Nobel Oil E&P North Sea Limited, R (on the application of) v The Oil and Gas Authority t/a The North Sea Transition Authority & Ors

Mr Justice Dove: Introduction

1. This case concerns the decommissioning of a Floating Production Storage and Offloading vessel (“FPSO”) known as the Gryphon FPSO. The claimant, who is a part owner in two oil fields served by the Gryphon FPSO, brings this judicial review in relation to two of the steps required under the Petroleum Act 1998 to enable oil infrastructure in the form of the Gryphon FPSO to be decommissioned and removed. The defendant is a statutory regulator of the petroleum industry in the North Sea and has particular responsibilities in relation to the decommissioning process which are detailed below. Total Energies E&P North Sea Limited (“Total”) are an operator and owner in the North Sea petroleum industry and they are the joint owner of the Gryphon FPSO. The Offshore Petroleum Regulator for Environment and Decommissioning (“OPRED”) is part of the Department for Energy Security and Net Zero. OPRED, whilst not a separate legal entity, is the part of the Department for Energy Security and Net Zero which performs the Secretary of State’s functions in relation to Part 4 of the 1998 Act as set out below.

2. This judgment relates to two applications for judicial review. The first, JR1, relates to the advice given by the defendant to Total pursuant to section 29 of the 1998 Act . Permission to apply for judicial review was granted at an oral hearing on 13 February 2025. The second judicial review, JR2, relates to the advice given by the defendant to OPRED as required by section 32 of the 1998 Act for the purposes of enabling OPRED to make its own decision in relation to the decommissioning plan pursuant to section 32 of the 1998 Act . JR2 is before the court for a “rolled up” hearing. On 30 April 2025 a hearing occurred in relation to the claimant’s application for a stay of OPRED’s decision under section 32 of the 1998 Act , but that application was refused in a decision given on 1 st May 2025. Background

3. The Gryphon FPSO is owned jointly by Total and Sojitz Energy Development Limited (“Sojitz”) and is operated by Total. In addition to the Gryphon Field (which is also jointly owned by Total and Sojitz), three other neighbouring fields have been tied back to the Gryphon FPSO for the purposes of oil production. These are the Tullich field, the Maclure field and the Ballindalloch field. The claimant has an interest in the Maclure and the Ballindalloch fields of around 8 per cent in each. Total owns the whole of the Tullich field and the remainder of the ownership of the Ballindalloch field. The Maclure field is owned jointly by Total, the claimant, TAQA and Apache.

4. The Gryphon FPSO was built in 1993 and refurbished following a major incident in 2012. It is permanently moored above an oil field and connected to sub-sea oil and gas infrastructure by flexible pipelines leading to oil and gas treatment equipment which is mounted on its deck. Oil was periodically offloaded having been stored in the FPSO’s cargo tanks. It is retained in position by anchors and mooring lines and is equipped with thrusters to enable it to be faced into the weather, reducing the load on the mooring lines.

5. The relationship between the owners of the Gryphon FPSO and the owners of the fields who receive the services provided by that infrastructure as a result of being tied back to the Gryphon FPSO is governed by Processing and Operational Services Agreements (“POSAs”) which amongst other issues address how the running costs of the Gryphon FPSO are to be distributed amongst those who use its facilities.

6. Around April 2021 the owners of the Gryphon FPSO approved a life extension project which involved works taking place to improve the integrity of the Gryphon FPSO and the renewal of its class certification to extend it until November 2027. Following a survey of the Gryphon FPSO, recertification was granted on 15 February 2023 to 15 November 2027.

7. The owners of the fields are party to a petroleum production licence which is issued by the defendant on behalf of the Crown and which allows the licensee to search for and extract petroleum in a specified area. To develop a field within a licence area the licensee must receive approval of a field development plan from the defendant addressing their proposals for extraction and the likely volumes of petroleum to be extracted.

8. The various fields identified above have all produced oil (and some gas) from the oil reservoirs that were being exploited. However, once oil production has ceased there is a gas “cap” overlying the oil reservoirs which can be developed as a project for extraction in its own right. A project has been formulated known as the Quad 9 Gas Project (“Q9GP”) for the gas extraction. When gas production commences the reservoir pressures will drop, preventing the extraction of any further oil. At present the ownership of the gas cap currently vests in the same owners as set out above but in different percentage interests. The infrastructure which would be required to produce gas from the gas cap has not been settled upon and in accordance with the current arrangements there would need to be unanimity between the owners on the appropriate configuration of the Q9GP project before it could be progressed. The Regulatory Framework

9. Section 1 of the 1998 Act defines “petroleum” as including “any mineral oil or relative hydrocarbon and natural gas existing in its natural condition in strata”. Section 3 contains the power to grant licences to “search and bore for and get petroleum”. Section 9 A of the 1998 Act contains what is described as the principal objective and the strategy of the 1998 Act , in particular the maximising of the economic recovery of oil (“MER”) which is described in the following terms: “ 9A The principal objective and the strategy (1) In this Part the “ principal objective ” is the objective of maximising the economic recovery of UK petroleum, in particular through— (a) development, construction, deployment and use of equipment used in the petroleum industry (including upstream petroleum infrastructure), and (b) collaboration among the following persons— (i) holders of petroleum licences; (ii) operators under petroleum licences; (iii) owners of upstream petroleum infrastructure; (iv) persons planning and carrying out the commissioning of upstream petroleum infrastructure; (v) owners of relevant offshore installations. (2) The [OGA] must produce one or more strategies for enabling the principal objective to be met. (3) A strategy may relate to matters other than those mentioned in sub section (1 )(a) and (b). (4) For provision about producing and revising a strategy, see sections 9 F and 9G.”

10. Within the context of the 1998 Act the defendant is described as the OGA. Section 9 B sets out the exercise of certain functions of the defendant. Section 9 BA goes on to define certain functions of the Secretary of State which, as described above, are in this case exercised by OPRED. Those two sections provide so far as material as follows: “ 9B Exercise of certain functions of the [OGA] The [OGA] must act in accordance with the current strategy or strategies when— (a) exercising functions under the other Parts of this Act (except Part 4), (b) exercising functions under Part 4, (c) exercising functions under Chapter 3 of Part 2 of the Energy Act 2011 (upstream petroleum infrastructure), (ca) exercising functions under Part 2 of the Energy Act 2016 , (d) exercising any function or using any power under a petroleum licence, and (e) exercising any other function or using any power— (i) to provide advice or assistance to another person, or (ii) to acquire, use or supply information, for the purpose of enabling the principal objective to be met. 9BA Exercise of certain functions of the Secretary of State (1) The Secretary of State must act in accordance with the current strategy or strategies when exercising the functions mentioned in subsection (2). (2) Those functions are functions under Part 4 to the extent that they concern reduction of the costs of abandonment of offshore installations and submarine pipelines (including the reduction of such costs by means of the timing of measures proposed in abandonment programmes and by the inclusion in such programmes of provision for collaboration with other persons).”

11. Section 28A provides a restriction on the decommissioning of petroleum related infrastructure in offshore installations or submarine pipelines in the following terms: “ 28A Restriction on abandonment (1) A person to whom a notice may be given under section 29(1) in relation to an offshore installation or submarine pipeline may not abandon, or begin or continue the decommissioning of, the installation or pipeline unless an abandonment programme approved by the Secretary of State has effect in relation to the installation or pipeline. (2) A person who without reasonable excuse contravenes sub section (1 ) is guilty of an offence.”

12. Section 29 deals with the preparation of programmes which are related to the abandonment of an offshore installation or submarine pipeline. Whilst section 29(1) , as will be seen from the quotation below, refers to the Secretary of State giving notice, it appears that such a notice is in effect given at the commencement of fabrication of the offshore facilities following the grant of a licence so that in practice the process commences with the preparation of a programme for submission to OPRED by the relevant operator. Section 29 of the 1998 Act provides as follows: “ 29.— Preparation of programmes. (1) The Secretary of State may by written notice require— (a) the person to whom the notice is given; or (b) where notices are given to more than one person, those persons jointly, to submit to the Secretary of State a programme setting out the measures proposed to be taken in connection with the abandonment of an offshore installation or submarine pipeline (an “ abandonment programme ”). (1A) The power to give a notice under sub section (1 ) is exercisable— (a) on the Secretary of State's own motion, or (b) at the request of any person to whom the notice may be given (whether or not the notice is given to that person). (2) A notice under sub section (1 ) shall either specify the date by which the abandonment programme is to be submitted or provide for it to be submitted on or before such date as the Secretary of State may direct. (2A) A person to whom a notice under sub section (1 ) is given— (a) must consult the OGA before submitting the abandonment programme to the Secretary of State, and (b) must frame the programme so as to ensure (whether by means of the timing of the measures proposed, the inclusion of provision for collaboration with other persons, or otherwise) that the cost of carrying it out is kept to the minimum that is reasonably practicable in the circumstances. (2B) When consulted under paragraph (a) of subsection (2A) the OGA must (in particular) consider and advise on— (a) alternatives to abandoning or decommissioning the installation or pipeline, such as re-using or preserving it, and (b) how to comply with paragraph (b) of that subsection. (3) A notice under sub section (1 ) may require the person to whom it is given to carry out such other consultations as may be specified in the notice before submitting an abandonment programme. (4) An abandonment programme— (a) shall contain an estimate of the cost of the measures proposed in it; (b) shall either specify the times at or within which the measures proposed in it are to be taken or make provision as to how those times are to be determined; (c) if it proposes that an installation or pipeline be left in position or not wholly removed, shall include provision as to any continuing maintenance that may be necessary. (5) A person who submits an abandonment programme to the Secretary of State under this section shall at the same time pay to him such fee in respect of his expenditure under this Part of this Act as may be determined in accordance with regulations under section 39. (6) The Secretary of State may exercise his powers under this section notwithstanding that an abandonment programme has previously been submitted for the installation or pipeline [in question if the Secretary of State has under section 32 —] (a) rejected that programme, or (b) approved it (whether or not the approval has been withdrawn).”

13. The question of the approval of programmes by OPRED is governed by section 32 of the 1998 Act which provides as follows: “ 32.— Approval of programmes. (1) The Secretary of State may either approve or reject a programme submitted to him under section 29 . (2) If he approves a programme, the Secretary of State may approve it with or without modifications and either subject to conditions or unconditionally. (2A) The modifications or conditions may (in particular) include modifications or conditions— (a) which are intended (whether by means of the timing of the measures proposed, the inclusion of provision for collaboration with other persons, or otherwise) to reduce the total cost of carrying out the programme, provided that they do not increase the total costs to be met by any person who is to be subject to obligations under the programme or under any other abandonment programme; (b) requiring the persons who submitted the programme to carry out and publish or make available to the Secretary of State and the OGA a review of the programme and its implementation including, where relevant, recommendations as to the contents and implementation of future abandonment programmes. (3) Before approving a programme with modifications or subject to conditions, the Secretary of State shall give the persons who submitted the programme an opportunity to make written representations about the proposed modifications or conditions. (4) If he rejects a programme, the Secretary of State shall inform the persons who submitted it of his reasons for doing so. (5) The Secretary of State shall act without unreasonable delay in reaching a decision as to whether to approve or reject a programme. (6) Before reaching a decision under this section the Secretary of State must— (a) consult the OGA, and (b) take into account the cost of carrying out the programme that has been submitted and whether it is possible to reduce that cost by modifying the programme or making it subject to conditions. (7) When consulted under subsection (6)(a), the OGA must (in particular) consider and advise on— (a) alternatives to abandoning or decommissioning the installation or pipeline, such as re-using or preserving it, and (b) whether section 29 (2A)(b) has been complied with and, if it has not been, modifications or conditions that would enable it to be complied with.”

14. It will be noted that, pursuant to section 32(6) and (7), prior to reaching a decision in respect of either approving or rejecting a plan, OPRED must consult the defendant and that certain features are mandatory requirements of that consultation. These are the cost of carrying out the programme; whether it is possible to reduce the cost by modifying it or making it subject to conditions (see section 32(6) (b)); advice on alternatives to abandoning or decommissioning the installation or pipeline; and whether section 29 (2A)(b) has been complied with.

15. Provision is made within section 42 of the 1998 Act for a challenge to be made in respect of any of the acts of OPRED, and the parameters of such a challenge are framed in the following terms: “ 42.— Validity of Secretary of State's acts. (1) If any person is aggrieved by any of the acts of the Secretary of State mentioned in subsection (2) and desires to question its validity on the ground that it was not within the powers of the Secretary of State or that the relevant procedural requirements had not been complied with, he may within 42 days of the day on which the act was done make an application to the court under this section. (2) The acts referred to in sub section (1 ) are— (a) the giving of a notice under section 29(1) ; (b) the approval of a programme under section 32 ; (c) the rejection of a programme under section 32 ; (d) a determination under section 34; (e) a determination under section 35; (ea) the giving of a notice under section 36A(2); (f) the giving of a notice under section 38(4).”

16. In 2021 the defendant published the OGA Strategy (“the Strategy”) which was presented to Parliament pursuant to the provisions of the 1998 Act . The purpose of the Strategy is stated to be to enable the principal objective established by section 9 A of the 1998 Act to be met. It is also noted that in drafting the Strategy the defendant had regard to, amongst other matters, how the Secretary of State might be assisted in meeting the net zero target. The structure of the Strategy is to set out a central obligation alongside supporting obligations, required actions and safeguards. The central obligation is described in paragraph 2 of the Strategy in the following terms: “2. Relevant persons must, in the exercise of their relevant activities, take the steps necessary to: a. secure that the maximum value of economically recoverable petroleum is recovered from the strata beneath relevant UK waters; and, in doing so, b. take appropriate steps to assist the Secretary of State in meeting the net zero target, including by reducing as far as reasonable in the circumstances greenhouse gas emissions from sources such as flaring and venting and power generation, and supporting carbon capture and storage projects.”

17. At paragraphs 15 to 17 the Strategy deals with the issue of decommissioning, and at paragraph 15 requires that before commencement of planning of decommissioning of any infrastructure the owners must ensure that all viable options for the infrastructure’s continued use (including its repurposing for carbon capture and storage) have been suitably explored. Paragraph 16 requires that decommissioning should occur in the most cost-effective way without prejudicing the maximising of the recovery of economically recoverable petroleum or any reuse or repurposing options. Importantly, paragraph 23 of the Strategy identifies the defendant’s published Stewardship Expectations, to which persons to whom the Strategy applies must have regard when considering how to act in accordance with the Strategy.

18. The Strategy makes specific provision for actions where a person to whom the Strategy applies decides not to ensure MER. Paragraphs 26 to 30 address the approach to be taken pursuant to the Strategy in circumstances where a person subject to the Strategy has decided not to ensure MER as follows: “26. Where this paragraph applies, by virtue of paragraphs 27 or 28, relevant persons must allow others to seek to maximise the value of economically recoverable petroleum from their licences or infrastructure including by divesting themselves of such licences or infrastructure to other financially and technically competent persons who are able to recover economically recoverable petroleum.

27. Where relevant persons are not able to ensure the recovery of the maximum value of economically recoverable petroleum from their licences or infrastructure for financial reasons they must seek to secure investment from other persons, including by allowing others to undertake such investment as a sole risk project. If relevant persons are not able to secure sufficient investment in a reasonable time the obligation in paragraph 26 applies.

28. The obligation in paragraph 26 applies in all other circumstances where relevant persons decide not to ensure the recovery of the maximum value of economically recoverable petroleum from their licences or infrastructure. This includes where there are technical or other non-economic reasons.

29. Where a relevant person is seeking to comply with the obligation in paragraph 26, that person must: a. provide access to sufficient relevant data and other information, including to allow bona fide persons to establish technical and financial competence; b. seek to do so without demanding compensation in excess of a fair market value or unreasonable terms and conditions; and, c. in order that other financially and technically competent persons who, including at the time of divestment, are able to recover economically recoverable petroleum may do so.

30. Where after a reasonable period the relevant person is unable to secure alternative funding or to divest themselves of the licence or infrastructure then, if the recovery of the maximum value of economically recoverable petroleum would achieve a satisfactory expected commercial return they shall surrender the related licences.”

19. Within the Annex to the Strategy, definitions of certain terms that are used are set out in order to facilitate an understanding of the Strategy’s terms. So far as relevant, the following definitions appear within the Annex: “ “Economically recoverable” in relation to petroleum means those resources which could be recovered at an expected (pre-tax) market value greater than the expected (pre-tax) resource cost of their extraction, where costs include both capital and operating costs (including carbon costs) but exclude sunk costs and costs (such as interest charges) which do not reflect current use of resources. In bringing costs and revenues to a common point for comparative purposes a 10% real discount rate will be used. Where relevant, UK Government carbon appraisal values for all greenhouse gas emissions will be used combined with the associated real terms social discount rate; “Satisfactory expected commercial return” means an expected post-tax return that is reasonable having regard to all the circumstances including the risk and nature of the investment (or other funding as the case may be) and the particular circumstances affecting the relevant person.”

20. In addition to the Strategy, the defendant also publishes detailed guidelines in relation to the requirements for an approval of a licence “exploration” operator and a field operator. In respect of a company wishing to become a field operator on the UK Continental Shelf (“UKCS”), the guidelines set out the need for such a company to demonstrate its understanding of the development and environmental responsibilities of an operator, and that it is competent both financially and technically to discharge these responsibilities under its agreements with co-licensees. The requirements for technical competence and financial capacity are described along with the need for awareness of environmental requirements. In respect of detailed information requirements there is a list of 19 types of information which will be required by the defendant as part of a submission by a company to become a field operator. The Issues

21. It is convenient at this point in the judgment to set out the essence of the issues which arise in the case. There are preliminary issues which are raised against the claimant on the basis that these claims are not justiciable, premature and academic. The approach taken to those points, which have been raised by the defendant, Total and OPRED, is explained below.

22. In respect of JR1, the claimant relies upon six grounds which are as follows. Ground one is the claim that the section 29 advice rendered by the defendant to Total was predetermined and that notwithstanding extensive attempts by the claimant to engage and obtain information, a decision was arrived at in respect of that advice by the defendant in an at least apparently predetermined manner. The defendant exhibited apparent bias and appeared to make its decision without an open mind. Ground two is the contention that the section 29 decision was reached as a consequence of procedural unfairness in that the defendant did not engage with the claimant or provide them with the information they needed to properly participate in the process. For instance, the defendant did not engage with the claimant in respect of Total’s rejection of the claimant’s proposal to take over the operation of the Gryphon FPSO so as to prolong the ability to extract oil. Ground three is the claimant’s submission that the decision in relation to the section 29 advice was reached without any consideration in the decision of the principal objective of the 1998 Act of achieving MER. This amounted to a breach of statutory duty or alternatively a frustration of the legislative purpose of the 1998 Act . Ground four is allied to ground three, in that it is described as a failure to consider material considerations, those material considerations being the principal objective of the 1998 Act to which the claimant contends the defendant was obliged to have regard.

