In AUBREY WEISS v GREATER MANCHESTER COMBINED AUTHORITY ( 2025 ) CAT 27 the Competition Appeal Tribunal has given its first Judgment on the balance to be struck in judicial review kind challenges under Section 70(1) of the Subsidy Control Act 2022 between on the one hand the protection of commercially confidential information and on the other hand procedural fairness and open justice. The CAT held that the balance in all the circumstances of this case required that the Appellant’s principal decision-maker be admitted to a confidentiality ring in order to review GMCA’s confidential decision-making documents in relation to loans made by the GMCA, both GMCA documents and documents, including pricing information, of the Appellant’s development competitor and recipients of the loans.

The CAT from para 18 considered the relevant law in relation to the subsidy control regime; and from para 21 the relevant law on managing particularly sensitive confidential information during litigation and confidentiality rings. The information to which access was sought was ( para 43 ) highly important for assessing the merits of the case and in deciding what points to take or not take. The CAT at para 57 identified what was comprised in the balancing exercise. It imposed protections to mitigate against risks : paras 58-61 inc.

There has been an updated Direction and Statutory Guidance from the Ministry of Housing, Communities and Local Government to extend the freedom for local authorities to use eligible capital receipts to fund the revenue costs of projects that deliver ongoing savings or improved efficiency.  The Direction, which revokes and replaces the Direction of the same name issued on 2 August 2022, extends the flexible use of capital receipts to 2030.  It also removes the restriction with respect to redundancy costs that limits the use of the flexibility to statutory redundancy costs  only.  The Direction includes the requirement to submit the planned use of the flexibility in advance of use for each financial year.

A Department for Business and Trade publication provides guidance for public authorities on assessing whether a subsidy or scheme is consistent with  the principles of the Subsidy Control Act 2022.  It covers four areas of detail, to: identify the policy objective, ensuring it addresses a market  failure or equity concern, and determine whether a subsidy is the right tool to use; ensure that the subsidy is designed to create the right incentives for the beneficiary and bring about a change; consider the distortive impacts that the subsidy may have and keep them as low as possible; and carry out the balancing exercise.  Additional guidance on subsidies or schemes of interest and schemes of particular interest has also been published.

It is necessary for a person who contends that their name has been wrongly taken off the Register of Members of a company to apply to the Court for a Order that the Register be rectified, with retrospective effect, putting them back on the Register, in place of the name of the person whose namely wrongly appears on the Register. So held in BLAND v KEEGAN (2024) EWCA Civ 934.

In SYSPAL CAPITAL LTD v TRUMAN ( 2024 ) EWHC 1561 ( Ch) Roth J at paras 23-26 inc summarised the principles of interpretation by reference to the Supreme Court in WOOD v CAPITA )2017) UKSC 24 and in SARA & HOSSEIN ASSET HOLDINGS LTD v BLACKS OUTDOOR RETAIL LTD (2023) UKSC 2, and added that, when it comes to the background facts, the Articles of Association of a Company are in “ somewhat special category “ as compared to a private contract. As explained by Snowden J, as he then was, in RE EURO ACCESSORIES LTD (2021) EWHC 47 (Ch), approved by the Court of Appeal in VENTURA CAPITAL GP LTD v DNANUDGE LTD (2023) EWCA Civ 1142,  the process of interpretation to arrive at the meaning of a provision in a Company’s Articles of Association must concentrate on the natural and ordinary meaning of the words used, when viewed in light of the scheme and purpose of the Articles in general, any extrinsic facts about the company or its membership that would reasonably be ascertainable by any reader of the Company’s constitution and public findings at Companies House and commercial common sense.

It does not follow that because an act done by a company is treated as the company’s act, for which the company can be held liable, a director is immunised from liability.  There is no principle of law which exempts a director, acting in that capacity, from ordinary principles of liability for wrongful acts. However,  in LIFESTYLE EQUITIES v AHMED (2024) UKSC 17 the Supreme Court, addressing the key issue whether, when the wrong is one of strict liability, liability is also strict, or whether proof of knowledge or any other mental element is required, states that it is unjust to hold an individual whose act causes another person to commit a wrong jointly liable for the wrong as an accessory if the individual was acting in good faith and without knowledge of facts which made the act of the other person wrongful.  This point is not particular to company directors.  It does not depend on any special feature of their role.  There is no logical requirement that the knowledge or other mental state required for liability as an accessory must be the same as that required for primary liability; so that, if the primary liability is strict, liability as an accessory must also be strict.  That approach would be logical if inducing someone to commit a tort, or participating in a common design to do so, were simply another way of committing a tort.  But that is not so.  The correct approach is that a person who causes another person to do a wrongful act will only be jointly liable as an accessory for the wrong done if they have knowledge of the essential facts which make the act done wrongful.

Section 2 of the Subsidy Control Act 2022 defines “subsidy”.  It includes conferring an “economic advantage” on one or more “enterprises”, elaborated upon in Section 3, and financial assistance which is “specific”, elaborated upon in Section 4.  These concepts derive from EU State Aid Law, and have been considered by the General Court in its Judgment on 20 September 2023 in MAGNETROL INTERNATIONAL v EUROPEAN COMMISSION.  The Court says at paragraph 45-47 inclusive that the concepts of “advantage” and “selectivity” are 2 separate criteria, but may be examined together.

So far as “advantage” is concerned, in order for there to be State Aid the measure must “improve the financial situation of the recipient”.  So far as “selectivity” is concerned, in order for them to be State Aid the measure must not benefit other undertakings that are in a factual and legal situation “comparable” to that of the recipient.

In the transfer of the business of BULK ENERGY case (2022) EWHC 717 (Admin) a Divisional Court states that, in addition to the Subsidy Control Act 2022 and Regulations and Statutory Guidance thereunder, the TCA has been fully implemented into the UK’s domestic law by means of a blanket, generic implementation. Domestic subsidy control law to that extent means what the TCA says; but how the principle of proportionality should be applied in the particular context is also a matter of domestic law; and a wide margin of appreciation is to be afforded to a public authority when considering commercial circumstances in a private market and the market operator investment principle.

In BTI 2014 LLC v SEQUANA (2022 UKSC 25 the Supreme Court say that Directors owe their duties to the company, rather than directly to shareholders or creditors of the company. There is not a free-standing duty owed to creditors. However, where the company is insolvent, or bordering on insolvency, then the interests of creditors as a general body should be considered even if , and balanced against the interests of shareholders. The greater the company’s financial difficulties the more  the directors should prioritise the interests of creditors when making for example to  pay a dividend and if so how much. Once insolvency is inevitable the  creditors’ interests become paramount.

The new regime is due to come into force Autumn 2022. It will consist primarily of the provisions in the  subsidy control chapters of the Trade & Co-Operation Agreement with the EU, the Subsidy Control Act 2022, Regulations and Guidance from BEIS and the CMA. BEIS is currently consulting on Guidance under Section 79 of the Act.

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