and to use it to inform their approach to their day to day regulatory activity as well as the prioritisation of the resources at their disposal. They were also required to be open to evaluate and carefully consider matters properly raised with them in relation to both their strategic endeavours and their day to day regulation and keep these activities under review. However, the need to retain an open mind and act fairly did not include a requirement to forget or ignore the strategic context of their regulatory supervision and resource allocation.

Turning to the first ground, the claimant advances ground one of JR1 on the basis of six key points. These points are evaluated in turn as follows.

The first point is that it is suggested the defendant expressed support for an earlier CoP no later than September 2022, many months before the section 29 advice was given, and that in the intervening period Total took steps in respect of entering contracts and putting its maintenance regime at the Gryphon FPSO on hold so as to create a “self-fulfilling prophecy” in relation to the need to keep decommissioning costs to a minimum. In response to this submission the defendant observes that in fact far from being a “swift approval” there was a significant period of preparation of the proposed decommissioning plan and, in particular, some seven months between December 2023 and the section 29 decision on 6 June 2024. Furthermore, the defendant points out that approval of the decommissioning plan is ultimately a matter for OPRED not the defendant, and therefore any increased costs as a result of delay between CoP and decommissioning would be attributable to any delay in the decision reached by OPRED.

There is no substance in the complaints raised by the claimant about this being a “self-fulfilling prophecy” of the kind alleged. The observations which they rely upon in September 2022 need to be put in the wider context of a number of features. The first is the long-term regulatory strategy for the delivery of the Q9GP project which, as had been made clear to the joint venture partners including the claimant, was a priority. The second is that, as the defendant observes, the section 29 advice process was lengthy, and involved examination and evaluation of the information and submissions which were made to the defendant. Whatever may have been the preliminary thoughts expressed by Ms Wyllie and triangulated with colleagues, it is clear from the extensive history of internal scrutiny that the outcome of the section 29 advice was not predetermined and that the defendant continued to conscientiously review the material submitted to it prior to forming a final conclusion. The defendant’s submission that this point does not give rise to any tenable allegation of predetermination on the part of the defendant is to be endorsed when the whole of the narrative leading up to the section 29 decision is reviewed.

The claimant’s contention is based upon the exploratory discussion which had occurred between Mr Parra and Ms Wyllie on 28 September 2022 in which Mr Parra broached the subject of Total contemplating CoP and sail away mid-2024 and Ms Wyllie stated that she could not imagine there would be many remaining economic barrels left and the emissions profile was not good. Those observations by Ms Wyllie need to be put in context and would be by the well-informed and fair minded observer. The context was the earlier decision of the defendant from the previous year seeking to promote the commencement of the Q9GP project and making clear that gas resources were the priority and that they should not be detrimentally impacted by a potential oil opportunity (which at that time was gauged to be 10-15mmbbls). What Ms Wyllie said was consistent with this approach and she was careful to triangulate what she observed with her colleague Mr Greenhowe. Placed in this context it is not possible to conclude that this observation indicated the defendant had a closed mind in respect of whether or not the advice which it was to provide pursuant to section 29 of the 1998 Act would be positive and supportive. The history set out in the Annex records the extensive and conscientious examination of the merits of the section 29 issues before a decision was reached. There is therefore no substance in the first element of ground one.

The second point raised in support of ground one by the claimant is the contention that the defendant had already concluded that it was too difficult for it to force Total to change course. In particular the claimant relies upon Ms Wyllie’s observations in the comments she made on the “minded to decision support paper” noting that making Total do anything different from the views which they have set out would be incredibly difficult and not something they had ever done before. Further, at around the same time in April 2024 Mr Wheeler indicated that “the effort and likelihood of success of trying to prove that the Operator in this case has not done what is required does not meet our prioritisation threshold, given the value at stake”. The claimant draws attention to observations made by, for instance, OPRED that this was an unprecedented or unusual situation because usually the stakeholders would be aligned. The claimant contends that these observations demonstrate that the defendant had no inclination to attempt to prevent the Gryphon FPSO sailing away whether or not it was contrary to MER and/or the Strategy.

The defendant responds to these submissions by contending that the observations made by Ms Wyllie and Mr Wheeler were entirely reasonable ones in the circumstances. They also draw attention to observations within Mr Wheeler’s evidence in these proceedings in which he recounts (at paragraph 78 of his first witness statement) his experience from an earlier case where investigation and enforcement had taken many months and was a large drain on resources.