23. Ground five of JR1 is the claimant’s contention that there has been a breach of the Tameside duty based on the leading case of Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 . It was necessary for the defendant to obtain and have regard to all of the relevant information necessary to bear upon the exercise of its function to provide the advice under section 29 of the 1998 Act . It needed to have full information in relation to the economic viability of both the Gryphon FPSO and also the oil fields which it served prior to forming a view on the question of both alternatives to decommissioning and ensuring that the costs of decommissioning were kept to the minimum reasonably practicable. Further, the defendant needed to take steps to fully inform itself as to the viability of the claimant’s proposal to assume responsibility for the Gryphon FPSO. Finally, ground six is the contention that the section 29 decision failed to provide adequate reasoning to grapple with the issues in dispute between the parties in respect of the decommissioning of the Gryphon FPSO.

24. Turning to JR2, ground one is that the advice given to OPRED pursuant to section 32 of the 1998 Act by the defendant was vitiated by the illegality of the section 29 advice. Both these stages are interlinked and mandatory in accordance with the framework provided by the 1998 Act , and therefore the illegality in the section 29 advice affected and rendered unlawful the advice provided to OPRED under section 32 of the 1998 Act . Ground two of JR2 is an allegation of predetermination and bias based on the contention that the defendant had, since March 2023, been determined to endorse cessation of production (“CoP”) at the Gryphon FPSO and this approach tainted the section 32 advice which was effectively in identical terms to that of the section 29 advice.

25. Ground three of JR2 is the contention made on a number of bases that the defendant failed to consider alternatives which were consistent with MER. The particulars of this ground are, firstly, that the defendant ought not to have taken account of UK Government societal carbon appraisal values in undertaking the assessment, on the basis that such carbon values should only be included if they were relevant, and the defendant simply failed to exercise any discretion so as to justify the relevance of this consideration. Secondly, the claimant contends that the economic data that was used when the defendant came to undertake a proper economic analysis of the viability of the oil fields being served by the Gryphon FPSO came from 2022/23 and was out of date. The claimant again relies upon the Tameside duty to support their contention that the most appropriate economic data ought to have been sourced and deployed. Thirdly, the assessment of future integrity risks to the Gryphon FPSO was also flawed because of a failure to properly assess the costs which would be involved. Fourthly, the defendant dismissed the claimant’s economic analysis incorrectly and fifthly, the claimant contends it was inappropriate for the defendant to rely upon Total complying with its Stewardship Expectations in circumstances where Total had actioned CoP without approval for decommissioning.

26. Ground four contends that the defendant adopted a flawed approach in relation to paragraphs 26 to 30 of the Strategy and failed to properly engage with the proposals which had been made by the claimant to Total to take over the operation of the Gryphon FPSO by other means. The claimant contends that the defendant failed to recognise that, on the basis there still remained petroleum to be recovered economically, these paragraphs of the Strategy required Total to divest its interests. The objections which were raised to the claimant’s proposed solution to ensure continued operation of the Gryphon FPSO were misconceived. Ground five is the claimant’s submission that the defendant failed to comply with its obligation to advise under section 32(7) (b) of the 1998 Act that Total had complied with its obligation to frame its decommissioning programme so as to ensure the cost of carrying it out was kept to a minimum in circumstances where Total had caused itself significant costs as a consequence of failing to obtain approval prior to CoP and had, in the circumstances, breached the defendant’s Stewardship Expectations in respect of cost effective decommissioning.

27. Finally, ground six of JR2 is the contention that the decision reached by the defendant in respect of the section 32 advice to OPRED is an interference with the claimant’s interests in the Maclure and Ballindalloch fields by way of the licensing and consents that they have been granted by the defendant. These licences and consents are “possessions” for the purposes of Article 1, Protocol 1 of the ECHR and the interference with those possessions arises as a consequence of the unlawful advice by the defendant to Total and to OPRED. This interference has, the claimant contends, led to a significant loss of revenue of around $1 million per month from the end of December 2024. The Facts

28. The full history of the events giving rise to these claims arose over a period of around four years, and has given rise to at least the several thousand pages of documentation which have been presented to the court. The narrative of the events disclosed in this material is set out in an Annex to this judgment. The account of the events set out in the Annex is principally based on the documentary evidence in the main hearing bundle on the basis that this is probably the best source. It is supplemented by the extensive witness evidence lodged by the parties, in particular where that is based upon the facts and not argument. It is not intended to be entirely comprehensive, but seeks to record the significant features of the extensive history which provides the background to the claimant’s claims. To fully understand the conclusions which are reached later in this judgment it is obviously important to read the Annex as providing the context for the conclusions which have been reached. Regard has been had to the totality of the documentation in order to reach the conclusions which are set out below. For ease of reading, what follows is a short synopsis of the facts which are fully rehearsed for the purposes of the judgment in the Annex. The quotations include any misspellings or typographical errors from the originals without correction.

29. After the extension of the class certification of the Gryphon FPSO set out above, in September 2021 Mr Brotherton, the Business Development Manager for the West of Shetland and Northern North Sea at the defendant, wrote to the joint venturers in the Q9GP project setting out that it had become apparent to the defendant that they were struggling to achieve the necessary unanimity to make progress. The letter encouraged the achievement of agreement in relation to future phases of work since the oil assets were within the six year glide path to cessation of production. The letter clarified that the defendant’s priority was the gas resources in the field which should not be detrimentally impacted by the oil potential of about 10-15 mmbbls.

30. In September 2022 Mr Parra, a Strategy and Business Director for Total, emailed Ms Brenda Wyllie (the defendant’s Area Manager for those oil fields within their Directorate of Operations or Ops team) and recorded their discussions at a recent meeting in relation to the disconnection of the Gryphon FPSO. Following receipt of the email Ms Wyllie wrote to her colleague at the defendant Mr Greenhowe (an Asset Stewardship Lead) advising him that Total were looking to CoP and sail away mid-2024 and that she could not imagine that there were many remaining economic barrels in the field, and the emissions profile was not great. She sought Mr Greenhowe’s confirmation that this proposal was aligned with the defendant’s approach, to which Mr Greenhowe agreed.

31. On 1 November 2022 the defendant retired the CoP report process addressing decommissioning and thereafter relied instead on the UK Stewardship Survey (the “UKSS”) to provide the detailed material to replace the sources of information that had previously been provided by the CoP report. On 2 March 2023 at a meeting of the owners of all of the oil fields served by the Gryphon FPSO, Total explained that they were proposing to cease production and for the Gryphon FPSO to sail away between Q3 2024 and Q3 2025. This decision was based on the operational vulnerability of the Gryphon FPSO, its emissions and a desire to have a planned rather than unplanned cessation of production and decommissioning. This was questioned by Mr Nicholas Pogson, the Head of Commercial for the claimant. Mr Pogson challenged how this could be compliant with MER and whether it could be justified to the defendant. At a follow up meeting, Mr Pogson asked Total whether they would be willing to sell their interests in the Gryphon FPSO to the other owners for £1 so that its operation could continue and Total indicated they would be unlikely to be interested. Correspondence ensued following this meeting including a cease and desist letter from the claimant’s solicitors to Total and Sojitz in respect of their proposed actions.

32. In May 2023 Mr Brotherton and other colleagues at the defendant were discussing the need to make progress with the Q9GP project. In particular they noted that the UKSS data from 1 January 2023 had identified that the volumes of oil for the Gryphon, Maclure and Ballindalloch fields were less significant than had been thought. Given those volumes, he advised Mr Greenhowe that in the light of the volumes being about 1 mmbbls per annum the defendant is “in the right place as this is NOT material”. The position was confirmed by the defendant’s Ms Cyteval who wrote to Mr Greenhowe confirming that Gryphon was “quite low on our priority list as the likely infill potential is quite low”.

33. In the summer of 2023 representatives of Total and the defendant’s Decommissioning Team met to discuss the decommissioning requirements for the Gryphon FPSO and noted that, as a consequence of the meeting, the process under section 29 of the 1998 Act had commenced. On 14 July 2023, Total wrote as the Gryphon operator to the Maclure and Ballindalloch field owners in the form of a termination notice under clause 6.1 of the POSA giving twelve months’ notice (or such later notice as was provided for by that clause) in relation to the cessation of the provision of services under the POSA. In the meanwhile, in July and August 2023 Mr Brotherton was seeking advice from a specialist at the defendant dealing with licences in relation to the defendant’s powers under the existing licences. This was with a view to increasing the momentum in relation to the Q9GP project. A draft letter was prepared to provide advice to the licensees with the intention of encouraging them to work on the preparation of a design for the Q9GP project. Subsequently on 14 September 2023 all parties to the Q9GP project received a letter from Ms Leanne Oxley (the defendant’s Head of Disputes and Sanctions) confirming that her department had received a referral from the defendant’s Ops team which they were investigating.

34. On 30 November 2023 Mr Pogson wrote to Mr Wheeler, the Director of Operations at the defendant, having been advised by the defendant’s company secretary that the defendant was now engaged with Total in respect of their advisory obligation under section 29 of the 1998 Act . He set out the claimant’s case in relation to the information to which the defendant should have regard when considering whether the proposed decommissioning was compliant with MER. Mr Pogson noted that Total had previously maintained that CoP at the Gryphon FPSO would be no earlier than the end of 2027, and further noted that Total had not provided any economic analysis in support of their proposal to accelerate CoP. The claimant had undertaken its own modelling based on forecasts of production, capex and opex and he provided the output of that economic analysis demonstrating that the Gryphon FPSO would produce healthy economic returns until at least 2027. He further suggested that there was the opportunity for a transfer of interests to take place to enable oil production to be completed and then a transfer back of those interests to Total and Sojitz to enable them to participate in the Q9GP project.

35. At around this time Ms Innes, the defendant’s Director of Supply Chain and Decommissioning, commenced work on the decision under section 29 of the 1998 Act . Ms Innes responded to Mr Pogson’s letter of 30 November 2023 (after having sought advice from other colleagues including Ms Wyllie) noting the claimant’s interest in retaining the Gryphon FPSO for ongoing use as an alternative to decommissioning and indicating that this would be included in the defendant’s discussions with Total.

36. In January 2024 the defendant instigated a corporate governance review of the claimant arising from a request from Ms Wyllie. This arose as a result of her concern that the defendant was getting “zero engagement” from the claimant’s Chief Executive Mr Larry Bates. In particular, the concern related to the stalling of the Q9GP project and that the claimant, amongst others, “have repeatedly blocked the Q9GP from moving forwards”. This corporate governance review followed on from earlier correspondence in December 2023 from Mr Brotherton to the joint venture partners in the Q9GP project again encouraging them to make more fruitful progress in advancing this gas project which was of strategic importance. Mr Brotherton encouraged the partners to reconsider the contents of the Q9GP Pre-Development Agreement (“the PDA”) to permit investors to pursue concepts for the project not supported by all of the joint venturers. At a meeting of the Q9GP joint venture partners on 15 January 2024 there was an inconclusive discussion of the proposal that the PDA should be amended.

37. On 15 January 2024 Mr Pogson wrote to Total contending that it was Total’s corporate climate change targets which were driving the early CoP of the Gryphon FPSO and setting out a proposal to enable Total to meet its global flaring targets by transferring its oil interests in the Gryphon area to the claimant and other Q9 joint venturers. In summary the proposal was for Total to transfer its interests in the oil phase of the four fields to the claimant to enable the claimant to continue oil production. The consideration for the transaction would be £1. Following economic cessation of oil production from the Gryphon area fields the claimant would transfer back to Total the interests in those fields to permit the development of the Q9GP project. Each party’s share of the decommissioning liability for the oil phase would remain at its current level but deferred until economic oil production had been completed. This offer was rejected by Total on 25 January 2024.

38. On 25 January 2024 Ms Wyllie wrote to Mr Bates seeking a meeting at managing director level and pointing out that she had previously sent him two meeting invites unsuccessfully. Mr Bates responded stating that Mr Pogson was the de facto managing director for the claimant’s UK Continental Shelf (“UKCS”) assets and had delegation from him. Ms Wyllie persisted to seek a meeting in the light of the nature and potential consequences of the defendant’s engagement, and indicated that she would be reviewing her notes on the claimant’s governance arrangements and engaging with the defendant’s Head of Licensee Governance.

39. A further meeting of the Q9GP joint venture partners occurred on 1 February 2024 at which Mr Brotherton again expressed his concern that continued oil production could potentially jeopardise the development and delivery of the gas project which was the defendant’s priority. Mr Pogson stressed the importance of MER applying equally to all hydrocarbons under the licences and sought clarity as to whether or not the defendant approved Total’s plan for a Gryphon FPSO CoP at the end of 2024. No further progress was made at the meeting.

40. A further meeting occurred on 21 February 2024 to seek to encourage progress on the Q9GP project. This was followed up by a letter from Mr Knight (the defendant’s Business Development Manager for the West of Shetland and Northern North Sea) encouraging Mr Pogson to give consideration to a sole risk provision in the PDA to cover the situation where unanimous approval was not achieved. Mr Pogson indicated he was studying the PDA in response to the discussion which had occurred at the meeting, and in subsequent emails raised queries about with whom he should be discussing operatorship and the use of a duty holder. Mr Knight responded on 26 February 2024 providing Mr Pogson with links to the defendant’s website and the provisions dealing with operatorship and the guidelines for field operators.

41. Also on 26 February 2024 Mr Bates wrote to Mr Patrick Pouyanné of Total again explaining the claimant’s proposal in respect of the transfer of the Gryphon FPSO. This proposal was rejected by Total on 12 March 2024 in a letter from Mr Jean-Luc Guiziou, who observed that the Gryphon FPSO CoP was a matter for its owners and not driven by Total’s corporate climate targets. The decision was driven by the vulnerability of the ageing Gryphon FPSO coupled with the low economic value of the fields and the high level of emissions that it generated. Mr Guiziou noted that the claimant’s proposal would require the claimant to be approved by UK regulators as an operator and would also involve Total retaining the decommissioning costs and liabilities for the Gryphon FPSO which was unattractive. Ultimately, Total did not regard the proposal as credible or one which they had any interest in pursuing.

42. On 26 March 2024 the defendant’s Mr Alasdair Thomas, a Decommissioning Manager, wrote to Mr Ken Watt at Total advising that the defendant was still considering Total’s proposals for the Gryphon FPSO and noting that the claimant had advised the defendant that they were interested in pursuing the continued use of the FPSO. Mr Thomas requested the Gryphon FPSO owners to explore that option and provide further information in relation to it. Alongside this, on 2 April 2024 Ms Wyllie and Mr Knight met Mr Pogson during the course of which Mr Pogson set out the offer which had been made by the claimant to Total. Ms Wyllie noted, after the meeting, that the claimant, TAQA and Apache had not engaged with the defendant about a transfer of the Gryphon FPSO to the claimant. She subsequently contacted her colleague Mr Jones to enquire whether TAQA, Apache or the claimant had been in touch with him for the purpose of the claimant being appointed production operator on the licences. Mr Jones confirmed he had had no contact.

43. On 10 April 2024 Mr Pogson wrote to Ms Innes setting out the offer which the claimant had made to Total and seeking a meeting to discuss this as an alternative to decommissioning. Ms Innes recognised the email required the defendant to take a different approach. Ms Wyllie responded to Ms Innes setting out her concerns in relation to the claimant’s current proposals with a view to the issues being drawn together in correspondence. Ms Innes indicated that she had involved the defendant’s Senior Policy Manager Mr Alistair Dunbar in an independent review of the work to date. Mr Dunbar reported back with his summary of requirements in relation to decommissioning.

44. During May 2024 and following further correspondence between the defendant and Total, the claimant and Total, and the defendant and the claimant, Ms Innes commenced preparation of a “Supply Chain and Decommissioning Director minded to decision support paper”. The paper addressed the considerations bearing upon opportunities for viable alternatives to decommissioning. In relation to continued use it noted the efforts to sell the infrastructure which the defendant had been advised of by Total and also the proposal of the claimant to enable continued use. In her comments on the draft Ms Wyllie noted that Total had set out their view and that making them do “anything different is incredibly difficult and not something we’ve ever done before”. The provisional view set out in the draft was that the defendant accepted Total’s assessment that there was no viable alternative to decommissioning.

45. On 2 May 2024 Ms Innes met with Mr Pogson to discuss the issues in relation to decommissioning and continued use. Following this, Ms Innes spoke to Mr Murdoch at Total on 3 May 2024 and pointed out the concerns expressed by the other owners that Total were not engaging in a collaborative manner in their proposal. She also sought further information about the marketing of the Gryphon FPSO in 2022. Following this, on 8 May 2024, Mr Payer of Total wrote to Ms Innes setting out in detail the interaction between the various parties and details of both the marketing of the FPSO and the process of selecting the approach to decommissioning. He wrote again on the following day further explaining Total’s rejection of the claimant’s offer and setting out their concern in respect of the claimant’s financial and technical capabilities along with their lack of experience as an operator. Total did not regard their offer as credible. On 14 May 2024 Ms Innes had a telephone conversation with Mr Pogson explaining that she had been in contact with Total to explain the claimant’s concerns and seeking further information from them.

46. Further correspondence ensued in May between Total and the claimant, and the claimant and the defendant, in which the claimant and Total set out their respective positions pertaining to the claimant’s proposals. Ultimately on 29 May 2024 Ms Innes wrote to all of the partners in the Gryphon field inviting them to a meeting so as to provide the opportunity for a discussion about the issues with which the parties were engaged concerning the continued operation of the Gryphon FPSO. The meeting was scheduled for 6 June 2024. At around this time Mr Pogson was continuing his conversations with Mr Knight. He had explained that the claimant’s position was that it was willing to do an exit deal in respect of the Q9GP project on condition that the claimant could continue to operate the Gryphon FPSO. Mr Knight explained to Mr Pogson that a transfer of ownership would be difficult to achieve before the planned CoP at the end of 2024.

47. At the meeting of 6 June 2024 Total explained their rationale for proceeding with CoP at the end of 2024 and the claimant resisted this position, reinforcing that this did not achieve MER and that in those circumstances the Strategy required that others should be permitted to continue oil production so as to achieve MER. Total should be required to divest themselves of their interests. Apache and TAQA expressed the view that Total had not provided sufficient information to justify the decision. Following the meeting Ms Innes emailed Total asking if they had heard anything at the meeting which enabled them to reconsider their position in relation to the Gryphon FPSO, or whether their preferred pathway remained decommissioning. Mr Payer responded that the preferred pathway did indeed remain decommissioning the Gryphon FPSO in 2025.

48. Shortly after this exchange Ms Innes provided Mr Payer with a letter recording that the defendant was satisfied Total had fulfilled its obligations under section 29 (2A) of the 1998 Act and paragraph 15 of the Strategy. The details of this letter so far as material are set out in the Annex. The following day she advised OPRED of this decision. It seems that the claimant became aware of the decision, albeit not its contents, shortly afterwards, and not from the defendant. On 12 June 2024 Mr Bates wrote to the defendant expressing his concerns in relation to this decision. He considered that if the defendant had communicated its decision to Total on 6 June 2024 it would appear that the defendant was acting disingenuously and at worst that it had acted in bad faith. On 16 July 2024 Ms Innes replied to Mr Bates responding to his specific questions in respect of the decision reached by the defendant under section 29 . She set out that the defendant considered that Total had demonstrated it had assessed viable alternatives to decommissioning, and in relation to continued use it had rejected the claimant’s offer. She observed that the defendant was continuing to engage with Total on its decommissioning proposals and expected Total to engage with the owners of the tie-back fields.

