The Indepen Forum

in association with Berkeley Research Group

Refer , appeal or grin and bear it? Comparing the “ appeal ” processes in infrastructure ; are the differences justified?

Tuesday 18 July 2023

›Berkeley Research Group’s office, 8 Salisbury Square, London, EC4Y 8AP 6pm - 9pm

REFER, APPEAL OR GRIN AND BEAR IT? COMPARING THE “APPEAL” PROCESSES IN INFRASTRUCTURE; ARE THE DIFFERENCES JUSTIFIED?

The discussion will consider the arrangements whereby infrastructure and utility service providers can “appeal” decisions by their regulator. “Appeals” are heard by the CMA and are additional to the right of any person to seek judicial review of a decision made by a public authority. Various matters can be appealed: our discussion will focus on those relating to price controls as these are likely to be the most significant.

The regulators and services where appeals are possible and the number of appeals (CMA website) since 2008 are as follows.

process was established and any changes that have been made since. There are salient differences in terms of: who can appeal –affected parties, as in energy or the regulated business only as in water; and the nature of the “appeal” - most often noted in the difference between water, rail and ATC, where the CMA has to redo the whole determination and energy, telecoms, post and payment systems where the parties appeal on specific grounds

Questions about the appeal processes that we might discuss include the following

Do we need a separate, convoluted process for appealing regulator decisions?

If we do

– Who should have the right to appeal?

– What is the appeal process intended to achieve? Does it succeed?

Other than those of lawyers and consultants, whose interests does it serve? How does it deal with the interests of future customers?

– Are the processes proportionate? Are differences in process justified by the circumstances of the sectors or of their customers?

– Should the CMA set principles and precedents?

Each sector has its own process, reflecting the circumstances of the sector when the

Should we have redeterminations or appeals on specific grounds?

Colm Gibson, Managing Director, Berkeley Research Group

Colm Gibson is a Managing Director in BRG’s London Office, heading up BRG’s Economic Regulation practice for Europe, the Middle East and Africa. He has over 35 years’ experience in energy, water and other regulated industries, with over 25 years at senior management level.

Colm is an expert on competition and regulation matters, including market design, price controls, tariffs and incentive design. He specialises in producing evidence and reports to influence external stakeholders. Colm and his team are frequently engaged to support companies and regulators in price control negotiations, having worked on over 20 price controls in a range of UK and EU jurisdictions. He also specialises in assisting companies to prepare to challenge regulatory decisions, having successfully appealed a range of UK price controls in the gas and water sectors.

Colm is quoted regularly as an expert in major newspapers and journals and has written and contributed to a number of textbooks and other publications.

Chair Speaker

Thea Hutchinson, Director of Company Performance and Price Review, Ofwat

Thea is the Director for Outcomes in the PR24 Price Review at Ofwat. In this role, she is responsible for the financial and reputational incentives for water companies to stretch their service levels in the contracts with their customers. Prior to joining Ofwat, Thea worked across the aviation, water, energy and financial sectors, leading teams of economists in a variety of senior positions in private companies, consultancy, and economic regulators. Her previous roles include being the Director of Economic Regulation and Chief Economist at NATS, the Regulatory Affairs Manager at easyJet, Senior Economist at Ofgem and Senior Consultant at CEPA. Thea is particularly interested in the interplay between economic theory and reality.

Speaker

Harold Hutchinson, Managing Director, CoHead of Energy, Investec

Harold spent his early career in academia as a Lecturer in Economics at Hertford College, University of Oxford, and at the University of St. Andrews, He subsequently worked in Research at various Investment banks in the UK as Head of Energy and Utilities, including Collins Stewart, ING, and Macquarie. He has now been at Investec for over 10 years, 7 of which as Head of UK Research. Currently he is Co-Head of Energy in the Listed Client Group. He is also a Director of the Regulatory Policy Institute, Oxford, an educational charity dedicated to the promotion of regulatory and market research for the public benefit.

Speaker

Martin Young, Senior Analyst - Energy, Utilities, Renewables, and Waste Equity Research, Investec

Martin joined Investec in February 2019 to cover the Utilities sector, a space in which he has been involved for over 25 years. After qualifying as a an ACA with Ernst & Young, he spent 20 years as an analyst at Dresdner Kleinwort Benson, Citi, Lehman Brothers, Nomura and the Royal Bank of Canada (RBC), heading the team at Nomura. After leaving RBC he joined Ofgem, the GB energy regulator, to head up Investor Relations, before returning to the sell-side with Investec. Martin was rated #1 for UK Energy and Utilities in both the 2021 and 2022 Institutional Investor (II) surveys. He holds an BA (Hons) degree in Mathematics from Cambridge University.

Speaker

Natura Gracia, Antitrust & Foreign Investment Partner, Linklaters

Natura is a competition and regulatory partner at Linklaters. She has over 15 years of experience advising clients on all aspects of UK and EU competition law as well as specialising in EU state aid, UK subsidies, utilities regulation and public procurement. She has represented a number of water and energy networks in relation to price control processes, having been involved in Ofwat’s PR09, PR14, PR19 and PR24, as well as Ofgem’s RIIO-2 (for gas and electricity distribution) and UR’s GD23 in Northern Ireland. She has been involved in regulatory appeals before the CMA (on PR19 and RIIO-2) as well as in a number of regulatory investigations by Ofwat, Ofgem and the CAA.