Again, it is necessary in evaluating the claimant’s submission to have regard to the context in which these two observations were made. By the time Mr Wheeler and Ms Wyllie were expressing the views which they did there had already been, as will be apparent from the narrative set out in the Annex to this judgment, extensive engagement by the defendant with both Total and the claimant, and Total had made their position abundantly clear. Once the remarks are placed in context, the well-informed fair minded observer would conclude that the defendant’s observations are entirely justified: both Ms Wyllie and Mr Wheeler were passing reasonable judgments about the potential for securing a change of course by Total. This was a judgment which was based not only upon what was abundantly clear about Total’s determination to pursue an earlier CoP but also a judgment in relation to regulatory priorities. As a regulator without infinite resources the defendant was entitled to exercise a judgment in relation to where those resources were best deployed. A relatively consistent theme of the narrative is the view expressed by the defendant’s officials that the limited amount of oil remaining to be produced by the continued operation of the Gryphon FPSO “does not meet our prioritisation threshold” (to quote Mr Wheeler in the same communication).

By way of the third key point, the claimant develops its submissions under the second key point to submit that the defendant had a pre-determined, and hostile, attitude to the claimant’s proposal and failed to properly engage in encouraging Total to take its offer seriously in the light of the defendant’s and Total’s obligations under the Strategy. In particular, the claimant draws attention to Ms Wyllie’s observation in an email on 3 April 2024 in which, having recorded that Total had indicated that the claimant’s proposal was unacceptable, she observed that “this may not have any legs to it. Perhaps it’s all a wild goose chase…?”. Additionally, the claimant draws attention to an observation in an email from Ms Wyllie dated 21 May 2024 when she responded to Ms Innes in respect of the claimant’s proposal that they exit from the Q9GP on the basis of past costs and on condition that the Gryphon FPSO continues to operate. Ms Wyllie set out her thought that this would not be palatable to Total and that it was “another embryonic and ill-thought through plan from Nobel”.

The defendant responds to this submission by again placing both of these comments into context. The defendant submits that in truth the email referring to the “wild goose chase” is an email in which Ms Wyllie was asking her colleague for any intelligence in relation to the question of whether or not the other joint venturers had been in touch with the defendant about the potential for the claimant to be appointed production operator for the four fields. She had limited information about any detail in respect of this proposal at the time in early April 2024 when the email was composed and so she was asking a colleague whether or not he had been approached and could shed any light on what was being suggested. The defendant submits that the email demonstrates Ms Wyllie keeping an open mind and seeking to carry out further enquiries in respect of the claimant’s suggestion. Similarly, her comments in the email of 21 May 2024 when seen in context were a reasonable response in the context of the claimant making a significantly different proposal to their joint venture partners from the earlier proposition which had already been rejected, in circumstances where an important aspect of the earlier rejection of the claimant’s proposal was its absence of detail as to how the important regulatory and contractual requirements were going to be fulfilled to enable them to deliver their proposal.

Having considered these submissions it is clear that in reality there is no substance in the claimant’s contentions in this respect. Although Ms Wyllie provides in her evidence some explanation for her use of language, the assessment needs to occur on the basis of what she wrote at the time. However, what she wrote has to be put in both a narrower and a wider context by the well-informed and fair minded observer. In the narrower context it is clear that the email of 3 April 2024 was one written with the intention of attempting to establish the extent and detail of the claimant’s proposal by contacting a colleague to establish whether or not there had been broader engagement with the defendant from the other joint venture partners in pursuit of the suggestion that the claimant should be appointed the production operator for the four fields. Set in its wider context, Total had already made abundantly clear that they had no interest in pursuing the claimant’s proposal and had rejected it. Ms Wyllie’s concern, therefore, that the claimant’s suggestion may not be capable of being progressed was legitimate. The defendant’s contention that in fact this email demonstrates Ms Wyllie keeping an open mind and seeking to establish the relevant facts is entirely appropriate.