49. In the summer of 2024 Total issued a consultation draft of the Gryphon FPSO decommissioning programme which was the subject of discussion between Total and the defendant, as well as Total and OPRED. Ms Claire Hepworth of the defendant’s Decommissioning Team took up the task of preparing the section 32 advice from the defendant and raised further enquiries including of Ms Wyllie. On 17 October 2024 the defendant corresponded with Total, the claimant, Sojitz, TAQA and Apache to confirm they intended to consult with them prior to submitting the advice pursuant to section 32 of the 1998 Act to OPRED. They sought further information from the claimant in relation to its proposal and from Total in relation to the marketing exercise for the Gryphon FPSO. Mr Pogson responded to the letter of 17 October 2024 pointing out, as he had done previously in earlier correspondence, that no economic analysis had been shared with the claimant in relation to the assessment of CoP and the only economic analysis had come from the claimant. Mr Pogson again made his case in relation to the continuation of production being consistent with MER and the terms of the claimant’s proposal to allow continued use of the Gryphon FPSO. He drew attention to the use of Petrofac as a duty holder as part of the proposed arrangement. In response to internal queries raised by Ms Hepworth on 29 October 2024 the relative immateriality of the remaining recoverable Gryphon hub oil resources was further reiterated by her colleagues at the defendant.

50. On 30 October 2024 Mr Antony Moulds, the Head of Economics at the defendant, circulated economic modelling to assist in the assessment of CoP. On 8 November 2024 Total provided a confidential note to the defendant recording that previous economic analysis undertaken and provided demonstrated that the Tullich field began to have a negative cashflow in 2023, which became more substantial in 2024, leading to CoP of the Tullich field and the transfer of costs related to the Gryphon FPSO to the other remaining fields leading them to be in negative cashflow from 2025 onwards. Total relied upon this to demonstrate that CoP at the end of 2024 was compliant with the Strategy. On 4 November 2024 Mr Moulds set out a summary of his review of the economic data, which was worked up into a note on 21 November 2024. He essentially supported the decision which had been made to CoP the Gryphon FPSO from the end of 2024. Mr Mould’s advice was worked into the response to Ms Hepworth from the Ops team which was supportive of the decision to CoP the Gryphon FPSO at the end of 2024.

51. On 4 December 2024 the defendant circulated to the various field owners their draft advice to OPRED pursuant to section 32(7) of the 1998 Act . Alongside the consultation process the defendant had been seeking the permission of Total to disclose the economic data they had provided to the other parties including the claimant to assist in the consultation exercise. An extensive debate then ensued about the appropriate form of undertakings to be given to Total to enable this to occur, ultimately leading to this material being disclosed on 22 December 2024. On 31 December 2024 CoP occurred at the Gryphon FPSO.

52. The claimant provided an extensive response to the consultation criticising the economic analysis undertaken by the defendant and contending that MER could be achieved by Total accepting the offer that the claimant had made in its most recent iteration on 28 October 2024.

53. On 30 January 2025 the defendant’s economic analysts provided a further paper to inform the defendant’s decision-making on the draft advice. This paper deployed the available information and was based on a range of scenarios, and taking account of modelling uncertainty, the economics team remained of the view that it was appropriate to conclude that the Gryphon hub area could reach economic CoP by the end of 2024, or remain economically viable for around one additional year under higher hydrocarbon price assumptions. This material was incorporated in Ms Wyllie’s submission of the Ops team’s update to Ms Hepworth on 30 January 2025.

54. On 5 February 2025 the defendant delegated to Mr Andy Brooks, their Director of New Ventures, the responsibility of being the accountable person for reviewing the FPSO decommissioning programme. He reviewed the draft advice which had been prepared and sought further clarification in particular in respect of the economic analysis, holding a meeting with Mr Moulds for that purpose. Following this, Mr Brooks concluded that he was content with the draft advice. On 7 February 2025 the defendant published their draft advice to OPRED pursuant to section 32(7) of the 1998 Act . The terms of the advice so far as material are set out in the Annex.

55. On 7 March 2025 OPRED raised a number of queries in relation to the draft advice including questions about the detailed assumptions in the economic analysis. This led to a meeting between OPRED and the defendant on 17 March 2025. On 10 April 2025 the defendant provided responses to these requests. Thereafter on 25 April 2025 the defendant wrote to the court and the parties explaining that they had identified an issue in relation to the opex assumptions in the section 32 advice. In essence, the manner in which Total had completed their UKSS documentation had incorporated an element of double counting relating to the payment by the Gryphon field itself for the services of the FPSO. This had led to factual inaccuracies in the analysis set out in paragraphs 2.23 and 2.25 of the section 32 advice. This prompted a review of the section 32 advice ultimately leading to Mr Brooks undertaking a further consideration of the section 32 advice as the accountable person on behalf of the defendant. He concluded, for reasons which are set out more fully in the Annex, that the central conclusions of the section 32 advice were unaffected by the errors in the data which had been used. Submissions and Conclusions

56. Preliminary objections to the court exercising its jurisdiction were raised on behalf of the defendant, Total and OPRED independently of any submissions on the merits of the claim (with OPRED’s submissions being limited to these preliminary points).

57. The first submission made in this respect was that neither the advice pursuant to section 29 of the 1998 Act nor the advice under section 32 of the 1998 Act had any substantive legal consequences and as such they are not justiciable. The advice pursuant to section 29 of the 1998 Act was not advice given to the decision-maker, OPRED, but was advice solely given to Total. It did not give rise to any obligation for Total to follow the advice, nor did it give rise to any new legal rights or powers or curtail any existing legal rights or interests. In relation to advice given under section 32 of the 1998 Act , the submission was again that whilst the decision-maker, OPRED, will take that advice into account, it does not give rise to any new legal rights or powers, nor does it restrict any existing rights or interests. As such, therefore, the observations of Carnwarth LJ in Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government [2008] EWCA Civ 148 ; [2008] 3 All ER 548 were apposite. At paragraphs 32 to 33 of his judgment, Carnwarth LJ pointed out that judicial review was generally concerned with actions or other events which had or will have substantive legal consequences, for example by conferring new legal rights or powers or restricting existing legal interests or entitlements. Judicial review proceedings may come after the substantive event or decision for the purpose of having it set aside, or in advance of the decision when it is in prospect or preparation with a view to having it stayed or prevented. It is submitted that in the context of the present case these observations indicated that the advice given under both section 29 and section 32 of the 1998 Act were not susceptible to judicial review.

58. In response to these submissions the claimant submits that both the section 29 and section 32 advice stages have substantive legal consequences because they are mandatory stages of a single statutory process culminating in OPRED’s decision on the decommissioning plan. The 1998 Act purposely sets them out as a sequence in an overall staged decision, and each of those stages needs to be lawfully carried out so as not to imperil the lawfulness of OPRED’s ultimate decision. If the defendant’s advice either at the section 29 or section 32 stage were negative, it would be inconceivable that the defendant would approve the decommissioning plan in the teeth of such responses. Furthermore, the claimant submits that the observations of Carnwarth LJ in Shrewsbury have to be read in the context of the footnote to paragraph 32, in which Carnwarth LJ expressly acknowledged that his observations were an expression of “the primary function of judicial review, notwithstanding its gradual evolution in recent times to cover a much wider range of discretionary decisions or actions”.

59. The claimant draws attention to the decision of Lang J in R (Swainsthorpe PC) v Norfolk County Council [2021] EWHC 1014 in which the consultation response of a highway authority in relation to an application for planning permission was quashed. Lang J rejected the submission that there was an alternative remedy in the form of the claimant making its own representations to the planning authority since they would be “no substitute for a statutory consultation response by an expert highways authority”. Thus, the claimant observes, there is clear authority for the justiciability of advice being provided to a decision-maker. The claimant submits this is unsurprising in the light of the many examples of such a situation given in paragraph 5.2.10 of Fordham’s Judicial Review Handbook, and the recent decision of the Privy Council in Ramdass v Minister of Finance [2025] UKPC 4 , which concerned a challenge brought to a minister’s recommendation to appoint an investigation team to report on the conduct of the Auditor General in relation to a statement in the Ministry of Finance’s public accounts.

60. The defendant, Total and OPRED also submit that these applications for judicial review are premature. In particular, the defendant notes that whilst it concluded its advice-giving role in respect of Total in June 2024, the advice-giving role so far as OPRED is concerned pursuant to section 32 of the 1998 Act has been subject to continuing requests. The defendant draws attention to the further enquiries which have been noted above raised by OPRED, leading to the defendant continuing to provide advice and information to OPRED in order to support their decision-making process. These submissions are supported by OPRED who note in particular that judicial review is intended to be a remedy of last resort and who express the concern that, given there are many potential examples of staged decisions, there is the prospect of a significant flood of claims of this kind were the court to conclude that these decisions were apt to be the subject of judicial review at this stage of the decision-making process. Allied to this point, OPRED observe that the Secretary of State is not bound by the advice received as part of this process and that it is entirely open to him to form his own view of the merits of these issues independently. In effect, the submissions made by the parties in respect of prematurity are predicated on the basis that the appropriate opportunity to challenge any decision is in the context of a decision by OPRED to approve the decommissioning plan.

61. Furthermore, in addition to these submissions, it is also submitted that the challenge in JR1 is now academic since it has been completely overtaken by the decision reached by the defendant in relation to the section 32 advice and thus the court should not entertain adjudicating upon it.

62. These preliminary submissions raise issues of considerable complexity and are far from clear cut. The decision-making process adopted by Parliament in section 29 and 32 of the 1998 Act needs to be taken into account, as Parliament clearly created a series of steps in this process. As the claimant has observed, this raises the issue of the subsequent effect on steps later in a statutory decision-making process of earlier decisions or steps which have been taken unlawfully. The potential ambiguity in the authorities in respect of situations of this kind will be evident from what has already been set out above. The question of whether or not an earlier decision in a sequence of decisions infects later decisions with illegality is highly context specific and not straightforward.

63. Ultimately it appears prudent in the circumstances of this case not to start with these issues but actually commence with an examination of the merits of the claimant’s claims. There are questions of principle as well as pragmatic issues which commend that approach. Firstly, in principle, it was of concern that the parties raising these preliminary objections were not agreed as to whether or not the merits of the earlier decisions in the sequence could be raised by way of a statutory challenge under section 42 of the 1998 Act . The claimant draws attention to the fact that there is no ouster clause in section 42 of the 1998 Act as there are in relation to other similar statutory review provisions which provide that any challenge related to such a decision can only be raised through the statutory review process. The defendant made clear that it did not have a view on whether the decisions on advice under section 29 and advice under section 32 could be challenged pursuant to section 42 . Total’s position was that a section 42 challenge could only be made in respect of a decision not within the powers of the Secretary of State under the 1998 Act . This left it unclear as to whether or not illegality specific to the section 29 advice or the section 32 advice could be raised pursuant to such a challenge. By contrast, OPRED submitted that within the scope of a section 42 challenge the claimant could raise all of the points which they now raise in respect of the section 29 advice and the section 32 advice in so far as it vitiates OPRED’s decision under section 32 .

64. This lack of clarity has consequences. Either the claimant would be left with no opportunity to raise any challenge to the specific legality of the section 29 advice or the section 32 advice at all, or, alternatively, the court dealing with a challenge under section 42 of the 1998 Act would have to re-hear and reconsider all of the submissions which were heard by the court about the merits of those decisions in the context of the current proceedings. This gives rise to the pragmatic consideration that in the circumstances it makes sense to consider the merits of JR1 and JR2 prior to, if necessary, grappling with the specific complexities raised by these preliminary points.

65. In addition, it is necessary to observe that the nature of the case raised by the claimant has given rise to a wide range of points being pursued, and their case has evolved over the course of the proceedings driven to some extent by the emergence of documentation through the process of disclosure by the defendant. It is unrealistic to expect the court to deal comprehensively with each and every point that the claimant may have raised during the currency of this complex litigation (see, for instance, Richardson v North Yorkshire County Council and others [2003] EWCA Civ 1860 at paragraph 80). The points which are addressed in what follows are the most significant points raised and responded to in the skeleton arguments for the hearing and which were subsequently developed orally. JR1 Ground One

66. Ground one and ground two of JR1 are allegations of predetermination or bias and procedural unfairness. The legal principles in relation to this kind of allegation are well settled. It is appropriate to set out the law in relation to both of these issues at this stage since, as is reflected in the helpful agreed analysis of the relevant legal instruments and principles provided by the parties, it is noted that there is a close relationship between predetermination and bias as a matter of law.

67. It is well settled that a decision-maker will act unlawfully if it predetermines a matter which it must decide by having either actually or apparently a closed mind, with the effect that it is unable to apply its judgment properly to the decision at hand, or it acts in such a way that it gives rise to the appearance of predetermination. The court should have regard to all of the facts bearing upon any suggestion of predetermination and then ask whether in those circumstances a reasonable fair minded and well-informed observer, having considered all of those facts, would conclude that there was a real possibility of predetermination.

68. The principles involved in assessing predetermination and bias were helpfully distilled by Leggatt LJ (as he then was) in the case of Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 in the following terms: “17. The legal test for apparent bias is very well established. Mr Faure reminded us of the famous statements of Lord Hewart CJ in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256 at 259 that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” and that “[n]othing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” These principles remain as salutary and important as ever, but the way in which they are to be applied has been made more precise by the modern authorities. These establish that the test for apparent bias involves a two stage process. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the judge was biased: see Porter v Magill [2001] UKHL 67 ; [2002] 2 AC 357 , paras 102-103. Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case: see Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 , para 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117 ; [2008] 1 WLR 2528 , para 53.

18. Further points distilled from the case law by Sir Terence Etherton in Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515 ; [2014] 1 WLR 1943 , at para 35, are the following: (1) The fair minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Lawal v Northern Spirit Ltd [2003] UKHL 35 ; [2003] ICR 856 , para 14 (Lord Steyn). (2) The facts and context are critical, with each case turning on “an intense focus on the essential facts of the case”: Helow v Secretary of State for the Home Department [2008] UKHL 62 ; [2008] 1 WLR 2416 , para 2 (Lord Hope). (3) If the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case and considerations of inconvenience, cost and delay are irrelevant: Man O' War Station Ltd v Auckland City Council (formerly Waiheke County Council) [2002] UKPC 28 , para 11 (Lord Steyn).

19. In Helow v Secretary of State for the Home Department Lord Hope observed that the fair minded and informed observer is not to be confused with the person raising the complaint of apparent bias and that the test ensures that there is this measure of detachment: [2008] UKHL 62 ; [2008] 1 WLR 2416 , para 2; and see also Almazeedi v Penner [2018] UKPC 3 , para 20. In the Resolution Chemicals case Sir Terence Etherton also pointed out that, if the legal test is not satisfied, then the objection to the judge must fail, even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done: [2013] EWCA Civ 1515 ; [2014] 1 WLR 1943 , para 40.”

69. It was made clear in R (Lewis) v Redcar [2009] 1 WLR 83 by Pill LJ giving the leading judgment in the Court of Appeal that whilst reference was made to the fair minded observer “the court was putting itself in the shoes of that observer and making its own assessment of the real possibility of predetermination” and that the court “with its expertise, must take on the responsibility of deciding whether there is a real risk that minds were closed”.

70. Prior to addressing the claimant’s submissions here and elsewhere in relation to apparent bias and predetermination it is important to set out the wider context in which these allegations are made. As will already be readily obvious, the defendant was a regulator with important responsibilities for supervising the delivery of MER and the central obligation in the operations undertaken in the UKCS. As a regulator it is clear that it had, and it needed to have, a strategy in mind for the petroleum resources it was supervising, addressing the lifetime of the oilfield, which would also find its articulation in the day to day regulatory activities which the defendant undertook. This strategy would also be relevant to the prioritisation of the resources which the defendant allocated to particular regulatory issues bearing in mind their resources were not infinite. It was clear throughout the length of the narrative of events that the defendant’s strategy placed a high priority on the Q9GP project, and that in that context this strategically important gas project should not be “detrimentally impacted by the potential oil opportunity”.

71. This is important background to the allegations which the claimant makes. As a regulator it was necessary for the defendant to have an open mind but it was not necessary for them to have an empty mind. They were entitled to have a clear strategic view of the kind set out above and to use it to inform their approach to their day to day regulatory activity as well as the prioritisation of the resources at their disposal. They were also required to be open to evaluate and carefully consider matters properly raised with them in relation to both their strategic endeavours and their day to day regulation and keep these activities under review. However, the need to retain an open mind and act fairly did not include a requirement to forget or ignore the strategic context of their regulatory supervision and resource allocation.

72. Turning to the first ground, the claimant advances ground one of JR1 on the basis of six key points. These points are evaluated in turn as follows.

73. The first point is that it is suggested the defendant expressed support for an earlier CoP no later than September 2022, many months before the section 29 advice was given, and that in the intervening period Total took steps in respect of entering contracts and putting its maintenance regime at the Gryphon FPSO on hold so as to create a “self-fulfilling prophecy” in relation to the need to keep decommissioning costs to a minimum. In response to this submission the defendant observes that in fact far from being a “swift approval” there was a significant period of preparation of the proposed decommissioning plan and, in particular, some seven months between December 2023 and the section 29 decision on 6 June 2024. Furthermore, the defendant points out that approval of the decommissioning plan is ultimately a matter for OPRED not the defendant, and therefore any increased costs as a result of delay between CoP and decommissioning would be attributable to any delay in the decision reached by OPRED.

74. There is no substance in the complaints raised by the claimant about this being a “self-fulfilling prophecy” of the kind alleged. The observations which they rely upon in September 2022 need to be put in the wider context of a number of features. The first is the long-term regulatory strategy for the delivery of the Q9GP project which, as had been made clear to the joint venture partners including the claimant, was a priority. The second is that, as the defendant observes, the section 29 advice process was lengthy, and involved examination and evaluation of the information and submissions which were made to the defendant. Whatever may have been the preliminary thoughts expressed by Ms Wyllie and triangulated with colleagues, it is clear from the extensive history of internal scrutiny that the outcome of the section 29 advice was not predetermined and that the defendant continued to conscientiously review the material submitted to it prior to forming a final conclusion. The defendant’s submission that this point does not give rise to any tenable allegation of predetermination on the part of the defendant is to be endorsed when the whole of the narrative leading up to the section 29 decision is reviewed.

75. The claimant’s contention is based upon the exploratory discussion which had occurred between Mr Parra and Ms Wyllie on 28 September 2022 in which Mr Parra broached the subject of Total contemplating CoP and sail away mid-2024 and Ms Wyllie stated that she could not imagine there would be many remaining economic barrels left and the emissions profile was not good. Those observations by Ms Wyllie need to be put in context and would be by the well-informed and fair minded observer. The context was the earlier decision of the defendant from the previous year seeking to promote the commencement of the Q9GP project and making clear that gas resources were the priority and that they should not be detrimentally impacted by a potential oil opportunity (which at that time was gauged to be 10-15mmbbls). What Ms Wyllie said was consistent with this approach and she was careful to triangulate what she observed with her colleague Mr Greenhowe. Placed in this context it is not possible to conclude that this observation indicated the defendant had a closed mind in respect of whether or not the advice which it was to provide pursuant to section 29 of the 1998 Act would be positive and supportive. The history set out in the Annex records the extensive and conscientious examination of the merits of the section 29 issues before a decision was reached. There is therefore no substance in the first element of ground one.

