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

Lord Justice Males:

I agree that these claims for judicial review must fail for the reasons given in detail by Mr Justice Dove.

Standing back from the detail, Mr James Maurici KC for the claimant identified three key themes underpinning the claimant’s grounds of challenge across both JR1 and JR2, on which I wish to comment briefly.

The first such theme, under the heading ‘pre-determination, bias and procedural unfairness’ was that the defendant’s support for accelerated cessation of production (‘CoP’) at the end of 2024 was set in stone in 2022, without any analysis to determine whether this was consistent with maximum economic recovery (‘MER’), and that everything which followed was designed to fit this predetermined outcome regardless of Nobel’s evidence which, in particular the proposal that Nobel should take over the operation of the Gryphon FPSO, was treated with disdain.

In my judgment this submission fails on the facts. Without needing to undertake any detailed analysis, the defendant knew that the remaining oil reserves in the fields tied back to the FPSO were relatively modest, that the FPSO was an ageing facility which would be vulnerable to unexpected breakdown and loss of production as it approached the end of its working life, and that any such breakdown could have a seriously negative effect on the economic recoverability of oil from the fields tied back to the FPSO. These factors could properly be taken into account in determining whether the accelerated CoP proposal was consistent with MER and it was rational for the defendant to conclude that it was.

The suggestion that, thereafter, the defendant and its officials closed their minds to any contrary view is misplaced, although they were entitled to take the view that the claimant’s proposal to take over as operator was half baked and ill thought through, for all the reasons for which it was understandably dismissed by Total. The suggestion that the claimant would take over responsibility for operating the FPSO and would then hand it back to Total for decommissioning, with Total having no control in the meanwhile over the claimant’s maintenance of the facility, was never going to be acceptable; and the claimant took none of the steps which would have been required, and would inevitably have taken a considerable time, to qualify itself to take over as operator.

It is in these circumstances regrettable that the claimant has seen fit to mount a sustained attack on the integrity of officials, including in particular Ms Wyllie, who were simply doing their job. I do not find it surprising that Ms Wyllie and others found Mr Pogson difficult to deal with, but it was not their job to like him. Their job was to deal with him with professionalism and fairness, and that is what they did.

The second key theme is that the defendant misunderstood the concept of ‘economic’ as it applies to MER. The submission here is that Total’s overriding motivation for accelerating CoP was its own internal emissions targets and that the defendant treated reducing carbon emissions as an equally important objective to MER.

Both aspects of this submission fail on the facts. While CoP would have the benefit for Total of reducing its carbon emissions, this was not the driving force behind its desire to accelerate CoP, as explained in Mr Guiziou’s letter dated 12^th March 2024. In that letter Mr Guiziou explained that the reasons for Total’s decision were the vulnerability of the ageing FPSO, the requirement to ensure safe and reliable operations, and the low economic value of the fields. While the high level of emissions from the FPSO may have been a factor, it was not the driving force. As to the defendant’s position, I do not accept that it treated reducing emissions as an equally important objective competing with MER. But the defendant was not required to ignore the desirability of reducing emissions, and in particular was entitled to take into account what have been described as societal carbon costs when considering whether accelerated CoP was consistent with MER.

The claimant’s final key theme is that the defendant’s approach to economic analysis was unlawful because it failed to carry out any analysis of its own before giving its support to accelerated CoP, and that the economic analysis which supported the section 32 advice was significantly flawed because of its treatment of operating expenses.

I do not accept this criticism. As already explained, the defendant knew enough to form a reasonable view about MER without needing to carry out a detailed economic analysis, while the error in relation to operating expenses was not a matter for which the defendant should be held responsible and in any event made no difference to the overall analysis.

For these reasons, and for the reasons given in detail by Mr Justice Dove, the judicial review claims must fail regardless of the interesting legal issues as to justiciability, prematurity and the academic nature of the challenge. It is unnecessary for us to decide those issues and, as they are not straightforward, I agree that we should not do so. I can well understand why permission was granted, in view of those legal issues, in the case of JR1, at a stage when it could not reasonably have been recognised that the claim would fail comprehensively on the facts. It is too late now to revoke that permission, so I would dismiss the claim for judicial review in JR1 and refuse permission in JR2.