In Aubrey Weis v GMCA [2025] CAT 41, the CAT has dismissed the first post-Brexit judicial review claim contending that financial assistance given by a public authority did not comply with the ‘commercial market operator’ (CMO) principle, and therefore gave rise to an unlawful subsidy contrary to the Subsidy Control Act 2022 (“the SCA”),
The claim concerned loans of c. 120 million granted by GMCA to two special purpose vehicles ultimately beneficially owned by Mr Darren Whitaker.
The CAT accepted Mr Weis’ submissions that: (i) the relevant ‘“subsidy decision” for the purposes of the SCA was the decision of a GMCA Committee (comprising councillors and the Mayor) in March 2024 to approve the loans, and (ii) there was no consideration at all by the GMCA Committee as to whether or not the loans reflected market rates/were consistent with the commercial market operator (CMO) principle.
However, the CAT went on to hold that this was immaterial and that through a combination of conducting its own analysis of the commercial terms of the loans and consideration of some subsequent reasoning produced by a junior Council officer (which it was common ground had never been shared with the GMCA Committee) it was satisfied that the interest rates charged on the loans were consistent with the CMO principle and otherwise lawful.
The judgment appears to indicate that in addressing judicial review challenges under the SCA that are concerned with the CMO principle, the CAT will apply some form of de novo review, rather than orthodox judicial review principles. Subject to any appeal, the CAT’s judgment is likely to have significant implications for potential SCA judicial review challenges that engage the CMO principle.
A copy of the judgment can be found here.
Joseph Barrett KC appeared for Mr Aubrey Weis, instructed by Walker Morris LLP