76. The second point raised in support of ground one by the claimant is the contention that the defendant had already concluded that it was too difficult for it to force Total to change course. In particular the claimant relies upon Ms Wyllie’s observations in the comments she made on the “minded to decision support paper” noting that making Total do anything different from the views which they have set out would be incredibly difficult and not something they had ever done before. Further, at around the same time in April 2024 Mr Wheeler indicated that “the effort and likelihood of success of trying to prove that the Operator in this case has not done what is required does not meet our prioritisation threshold, given the value at stake”. The claimant draws attention to observations made by, for instance, OPRED that this was an unprecedented or unusual situation because usually the stakeholders would be aligned. The claimant contends that these observations demonstrate that the defendant had no inclination to attempt to prevent the Gryphon FPSO sailing away whether or not it was contrary to MER and/or the Strategy.

77. The defendant responds to these submissions by contending that the observations made by Ms Wyllie and Mr Wheeler were entirely reasonable ones in the circumstances. They also draw attention to observations within Mr Wheeler’s evidence in these proceedings in which he recounts (at paragraph 78 of his first witness statement) his experience from an earlier case where investigation and enforcement had taken many months and was a large drain on resources.

78. Again, it is necessary in evaluating the claimant’s submission to have regard to the context in which these two observations were made. By the time Mr Wheeler and Ms Wyllie were expressing the views which they did there had already been, as will be apparent from the narrative set out in the Annex to this judgment, extensive engagement by the defendant with both Total and the claimant, and Total had made their position abundantly clear. Once the remarks are placed in context, the well-informed fair minded observer would conclude that the defendant’s observations are entirely justified: both Ms Wyllie and Mr Wheeler were passing reasonable judgments about the potential for securing a change of course by Total. This was a judgment which was based not only upon what was abundantly clear about Total’s determination to pursue an earlier CoP but also a judgment in relation to regulatory priorities. As a regulator without infinite resources the defendant was entitled to exercise a judgment in relation to where those resources were best deployed. A relatively consistent theme of the narrative is the view expressed by the defendant’s officials that the limited amount of oil remaining to be produced by the continued operation of the Gryphon FPSO “does not meet our prioritisation threshold” (to quote Mr Wheeler in the same communication).

79. By way of the third key point, the claimant develops its submissions under the second key point to submit that the defendant had a pre-determined, and hostile, attitude to the claimant’s proposal and failed to properly engage in encouraging Total to take its offer seriously in the light of the defendant’s and Total’s obligations under the Strategy. In particular, the claimant draws attention to Ms Wyllie’s observation in an email on 3 April 2024 in which, having recorded that Total had indicated that the claimant’s proposal was unacceptable, she observed that “this may not have any legs to it. Perhaps it’s all a wild goose chase…?”. Additionally, the claimant draws attention to an observation in an email from Ms Wyllie dated 21 May 2024 when she responded to Ms Innes in respect of the claimant’s proposal that they exit from the Q9GP on the basis of past costs and on condition that the Gryphon FPSO continues to operate. Ms Wyllie set out her thought that this would not be palatable to Total and that it was “another embryonic and ill-thought through plan from Nobel”.

80. The defendant responds to this submission by again placing both of these comments into context. The defendant submits that in truth the email referring to the “wild goose chase” is an email in which Ms Wyllie was asking her colleague for any intelligence in relation to the question of whether or not the other joint venturers had been in touch with the defendant about the potential for the claimant to be appointed production operator for the four fields. She had limited information about any detail in respect of this proposal at the time in early April 2024 when the email was composed and so she was asking a colleague whether or not he had been approached and could shed any light on what was being suggested. The defendant submits that the email demonstrates Ms Wyllie keeping an open mind and seeking to carry out further enquiries in respect of the claimant’s suggestion. Similarly, her comments in the email of 21 May 2024 when seen in context were a reasonable response in the context of the claimant making a significantly different proposal to their joint venture partners from the earlier proposition which had already been rejected, in circumstances where an important aspect of the earlier rejection of the claimant’s proposal was its absence of detail as to how the important regulatory and contractual requirements were going to be fulfilled to enable them to deliver their proposal.

81. Having considered these submissions it is clear that in reality there is no substance in the claimant’s contentions in this respect. Although Ms Wyllie provides in her evidence some explanation for her use of language, the assessment needs to occur on the basis of what she wrote at the time. However, what she wrote has to be put in both a narrower and a wider context by the well-informed and fair minded observer. In the narrower context it is clear that the email of 3 April 2024 was one written with the intention of attempting to establish the extent and detail of the claimant’s proposal by contacting a colleague to establish whether or not there had been broader engagement with the defendant from the other joint venture partners in pursuit of the suggestion that the claimant should be appointed the production operator for the four fields. Set in its wider context, Total had already made abundantly clear that they had no interest in pursuing the claimant’s proposal and had rejected it. Ms Wyllie’s concern, therefore, that the claimant’s suggestion may not be capable of being progressed was legitimate. The defendant’s contention that in fact this email demonstrates Ms Wyllie keeping an open mind and seeking to establish the relevant facts is entirely appropriate.

82. Similarly, the email in relation to the significantly revised proposal made by the claimant needs to be placed in its narrative setting in order to establish whether, as contended by the claimant, it demonstrated apparent predetermination in relation to the section 29 advice, or whether it was a legitimate observation in the context of the wider factual matrix. That wider context needs to include the history of the claimant’s initial proposal having been presented to Total and rejected on the basis of, as has already been observed (amongst other reasons), a lack of any detailed proposal by way of heads of terms for the contracting parties. It was also rejected because of the absence of putative or actual applications for the claimant or its nominee to take over the duties of a field operator, bearing in mind the extensive and necessarily exacting requirements necessary to establish a qualification to fulfil that role, including the need to prepare and provide responses to the nineteen detailed information requirements set out in the defendant’s Field Operator Guidelines. Mr Pogson had had these requirements drawn to his attention during the currency of the claimant pursuing its proposal, but as the defendant observes it does not appear that the claimant shared any documentation with other licensees such as for instance Heads of Terms in relation to what would have been the necessary contractual arrangements to be put in place to enable the claimant to take over the operation of the Gryphon FPSO.

83. Whilst in its submissions the claimant contends that it did take necessary preparatory steps for the purpose of transferring ownership and production responsibilities from Total to the claimant but Total “simply did not engage”, the history of matters as recorded in the documentation is that Total responded with detailed reasons and objections to each of the formulations of the claimant’s proposal and certainly that which predated the giving of the section 29 advice. When viewed in context Ms Wyllie’s observations did not, even apparently, show she was approaching the issues with a closed mind but rather, the observation that the proposal was “embryonic and ill-thought through” provided her realistic judgment as to the likely outcome in respect of the claimant’s new proposal bearing in mind the evidence up to that point.

84. The fourth key point identified by the claimant in respect of ground one is to note that bringing forward CoP at the Gryphon FPSO aligned with the priority articulated by the defendant of moving towards the Q9GP project. The claimant contends that CoP provided a mechanism to remove the claimant and the other licence holders and was part of a deliberately devised strategy to bring forward CoP so that the defendant could terminate the claimant’s licence and remove it from the picture.

85. The claimant in particular relies upon five communications as providing evidence of this deliberate scheme. The first item is the handwritten note made by Ms Wyllie of the meeting which she had with Mr Parra on 21 February 2023. As noted in the Annex, she recorded that the claimant was “blocking progress” and she also noted “NSTA involvement in order to make them stand aside”. In response the defendant relies upon Ms Wyllie’s evidence in her third witness statement that the reference to blocking progress was a record of the view expressed by Total that the claimant was blocking progress on the Q9GP project, and that she had been asked if the defendant would get involved to make the claimant step aside or relinquish its interest as a licensee. Ms Wyllie took that as an action to discuss with her team.

86. The second piece of evidence is the notes of a meeting which Mr Brotherton had with Total to discuss the Q9GP project on 8 March 2023 which recorded, as set out above, that Nobel remained “a big issue” and Mr Brotherton had taken an action to understand the defendant’s potential powers to clear the way for the gas project. In response the defendant submits that Mr Brotherton was engaging with a difficult and complex problem in relation to the implementation of the Q9GP project and seeking to test the defendant’s position.

87. The third piece of evidence is an email dated 23 May 2023 from Mr Brotherton in which he stated, “despite telling Q9 licensees to pull their fingers out in Sept 2021 and develop these, nothing has happened”. He went on to suggest that the defendant should “probably not be “wasting our time””. In response to this the defendant points out that the real context of these observations was not, in fact, the Q9GP project but was the development of future oil which had not materialised. The defendant points out that the observations in the email reinforce what Mr Brotherton went on in the email to observe as to the prioritisation of these issues bearing in mind that the volumes of oil were less significant than he had thought.

88. The fourth piece of evidence is an internal email from Mr Brotherton dated 15 September 2023 sent to Ms Wyllie and Mr Knight which records, in note form, that following twelve months of no production and Gryphon FPSO CoP mid-2024, there was a potential to determine the licences mid-2025 and “clear out current JV”. The claimant points out that what was being alluded to was that the Gryphon hub fields had licences which require minimum levels of oil and gas production and therefore once the Gryphon FPSO ceased production then the licensees would be in breach after either twelve or twenty four months depending on the terms of the licence and the defendant would be able to determine them, removing the blockage to the Q9GP development. In response to this the defendant points out that in fact this was a note in preparation for an Area Planning meeting which Ms Wyllie has explained never in fact took place. Mr Wheeler, with whom the Area Planning meeting was proposed to be held, cannot recall any such meeting nor is there one in his calendar. The defendant submits that the email was merely an explanatory note in order to assist the defendant in exploring where it might take action as well as where it would not wish to proceed.

89. The fifth document is a note taken of the meeting of the Q9GP project on 1 February 2024 in which Mr Brotherton is noted as saying that the defendant “has prioritised the development of gas in preference to the remaining oil” and went on to express his concern that “the continued production of oil … could potentially jeopardise the development and delivery of the gas project”. The claimant contends that this approach was further endorsed at a meeting on 21 February 2024 in which the defendant observed that once oil production ceased, they would have the right to determine the licence after a twelve or twenty four month time period in which production had ceased. The defendant encouraged the managing directors to discuss a way forward as failing to work on such a strategically significant volume of gas required for the UK’s energy security was not an option. Subsequent to this on 23 February 2024 Ms Wyllie emailed Mr Wheeler saying that she had no voice as a result of “all the shouting Geoff and I did this week at Q9 owners”. In response to this the defendant points out that in respect of the note of the meeting on 1 February 2024 Mr Brotherton’s comments were purely that he was unprepared to have a discussion about the oil phase in a forum which was intended to be about the Q9GP project. So far as the 21 February 2024 meeting is concerned the observations made about the defendant’s right to determine the licence after a period when oil production had ceased was merely a factual reflection of the legal position. Again, Ms Wyllie’s email to Mr Wheeler on 23 February 2024 simply recorded the legal position and the factual record of her individual meetings with the parties.

90. The first point which should be observed in reaching conclusions on this ground is that the elements of the evidence which have been set out above, and indeed the evidence taken as a whole, is far from demonstrating that the defendant and Total colluded to devise a strategy to enable the defendant to terminate the claimant’s licence and nullify their position. The broader context from which the fair minded and well-informed observer would have to examine these pieces of the evidence commences with Mr Brotherton’s letter on 27 September 2021 in which he identified that the defendant regarded the Q9GP project as strategically important and a priority, and that the gas resources were a priority which should not be “detrimentally impacted by potential oil opportunities”. This broader context emphasising the importance of the Q9GP project provides some perspective on the approach that was being taken by the defendant to the clear problems that were manifesting themselves in respect of that project making progress. What Ms Wyllie recorded in her notebook, recording the observations and concerns of Total in respect of blocking progress on the gas project, arose following difficulties which had been experienced in the Q9GP project meetings on 5 October 2022 and Mr Wheeler writing to the Q9GP participants articulating the defendant’s concern in respect of the failure to make progress with the project. Thus, nothing untoward would be implied from what was written by Ms Wyllie in her notebook.

91. Given these difficulties it was perhaps unsurprising that in March 2023 Mr Brotherton was exploring in his email of 8 March 2023 what legal powers the defendant might have to seek to cut through the difficulties being experienced in working towards what the defendant had made no secret was their clear priority. In the light of the defendant’s explanations, the well-informed and fair minded observer would not consider that anything turned on either Mr Brotherton’s email of 23 May 2023 (which was not in fact related to the Q9GP project but reflected another aspect of inertia in the production of the field) or the email of 15 September 2023 which it appears went nowhere and was inconsequential. Again, the notes from the meetings of 1 February 2024 and 21 February 2024 reflected the wider context of the defendant’s priorities in seeking to progress the activities at the Gryphon hub towards gas production in the light of the strategic importance of that resource. Mr Brotherton was quite entitled to redirect the meeting of 1 February 2024 to the Q9GP project and the preparatory steps and decisions, for instance in relation to necessary infrastructure, rather than being drawn into a discussion about oil production in the wrong forum. The factual observations made in the meeting on 21 February 2024 again would not persuade the fair minded and well-informed observer that the defendant apparently had a predetermined answer to the section 29 advice, but rather lead to that person noting that what was set out simply reflected the factual position once oil production had ceased. There was nothing betraying apparent predetermination in the defendant encouraging the joint venture parties to discuss the construction of a way forward to make progress given the finite amount of time for oil production and the strategic significance of the size of the potential gas resource. Ms Wyllie’s jocular remark about losing her voice followed her having to again spell out to the joint venturers at the meeting on the 21 February 2024 the defendant’s position. Thus, the claimant’s submissions in relation to this aspect of ground one are wholly unpersuasive.

92. The fifth key element relied upon by the claimant in relation to ground one is the contention that Ms Wyllie harboured a personal dislike of Mr Pogson and that she allowed her strong personal feelings to influence her approach to the issues associated with the section 29 advice. The claimant relies upon evidence from the documentary record in that after Ms Wyllie left the fractious meeting of the field owners on 4 April 2024 she emailed Total asking them for a minute of the meeting and to capture “any behaviours that you may have observed during the last exchange”. Thereafter on 19 April 2024 in the lengthy briefing email that she wrote to other colleagues at the defendant she described Mr Pogson as “a one-man organisation that is using bullying tactics to showboat in meetings and is very blinkered”. The claimant points out that in her witness statement Ms Wyllie explains that she had a difficult relationship with Mr Pogson whereas she had cordial relationships with Total. Additionally in her evidence she describes the claimant as “a small company with large ambitions but without the knowledge or experience to support those ambitions”. All of this material exemplifies, in the claimant’s submission, an animus on the part of Ms Wyllie against Mr Pogson and therefore the claimant.

93. In response to these submissions the defendant observes that the evidence shows that the meeting of 4 April 2024 was frustrating and ill-tempered. Ms Wyllie had contacted Total because they were the host of the meeting and therefore she wanted their reflections on how the meeting had gone. Furthermore the defendant points out that Ms Wyllie’s candour about the difficulties she had in dealing with Mr Pogson needs to be balanced by the open invitation which she had provided to Mr Pogson in February and March 2024 for him to pick up the phone and have a conversation with her, and her invitation for them to have coffee together in order to ensure as best possible that they had a reasonable working relationship.

94. To conclude on this point, the claimant’s submissions are far from persuasive. As the defendant has explained and as is evident from the documentary record, Ms Wyllie did her level best to seek to work with Mr Pogson and at times offered him the opportunity for open dialogue and a chance to share a coffee. In undertaking regulatory activity there will inevitably be the need from time to time to undertake difficult conversations. The relationship between Ms Wyllie and Mr Pogson has to be put into the wider context of the various interactions which are recorded in the narrative of events. Take, for instance, the observation that the claimant relies upon in the email of 19 April 2024 when Ms Wyllie described Mr Pogson as “a one-man organisation that is using bullying tactics to showboat in meetings”. That observation arises in the context of a paragraph recording that, as is evident from the documentary records, Ms Wyllie had attempted to engage with the senior officer of the claimant, Mr Bates, to escalate her concerns but he would not engage and referred her to Mr Pogson as the de facto managing director and point of contact in all respects. This observation followed a meeting in which Ms Wyllie records Mr Pogson raising his voice and shouting at her. Read in context there is simply no basis for this comment to be taken as Ms Wyllie being biased or unfair but as simply her recording her perspective based on the evidence recorded in the relatively contemporary email of which it forms part. It was clearly sensible for her to contact the hosts of the meeting who would be recording it to seek their perspective on how the meeting had gone and how all of the parties involved had behaved.

95. Stepping back and viewing the evidence, and in particular the contemporary documentary evidence, as a whole it is not possible to sensibly conclude that the reasonable, fair minded and well-informed observer would conclude that Ms Wyllie had a dislike of Mr Pogson which had infected her objectivity in dealing with the section 29 advice such that she and the defendant demonstrated apparent pre-determination or bias.

96. Sixthly the claimant relies upon the suggestion that the defendant had a dismissive approach to the claimant in respect of their suggestions that the accelerated CoP and draft AP were not compliant with MER or the Strategy; they failed to explain the process they would adopt for the section 29 advice and how the claimant’s views would be considered; the extent of the engagement with Total contrasted with that of the claimant; different reasons were given in relation to the section 29 advice to different parties; the fact that the section 29 advice was drafted before the meeting on 6 June 2024 and issued hours afterwards; and the fact the defendant opened a regulatory investigation into the claimant after the section 29 advice had been issued. The defendant’s response to these submissions is that none of these matters relied upon as the sixth key feature of ground one could possibly found an allegation that the section 29 advice was the subject of apparent predetermination and bias by the defendant. They are in themselves incapable of satisfying that test.

97. There is clear substance in the defendant’s submission. Once more these points have to be put squarely in the context of the overall narrative of events leading up to the section 29 advice. It is tenuous to suggest, looking at the totality of the narrative, that the defendant was dismissive of the claimant in circumstances where, for instance, the defendant had set out over the course of time what would be required to satisfy the regulatory requirements for the transfer of the Gryphon FPSO to the claimant. There was no need for a formally constructed process for the determination of the section 29 advice, and in any event the issues which it engaged were clearly discussed at various meetings which have been recorded in the narrative of events. It was entirely understandable that the level of engagement with Total would contrast with the level of engagement with the claimant and indeed the other field operators who depended upon the Gryphon FPSO. After all, the section 29 advisory process is one in which Total is one of the principal parties, and in which Total is to be the applicant to the Secretary of State pursuant to the section 32 process. It is advice to them.

