Ofwat desperation

At Tuesday’s in-person hearing in front of Mr Justice Bourne to decide whether Wild Justice will be given permission to proceed to a substantive hearing for judicial review of Ofwat’s failure to regulate discharges of sewage into rivers, the relationship between judicial review and environmental review by the new Office for Environmental Protection (OEP) was raised.

Ofwat suggested (only days before the hearing) that the commencement of an OEP investigation (prompted by a complaint by WildFish (formerly Salmon and Trout Conservation)(click here for details of the complaint)) should undermine the case for permission being granted for examination of Wild Justice’s legal challenge. The OEP wrote to the court in response to Ofwat’s skeleton argument and Charles Morgan (representing the OEP) appeared at the hearing to confirm that the functions of an OEP investigation, and any subsequent enforcement action, are quite distinct from the pursuit of a remedy via judicial review.

This will be a comfort to claimants who may otherwise have been deterred from pursuing judicial review on the basis that a future complaint to the OEP could be used by defendant public bodies as a way of preventing their claim from going ahead and pursuing the remedies available through judicial review.

Wild Justice is grateful to the OEP for taking immediate steps to clarify the relationship between the two parallel processes.

In our view, Ofwat is casting around somewhat desperately to try to avoid public scrutiny of its actions.