Similarly, the email in relation to the significantly revised proposal made by the claimant needs to be placed in its narrative setting in order to establish whether, as contended by the claimant, it demonstrated apparent predetermination in relation to the section 29 advice, or whether it was a legitimate observation in the context of the wider factual matrix. That wider context needs to include the history of the claimant’s initial proposal having been presented to Total and rejected on the basis of, as has already been observed (amongst other reasons), a lack of any detailed proposal by way of heads of terms for the contracting parties. It was also rejected because of the absence of putative or actual applications for the claimant or its nominee to take over the duties of a field operator, bearing in mind the extensive and necessarily exacting requirements necessary to establish a qualification to fulfil that role, including the need to prepare and provide responses to the nineteen detailed information requirements set out in the defendant’s Field Operator Guidelines. Mr Pogson had had these requirements drawn to his attention during the currency of the claimant pursuing its proposal, but as the defendant observes it does not appear that the claimant shared any documentation with other licensees such as for instance Heads of Terms in relation to what would have been the necessary contractual arrangements to be put in place to enable the claimant to take over the operation of the Gryphon FPSO.

Whilst in its submissions the claimant contends that it did take necessary preparatory steps for the purpose of transferring ownership and production responsibilities from Total to the claimant but Total “simply did not engage”, the history of matters as recorded in the documentation is that Total responded with detailed reasons and objections to each of the formulations of the claimant’s proposal and certainly that which predated the giving of the section 29 advice. When viewed in context Ms Wyllie’s observations did not, even apparently, show she was approaching the issues with a closed mind but rather, the observation that the proposal was “embryonic and ill-thought through” provided her realistic judgment as to the likely outcome in respect of the claimant’s new proposal bearing in mind the evidence up to that point.

The fourth key point identified by the claimant in respect of ground one is to note that bringing forward CoP at the Gryphon FPSO aligned with the priority articulated by the defendant of moving towards the Q9GP project. The claimant contends that CoP provided a mechanism to remove the claimant and the other licence holders and was part of a deliberately devised strategy to bring forward CoP so that the defendant could terminate the claimant’s licence and remove it from the picture.

The claimant in particular relies upon five communications as providing evidence of this deliberate scheme. The first item is the handwritten note made by Ms Wyllie of the meeting which she had with Mr Parra on 21 February 2023. As noted in the Annex, she recorded that the claimant was “blocking progress” and she also noted “NSTA involvement in order to make them stand aside”. In response the defendant relies upon Ms Wyllie’s evidence in her third witness statement that the reference to blocking progress was a record of the view expressed by Total that the claimant was blocking progress on the Q9GP project, and that she had been asked if the defendant would get involved to make the claimant step aside or relinquish its interest as a licensee. Ms Wyllie took that as an action to discuss with her team.

The second piece of evidence is the notes of a meeting which Mr Brotherton had with Total to discuss the Q9GP project on 8 March 2023 which recorded, as set out above, that Nobel remained “a big issue” and Mr Brotherton had taken an action to understand the defendant’s potential powers to clear the way for the gas project. In response the defendant submits that Mr Brotherton was engaging with a difficult and complex problem in relation to the implementation of the Q9GP project and seeking to test the defendant’s position.

The third piece of evidence is an email dated 23 May 2023 from Mr Brotherton in which he stated, “despite telling Q9 licensees to pull their fingers out in Sept 2021 and develop these, nothing has happened”. He went on to suggest that the defendant should “probably not be “wasting our time””. In response to this the defendant points out that the real context of these observations was not, in fact, the Q9GP project but was the development of future oil which had not materialised. The defendant points out that the observations in the email reinforce what Mr Brotherton went on in the email to observe as to the prioritisation of these issues bearing in mind that the volumes of oil were less significant than he had thought.

The fourth piece of evidence is an internal email from Mr Brotherton dated 15 September 2023 sent to Ms Wyllie and Mr Knight which records, in note form, that following twelve months of no production and Gryphon FPSO CoP mid-2024, there was a potential to determine the licences mid-2025 and “clear out current JV”. The claimant points out that what was being alluded to was that the Gryphon hub fields had licences which require minimum levels of oil and gas production and therefore once the Gryphon FPSO ceased production then the licensees would be in breach after either twelve or twenty four months depending on the terms of the licence and the defendant would be able to determine them, removing the blockage to the Q9GP development. In response to this the defendant points out that in fact this was a note in preparation for an Area Planning meeting which Ms Wyllie has explained never in fact took place. Mr Wheeler, with whom the Area Planning meeting was proposed to be held, cannot recall any such meeting nor is there one in his calendar. The defendant submits that the email was merely an explanatory note in order to assist the defendant in exploring where it might take action as well as where it would not wish to proceed.