98. Even if differently expressed reasons were given to different parties in respect of the section 29 advice that is not probative to a well-informed and fair minded observer that there was apparent predetermination or bias in this case, and the well-informed fair minded observer would accept that it was entirely reasonable for a regulator to have a travelling draft of a decision which was subject to further consultation and evidence gathering before it could be said to be final. Again, the well-informed and fair minded observer would consider, against the background of Ms Innes and Mr Pogson’s email exchanges shortly prior to the meeting of 6 June 2024, that the defendant had (not surprisingly) formed a view, but was nevertheless approaching the meeting with a willingness to be persuaded otherwise if a realistic alternative to decommissioning were to emerge once conversations and negotiations had been had with all parties present. There would have been no need to call that meeting or to provide that opportunity if the defendant had already made up its mind. In the context of the entirety of the conduct of the section 29 process conducted by Ms Innes there is no basis to conclude that this meeting was a cynical attempt to avoid criticism or litigation in circumstances where in truth the decision had already been made. In fact the meeting further demonstrated that no such solution was going to be achieved. The opening of the regulatory investigation against the claimant does not provide support for any contention that the defendant predetermined the outcome of the section 29 advice or was biased in relation to the claimant. This was an independent exercise of regulatory operations by the defendant’s Disputes and Sanctions team.

99. To conclude, none of the bases upon which ground one has been advanced provide cogent evidence which would persuade a well-informed and fair minded observer that the defendant had demonstrated apparent predetermination or bias in dealing with the claimant and addressing the question of the advice to be provided to Total pursuant to section 29 of the 1998 Act . This ground must fail. Ground Two: Procedural Unfairness

100. The claimant relies upon the matters which have been raised under ground one to found its contention that the claimant was treated unfairly, and that the defendant readily chose to rely upon Total’s assertions without carrying out any of its own analysis or investigation. The absence of economic analysis to support the section 29 advice is an illustration of this. Furthermore it is submitted that Nobel were persistently excluded from many of the discussions and also the provision of information which would have enabled them to participate fully and properly in the section 29 advisory process. The defendant responds by noting that the relevant requirements of procedural fairness in any particular case will depend upon the context and the subject matter. The defendant draws attention to the fact that the claimant had no statutory role in the exercise of the defendant’s functions under section 29 , by contrast with Total who were required by section 29 to consult the defendant. As such there was no reason why the claimant had to be included in all of the discussions and the key parts of the process as they suggest. The defendant draws attention to the internal processes of the defendant designed to ensure that the requirements and obligations upon the defendant were properly exercised. In particular the defendant refers to the involvement by Ms Innes and also Mr Dunbar, their senior policy manager, to check and review the actions that the defendant had taken in respect of the requirements of the 1998 Act and the Strategy on 15 April 2024. In relation to the absence of economic analysis this was not procedurally unfair and related to the need for the defendant to prioritise its regulatory efforts.

101. In relation to the claimant’s reliance upon the matters raised in ground one, conclusions have already been set out supporting the view that there is no substance in the claimant’s complaints for the reasons which have been already given. Turning to the specific additional points (and for that matter the points already dealt with) it is important to observe that the standards of fairness are dependent upon the context and nature of the decision under consideration. The principles were set out by Lord Mustill in his speech in R v Home Secretary ex Parte Doody [1994] 1 AC 531 at p.560 D-G as follows: “What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

102. The nature of the statutory decision which was being undertaken in this case is a very significant part of the context of what fairness required. The section 29 process required Total to consult the defendant on their decommissioning proposals and the defendant to provide them with advice against the criteria set out in the statutory provisions. As has already been observed, therefore, it was inevitable that the principal engagement in this process would be with Total, and that elements of the process required by the statutory criteria would involve the provision of commercially confidential information. It was not inappropriate that, from time to time, the defendant would decline to share information which it was provided with in confidence by the field operator for the purposes of exercising its statutory power.

103. In this context fairness did not require a parity of engagement between the defendant and the claimant so as to be the equivalent of that between the defendant and Total. Nor did it require that the claimant be furnished with all of the commercially confidential material which had been furnished to the defendant in support of Total’s proposals. The well-informed and fair minded observer would appreciate the necessary context of the decision-making process and that the requirements of fairness had to be tailored to the statutory function which was being exercised and afford respect to the confidentiality of some material provided in support of the process by the decommissioning party. Moreover, viewing the process as a whole, as set out in the narrative of events, the well-informed and fair minded observer would reach the conclusion that the claimant was provided with, and took full advantage of, many opportunities to make representations in relation to the process and set out its case for the defendant to consider. Without repeating what was regularly set out during the course of the sequence of events leading up to 6 June 2024, it would be clear to the well-informed fair minded observer that all parties were fully cognisant of the issues arising in relation to the section 29 advice and those parties were given the opportunity, and many availed themselves of the opportunity, to make their case to the defendant. There is therefore no substance in the complaints raised under ground two in respect of procedural unfairness. Ground Three: Breach of Statutory Duty/Frustration of Legislative Purpose

104. In relation to this ground the claimant sets out, uncontroversially, that the defendant is under a duty to act in accordance with the Strategy by virtue of section 9 B of the 1998 Act . In particular, when considering and advising on alternatives to decommissioning, the defendant needed to ensure that its assessment was directed at ensuring the principal objective of the 1998 Act would be met. Further, when doing so it needed to ensure compliance by Total with the central obligation of the Strategy. When considering and advising on alternatives to decommissioning it needed to ensure that the advice was consistent with Total’s obligation under paragraph 15 of the Strategy to ensure all viable options for the Gryphon FPSO continuing in use have been included, covering reuse or repurposing which needed to be suitably explored. Finally the defendant needed to ensure that its consideration and advice in relation to alternatives to decommissioning was consistent with Total’s obligations under paragraphs 26 to 28 of the Strategy which have been set out above.

105. Two particular issues are raised by the claimant in support of the contentions under ground three. Firstly the defendant issued the section 29 advice without carrying out any economic analysis to determine whether CoP of the Gryphon FPSO at the end of 2024 was consistent with MER. The claimant contends that this was an obvious failure because the defendant was obliged to consider whether in seeking to decommission the Gryphon FPSO Total had maximised economic recovery from that infrastructure. The claimant contends that it was not possible to do so without undertaking an economic analysis. Furthermore the defendant’s advice given on 6 June 2024 contains no reference to MER at all.

106. The second point raised by the claimant is that the defendant erred in law by treating the need to meet net zero as being a separate and competing objective to MER. The claimant relies upon the decision of Holgate J (as he then was) in R (Greenpeace) v SSESNZ [2024] PTSR 345 . Although the adjudication in that case did not depend upon an allegation by the claimants that these defendants had acted in breach of section 9 B of the 1998 Act , the claimants did make submissions as to the proper interpretation of the Strategy in relation to MER and net zero and the status of the MER obligation under section 9 A of the 1998 Act . Holgate J’s recording of the claimants’ submission and his response to it were as follows: “70 In their written submissions, the claimants say that this central obligation imposes on the petroleum industry both the MER and a duty to assist the Secretary of State in meeting the net zero target. The OGA also has to act in accordance with this central obligation. The claimants then say that, according to the OGA strategy, the “MER is therefore no longer an isolated objective, but rather has to be read together with [the] obligation to assist the Secretary of State to meet the net zero target”. The claimants’ formulation is capable of being misunderstood. On one reading the submission appears to suggest that, so far as the OGA is concerned, the status of the MER obligation in section 9 A of the PA 1998 has been reduced. It has not. 71 The PA 1998 does not empower the OGA to adopt a strategy which amends that primary legislation. Under the statutory scheme the MER remains the “principal objective” for the purposes of Part 1A of the PA 1998. The mere fact that the net zero target in para 2(b) of the OGA’s Strategy sits alongside the MER in para 2(a) as part of the “central obligation” in that strategy, does not alter the status of the MER in the PA 1998 as the principal objective. 72 Section 9 A(2) makes it clear that the OGA’s strategy is for the purpose of “enabling the principal objective [the MER] to be met”. Section 9 B requires the OGA to act under inter alia the PA 1998 in accordance with its strategy “for the purpose of enabling the principal objective to be met”. Those requirements have been respected in the drafting of the “central obligation” in the strategy. Para 2(a) simply summarises the MER. That obligation is defined more fully in section 9 A(1) of the PA 1998. Para 2(b) of the strategy is prefaced by the words “in doing so”. Thus, the obligation to assist the Secretary of State to meet the net zero target applies in the context of complying with the “principal objective” in section 9 A, the MER. 73 In the same vein, the obligation in para 2(b) of the OGA’s Strategy refers to the taking of “appropriate steps”, which involves an issue of judgment. That obligation includes reducing “as far as reasonable in the circumstances” GHG emissions. The strategy then gives examples of “sources” where that can be achieved, namely flaring, venting and power generation. Those sources assume that oil and gas extraction continues. Furthermore, para 2(b) of the Strategy requires the “appropriate steps” to include supporting carbon capture and storage projects, which do not impinge upon the MER obligation. 74 None of this analysis should come as any surprise. When, in 2020, the OGA took the view that the net zero target should be “fully embedded” in its current strategy, it also stated that “maximising economic recovery of oil and gas does not need to be in conflict with the transition to net zero”. So, for example, in relation to both existing and new developments, relevant persons should consider options, such as the electrification of production platforms and “apply good oilfield practice” (see Cox [2022] EWHC 75 (Admin) at [122]–[124]). 75 Lastly, Cockerill J helpfully pointed out in Cox that the concept of “economic recoverability”, which was a matter appropriate to be defined in the strategy, includes carbon costs. There is no tension or inconsistency within para 2 of the strategy or between that strategy and the principal objective in section 9 A of the PA 1998 (see Cox, [44] and [126]–[131]).”

107. The claimant cites in support of their contention Mr Brotherton’s email on 13 March 2023 in which he observed that the claimant “continuously cite MER, MER, MER but conveniently disregard the other half of the central obligation, net zero”. Further, on 23 May Mr Brotherton emailed suggesting that “the early CoP benefits NZ more than MER lost”. Again Mr Brotherton is relied upon by the claimant when he observed in an email of 9 July 2024 that the recipient alluded to the need to consider both MER and NZ “although Nobel conveniently anchor to just MER”. He went on to observe that the defendant’s “story is not just one of MER, but MER and NZ”.

108. In response to these submissions, and in a Part 18 request for clarification of the defendant’s case, the defendant contends that as a regulator with finite resources it had to give consideration to the prioritisation of those resources in undertaking its supervisory work. The view that the relevant officials in the defendant formed was that the dispute which had emerged between the claimant and Total did not justify embarking on a highly detailed economic analysis as the claimant suggested. Reliance is placed upon Mr Wheeler’s email of 22 March 2024 identifying that the Gryphon FPSO was not a priority hub for the defendant, and that the “effort and likelihood of success of trying to prove that the Operator in this case has not done what is required does not meet our prioritisations threshold, given the value at stake”. The defendant notes that a range of modelling uncertainty would have been involved in the work and that in this stage of the process the defendant’s function was advisory as it was not the primary decision-maker. Moreover, the defendant understood that, as part of this prioritisation assessment, even if Total were required to surrender its licence under paragraph 30 of the Strategy there would then be a series of questions and issues to be resolved about the grant of a new licence including to whom it should be granted and for how long, bearing in mind that even on the claimant’s case CoP could be as little as three and a half years away.

109. So far as net zero is concerned, the defendant submits that when considering whether a party has complied with paragraph 2 of the Strategy they must have regard to whether that person has, in taking steps necessary to secure the maximum value of economically recoverable petroleum, taken appropriate steps to assist the Secretary of State in meeting the net zero target. This is what the binding terms of the Strategy require. In addition, it is submitted that the defendant is entitled when making decisions about regulatory prioritisation to have regard to the consequences of the choices it makes for net zero. Such is consistent with the duty at section 8 of the Energy Act 2016 to have regard to the need to work collaboratively with the government of the UK. The defendant was therefore entitled to take into account that the installation had relatively high emissions and to do so was not irrational.

110. In order to evaluate these submissions and forge the necessary conclusions, it is necessary to set out a little of the background to the regulatory context beyond the section 29 advice process in which the defendant was engaged. The defendant has powers to supervise operators for whom it has responsibility by adjudicating on disputes and by issuing a person with a sanction notice. Sanctions are relevant if the defendant considers a person has failed to comply with a petroleum-related requirement such as, for instance, the duty to act in accordance with the Strategy or a term or condition of an offshore licence. A sanctions notice can take the form of an enforcement notice, a financial penalty notice, a revocation notice or an operator removal notice pursuant to section 42 of the 2016 Act . The defendant has discretion as to whether or not to take up disputes that are referred to it. In relation to sanctions the defendant has clear and specific prioritisation criteria to apply to determine whether or not taking formal action is to be a priority. These provide as follows: “ Power to act , including but not limited to: Whether the NSTA has discretion over whether to act or not? Is there an urgency to act now? Failure to comply with petroleum-related requirements For a sanctions case, the Disputes and Sanctions team will carry out an Initial Assessment to examine whether there is sufficient initial evidence that there has been a failure to comply with a petroleum-related requirement (for example, potential non-compliance with the NSTA Strategy) and whether a full Investigation under the NSTA’s sanctions powers is merited or whether it is better to use other regulatory levers/powers (whether formal or informal) at the NSTA’s disposal. The NSTA notes that the evidential threshold for commencing its Investigations is low. A full investigation will be handled in accordance with the NSTA’s Sanctions procedure Impact on the NSTA’s Strategy , including but not limited to: Value of barrels of oil (or equivalent) at risk; Whether the preferred course of action changes in a positive way the future behaviour of the parties involved and industry in general; and Whether the risk to the Strategy is immediate and whether that risk is direct Strategic significance for the NSTA , including but not limited to: Would the preferred course of action establish a material principle or precedent? What is the significance of the failure or suspected failure to comply with the objectives of the Strategy? What is the risk the issue raises to any NSTA priorities, as set out in the NSTA’s annual report, its corporate plan or in any NSTA publication? Is there any risk to the reputation of the NSTA? Likelihood of success The NSTA may also take into consideration the likelihood of success of any preferred course of action. The NSTA does not, however, intend to put much weight on this factor in the assessment phase, as it may only be possible to determine ‘success’ if the issue requires further intervention NSTA time and cost , including but not limited to What cost will the proposed course of action impose on the NSTA (including the opportunity cost of not progressing other important cases/projects)? Is the potential cost proportionate to the proposed course of action? Are there adequate responses to carry out the action in a timely manner? What are the comparative benefits to the Strategy of using those resources in other ways?”

111. The defendant points out that its supervision of operators is undertaken in aggregate and across all relevant UK waters. In circumstances such as these there is authority to support the proposition that where a regulator has a power, and a discretion as to the exercise of that power, a margin of appreciation will be applied by a court to the exercise of that judgment or discretion when considering whether or not the regulator has acted unlawfully. This reflects the approach taken, for instance, in respect of police resources in R v Chief Constable of Sussex ex Parte International Traders Ferry Ltd [1999] 2 AC 418 . It is also reflected in the decision of the Court of Appeal in R (SSE Generation Ltd) v CMA [2022] EWCA Civ 1472 ; [2022] 4 WLR 115 in the judgment of Green LJ at paragraphs 64 and 65. This approach was adopted by this court in R (on the Application of River Action UK) v Environment Agency and Others [2024] EWHC 1279 at paragraph 126. It follows from this that in determining how to exercise its supervisory jurisdiction the defendant had a discretion and was entitled to exercise that discretion to prioritise resources and deploy them proportionately. Whilst the claimant seeks to draw a distinction between the use of sanctions and the undertaking of regulatory action, the reality is that these activities form part of a continuum and that it was perfectly reasonable for the defendant to take account of its policy in prioritising the supervision of the operators for whom it had responsibility. The judgment which the defendant reached was that the residual oil in the Gryphon area fields were not a priority for proactive supervision, or more specifically the examination of detailed economic modelling to seek to resolve any dispute concerning the modelling produced by the claimant. The evidence which was relied upon by the defendant appears in the narrative of events at several points, where the relatively low volumes of oil remaining to be extracted from the field were observed, underlining the observation by Mr Wheeler that this field was not a priority. Whilst the claimant points out that in email correspondence Mr Brotherton leaves the Tullich oil field out of account, and underestimates the quantities of remaining oil production in the Gryphon area fields as a whole, the evidence from the defendant overall is that they concluded, and continue to be of the view, that in relative terms the volumes of oil in the Gryphon area fields did not justify it being prioritised. This is a conclusion which was clearly open to them on the material before the court.

112. Applying the relevant approach from the authorities it was a matter for the defendant to determine whether, in the light of the issues it was considering, it was necessary to carry out its own detailed economic modelling relating to when it was appropriate for CoP to be planned. In making that decision the defendant was entitled to take account of the consistently expressed view of various members of staff that as a result of the relatively low potential volumes of oil at stake the field was not a regulatory priority. They were also entitled to take account of the inherent potential for uncertainty in any modelling exercise. In the light of the evidence it is not possible to conclude that the defendant could not rationally reach a conclusion in respect of the section 29 advice without having undertaken detailed economic modelling. They were entitled at this stage of the process to provide advice based upon their view, amongst all circumstances, of the extent of the remaining resource, the attitude of the field operator, their evaluation of the realism of the claimant being able to take over the operation of the Gryphon FPSO and the costs of the decommissioning plan with which they had been presented. There was no illegality in the approach which they took to formulating the advice and the enquiries which they made were lawful in their extent.

113. The claimant’s further submission is that in exercising its supervisory judgment the defendant misdirected itself as to the requirements of section 9 A of the 1998 Act and the Strategy. It must be accepted that both the approach set out by Holgate J in Greenpeace , and also the defendant’s understanding that when considering whether a party has complied with paragraph 2 of the Strategy they must have regard to whether that person has, in taking the steps necessary to secure the maximum value of economically recoverable petroleum, taken appropriate steps to assist in meeting the net zero target, are central to this submission. As Holgate J put it, “the obligation to assist the Secretary of State to meet the net zero target applies in the context of complying with the “principal objective” in section 9 A, the MER”. The passages to which the claimant has referred when read in context as pieces of correspondence, and placed in the context of the correspondence read as a whole, do not demonstrate a departure from the approach taken by Holgate J in Greenpeace or an illegitimate prioritisation of the net zero target over and above the requirements of MER. They illustrate simply that the defendant was conscious that the assessment was not solely and exclusively an examination of MER but whether, whilst achieving MER, appropriate steps were being taken to assist the Secretary of State in meeting the net zero target, for instance by seeking to reduce as far as reasonable in the circumstances greenhouse gas emissions from sources such as flaring. As the defendant observes, the question of net zero considerations was undoubtedly relevant to their decision and properly read in context the passages on which the claimant relies show the defendant reflecting the materiality of net zero but not illegitimately treating it as competing with MER in their deliberations.

114. In short, no error of law can be detected in the decision of the defendant to prioritise its resources in declining to embark upon a detailed modelling exercise in circumstances where they have concluded for clearly articulated reasons that the limited remainder of production from the field was not a priority bearing in mind all of the other calls on their resources. A margin of appreciation needs to be afforded to the defendant exercising its regulatory functions and prioritising the finite resources which it has. The claimant’s suggestion that the defendant failed to understand the requirements of the 1998 Act or the Strategy are not well founded and there was no misdirection in the defendant’s operation of its supervisory powers or its approach to the giving of the section 29 advice. Ground three of JR1 cannot be sustained. Ground Four: Failure to Consider Material Considerations

115. The claimant’s more limited submission in relation to ground four is that the section 29 advice makes no reference to MER, and that where MER is referenced in some of the defendant’s internal correspondence, as already noted in respect of ground three, the references impermissibly suggest that net zero is a competing consideration to MER. This ground can be dealt with shortly.

