On 18 February 2022, HHJ Mark Cawson QC, sitting as a Judge of the High Court, handed down judgment in the case of Thurcroft Power Limited v. Volta Energy Group Limited [2022] EWHC 338 (Comm). The dispute related to a proposed battery storage facility in Yorkshire, and concerned the meaning and effect of an option agreement entered into by the parties in 2017. The Judge dismissed the claimant’s claim, for approximately £1 million in debt, damages or restitution, in its entirety.
Factually the dispute concerned a novel type of energy storage, namely commercial battery facilities, which is likely to be of increasing importance to the electricity sector, and its interplay with the storage capacity market established by the Government. Legally, the Judge’s decision considered and relied on the Supreme Court’s decision in Benedetti v. Sawiris [2013] UKSC 50; [2014] AC 938 as to the principles relevant to questions of unjust enrichment, and also several recent decisions of the Supreme Court and Privy Council as to the principles governing the implication of terms, as summarised by the Court of Appeal in Yoo Design Services Limited v Iliv Reality Pte [2021] EWCA Civ 560.
The Judge agreed with the defendant’s case that the option agreement gave it the right, but not the obligation, to call for the transfer of the assets and that, as the option was never exercised, no payment ever became due. Nor, the Court held, had the defendant been unjustly enriched at the claimant’s expense – there had been no failure of the basis on which the option agreement between the parties had been entered into.
The successful defendant was represented by Michael d’Arcy, as sole counsel, instructed by Squire Patton Boggs (UK) LLP.