High Court Refuses Permission To Challenge Rejection Of Late Application Under Regulatory Scheme

The High Court has shown how strictly deadlines set by regulators can be enforced in Intelligent Land Investments Group PLC v Gas and Electricity Markets Authority [2026] EWHC 336 (Admin). In this case, Intelligent Land Investments Group PLC (ILIG) was refused permission for judicial review to challenge the Office of Gas and Electricity Markets (Ofgem)'s rejection of its application to the government's Long Duration Energy Storage (LDES) cap and floor scheme (the Scheme) following late submission of material.

Key points 

• If a regulated entity misses a deadline to submit material, even if this was caused by an innocent clerical error, there is no guarantee that they will be able to submit the missing material after the deadline. 
• The court accepted Ofgem's evidence that strict enforcement of the deadline was justified by the need to treat all applicants consistently, avoid delay to the Scheme and protect those applicants who had complied with the eligibility criteria. 
• The duty of procedural fairness requires a regulator to consider representations, not to accept them. Where a regulator issues a "Minded To Decision" and invites representations, this is not an opportunity to fix a late or incomplete submission. 

Background

LDES is a pillar of the Department for Energy Security and Net Zero (DESNZ) Clean Power 2030 Action Plan. The Scheme is a financial framework designed by the UK government and Ofgem to accelerate investment in and deployment of LDES technologies. Under the Scheme, successful applicants receive government-backed guaranteed minimum income in exchange for a cap on revenue. 

In March 2025, DESNZ and Ofgem published the details of a three-stage application process for the Scheme. Stage 1 was a gateway eligibility step requiring, among other things, submission of a financial model, including revenue projections. The Stage 1 application window ran from 8 April to 9 June 2025. 

ILIG submitted its application at 18.50 on the final day of the application window. Although it included a placeholder link and a screenshot of a financial model, the financial model required under the eligibility criteria was missing. By the time of the hearing, it was common ground that the omission was a result of a "clerical error" in that it existed but had not been included in the application. Linden J noted however that at the time Ofgem would not necessarily have known the reason for the omission, since it was also possible that the model was simply not ready by the deadline, given the last-minute application submission. 

In a "Minded To Decision", Ofgem proposed to reject the application on the basis of insufficient evidence to demonstrate the eligibility criteria had been met, in particular that the absence of a full financial model limited Ofgem's ability to assess the robustness of the commercial case. Ofgem invited representations on this "Minded To Decision", but made it clear it would not accept further material that should have been included by the 9 June deadline. ILIG nonetheless included the financial model in its response, explaining the error and evidencing that the model had been finalised before the deadline. Ultimately, Ofgem rejected ILIG's application and declined to accept the late submission of the financial model. 

ILIG challenged the Ofgem decision on two grounds, namely that Ofgem: (i) acted in breach of procedural fairness by failing to take account of its representations, including the financial model, and (ii) failed to make proper inquiry and take account of material factors. ILIG emphasised that given how quickly the model had been provided once the error was pointed out, there was ample time for Ofgem to consider the model to decide whether the eligibility criteria were met, meaning there should have been no prejudice to Ofgem's process. Further, ILIG argued there was no unfairness to other applicants given this was obviously a clerical error. ILIG also sought to rely by analogy on public procurement case law concerning public bodies potentially being under a duty to seek clarification in cases where obvious clerical errors have been made in a tender. 

Judgment 

The court dismissed ILIG's application for judicial review. It concluded that: 

1. Ground 1 failed because Ofgem had not ignored ILIG's representations. Procedural fairness will often require that the affected party be given the right to make representations and ILIG was given that right here. However, having carefully considered ILIG's representations as to why the model was late, Ofgem had no duty to accept them, nor the newly submitted financial model. The evidence made it clear that Ofgem's position was not one of blanket rigidity: it may have been willing to consider allowing late submission of material if e.g. the failure to meet the deadline was due to a fault on Ofgem's part or objective circumstances outside the applicant's control. Ofgem justified its strict approach by reference to the need to keep the process within envisaged timescales, as well as the need to ensure applicants were treated consistently and fairly. 
2. Ground 2 was misconceived. Ofgem did make inquiries as to the apparent flaws in the application, which it then received and considered. There was no further information needed for it to make its decision. 
3. Overall, the court took the view that ILIG fundamentally mischaracterised Ofgem's decision. It was not simply that the application failed to meet the eligibility criteria, but rather that it failed to so within the specified deadline and Ofgem was not willing to consider material submitted late without good reason. It was not irrational to refuse to consider the model or assess the merits of the application when deciding whether to allow the late material. Indeed, the court noted that it would have been irrational for Ofgem to assess the merits of ILIG's application without first resolving the question of whether the deadline should be relaxed in light of the reasons for the failure. 
4. In response to ILIG's references to "conspicuous unfairness" and "abuse of power", the court clarified that there are no free standing public law principles of "conspicuous unfairness" or "substantive unfairness". Linden J explained that "in no realistic sense was it an abuse of power for Ofgem to decline to consider material submitted after the 9 June deadline in circumstances where that deadline and its effect had been publicised long in advance, the deadline was applicable to all applications and the Claimant had failed to meet it through its own lack of care". 
5. The court also rejected the analogy that ILIG attempted to draw to public procurement case law for two reasons. First, those procurement cases were concerned with the question of proportionality which, ILIG accepted, does not arise in relation to the public law issues pleaded. There was therefore no "read across", with the different legal frameworks engaging different legal and policy considerations. In any event, public procurement case law places significant weight on the legitimacy of deadlines and the need for fairness between bidders. The court considered it likely that strict enforcement of deadlines would generally be found to be proportionate, especially if failure to submit the relevant materials on time resulted from the bidder's own error. 

Comment 

Although the judgment focusses on a specific scheme in the energy sector, the outcome is relevant to any regulated sector where regulators run similar application processes or set other deadlines. 

The case underlines how strict regulators can be when upholding deadlines and insisting on full material being provided. Of 171 applications received by Ofgem, only 77 passed Stage 1. In 105 cases, the reason for rejection was because of insufficient or missing supporting information. Regulators running such schemes will often be able to point to policy reasons to enforce procedural requirements, such as fairness across applicants and the need to meet tight delivery timelines. 

The case also highlights that "Minded To Decisions" should not be mistaken for an opportunity to remedy deficiencies in the original application or submission. A "Minded To" process is a procedural safeguard, and regulated businesses should be careful to ensure submissions are complete and accurate before the deadline, rather than relying on a subsequent opportunity to correct them. 

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