116. The absence of any reference to MER is by no means dispositive of whether or not the defendant failed to have regard to MER as a material consideration in the section 29 process. The narrative of events which has been set out extensively in the Annex to this judgment clearly demonstrates that the defendant was frequently engaged in considerations related to forming judgments about MER and expressly identifying that they were seeking to reach conclusions in respect of MER. None of this background can be overlooked in considering the section 29 advice process, and the wider context demonstrates that the defendant was fully alive to MER as a material consideration. The question of the correspondence referred to under ground three has already been addressed and for the reasons given this material does not show any misdirection. Ground Five: Breach of Tameside Duty

117. The claimant’s submission is that even if the defendant’s failure to carry out economic analysis of Total’s proposals was not a breach of statutory duty, it was certainly a failure to make suitable and appropriate enquiries in breach of the Tameside duty on the defendant. The relevant principles which can be gleaned from the authorities in respect of the Tameside duty were set out in paragraph 100 of the decision of the Divisional Court in R (on the Application of Plantagenet Alliance Ltd) v Secretary of State for Justice and Others [2014] EWHC 1662 as follows: “100. The following principles can be gleaned from the authorities: (1) The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable. (2) Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R (Khatun) v Newham LBC [2005] QB 37 at paragraph [35], per Laws LJ). (3) The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC (1990) 22 HLR 406). (4) The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R (Khatun) v Newham LBC (supra) at paragraph [35]). (5) The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in (R (London Borough of Southwark) v Secretary of State for Education (supra) at page 323D). (6) The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 466G).”

118. The claimant’s case is that the Tameside duty required the defendant to undertake an economic analysis of the viability of continued production from the Gryphon FPSO in the light of the dispute which had emerged as to whether or not operations should continue to the end of 2027.

119. The reality is that the conclusions in relation to grounds three and four also impact upon the viability of ground five. For the reasons which have already been given, the conclusion has been reached that the defendant was not required to undertake that economic analysis in order to properly discharge the statutory requirements of section 29 of the 1998 Act and the other duties which were engaged as a result of the 1998 Act . For those reasons paragraphs 100(2) and (3) of Plantagenet Alliance undermine the claimant’s position in relation to this ground. Given the findings which have been set out above in respect of ground three and four it is not possible to conclude that it was irrational for the defendant to fail to undertake this further economic analysis, or that no reasonable authority in place of the defendant could have been satisfied that it had the information necessary to provide the section 29 advice. As set out above, it is clear from the narrative of events that the view taken by the defendant on the basis of evidence before them was that the Gryphon hub was not a priority and the resources which would have needed to have been deployed to undertake this analysis could not be justified. It was for the defendant to determine the manner and intensity of the enquiry which was required and it is clear from the documentation that an evaluation of whether the economic analysis was required was made and the decision which was reached was one which was rationally open to the defendant. Ground five must therefore be rejected. Ground Six: Failure to Give Legally Adequate Reasons

120. The claimant submits that in providing the section 29 advice the defendant, having rejected the submissions by the claimant and preferred those of Total on a number of important matters related to the consistency of decommissioning with MER and the appropriateness of Total’s rejection of the claimant’s offer to operate the Gryphon FPSO, failed to provide adequate reasons which explained to the claimant why those contentions had been rejected and Total’s position preferred. Furthermore the defendant gave different reasons to the affected parties for giving the section 29 advice in the form in which it emerged. In particular, the claimant draws attention to the letter written by Ms Innes to Mr Bates on 16 July 2024 in which she responded to questions which had been raised by Mr Bates in his letter of 12 June 2024 following the issuing of the section 29 advice. In response to these submissions the defendant contends that the reasons which were provided by the defendant to the claimant on 16 July 2024 were both intelligible and adequate and explained to the claimant why the defendant had reached the conclusions which it had. Furthermore the defendant contends that in substance there is no material distinction between the letter which was written to Total setting out the section 29 advice on 6 June 2024 and that which was sent on 16 July 2024.

121. The duty to give reasons was definitively formulated by Lord Brown in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36 and it is unnecessary to set that paragraph out here. It is trite that where reasons are volunteered they must be intelligible and adequate. The reasons set out in the defendant’s letter of 16 July 2024 set out the basis for the conclusions in the section 29 advice in a manner which was clear and legally adequate. The letter explained that the defendant considered Total had demonstrated that it had assessed, but been unable to identify, viable alternatives to decommissioning. In respect of continued use, the letter noted that Total had rejected the claimant’s offer to buy the Gryphon FPSO. The work plan set out in the decommissioning strategy was noted to ensure that the cost of conducting decommissioning would be kept to the minimum reasonably practicable. The reasons given in the letter enabled the claimant to understand why the defendant had given section 29 advice in the form that they had. The defendant did not provide the claimant with the section 29 advice decision at or shortly after the time that it had been issued. However, that does not in and of itself directly impact on the adequacy of the reasoning provided by way of the letter of 16 July 2024. Moreover, whilst in relation to Total’s rejection of the claimant’s offer to purchase the Gryphon FPSO a little more detail is provided in the section 29 advice decision, two points need to be observed. Firstly, it was not necessary for the defendant to give reasons for its reasons and, secondly, that is especially the case in circumstances where Total’s letter of 16 May 2024 had comprehensively set out for the claimant all of the reasons for Total rejecting the offer which they had tabled, which the defendant had obviously accepted was a reasonable stance. In the circumstances it is not possible to conclude that the defendant failed to give adequate reasons for its decision under section 29 or, more pertinently, that the reasons given to the claimant were not legally adequate.

122. For all of the reasons which have been set out above, each of the grounds on which JR1 has been advanced must be rejected and the application for judicial review in JR1 is without merit. JR2 Ground One: Section 32 Advice Based on Unlawful Section 29 Advice

123. The claimant’s contention in relation to ground one of JR2 is that, on the basis that the section 29 advice provided by the defendant was unlawful, this illegality vitiated the section 32 advice which the defendant furnished to OPRED. The conclusion has already been reached that there is no basis to impeach the lawfulness of the section 29 advice, and it follows from this that the foundation for ground one in JR2 has not been established. On this basis the contentions in relation to ground one of JR2 must be rejected. Ground Two: Predetermination and/or Bias

124. In support of this ground the claimant relies upon the factors set out in respect of ground one of JR1, and in particular the continued involvement in the process of Ms Wyllie. In addition the claimant relies upon four examples of suggested predetermination and bias. The first involves reference to the defendant’s internal email from Mr Sadeghi to Mr Knight, Ms Wyllie and Mr Brotherton on 9 July 2024 and his reference to being happy “to discuss tactics going forward amongst us”. The claimant contends that, firstly, this illustrates that the defendant was undertaking a concerted effort to thwart the claimant’s desired outcome of continued oil production and, secondly, illustrates the continued heavy involvement of Ms Wyllie in the section 32 process. Secondly, the claimant relies upon the fact that the defendant informed them on 7 November 2024 that it would be sharing a draft of its advice with the claimant “shortly” at a time when it had not even received the necessary economic information. This reference and the evidence generally suggest that significant work on the section 32 advice had already been carried out and that the defendant had already reached a predetermined conclusion without any formal economic analysis.

125. Thirdly, the claimant relies upon what it characterises as the frequent imposition of entirely unreasonable deadlines for the claimant to input into the section 32 advice and the attempt to exclude the claimant from remedies and protect Total from any claims. For instance, on 17 October 2024 Ms Wyllie set the claimant a deadline of 21 October to provide its detailed information about their proposal. There was no need for this short time frame as OPRED frequently extended the deadline for the response from the defendant. In addition, Total favoured the claimant being given a short deadline for responses. Fourthly, the defendant made further enquiries with Total to clarify elements of the economic analysis but made no such enquiries of the claimant. For instance, the defendant contacted Total to see whether the claimant’s strong production forecast was due to fewer maintenance shutdowns occurring in 2024 which Total incorrectly affirmed and the defendant accepted. No contact in respect of this issue was made with the claimant.

126. The defendant responds to these submissions by firstly emphasising the independence that was brought to bear on the provision of the section 32 advice. Firstly, Ms Hepworth, who had had minimal involvement in the preparation of the section 29 advice, was commissioned as the lead reviewer responsible for preparing the section 32 advice. She engaged in an iterative process drawing together material from the relevant specialists within the defendant’s various teams. Mr Brooks was identified as the accountable person on the basis that he had not been involved in any stage in the decommissioning of the Gryphon FPSO and so could therefore review the matter afresh. Mr Brooks set aside time to independently review the section 32 advice and took his own soundings, for instance from Mr Moulds on 6 February 2024. The defendant submits that this process would inevitably lead the fair minded and well-informed observer to conclude that there was no risk of apparent predetermination or bias in the process which the defendant adopted. Furthermore, the defendant accepts that Ms Wyllie was involved at various stages of the process addressing questions raised by Ms Hepworth and drawing together responses from, for instance, the economics team and commissioning her team to review and stress test economic analysis from the claimant. She coordinated communication with the claimant, Total and other interested parties during the time when the section 32 advice was prepared. However, the defendant emphasises all of this input was supervised by Ms Hepworth and subject to the independent review by Mr Brooks.

127. Turning to the four examples relied upon by the claimant, the defendant observes that when placed in context the email of 9 July 2024 from Mr Sadeghi mentioning discussing “tactics going forward” arose in relation to the exchange of emails between Mr Pogson and Mr Knight concerning an exchange of emails which had occurred on 2 July 2024, and the absence of dialogue between the claimant and Total. This email arose in the context of the defendant exercising its stewardship functions over the life cycle of the oil and gas field. In any event, it was perfectly sensible for the defendant to review available tactics in circumstances where they were, as Mr Knight described, in a “bind”.

128. So far as the second point is concerned, in fact when read in context the reference to contacting the parties “shortly” was in respect of the process for seeking the claimant’s observations on the draft section 32 advice and how the consultation process would work. Moreover, the defendant points out that no complaint was raised by the claimant’s solicitors in respect of the use of this language at the time. The defendant submits in relation to the third example provided by the claimant that, whilst the deadline was set on the basis explained by Ms Wyllie that all of the information being sought should have been available to the claimant, nevertheless the claimant requested and was granted an extension. At no point was the claimant ever refused an extension to a deadline when it asked for one. So far as the final example is concerned, the defendant submits that the reality of the situation was that the defendant was seeking to balance Total’s entitlement to sustaining commercial confidentiality in respect of sensitive information with the need for the claimant to make effective representations on the draft section 32 advice. This is what led to an extensive negotiation about undertakings resulting in an agreement as to their appropriate form.

129. Having considered these matters, and reviewed the totality of the material and in particular the documentary record, the contention that there is evidence upon which a well-informed and fair minded observer would form the conclusion that the defendant was even apparently reaching a decision which was the subject of predetermination or bias is unsustainable. The reasons for rejecting the claimant’s contentions in respect of JR1 have already been fully set out and need not be repeated. It cannot be accepted that Ms Wyllie was apparently biased in her dealings with the claimant, or that the evidence of her involvement in the section 29 advice process showed apparent predetermination or bias. Her involvement in the 32 advisory process reflects the same professionalism which she brought to bear in supporting the section 29 advisory process.

130. It is also of significance, as the defendant observes, that entirely different and independent personnel were commissioned with the task of reviewing and preparing the section 32 advice in the form of Ms Hepworth and Mr Brooks, who brought an entirely fresh pair of eyes to bear upon the issue. It cannot be accepted that any of the four examples referred to by the claimant provide any material support to their case. The observations of Mr Sadeghi in his email of 9 July 2024 have to be placed in their proper context, namely that there was a stewardship issue raised by a potential breach of the Strategy arising from the claimant’s request for compensation in excess of a fair market value to exit from the Q9GP project in the form of making it a condition of their exit that the Gryphon FPSO continue in production, and the stalling of any progress which this development had given rise to as recorded in the exchange of emails between Mr Pogson and Mr Knight. In that context it was unsurprising that the defendant was seeking to examine the tactics that they might employ in order to attempt to move matters forward in the interests of their long-term stewardship of the oil and gas field. This email, whether taken in isolation or in the context of the wider narrative, is simply incapable of supporting a credible allegation that the defendant was approaching their task in respect of the section 32 advice from a position of apparent predetermination or bias.

131. The second example, the use of the word “shortly” in the letter of 7 November 2024, takes that word entirely out of the context in which it was written. As the defendant observes, this adverb related to providing the claimant with information in relation to the consultation process and was not a suggestion that some predetermined outcome for the section 32 advice had been reached. Similarly, the third example is without merit. Whatever may have been the wisdom of setting the deadline which the claimant relies upon, it was not pursued and the claimant was granted an extension and thus it is farfetched to suggest when viewed in the context of the narrative of events that the setting of this deadline bespeaks apparent predetermination or bias by the defendant. The final example, similarly, is of no assistance to the claimant. There plainly needed to be discussion as to the appropriate terms upon which Total’s confidential information could be released to enable the claimant to be fully engaged in the section 32 process. Those negotiations were fruitful and agreed by the claimant. Nothing turns on the defendant seeking further information from Total about Total’s economic analysis nor would the well-informed and fair minded observer be concerned that the making of those enquiries showed that the defendant had apparently already made up their mind or were biased against the claimant.

132. In addition to these specific examples, consideration has been given to the additional issues raised in paragraph 89 of the claimant’s statement of facts and grounds in JR2 insofar as it is suggested that the retirement of the CoP process in favour of the stewardship procedure demonstrates apparent bias or predetermination. That is a submission which is entirely without merit. The decision reached by the defendant to retire the CoP process for the reasons set out in the narrative of events is a decision which was not challenged at the time and has been carefully explained. Having scrutinised the specific allegations made in paragraph 89 and also at the hearing against the backdrop of the totality of the narrative of events and the specific instances relied upon by the claimant, the contention that in reaching the decision on the section 32 advice the defendant exhibited apparent predetermination or bias is not sustainable. Ground Three: Flaws in Assessment of Continued Use

133. Within this ground the claimant relies upon several distinct arguments that there were legal errors in the assessment made by the defendant of the issue of continued use of the Gryphon FPSO within the section 32 advice. It is convenient to deal with each of these separate arguments in turn.

134. The first contention is that the defendant’s reliance upon societal carbon values in paragraphs 2.11 and 2.12 of the section 32 advice was illegitimate. Societal carbon values are set to reflect the social and economic cost of greenhouse gas emissions to the UK and are different from, for instance, the cost of purchasing a carbon credit in a relevant carbon capping scheme. The claimant observes that the incorporation of the societal cost of carbon values increased the costs of production and therefore accelerated the time for CoP. The claimant contends, firstly, that the definition of “economically recoverable” in the Strategy does not suggest that societal carbon costs will be taken into account in assessing MER but rather that such costs will be taken into account “where relevant”. The claimant notes that the explanatory evidence of Mr Moulds seeks to contend that not only were societal carbon values relevant to his economic analysis in this case, but also that they would be relevant “in any analysis of economic recovery of petroleum undertaken by the economics team”. This suggests an undisclosed policy that contrary to the Strategy consideration of societal carbon values were always required in any economic assessment. This further gives rise to a fettering of discretion by the defendant. The defendant’s reliance upon an explanatory note on the Valuation of Greenhouse Gasses is also misplaced because whilst it states that the societal costs of emissions are an integral component of expected economic value estimates for activities undertaken in the UKCS, this explanatory note is incapable of changing the meaning of the Strategy. Moreover, the approach again exhibits the same misunderstanding of MER by effectively suggesting that the achievement of net zero is an additional and competing objective to MER. Furthermore, the claimant contends that it was irrational for the defendant to include societal carbon values in undertaking this economic evaluation because they are not relevant to when production of petroleum will become uneconomical for a particular individual operator. That is the specific question posed by paragraphs 26 to 28 of the Strategy. The defendant fails to explain why the defendant took the approach which it did.

135. In response to these submissions the defendant places reliance upon the evidence of Mr Moulds who was responsible for this aspect of the section 32 advice. He deals with the issue of societal carbon values in his witness statement in the following terms: “20. Given the nature of the economic analysis that the Economics Team is currently requested to undertake (see paragraph 12 above), and in line with my understanding of the NSTA’s obligations as set by the OGA Strategy (as amended in 2021 as described above), it will be relevant in any analysis of economic recoverability of petroleum undertaken by the Economics Team to take into account an estimate of the societal impact of the carbon emissions (not just the UK ETS carbon cost that I explain in paragraph 25 below). This is because the recovery of petroleum has carbon emissions implications, which in turn has societal costs, so those societal costs of carbon emissions are inherently relevant to any economic analysis of the recovery of petroleum. I cannot think of a situation or specific example in which it would not be relevant for the Economics Team to take the societal impact of any change in carbon emissions into account in its analysis of economic recoverability.

21. This is consistent with HM Treasury Guidance on Appraisal and Evaluation in Central Government (the “Green Book”), which (among other things) requires Government (and by extension therefore the NSTA) to take full account of the impacts of climate change on society in appraising projects and activities [ACM2/018-182]. It is relevant to calculate the societal value of emissions in this way where there are expected to be quantifiable, non-zero changes (increases or reductions) in the volume of emissions as a result of a proposed project or activity. I am not aware of any explicit definition or guidance produced by the NSTA on the use of this term or its application to activities undertaken by relevant persons. In my view that is because it is intended to be interpreted as described here, in that the societal carbon costs will always be considered relevant where there are changes in the volume of emissions. Failure to include these societal carbon costs in economic appraisals would therefore not provide a robust assessment of the full impact of production related activities, which could in turn lead to incorrect conclusions on the net societal economic value of projects or options therein. To explain what I mean by the societal impact or societal costs of carbon emissions, I refer to the OGA Plan to reduce UKCS10 greenhouse gas emissions, which was published on 27 March 2024 (the “OGA Plan”) [ACM2/183-196], and to which I also referred in paragraph 8 of my First Witness Statement. The OGA Plan explains, at paragraph 7, that “It is important that industry recognises that the full societal costs of emissions are markedly larger than those that they incur directly through market-based carbon prices. In preserving their social licence to operate, relevant persons should therefore also consider as one factor the societal costs of emissions in their overall decision making.””

136. The defendant relies upon this evidence to demonstrate that Mr Moulds had a clear justification for the approach which he took to this issue on the basis that, as he explains, if an activity involved a change in carbon emissions it would generally be relevant to assess the value of that activity from a UK-wide perspective and for the UK. If another approach were taken those costs would simply be left out of account, resulting in the overvaluation of the petroleum examined. The defendant submits that it did not do anything with regard to societal carbon values to suggest that it considered net zero to be an additional or competing objective to MER. By taking account of the societal costs of carbon the defendant produced a fuller and more accurate assessment of the value to the UK of extracting the petroleum and in doing so assisted the Secretary of State to achieve net zero “because an emission-generating activity, the full societal cost of which outweighed its benefits, i.e., which was a net negative value proposition for the UK, would not continue”. It was not irrational for the defendant to consider societal carbon values because the task was to assess whether the extraction of petroleum was uneconomic from a UK-wide perspective, and if it was there would be no question of the operator having decided not to maximise the economic recovery of petroleum and the question of divestment pursuant to paragraphs 26 to 30 of the defendant’s strategy would not arise.