The fifth document is a note taken of the meeting of the Q9GP project on 1 February 2024 in which Mr Brotherton is noted as saying that the defendant “has prioritised the development of gas in preference to the remaining oil” and went on to express his concern that “the continued production of oil … could potentially jeopardise the development and delivery of the gas project”. The claimant contends that this approach was further endorsed at a meeting on 21 February 2024 in which the defendant observed that once oil production ceased, they would have the right to determine the licence after a twelve or twenty four month time period in which production had ceased. The defendant encouraged the managing directors to discuss a way forward as failing to work on such a strategically significant volume of gas required for the UK’s energy security was not an option. Subsequent to this on 23 February 2024 Ms Wyllie emailed Mr Wheeler saying that she had no voice as a result of “all the shouting Geoff and I did this week at Q9 owners”. In response to this the defendant points out that in respect of the note of the meeting on 1 February 2024 Mr Brotherton’s comments were purely that he was unprepared to have a discussion about the oil phase in a forum which was intended to be about the Q9GP project. So far as the 21 February 2024 meeting is concerned the observations made about the defendant’s right to determine the licence after a period when oil production had ceased was merely a factual reflection of the legal position. Again, Ms Wyllie’s email to Mr Wheeler on 23 February 2024 simply recorded the legal position and the factual record of her individual meetings with the parties.

The first point which should be observed in reaching conclusions on this ground is that the elements of the evidence which have been set out above, and indeed the evidence taken as a whole, is far from demonstrating that the defendant and Total colluded to devise a strategy to enable the defendant to terminate the claimant’s licence and nullify their position. The broader context from which the fair minded and well-informed observer would have to examine these pieces of the evidence commences with Mr Brotherton’s letter on 27 September 2021 in which he identified that the defendant regarded the Q9GP project as strategically important and a priority, and that the gas resources were a priority which should not be “detrimentally impacted by potential oil opportunities”. This broader context emphasising the importance of the Q9GP project provides some perspective on the approach that was being taken by the defendant to the clear problems that were manifesting themselves in respect of that project making progress. What Ms Wyllie recorded in her notebook, recording the observations and concerns of Total in respect of blocking progress on the gas project, arose following difficulties which had been experienced in the Q9GP project meetings on 5 October 2022 and Mr Wheeler writing to the Q9GP participants articulating the defendant’s concern in respect of the failure to make progress with the project. Thus, nothing untoward would be implied from what was written by Ms Wyllie in her notebook.

Given these difficulties it was perhaps unsurprising that in March 2023 Mr Brotherton was exploring in his email of 8 March 2023 what legal powers the defendant might have to seek to cut through the difficulties being experienced in working towards what the defendant had made no secret was their clear priority. In the light of the defendant’s explanations, the well-informed and fair minded observer would not consider that anything turned on either Mr Brotherton’s email of 23 May 2023 (which was not in fact related to the Q9GP project but reflected another aspect of inertia in the production of the field) or the email of 15 September 2023 which it appears went nowhere and was inconsequential. Again, the notes from the meetings of 1 February 2024 and 21 February 2024 reflected the wider context of the defendant’s priorities in seeking to progress the activities at the Gryphon hub towards gas production in the light of the strategic importance of that resource. Mr Brotherton was quite entitled to redirect the meeting of 1 February 2024 to the Q9GP project and the preparatory steps and decisions, for instance in relation to necessary infrastructure, rather than being drawn into a discussion about oil production in the wrong forum. The factual observations made in the meeting on 21 February 2024 again would not persuade the fair minded and well-informed observer that the defendant apparently had a predetermined answer to the section 29 advice, but rather lead to that person noting that what was set out simply reflected the factual position once oil production had ceased. There was nothing betraying apparent predetermination in the defendant encouraging the joint venture parties to discuss the construction of a way forward to make progress given the finite amount of time for oil production and the strategic significance of the size of the potential gas resource. Ms Wyllie’s jocular remark about losing her voice followed her having to again spell out to the joint venturers at the meeting on the 21 February 2024 the defendant’s position. Thus, the claimant’s submissions in relation to this aspect of ground one are wholly unpersuasive.

