Government’s decision to appeal to the Supreme Court has been roundly criticised by the solar industry, which had hoped for a modicum of certainty following a Court of Appeal decision which upheld that the Department for Energy and Climate Change (DECC) had acted illegally when it slashed feed-in tariff (FiT) rates before the consultation closed.

Industry thought it had certainty after DECC was denied leave to appeal to the Supreme Court by the Court of Appeal. However, DECC proceeded by stating its intention to apply directly to the Supreme Court. This decision to appeal to the highest court in the country means that solar installers are still unable to provide a concrete FiT rate for potential investors; the knock-on effect of such uncertainty could have serious implications for an industry already reeling from the scale and speed of FiT cuts.

Cynics suggest that DECC is pursuing the legal challenge to further perpetuate uncertainty in the industry. Such uncertainty could limit a potential gold rush, which DECC maintains would consume the entire budget for the FiT scheme. Some believe that DECC will use the full 28 days permitted before submitting its appeal as a further delaying tactic. A spokeswoman for DECC confirmed that it has not yet lodged an appeal with the Supreme Court.

Following the news that DECC intends to appeal, Solar Power Portal received a flood of enquiries from installers looking to pursue claims against DECC. It appears that should DECC lose its appeal to the Supreme Court; the door may be left open for companies to seek damage claims against the Government.

Clare King, a Renewable Energy Layer at Osborne Clarke, said: “We've been approached by a number of companies wanting to know whether they can seek compensation for losses they’ve incurred as a result of DECC’s retrospective application of subsidy cuts.

“The answer is that much will depend on the particular circumstances of each claim. Assuming that the Supreme Court finds that DECC did get it wrong, companies may have a claim for damages if they can show that they incurred losses as a direct result of DECC’s actions.”

The Supreme Court has warned that an appeal could take up to year to be heard and until a decision is made, successful legal action is unlikely.

“The problem is that we won't know for certain until the Supreme Court has considered DECC's final appeal. In the meantime, we are working with a growing number of companies who are looking to share information and costs so they can take swift action once we have a final judicial decision,” King continued.

King concluded that any companies concerned about losses incurred as a direct result of Government’s actions should consult legal professionals directly. As ever, much will depend on the result of the appeal, which is still several weeks away at best.