137. Prior to reaching a conclusion on these arguments it is important to emphasise the legal context in which these and the other sub-grounds under ground three arise. They are, in essence, allegations made pursuant to Wednesbury principles, including allegations related to the Tameside duty. Thus, subject to the Tameside duty, it was for the defendant to determine what was relevant information and the manner and intensity of the enquiry to be undertaken in reaching its conclusions on the advice: see R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 at paragraphs 55 to 57. The case of R (Mott) v Environment Agency [2016] WLR 4338 was concerned with questions relating to the adequacy of a model which was being used to evaluate the extent to which salmon caught in the Severn Estuary Fisheries included salmon which had originated in the River Wye, with consequential impacts on the spawning targets for the Wye fishery. Arguments were raised in relation to the rationality of the modelling underpinning the Environment Agency’s decision. In respect of these arguments, Beatson LJ observed as follows at paragraphs 77 and 78 of his judgment: “77 More broadly, in the Abolition of Vivisection case May LJ stated at para 1 that scientific analysis “is not immune from lawyers’ analysis” but a reviewing court must be “careful not to substitute its own inexpert view of the science for a tenable expert opinion”. A reviewing court should be very slow to conclude that the expert and experienced decision-maker assigned the task by statute has reached a perverse scientific conclusion. May LJ also stated at para 15 that the assessment of the effect on animals of tests which were part of research into the functioning of the human brain made when a project is licenced is a predictive assessment. The dividing lines between the different categories of effect “are more a matter of scientific judgment than legal analysis”. So too, in my judgment is the adequacy of a model used to estimate percentages of fish originating from a given river or whether a fishery exploits “predominantly mixed stocks”. 78 In the present case the decisions were based on three principal factors. First, the agency s assessment on the basis of the shortfall in egg deposition that the salmon fishery in the Wye is at risk of becoming unsustainable, which was not challenged. Secondly, the views of the researchers and the agency, reflecting a broad scientific consensus, that salmon return to their rivers of origin to spawn. Thirdly, the genetic data gathered from the 55 fish taken from the estuary and the ONCOR, GeneClass2 and cBayes models used in the Exeter report to estimate their rivers of origin. The decisions were thus made against an unchallenged assessment as to the risk to the Wye and a background assumption on which there is scientific consensus that salmon return to their river of origin to spawn. The decisions were then the result of an amalgam of assessments which are in part factual and in part predictive in nature. They also involved consideration of other factors, such as how to balance the interests of those primarily affected with the wider public interest, and how factors such as the “heritage installation” aspect should be factored into the decision and are in this sense “polycentric”. I respectfully agree with the statement of Lightman J in Ex p Cellcom Ltd [1999] ECC 314, para 26 that “if . . . the court should be very slow to impugn decisions of fact made by an expert and experienced decision-maker, it must surely be even slower to impugn his educated prophecies and predictions for the future”.”

138. With these principles in mind it is clear that there is no legal error in the approach which was taken by the defendant in respect of societal carbon values. Whilst the claimant seeks to suggest that the defendant, through Mr Moulds, failed to properly understand that there was a discretion as to whether or not such costs were relevant in the economic analysis, the defendant is entitled to rely upon the evidence of Mr Moulds which explains and justifies why they were in fact relevant to the exercise which he was undertaking. The discretion was exercised to take them into account for the reasons Mr Moulds gives. Mr Moulds’ evidence provides a clear and adequate justification for the approach the defendant took in respect of the inclusion of this consideration. This is not evidence of an undisclosed policy but rather evidence which identifies why, applying the definition provided by the Strategy for “economically recoverable”, there was a sound basis for including these costs in an assessment which, pursuant to the Strategy, was relevant to the assessment of the value of the activity to the UK as a whole. This context dispenses with the claimant’s argument that the exercise should have been focused on what was uneconomical for a particular operator: the defendant was seeking to assess the issue from a UK-wide perspective. For the reasons set out by the defendant, the approach which was being taken in this case properly reflected the role of achieving net zero within the context of assessing MER and without regarding net zero as some additional or competing objective. In any event, akin to the case of Mott , the defendant was an expert authority assigned by statute with the task of making this assessment and in doing so they were entitled to rely upon the expertise and independence of Mr Moulds. The claimant’s suggestion that they had taken into account a wholly erroneous consideration in undertaking the economic assessment is entirely unpersuasive.

139. The second aspect of ground three is the contention that the defendant failed to properly analyse Total’s economic information. In particular, the claimant contends that the section 32 advice contained the legal error that it relied upon production forecasts from 2022 which were out of date, especially since the defendant now has actual data for the Gryphon area fields from 2022 through to 2024. It was therefore illogical and irrational to use the figures from the 2022 forecast. The claimant contends the problem is compounded on the basis that the 2022 forecast was used on the advice of Ms Wyllie who assumed that the 2022 data was more representative because operators nearing CoP typically reduced maintenance and therefore maintenance pitstops. As a consequence there would be increased oil production. These assumptions are said to be irrational as they would have ignored the possibility that increased production could be as a result of better than expected performance or optimised reservoir management. Furthermore, the claimant relies upon the fact that, of the three scenarios modelled by the defendant in the section 32 advice, all three indicated that CoP by the end of 2025 would be reasonable and only scenario A supported CoP at the end of 2024.

140. The defendant responds to these submissions by observing that the defendant’s obligation is to act in accordance with the Strategy and the central obligation which required that “relevant persons” (that is Total) should maximise the economic recovery of petroleum. Total had estimated the CoP date in late-2022/early-2023 and the conclusion that the defendant had reached was that it was appropriate for Total to have done so bearing in mind the data available to it at that time and thus to have planned for CoP accordingly. This was particularly the case since, as observed in paragraph 2.16 of the section 32 advice, the decision Total reached aligned with the stewardship expectations to plan for an orderly transition from late-life operation of infrastructure through CoP into decommissioning to avoid reactive decommissioning. This is a key consideration in delivering the central obligation. This conclusion, the defendant submits, cannot be sensibly challenged on the basis of the material before the defendant. Furthermore, the defendant contends that the effect of the claimant’s approach would be that a relevant person would have to continuously review and potentially reverse a decision to CoP dependent on an iterative examination of the available data and that that is not a reasonable approach to the stewardship of the oil fields for which the defendant is the expert regulator.

141. It follows from the defendant’s contentions that Ms Wyllie’s position was not the only reason why the defendant considered it appropriate to use data from late-2022/early-2023, albeit that her concerns were legitimate and provided a further reason why it was appropriate to consider the forecasts produced at the time when Total made their assessment. In relation to the outputs of the modelling the defendant observes that scenario A, which replicated Total’s assessment at the time of its decision, was the most material to the defendant’s judgment and supported the conclusion which Total had reached. As to scenario B, that suggested that the hub would only have a “marginally positive net value in 2025 (approximately £12 million)” and Mr Moulds explains in his evidence that it is reasonable for an operator to cease production before the year in which the net economic value of the hub would become marginal to avoid the risk of carrying out loss-making activity. The most favourable scenario from the claimant’s perspective, scenario C, only predicted a net value in 2025 of £29 million and was in any event based on price data from 2024 which was not available to Total at the time of making their assessment. In the light of inherent uncertainty in respect of any modelling, the defendant’s conclusion was reasonable.

142. In evaluating these submissions it is once again necessary to have regard to the principles set out in Pharmaceutical Services Negotiating Committee and Mott . This ground is centrally dependent upon the choice of inputs which was made by the defendant for the purposes of the various modelled scenarios and relates to a modelling exercise undertaken by an expert economic analyst. The explanation provided by the defendant founded upon paragraph 2.16 of the section 32 advice fully explains the propriety of taking the forecasts from late-2022/early-2023 as the basis of the undertaking of the modelling of the question of whether or not it was appropriate for Total to make the decision to CoP at the time when that conclusion was reached. Again, the approach to the exercise, taking account of the circumstances at the time when the decision to CoP was reached, was undoubtedly a reasonable approach to the defendant’s exercise of its stewardship responsibilities for the oil fields in the basin. As the expert regulator, the defendant was entitled to assess the question of Total’s compliance with the central obligation by asking whether or not the decision to cease production and decommission the FPSO was reasonable on the data available to it at the time when the decision was made. Further, the submission that the claimant’s suggestion of revisiting and reevaluating the decision to CoP after it had been made would create unnecessary uncertainty in a decision-making process which is lengthy, complex and requires investment is obviously reasonable and appropriate. On this basis as the defendant observes, the opinions of Ms Wyllie as to the possibility that production might be higher in recent times was far from the only reason why the defendant used the data from late late-2022/early-2023. It was not the justification for the use of that data but, as the defendant observes, her assessment was a further reason for the decision which was taken in respect of the data to be used.

143. The claimant’s final submissions in relation to the scenarios face the difficulty that for the reasons given, for instance in paragraphs 2.17 and 2.27 of the section 32 advice, what the claimant was engaged with was undertaking a judgment upon the conclusion of a range of modelling exercises which were themselves assessments subject to inherent modelling uncertainties. Based on the outcomes of the modelling exercise it is simply not possible for the claimant to demonstrate that the judgments which the defendant reached in this inevitably complex assessment were the subject of legal error as suggested.

144. The third issue raised under ground three by the claimant is that the defendant’s treatment of future integrity issues to the Gryphon FPSO was unlawful. The claimant draws attention to paragraph 2.19 of the section 32 advice which has been set out above. The claimant complains, firstly, that the defendant’s view of possible integrity issues was based on nothing more than an assumption from Ms Wyllie that as an asset comes to the end of its life it can experience significant incidents or outages. This is an assumption which was not based on any attempt to quantify the potential costs of any issues or their frequency in circumstances where Ms Wyllie accepts she would not normally be reviewing the operation and performance of individual FPSOs on a regular basis. Secondly, it was wrong for the defendant to rely upon notices served by the Health and Safety Executive in paragraph 2.18 of the section 32 advice since the claimant had observed that these were due to the shortcomings in Total’s operating procedures and maintenance practices, and not due to issues with the Gryphon FPSO’s integrity in circumstances where it had been recently certified for continued use until November 2027. Thirdly, the comparison between the Gryphon FPSO’s emissions with other floating assets was misconceived since there were other UKCS fields with significantly higher emissions. Fourthly, the analysis produced by the defendant appears to have proceeded on the assumption that the Strategy requires operators to achieve emissions reductions which is incorrect. There is no mandatory requirement for investment in emissions reductions within the Strategy or elsewhere, thus this was a misinterpretation of the Strategy or irrational. The Gryphon FPSO had the relevant emissions consents in place to operate successfully throughout 2024 and 2025.

145. In response to these submissions the defendant observes that Ms Wyllie’s judgment was based on her experience that as an asset came to the end of its life it could experience significant incidents or outages. This was a view also endorsed by Mr Brooks who took the same view based on his own experience. The defendant submits that this part of the section 32 advice related to outages and costs which were bound to be, of their very nature, unpredictable and that the defendant was reasonably entitled to observe, based on its regulatory experience, that were such risks to materialise they would have an adverse impact on the economic evaluation. The reference to the Health and Safety Executive improvement notices simply illustrated that unplanned works resulting from the notices was the type of risk that the advice was concerned with. There was no need for the defendant to attempt to quantify these risks and the claimant provides no mechanism whereby they might have done so. It was further reasonable for the defendant to take into account the expectation that the operator of the Gryphon FPSO would be expected to take steps to reduce the relatively high emissions to which it was giving rise. This intervention would require significant investment and was a further element of unaccounted for cost which it was reasonable for the defendant to take into account. The criticism made by the claimant that reduction of emissions is not a mandatory requirement misunderstands the tenor of the section 32 advice. It is accepted that there is no explicit requirement to reduce emissions but the defendant would expect relevant persons in compliance with the central obligation to be seeking to make reductions in emissions in order to assist the Secretary of State achieve net zero within the context of MER. Finally, it was not irrational for the defendant to observe and take account of the fact that the Gryphon FPSO was the worst performing floating asset in terms of emissions.

146. The conclusions in respect of these submission are as follows. There could be no doubt, based on uncontradicted factual material, that the Gryphon FPSO was an ageing asset. It was not irrational for the defendant to have taken this into account. In assessing the claimant’s submissions the overarching principles that have already been set out above need again to be carefully observed. The views expressed by Ms Wyllie were, in context, an exercise of judgment based upon her regulatory experience. They were views which it is apparent were shared by Mr Brooks. He sets out in his evidence that in reviewing the draft section 32 advice combined with his experience of late-life assets he “understood the operational downside risks that can occur with an older asset such as the Gryphon FPSO”. The claimant’s assertion that this is a pessimistic assumption which is not quantified in terms of costs or the kinds of issues involved is a long way from demonstrating that the court should conclude that the judgment of the extremely experienced officials engaged by the defendant were so erroneous or misconceived or based upon irrelevant considerations that the court should intervene to condemn their judgment and the section 32 advice as irrational. In a similar way, the reference to the improvement notices, read in the context of the section 32 advice, was clearly identifying that unplanned works had been a feature of the operation of the Gryphon FPSO. The failure to attempt to quantify either the risks, or the nature of the works that might arise or their cost was a product of the defendant exercising its own judgment as to what was necessary for the purposes of the task which they were considering in giving the section 32 advice. It was not unlawful for them to offer the views which they did without undertaking some kind of quantification exercise.

147. The claimant’s point in relation to their alleged flawed comparison between the Gryphon FPSO and other floating assets in terms of its emission performance is of no assistance. Within paragraph 2.19 of the section 32 advice the defendant was simply making a relevant comparison between the Gryphon FPSO and other floating assets which was pertinent to supporting the view that they had taken as to the cause of this and the likely risks of future costs arising. Within his evidence Mr Pogson counters this comparison by contending that if UKCS assets are considered as a whole, the Gryphon FPSO only contributed 4.4 per cent of the total central and northern North Sea emissions and is nowhere near the top of the analysis of all flaring assets. However, again, that is not the comparison that the defendant was making to illustrate the concern that of assets of its type, as a result of its age, it was potentially prone to future incidents, giving rise to costs. Taking account of that was entirely legitimate.

148. The claimant’s suggestion that the section 32 advice illegitimately sought to suggest that there was a mandatory requirement for an operator to achieve year on year emissions reduction is to misread and misunderstand the section 32 advice which does not suggest that there is any such explicit requirement. The point that was being made was that any kind of works to assist the central obligation and coincidentally assist the Secretary of State in achieving net zero was a further cost not specifically provided for in either Total or the claimant’s costs forecasts. In summary, therefore, there is no substance in the complaints raised by the claimant in relation to this issue.

149. The fourth element of the claimant’s ground three is their concern in relation to the defendant’s treatment of the claimant’s economic analysis submitted in the context of the section 32 advisory process. Three issues are relied upon. Firstly, the defendant rejected Nobel’s production profiles on the basis that, as set out above, Total’s 2022 forecasts should be preferred for the reasons already articulated in respect of the second element of ground three. This approach should be rejected. Secondly, as is now clear from the narrative set out in the Annex, the defendant’s assessment of opex in the section 32 advice was flawed. It appears that Ms Wyllie accepted the stewardship survey information provided by Total without question, leading to her applying pessimistic assumptions and inappropriate opex information being deployed in the modelling exercises. Thirdly, in relation to emissions, the profile relied upon by the claimant was rejected on the basis that it was markedly lower than the Total profile supplied in the UKSS 2022 and observed historical performance. The defendant did not accept the lower emission profile as there was no plan or investment profile to enable it to be achieved. The claimant complains that there is no explanation as to why Total’s profiles are to be preferred and why the claimant’s emissions profiles should not be deployed.

150. In response to these submissions the defendant relies upon its earlier contentions in respect of the second theme of ground three to the effect that it was reasonable for the defendant, when exercising its regulatory judgment, to prefer the data which was current at the time when the assessment of CoP was made and unaffected by any reduced maintenance strategy. Whilst the claimant relies upon evidence by Mr Phillip Harries, who is a consultant engaged by the claimant to provide technical studies and services in relation to, amongst other matters, field performance evaluation and reservoir management advice, the defendant points out that his evidence does not suggest that the claimant’s more favourable production profile was not influenced by the confounding factor of reduced maintenance in the period following a decision to CoP.

151. Turning to the question of opex the defendant accepts that the analysis which was set out in paragraphs 2.23 and 2.25 of the section 32 advice was flawed and Ms Wyllie was wrong to conclude that the opex data relied upon by the claimant and Total was artificially low because of reduced maintenance associated with imminent CoP. She had been misled by the manner in which Total had completed its 2022 stewardship survey. In any event, having conceded that a mistake had been made, the defendant addressed this in particular by the review and reassessment of the section 32 advice and its verification by Mr Brooks leading to the further advice to OPRED dated 13 May 2025. Thus, although an error had been made it was, in the defendant’s submission, immaterial. Firstly because it was appropriate to evaluate Total’s assessment of the CoP date by reference to the data available to it when that assessment was made rather than data produced with hindsight. Secondly because in any event the advice has been conscientiously reconsidered and reissued leading to no material difference in the advice to OPRED as to the question of whether or not CoP by the end of 2024 was a reasonable decision. Finally in respect of emissions the defendant contends that the conclusion which it reached in paragraph 2.26 as to the difference between the emissions profile submitted by the claimant and that supplied by Total in the UKSS 2022 is adequately reasoned and set out in the decision and represents a rational expert regulatory judgment.

152. Having evaluated these submissions the conclusion must be that the claimant’s submissions cannot succeed. The issues raised by the claimant in respect of the first issue, namely whether the defendant was correct to use the 2022 production forecasts, has already been largely engaged with above. For the reasons already given, the approach of the defendant was one which was reasonable and appropriate. The conclusions formed by the defendant in relation to the economic analysis preferred an approach based upon the data which was available to Total at the time when they reached their decision to CoP at the end of 2024. This was a judgment which was open to them in exercising their supervisory jurisdiction. Whilst the evidence of Mr Harries has been noted above, it is important to point out that the judicial review procedure is simply not capable of resolving a detailed scientific dispute as to the correct production forecasts to be used in a modelling exercise for this resource. Within these proceedings there was no scope (nor, correctly, any application) for oral evidence and cross examination, and the issue of the accuracy of production forecasts and which production forecasts should be favoured is one about which no doubt suitably qualified experts can reasonably disagree. These circumstances illustrate the importance of the public law principles set out, for instance, in the case of Mott . Technical disputes of this kind will be difficult to turn into genuine public law errors, in particular when the case concerns the conclusions of a specialist regulator with access to its own expert advice.