The fifth key element relied upon by the claimant in relation to ground one is the contention that Ms Wyllie harboured a personal dislike of Mr Pogson and that she allowed her strong personal feelings to influence her approach to the issues associated with the section 29 advice. The claimant relies upon evidence from the documentary record in that after Ms Wyllie left the fractious meeting of the field owners on 4 April 2024 she emailed Total asking them for a minute of the meeting and to capture “any behaviours that you may have observed during the last exchange”. Thereafter on 19 April 2024 in the lengthy briefing email that she wrote to other colleagues at the defendant she described Mr Pogson as “a one-man organisation that is using bullying tactics to showboat in meetings and is very blinkered”. The claimant points out that in her witness statement Ms Wyllie explains that she had a difficult relationship with Mr Pogson whereas she had cordial relationships with Total. Additionally in her evidence she describes the claimant as “a small company with large ambitions but without the knowledge or experience to support those ambitions”. All of this material exemplifies, in the claimant’s submission, an animus on the part of Ms Wyllie against Mr Pogson and therefore the claimant.

In response to these submissions the defendant observes that the evidence shows that the meeting of 4 April 2024 was frustrating and ill-tempered. Ms Wyllie had contacted Total because they were the host of the meeting and therefore she wanted their reflections on how the meeting had gone. Furthermore the defendant points out that Ms Wyllie’s candour about the difficulties she had in dealing with Mr Pogson needs to be balanced by the open invitation which she had provided to Mr Pogson in February and March 2024 for him to pick up the phone and have a conversation with her, and her invitation for them to have coffee together in order to ensure as best possible that they had a reasonable working relationship.

To conclude on this point, the claimant’s submissions are far from persuasive. As the defendant has explained and as is evident from the documentary record, Ms Wyllie did her level best to seek to work with Mr Pogson and at times offered him the opportunity for open dialogue and a chance to share a coffee. In undertaking regulatory activity there will inevitably be the need from time to time to undertake difficult conversations. The relationship between Ms Wyllie and Mr Pogson has to be put into the wider context of the various interactions which are recorded in the narrative of events. Take, for instance, the observation that the claimant relies upon in the email of 19 April 2024 when Ms Wyllie described Mr Pogson as “a one-man organisation that is using bullying tactics to showboat in meetings”. That observation arises in the context of a paragraph recording that, as is evident from the documentary records, Ms Wyllie had attempted to engage with the senior officer of the claimant, Mr Bates, to escalate her concerns but he would not engage and referred her to Mr Pogson as the de facto managing director and point of contact in all respects. This observation followed a meeting in which Ms Wyllie records Mr Pogson raising his voice and shouting at her. Read in context there is simply no basis for this comment to be taken as Ms Wyllie being biased or unfair but as simply her recording her perspective based on the evidence recorded in the relatively contemporary email of which it forms part. It was clearly sensible for her to contact the hosts of the meeting who would be recording it to seek their perspective on how the meeting had gone and how all of the parties involved had behaved.

Stepping back and viewing the evidence, and in particular the contemporary documentary evidence, as a whole it is not possible to sensibly conclude that the reasonable, fair minded and well-informed observer would conclude that Ms Wyllie had a dislike of Mr Pogson which had infected her objectivity in dealing with the section 29 advice such that she and the defendant demonstrated apparent pre-determination or bias.

Sixthly the claimant relies upon the suggestion that the defendant had a dismissive approach to the claimant in respect of their suggestions that the accelerated CoP and draft AP were not compliant with MER or the Strategy; they failed to explain the process they would adopt for the section 29 advice and how the claimant’s views would be considered; the extent of the engagement with Total contrasted with that of the claimant; different reasons were given in relation to the section 29 advice to different parties; the fact that the section 29 advice was drafted before the meeting on 6 June 2024 and issued hours afterwards; and the fact the defendant opened a regulatory investigation into the claimant after the section 29 advice had been issued. The defendant’s response to these submissions is that none of these matters relied upon as the sixth key feature of ground one could possibly found an allegation that the section 29 advice was the subject of apparent predetermination and bias by the defendant. They are in themselves incapable of satisfying that test.

There is clear substance in the defendant’s submission. Once more these points have to be put squarely in the context of the overall narrative of events leading up to the section 29 advice. It is tenuous to suggest, looking at the totality of the narrative, that the defendant was dismissive of the claimant in circumstances where, for instance, the defendant had set out over the course of time what would be required to satisfy the regulatory requirements for the transfer of the Gryphon FPSO to the claimant. There was no need for a formally constructed process for the determination of the section 29 advice, and in any event the issues which it engaged were clearly discussed at various meetings which have been recorded in the narrative of events. It was entirely understandable that the level of engagement with Total would contrast with the level of engagement with the claimant and indeed the other field operators who depended upon the Gryphon FPSO. After all, the section 29 advisory process is one in which Total is one of the principal parties, and in which Total is to be the applicant to the Secretary of State pursuant to the section 32 process. It is advice to them.

