Wed, 23 Oct 2019
How interim injunctive relief can assist both individuals and businesses when locked in a dispute with their energy provider.
1. Energy suppliers may obtain a warrant from the Magistrates Court to enter a property and disconnect the gas supply. Such an application is made pursuant to Section 2 (1) of the Rights of Entry (Gas and Electricity Boards) Act 1954 and is called a ‘warrant to authorise entry’. A problem with the 1954 Act is that it is limited in scope and there is no real higher court authority on how the Act is to be interpreted and applied.
2. Section 2 (1) provides as follows: -
“Warrant to authorise entry.
2(1)Where it is shown to the satisfaction of a justice of the peace, on sworn information in writing,—
[F1(a)that admission to premises specified in the information is reasonably required by a gas operator or an electricity operator or by an employee of a gas operator or an electricity operator;]
(b)that [F2the operator or [F3 any employee of the operator]], as the case may be, would, apart from the preceding section, be entitled for that purpose to exercise in respect of the premises a right of entry to which this Act applies; and
(c)that the requirements (if any) of the relevant enactment have been complied with,
Then subject to the provisions of this section, the justice may by warrant under his hand authorise [F4the operator or [F3any employee of the operator]], as the case may be, to enter the premises, if need be by force”
3. Accordingly, a warrant may be granted if the Magistrate is satisfied that it is ‘reasonably required’ to permit entry to disconnect the gas supply. There is no guidance as to the interpretation of ‘reasonably required’ and what steps a Magistrate needs to take in order to be so ‘satisfied’.
4. The 1954 Act has now been amended by the Gas Act 1986, Schedule 2B. In accordance with Section 7 (3), and (5) of Schedule 2B a gas supply shall not be disconnected where an amount is ‘genuinely disputed’ between the parties. Again, there is no guidance as to what may amount to a ‘genuine dispute’.
5. Under the legislation, there is also no automatic right for an affected party to apply to the Magistrate to stay or adjourn a warrant once it has been issued by the Court. Accordingly, once a warrant has been authorised the Applicant will then have 28 days in which they can enter the property and disconnect the supply. Time starts to run from the date of the grant of the warrant and there will be no reason why a supply cannot be disconnected promptly.
6. Accordingly, where a warrant has been granted and the supplier wishes to enforce promptly a consumer/business is faced with their energy supply being disconnected almost immediately and they are unable to automatically stay/adjourn the action. Where the property is a business premises this could lead to the interruption of their business and services. A party in this position will also generally be prevented from seeking an alternative supplier due to the ongoing dispute.
7. In Albany Lions Hotel Limited, Lions Pier Limited -v- Opal Gas Limited Opal Gas Limited had obtained a warrant to disconnect the supply to both a hotel and an amusement pier in Eastbourne. Despite representations, Hastings Magistrates Court granted the warrant and Opal Gas Limited confirmed that they were going to disconnect the supply promptly. The Claimants aver that they are owed a refund due to an ongoing contractual dispute between the parties.
8. On the basis of the existing dispute between the parties urgent interim injunctive relief was sought by [Leonard Scudder of Private Office Legal Services] and granted by Mr Justice Bryan (without notice), and Maria Mulla, before HHJ Pelling QC (sitting as Judge of the High Court), (on notice), ensured that the injunction was upheld until the civil claim in the background is resolved.
9. The urgent injunctive relief was required to ensure that the warrant issued by the Magistrates Court was stayed. The Claimants were then able to lodge an appeal by way of case stated against the decision of the Magistrate. The Claimants have also asked the case to be stated to provide guidance on the interpretation and application of the 1954 Act.
10. It is unfortunate that the legislation does not provide an aggrieved party with the automatic option of an automatic adjournment/stay of the warrant. In such circumstances, urgent interim injunctive relief may be the only option to ensure that the energy supply is not disconnected and that business services are not erroneously interrupted.
11. Maria Mulla was instructed by Private Office Legal Services to act for the Claimants for the second injunctive relief hearing and will act in the underlying dispute and the associated magistrates appeal.