153. Turning to the second criticism in relation to the opex data, the error which arose in the defendant’s advice has been accepted and corrected. This was a responsible stance to take which has led to a further reconsideration of the basis upon which the advice to OPRED was provided. It has, however, not led to any change in the substance of the advice to OPRED, and so whilst there was undoubtedly a mistake in the first issue of the advice, that mistake has been re-examined and resolved in the further decision of 13 May 2025. Finally, so far as emissions are concerned, this is another example of the presentation of alternative sets of scientific or engineering forecasts where a regulator has had to exercise its expert judgment as to which is the data set that provides the sounder basis for reaching a decision. The defendant’s reasons for using the emissions profiles which they did are provided in paragraph 2.26 of the section 32 advice, and it was reasonable for the defendant to observe that there was no planned investment which might lead to lower cost carbon estimates in the analysis. The claimant has failed to demonstrate in respect of any of the criticisms of the economic analysis that it has put forward that the defendant has behaved irrationally or unlawfully.

154. The fifth element of the claimant’s case in relation to ground three is the contention that the defendant erred in law in relying upon Total’s purported compliance with its stewardship obligation. This contention is founded upon paragraph 2.16 of the section 32 advice which is set out above and provides as follows: “2.16 It is appropriate for the Owners to have assessed a CoP date based on the TEPUK data from late 2022 / early 2023 and planned for CoP accordingly. This aligns with the NSTA Stewardship Expectation 10 on Cost Effective Decommissioning as a planned and orderly transition, from late life operation through CoP into decommissioning, that avoids reactive decommissioning is a key consideration in delivering the Central Obligation.”

155. The claimant contends that it must be assumed from the fact that the defendant saw fit to mention Total’s stewardship obligations that the defendant was reliant upon the assumption that those stewardship obligations had been fulfilled. The claimant submits such an assumption would be incorrect and unlawful because the stewardship obligation in SE10 requires operators to plan for a six-year glide path to CoP which has not occurred. Insofar as the defendant suggests that the statement simply explains why it was reasonable for Total to have planned for CoP based on 2022 data, this does not excuse the defendant from being required to undertake its own assessment based on accurate and up to date data. This point further illustrates how the defendant’s premature support for CoP has become, in the claimant’s submissions, a self-fulfilling prophecy.

156. In response to these submissions the defendant observes that the claimant has misinterpreted paragraph 2.16 of the section 32 advice which was simply expressing the view that it was appropriate for Total to use the data available to it in late-2022/early-2023 when making its assessments because of the need for a planned and orderly transition “from late life operation through CoP into decommissioning”. The approach was, therefore, “aligned” with stewardship expectations. The defendant submits that it was not asserting in this paragraph that it had accepted Total had complied with SE10 and nor was it purporting to rely upon any such suggested compliance.

157. When paragraph 2.16 is read in the context of the section 32 advice as a whole, and approached bearing in mind the nature of this document, it is obvious that the defendant’s submissions are correct. The second sentence of the paragraph is merely making an observation that taking the data from late-2022/early-2023 and planning for CoP on that basis was aligned or consistent with SE10 given the encouragement that the stewardship expectation gives for a planned and orderly transition from late life operation via CoP and into decommissioning so as to avoid reactive decommissioning with its attendant costs and risks. The paragraph was not suggesting that the defendant accepted that Total had complied with the stewardship obligations, and so the premise of the claimant’s argument in respect of this point is not made out.

158. Having considered each of the ways in which the claimant has put its case in respect of ground three, the appropriate conclusion is that none of its arguments are made out nor do they demonstrate any error of law in the section 32 advice decision that the defendant reached. Ground Four: Flaws in the Defendant’s Approach to Divestment under Paragraphs 26 to 30 of the Strategy

159. This ground focuses upon paragraphs 2.34 to 2.53 of the section 32 advice in which the defendant addressed the questions arising from the application of paragraphs 26 to 30 of the Strategy. The claimant disputes the defendant’s contention that the defendant was not obliged to provide OPRED with advice in connection with these issues. The claimant goes on to make a number of submissions about why the defendant’s approach was unlawful. Firstly, at paragraph 2.37 of the section 32 advice the defendant asserted that, under the claimant’s proposal, ownership of the Gryphon FPSO would revert back to Total after CoP for Total to decommission and further states that Total considered this to be unacceptable. The claimant contends that at paragraph 2.38 paragraph 6 of the claimant’s proposal, which is set out, provides an alternative proposal to ownership of the FPSO reverting back to Total and thus paragraph 2.37 contained a clear and material error of fact which was also an error of law. Secondly, at paragraph 2.41 the defendant records Total’s position that reputational and financial risks associated with transferring the Gryphon FPSO were unacceptable without having undertaken any testing or interrogation in respect of that position. The claimant contends this is a further illustration of a pre-determined and/or biased view being brought to bear by the defendant.

160. Thirdly, at paragraph 2.44 the defendant concluded that there was no likelihood for a commercial transaction to be agreed between Nobel and Total for the purchase of the Gryphon FPSO, but the claimant submits that this was not relevant since Total was under an obligation under the Strategy which required it to divest that asset where there was economically recoverable petroleum. Fourthly, the section 32 advice did not include any conclusion that the claimant was not a technically or financially competent person, and these are the only requirements specified in paragraphs 26 and 28 of the Strategy. The refusal of Total to enter into an agreement was irrelevant to paragraphs 26 and 28 of the Strategy and this approach by the defendant again betrayed their bias and predetermination. Finally, the suggestion at paragraph 2.49 of the section 32 advice that there was no specificity to the claimant’s proposal was disingenuous and further evidence of bias and predetermination in the light of the fact that Mr Pogson had explained that the claimant’s offer was as specific as it could be given Total’s point blank unwillingness to engage.

161. In response to these submissions the defendant observes that its primary task was to advise OPRED on “alternatives to abandoning or decommissioning the installation or pipeline, such as reusing or preserving it”, not to advise on whether Total had complied with paragraphs 26 to 28 of the Strategy which appears to be the focus of this ground. The defendant had already concluded that paragraphs 26 to 30 of the Strategy were not applicable on the basis that the relevant person, namely Total, had not decided not to ensure or pursue MER. Given that the defendant had concluded that a CoP at the end of 2024 was compliant with the central obligation in respect of MER, paragraphs 26 to 30 were not applicable. What the section 32 advice went on to undertake was an examination of the evidence in the counterfactual circumstance that paragraphs 26 to 30 were applicable.

162. In respect of the allegations concerning paragraph 2.37 of the section 32 advice, the defendant points out that reading that paragraph in the context of the other paragraphs, including paragraphs 2.38 to 2.44, all that the defendant was doing in that paragraph was to set out the earlier proposal which the claimant had made to Total, and thereafter set it in the context of subsequent proposals, and Total’s attitude to them. As for paragraph 2.41 of the section 32 advice all that the defendant was doing at that point in the document was identifying Total’s subjective position in relation to the offer. This was an observation which was made on the way to the defendant’s own conclusions in paragraph 2.44 of the section 32 advice. If the defendant had considered the claimant’s proposal to be realistic it would not have been discounted simply because it was rejected by Total. That issue did not arise because the defendant did not consider the claimant’s proposal to be realistic for the reasons that were set out in the advice. The claimant’s criticism of paragraph 2.44 is misplaced since in circumstances where paragraphs 26 to 30 of the Strategy did not apply, the sole issue to be engaged with was whether there were alternatives to abandonment or decommissioning and an unrealistic and non-viable proposal could not reasonably be regarded as such an alternative.

163. The defendant submits that the claimant’s comments upon the absence of any conclusion that they were not a technically or financially competent person is of no assistance to their arguments. Firstly, paragraphs 26 and 28 of the Strategy were not engaged. Even if they were, it is not open to the claimant to submit that Total was required to divest itself of the Gryphon FPSO to a technically and financially competent person on any terms that person proposed. Paragraph 29(a) of the Strategy makes clear that the relevant person in the circumstances is only entitled to demand “fair market value” and “reasonable terms and conditions”. For the reasons which are set out in the section 32 advice, Total did not consider the terms and conditions of the claimant’s proposal to be reasonable, and again for reasons which are set out, the defendant also concluded that Total’s position was reasonable. Finally, the defendant responds to the claimant’s criticism of the suggestion that there was no specificity in the claimant’s proposal by referring to the detail set out in the section 32 advice about the significant steps, both regulatory and commercial, that could have been taken by the claimant without Total’s cooperation to demonstrate that their proposals were realistic but which they failed to undertake.

164. The starting point for considering and forming conclusions about these rival submissions is to assess the question of the applicability of paragraphs 26 to 30 of the Strategy. Those paragraphs appear under the heading “Actions where relevant persons decide not to ensure Maximum Economic Recovery”. It is clear that the defendant had formed the conclusion following the analysis set out in both the section 32 advice and the narrative of events that Total were not a relevant person who had decided not to ensure MER. Indeed, the conclusion which they reached was that CoP at the end of 2024 was MER compliant and consistent with the central obligation. The defendant’s submission that paragraphs 26 to 30 were not applicable, and that as a consequence the principal focus of their advice to OPRED needed to be on the question of whether or not there were alternatives to abandoning or decommissioning the installation such as reuse or preservation, is correct.

165. The approach taken in paragraph 2.35 of the section 32 advice reflects a judgment which on the facts was clearly open to the defendant. The section 32 advice needs to be read, as has been already observed, in context and as a whole, in the light of the nature of the document which it comprises. When that is undertaken it is clear that it is a misreading of the document to suggest that paragraph 2.37 contains a material error of fact. All that paragraph is doing is setting out a particular stage in the discussion of the various offers made by the claimant to Total to take over the operation of the Gryphon FPSO. The point relies on a partial and unfair reading of the section 32 advice and is without merit. Again, as the defendant submits, paragraph 2.41 when read fairly and in context is simply recording Total’s position in response to the claimant’s offer. There is nothing in this paragraph to suggest that if, independently of Total’s view, the defendant had regarded the claimant’s proposal to be realistic it would not have concluded that this was the case. Whilst the claimant criticises paragraph 2.44 of the advice and its conclusion that there was no likelihood of a commercial transaction being agreed between the claimant and Total for the purchase of the Gryphon FPSO on the basis that this was an irrelevant conclusion as Total were required to divest under the OGA, this submission overlooks the conclusion that the defendant reached (reasoned in paragraphs 2.45 to 2.49 of the advice) that the claimant’s proposal was neither realistic nor viable.

166. Similar considerations apply to the claimant’s criticism in respect of the absence of any conclusion the claimant was not a technically or financially competent person. Leaving aside the fact that the defendant had concluded that paragraphs 26 to 30 did not apply, the defendant is entitled to draw attention to the fact that even were the claimant to be a technically and financially competent person, the Strategy does not require the relevant person to divest on any terms whatsoever. Paragraph 29(a) of the Strategy is clear that a relevant person in these circumstances is entitled to demand fair market value and reasonable terms and conditions. Again, in the paragraphs from 2.44 through to 2.49 the defendant made clear the reasons why Total’s position was reasonable. These were all conclusions reached as a matter of judgment on the basis of the material presented to the defendant which were reasonably open to the defendant.

167. Finally, in respect of the absence of specificity, it is very clear from the advice that there were a significant number of steps which the defendant considered the claimant could have taken in the absence of cooperation from Total which would have reinforced the conclusion that they were presenting a realistic proposal for the transfer of ownership and operation of the Gryphon FPSO. Paragraphs 2.45 and the first paragraph 2.46 address the absence of necessary commercial arrangements and agreements being in place; the second paragraph 2.46 and 2.47 deal with the absence of regulatory requirements; paragraph 2.49 sets out the requirements for field operatorship which would need to be satisfied but which had simply not been addressed. In all of these circumstances it was clearly open to the defendant to conclude that there was an absence of specificity in the claimant’s proposal irrespective of the extent to which Total may have engaged in promoting the transaction. Ground four is therefore to be dismissed. Ground Five: Flaws in the Defendant’s Treatment of Decommissioning Cost Minimisation

168. The claimant relies upon section 32(7) (b) of the 1998 Act which requires the defendant to advise as to whether Total had complied with this obligation to frame its decommissioning programme so as to ensure that the cost of carrying it out was kept to a minimum. The claimant points out that Total decided to cease production at the Gryphon FPSO, and after that decision entered into contracts referred to in the section 32 advice in relation to the decommissioning process. These contracts were time-sensitive, including “regret” costs, and the contracts were entered into prior to approval of the draft decommissioning plan being obtained. The claimant adverts to evidence offered in JR1 that the cost of keeping the Gryphon FPSO on station after CoP and pending approval of the decommissioning plan are £4,161,616 per month excluding additional contractual losses which might arise by regulatory approval being further delayed. The defendant in its consideration of the issue of decommissioning costs in section 3 of the section 32 advice did not take account of the actual CoP costs which were being incurred principally as a result of CoP preceding any decommissioning approval. It is submitted by the claimant that this is irrational on the basis that the defendant’s own stewardship expectation requires consent to the decommissioning plan to be obtained at least two years prior to CoP, and states that binding contracts should not be entered into until relevant regulatory approvals have been obtained. The defendant’s submission that its only requirement is to consider whether costs are being kept to the minimum reasonably practicable in the circumstances which include the acceleration of CoP is perverse as it enabled Total to create a set of circumstances in which it would incur unnecessary costs, but which enable it to have the benefit of those circumstances when considering whether costs have been kept to a minimum.

169. The defendant responds to these submissions by pointing out that Ms Hepworth, who it will be recalled compiled the material for the section 32 advice, was not obliged to take account of the figure of £4,161,616 per month as she was assessing the framing of the draft decommissioning plan and, in any event, this figure as she explains in her evidence to the court is consistent with the post-CoP running cost figures which were included in the draft decommissioning plan. Secondly, the defendant observes that whilst it is the defendant’s general expectation that OPRED’s approval will be obtained before CoP it is recognised, for instance in Ms Hepworth’s evidence, that this may not always prove to be possible. In any event the stewardship expectation in SE10 does not require that binding contracts should not be entered into until relevant regulatory approvals have been obtained, but rather sets out a “high-level ambition” that the decommissioning plan should be reviewed and approved by OPRED two years prior to CoP during the early decommissioning planning phase, and that contracts be awarded in the two years prior to CoP during late decommissioning planning. However, compression of the timetable due to acceleration of a CoP date is not uncommon, and where it occurs the defendant works with the operator within that timescale. The reality is that a decommissioning plan can only be framed so as to ensure costs are kept to the minimum reasonably practicable in the circumstances in which they arise, and in this case the circumstances were that the CoP date had been brought forward, contracts entered into and production ended. Whether the costs of a decommissioning plan have been kept to the minimum reasonably practicable in the circumstances can only be assessed on the basis of the actual facts, not on the basis of a counterfactual in which circumstances giving rise to the relevant post-CoP running costs and regret costs would not exist.

170. Having received and considered these submissions, there does not appear to be any substance in the claimant’s contentions. So far as the complaint raised by the claimant in respect of the stewardship expectation, for the reasons which have been set out above, it has been adequately explained by the defendant that the stewardship expectation contains some flexibility in relation to circumstances where CoP has been brought forward. Further, there is logic in the defendant’s approach, which is that where CoP has been brought forward then the assessment has to be formulated on the basis of those facts, and the decommissioning plan framed accordingly, rather than on the basis of a counterfactual circumstance in which the costs might be different. Whilst the defendant properly accepts that Ms Hepworth did not have the figure of £4,161,616 before her when preparing the section 32 advice, as Ms Hepworth points out in her evidence she was assessing the post-CoP running costs set out in the decommissioning plan of £15,937,795 over four months. This figure is broadly equivalent to the figure which was provided by Total in the context of JR1.

171. The claimant attacks the reasoning provided in the section 32 advice at paragraph 3.13 which provides as follows: “3.13 Nobel has stated in its 6 January 2025 letter that, given the NSTA’s view on post-CoP running costs being considered high and the planned timetable as ambitious, the proper approach would be to postpone CoP to a point at which a sensibly timed decommissioning plan can be executed. The NSTA, in forming their position recognises that the costs are high, and this is due to maintaining the asset to the required Safety Case standards while still on-station and that the proposed plan is ambitious, however, the drive to achieve the ambitious timeline is to minimise the post-CoP running costs. Regardless of timing to the decommissioning programme, there is a risk of high post CoP running costs. It should also be recognised that delayed decommissioning would very likely result in higher overall decommissioning costs, such as increased rig rates for well decommissioning. The rig rates are increasing year-on-year and are likely to continue to do so as supply becomes scarcer (rigs being retired and / or going to other regions).”

172. The claimant contends that this reasoning defies logic on the basis that it is unsurprising that Total is ambitious to reduce post-CoP costs, but the reason why post-CoP costs have been incurred is because they decided to cease production early. This is a point akin to the claimant’s submissions that the analysis of decommissioning costs should have been undertaken on a different footing than grounded in the facts, on the basis that the stewardship expectation was that approval of the decommissioning plan should have been obtained prior to CoP. Again, as the defendant has observed, the stewardship expectation does not require this in every case and in cases like the present where in fact an earlier CoP is planned the nature of the assessment of decommissioning costs undertaken by Ms Hepworth is entirely appropriate. Paragraph 3.13 is clear and expresses a reasonable judgment open to the defendant and based upon the circumstances of the case being assessed. Thus, ground five does not give rise to any basis to conclude that the defendant’s decision was unlawful. Ground Six: Article 1 of the First Protocol

173. The claimant contends that as a result of the defendant’s actions in giving the with domestic law, there has been an interference with the claimant’s “possessions” (in the form of the licences in interests the claimant has in the Maclure and Ballindalloch oil fields) within the meaning of Article 1 Protocol 1 of the ECHR. That unlawful interference is a violation of Article 1 Protocol 1 of the ECHR and as such the claim gives rise to a claim for damages. section 32 advice being incompatible

174. The difficulty for the claimant in relation to this ground is that as a result of the examination of each of the grounds raised by the claimant set out above there has been no unlawful conduct on the part of the defendant in respect of either the section 29 advice to Total or the section 32 advice to OPRED. In those circumstances there is not, therefore, any illegality which could give rise to any legally relevant interference with the claimant’s possessions. It is therefore unnecessary to examine the arguments raised by the defendant in relation to whether the claimant’s case is partially out of time, whether the claimant’s rights amount to a possession, or the question of whether an interference can be made out. In the absence of any finding of unlawful conduct on the part of the defendant it has not been suggested by the claimant that its advice was in any way a disproportionate interference with any possession of the claimant and in any event such an allegation would be bound to fail. There is therefore no substance in ground six. Overall Conclusions

175. Having examined the merits of both JR1 and JR2, for the reasons which are set out above neither of these applications can properly succeed on the merits. It follows that there is, therefore, no need for final conclusions to be reached in relation to the procedural issues raised by the defendant, Total and OPRED as to whether or not either of the decisions under challenge in this case are properly susceptible to an application for judicial review. Even accepting the claimant’s arguments that none of these procedural objections are a bar to the claims, the claims themselves are incapable of justifying any grant of relief. In the light of these conclusions the application in JR1 must be dismissed and permission for JR2 to proceed must be refused. As a result of this both of the claimant’s applications for judicial review must fail. Lord Justice Males:

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

177. 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.

178. 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.

179. 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.

180. 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.

181. 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.

182. 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.

183. 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.

184. 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.

185. 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.

186. 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.