Even if differently expressed reasons were given to different parties in respect of the section 29 advice that is not probative to a well-informed and fair minded observer that there was apparent predetermination or bias in this case, and the well-informed fair minded observer would accept that it was entirely reasonable for a regulator to have a travelling draft of a decision which was subject to further consultation and evidence gathering before it could be said to be final. Again, the well-informed and fair minded observer would consider, against the background of Ms Innes and Mr Pogson’s email exchanges shortly prior to the meeting of 6 June 2024, that the defendant had (not surprisingly) formed a view, but was nevertheless approaching the meeting with a willingness to be persuaded otherwise if a realistic alternative to decommissioning were to emerge once conversations and negotiations had been had with all parties present. There would have been no need to call that meeting or to provide that opportunity if the defendant had already made up its mind. In the context of the entirety of the conduct of the section 29 process conducted by Ms Innes there is no basis to conclude that this meeting was a cynical attempt to avoid criticism or litigation in circumstances where in truth the decision had already been made. In fact the meeting further demonstrated that no such solution was going to be achieved. The opening of the regulatory investigation against the claimant does not provide support for any contention that the defendant predetermined the outcome of the section 29 advice or was biased in relation to the claimant. This was an independent exercise of regulatory operations by the defendant’s Disputes and Sanctions team.

To conclude, none of the bases upon which ground one has been advanced provide cogent evidence which would persuade a well-informed and fair minded observer that the defendant had demonstrated apparent predetermination or bias in dealing with the claimant and addressing the question of the advice to be provided to Total pursuant to section 29 of the 1998 Act. This ground must fail.

Ground Two: Procedural Unfairness

The claimant relies upon the matters which have been raised under ground one to found its contention that the claimant was treated unfairly, and that the defendant readily chose to rely upon Total’s assertions without carrying out any of its own analysis or investigation. The absence of economic analysis to support the section 29 advice is an illustration of this. Furthermore it is submitted that Nobel were persistently excluded from many of the discussions and also the provision of information which would have enabled them to participate fully and properly in the section 29 advisory process. The defendant responds by noting that the relevant requirements of procedural fairness in any particular case will depend upon the context and the subject matter. The defendant draws attention to the fact that the claimant had no statutory role in the exercise of the defendant’s functions under section 29, by contrast with Total who were required by section 29 to consult the defendant. As such there was no reason why the claimant had to be included in all of the discussions and the key parts of the process as they suggest. The defendant draws attention to the internal processes of the defendant designed to ensure that the requirements and obligations upon the defendant were properly exercised. In particular the defendant refers to the involvement by Ms Innes and also Mr Dunbar, their senior policy manager, to check and review the actions that the defendant had taken in respect of the requirements of the 1998 Act and the Strategy on 15 April 2024. In relation to the absence of economic analysis this was not procedurally unfair and related to the need for the defendant to prioritise its regulatory efforts.

In relation to the claimant’s reliance upon the matters raised in ground one, conclusions have already been set out supporting the view that there is no substance in the claimant’s complaints for the reasons which have been already given. Turning to the specific additional points (and for that matter the points already dealt with) it is important to observe that the standards of fairness are dependent upon the context and nature of the decision under consideration. The principles were set out by Lord Mustill in his speech in R v Home Secretary ex Parte Doody [1994] 1 AC 531 at p.560 D-G as follows:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

The nature of the statutory decision which was being undertaken in this case is a very significant part of the context of what fairness required. The section 29 process required Total to consult the defendant on their decommissioning proposals and the defendant to provide them with advice against the criteria set out in the statutory provisions. As has already been observed, therefore, it was inevitable that the principal engagement in this process would be with Total, and that elements of the process required by the statutory criteria would involve the provision of commercially confidential information. It was not inappropriate that, from time to time, the defendant would decline to share information which it was provided with in confidence by the field operator for the purposes of exercising its statutory power.

In this context fairness did not require a parity of engagement between the defendant and the claimant so as to be the equivalent of that between the defendant and Total. Nor did it require that the claimant be furnished with all of the commercially confidential material which had been furnished to the defendant in support of Total’s proposals. The well-informed and fair minded observer would appreciate the necessary context of the decision-making process and that the requirements of fairness had to be tailored to the statutory function which was being exercised and afford respect to the confidentiality of some material provided in support of the process by the decommissioning party. Moreover, viewing the process as a whole, as set out in the narrative of events, the well-informed and fair minded observer would reach the conclusion that the claimant was provided with, and took full advantage of, many opportunities to make representations in relation to the process and set out its case for the defendant to consider. Without repeating what was regularly set out during the course of the sequence of events leading up to 6 June 2024, it would be clear to the well-informed fair minded observer that all parties were fully cognisant of the issues arising in relation to the section 29 advice and those parties were given the opportunity, and many availed themselves of the opportunity, to make their case to the defendant. There is therefore no substance in the complaints raised under ground two in respect of procedural unfairness.

Ground Three: Breach of Statutory Duty/Frustration of Legislative Purpose

In relation to this ground the claimant sets out, uncontroversially, that the defendant is under a duty to act in accordance with the Strategy by virtue of section 9B of the 1998 Act. In particular, when considering and advising on alternatives to decommissioning, the defendant needed to ensure that its assessment was directed at ensuring the principal objective of the 1998 Act would be met. Further, when doing so it needed to ensure compliance by Total with the central obligation of the Strategy. When considering and advising on alternatives to decommissioning it needed to ensure that the advice was consistent with Total’s obligation under paragraph 15 of the Strategy to ensure all viable options for the Gryphon FPSO continuing in use have been included, covering reuse or repurposing which needed to be suitably explored. Finally the defendant needed to ensure that its consideration and advice in relation to alternatives to decommissioning was consistent with Total’s obligations under paragraphs 26 to 28 of the Strategy which have been set out above.

Two particular issues are raised by the claimant in support of the contentions under ground three. Firstly the defendant issued the section 29 advice without carrying out any economic analysis to determine whether CoP of the Gryphon FPSO at the end of 2024 was consistent with MER. The claimant contends that this was an obvious failure because the defendant was obliged to consider whether in seeking to decommission the Gryphon FPSO Total had maximised economic recovery from that infrastructure. The claimant contends that it was not possible to do so without undertaking an economic analysis. Furthermore the defendant’s advice given on 6 June 2024 contains no reference to MER at all.

The second point raised by the claimant is that the defendant erred in law by treating the need to meet net zero as being a separate and competing objective to MER. The claimant relies upon the decision of Holgate J (as he then was) in R (Greenpeace) v SSESNZ [2024] PTSR 345. Although the adjudication in that case did not depend upon an allegation by the claimants that these defendants had acted in breach of section 9B of the 1998 Act, the claimants did make submissions as to the proper interpretation of the Strategy in relation to MER and net zero and the status of the MER obligation under section 9A of the 1998 Act. Holgate J’s recording of the claimants’ submission and his response to it were as follows:

“70 In their written submissions, the claimants say that this central obligation imposes on the petroleum industry both the MER and a duty to assist the Secretary of State in meeting the net zero target. The OGA also has to act in accordance with this central obligation. The claimants then say that, according to the OGA strategy, the “MER is therefore no longer an isolated objective, but rather has to be read together with [the] obligation to assist the Secretary of State to meet the net zero target”. The claimants’ formulation is capable of being misunderstood. On one reading the submission appears to suggest that, so far as the OGA is concerned, the status of the MER obligation in section 9A of the PA 1998 has been reduced. It has not.

71 The PA 1998 does not empower the OGA to adopt a strategy which amends that primary legislation. Under the statutory scheme the MER remains the “principal objective” for the purposes of Part 1A of the PA 1998. The mere fact that the net zero target in para 2(b) of the OGA’s Strategy sits alongside the MER in para 2(a) as part of the “central obligation” in that strategy, does not alter the status of the MER in the PA 1998 as the principal objective.

72 Section 9A(2) makes it clear that the OGA’s strategy is for the purpose of “enabling the principal objective [the MER] to be met”. Section 9B requires the OGA to act under inter alia the PA 1998 in accordance with its strategy “for the purpose of enabling the principal objective to be met”. Those requirements have been respected in the drafting of the “central obligation” in the strategy. Para 2(a) simply summarises the MER. That obligation is defined more fully in section 9A(1) of the PA 1998. Para 2(b) of the strategy is prefaced by the words “in doing so”. Thus, the obligation to assist the Secretary of State to meet the net zero target applies in the context of complying with the “principal objective” in section 9A, the MER.

73 In the same vein, the obligation in para 2(b) of the OGA’s Strategy refers to the taking of “appropriate steps”, which involves an issue of judgment. That obligation includes reducing “as far as reasonable in the circumstances” GHG emissions. The strategy then gives examples of “sources” where that can be achieved, namely flaring, venting and power generation. Those sources assume that oil and gas extraction continues. Furthermore, para 2(b) of the Strategy requires the “appropriate steps” to include supporting carbon capture and storage projects, which do not impinge upon the MER obligation.

74 None of this analysis should come as any surprise. When, in 2020, the OGA took the view that the net zero target should be “fully embedded” in its current strategy, it also stated that “maximising economic recovery of oil and gas does not need to be in conflict with the transition to net zero”. So, for example, in relation to both existing and new developments, relevant persons should consider options, such as the electrification of production platforms and “apply good oilfield practice” (see Cox [2022] EWHC 75 (Admin) at [122]–[124]).

75 Lastly, Cockerill J helpfully pointed out in Cox that the concept of “economic recoverability”, which was a matter appropriate to be defined in the strategy, includes carbon costs. There is no tension or inconsistency within para 2 of the strategy or between that strategy and the principal objective in section 9A of the PA 1998 (see Cox, [44] and [126]–[131]).”

The claimant cites in support of their contention Mr Brotherton’s email on 13 March 2023 in which he observed that the claimant “continuously cite MER, MER, MER but conveniently disregard the other half of the central obligation, net zero”. Further, on 23 May Mr Brotherton emailed suggesting that “the early CoP benefits NZ more than MER lost”. Again Mr Brotherton is relied upon by the claimant when he observed in an email of 9 July 2024 that the recipient alluded to the need to consider both MER and NZ “although Nobel conveniently anchor to just MER”. He went on to observe that the defendant’s “story is not just one of MER, but MER and NZ”.

In response to these submissions, and in a Part 18 request for clarification of the defendant’s case, the defendant contends that as a regulator with finite resources it had to give consideration to the prioritisation of those resources in undertaking its supervisory work. The view that the relevant officials in the defendant formed was that the dispute which had emerged between the claimant and Total did not justify embarking on a highly detailed economic analysis as the claimant suggested. Reliance is placed upon Mr Wheeler’s email of 22 March 2024 identifying that the Gryphon FPSO was not a priority hub for the defendant, and that the “effort and likelihood of success of trying to prove that the Operator in this case has not done what is required does not meet our prioritisations threshold, given the value at stake”. The defendant notes that a range of modelling uncertainty would have been involved in the work and that in this stage of the process the defendant’s function was advisory as it was not the primary decision-maker. Moreover, the defendant understood that, as part of this prioritisation assessment, even if Total were required to surrender its licence under paragraph 30 of the Strategy there would then be a series of questions and issues to be resolved about the grant of a new licence including to whom it should be granted and for how long, bearing in mind that even on the claimant’s case CoP could be as little as three and a half years away.

So far as net zero is concerned, the defendant submits that when considering whether a party has complied with paragraph 2 of the Strategy they must have regard to whether that person has, in taking steps necessary to secure the maximum value of economically recoverable petroleum, taken appropriate steps to assist the Secretary of State in meeting the net zero target. This is what the binding terms of the Strategy require. In addition, it is submitted that the defendant is entitled when making decisions about regulatory prioritisation to have regard to the consequences of the choices it makes for net zero. Such is consistent with the duty at section 8 of the Energy Act 2016 to have regard to the need to work collaboratively with the government of the UK. The defendant was therefore entitled to take into account that the installation had relatively high emissions and to do so was not irrational.

In order to evaluate these submissions and forge the necessary conclusions, it is necessary to set out a little of the background to the regulatory context beyond the section 29 advice process in which the defendant was engaged. The defendant has powers to supervise operators for whom it has responsibility by adjudicating on disputes and by issuing a person with a sanction notice. Sanctions are relevant if the defendant considers a person has failed to comply with a petroleum-related requirement such as, for instance, the duty to act in accordance with the Strategy or a term or condition of an offshore licence. A sanctions notice can take the form of an enforcement notice, a financial penalty notice, a revocation notice or an operator removal notice pursuant to section 42 of the 2016 Act. The defendant has discretion as to whether or not to take up disputes that are referred to it. In relation to sanctions the defendant has clear and specific prioritisation criteria to apply to determine whether or not taking formal action is to be a priority. These provide as follows:

“Power to act, including but not limited to:

Whether the NSTA has discretion over whether to act or not?

Is there an urgency to act now?