Ikpaisong Effiong UKPE (t/a Ikpaland Enterprises UK) v Southend Magistrates’ Court

This is an appeal by way of case stated from a decision of the Southend Magistrates’ Court dated 3 December 2024, by which the magistrates granted a warrant giving Richburns Ltd (“Richburns”), the agent of Npower Business Solutions (“Npower”), rights of entry at 15 High Street, Romford, Essex (“the Premises”). The Premises were occupied by Ikpaisong Effiong Upke t/a Ikpaland Enterprises UK, the Appellant to this appeal.

The warrant was granted under section 2 of the Rights of Entry (Gas and Electricity Boards) Act 1954 (“the 1954 Act”). The application for the warrant had been made by Richburns, on behalf of Npower, on the basis of an allegation that the Appellant’s electricity bill remained outstanding to the amount of £20,000 or so.

The terms of the warrant granted by the magistrates were for Richburns to enter the Premises:

“in order to inspect the fittings, pipes, lines or plant, to ascertain the quantity of fuel conveyed to the premises, to cut off or discontinue the supply, to ascertain whether the supply has been reconnected following disconnection, to remove or replace any meter or other fitting, or do any other such thing for which they have a right of entry under Schedule 6 of the Electricity Act 1989 if needs be by force”.

The key facts are set out in the case stated by the magistrates, and I will set that out in full below. In summary, the Appellant is a sole trader, who runs a grocery store at the Premises. The Appellant entered into a contract with Npower for the supply of electricity to the Premises in December 2022. On 21 December 2022, an electricity meter was installed at the Premises. Initially, invoices were sent to an address which was occupied by an agent acting on behalf of the Appellant. On 12 April 2023, Npower wrote to the Appellant informing him that there was an outstanding debt of £6,779.06, and Npower’s agents had been “unable to obtain settlement”.

Between April 2023 and March 2024, the Appellant and Npower entered into correspondence about potential payment plans, but no agreement was reached. The Appellant raised concerns with Npower, including that the meter installed was not of the correct model to measure accurately electricity consumption for small commercial premises such as his.

The Appellant accepts that he made a single payment of £4,500 to Npower in December 2023, but made no other payments, and that he was stated to owe around £20,000 to Npower.

As payment could not be obtained from the Appellant, Richburns made an application on behalf of Npower to the magistrates for a warrant.

The case stated by the magistrates set out the terms of the warrant, explained that a complaint had been made against the Appellant seeking a warrant, and referred to there having been a contested hearing on 22 March 2024. The case stated continued with the following:

“We found these facts:

3.

The Ikpaland Enterprise UK (The applicant) entered a business electricity contract with Npower Solution in or around December 2022. On 21 December 2022 an electric meter was installed at the premises. Npower accepted that the invoices for payment were sent to the billing address for the first few months. Invoices were sent to DYLAN COOMBER, The Bull, Rainham Road South, Dagenham, Essex, RM10 8AQ. This was listed as “Billing address” on the contract that the applicant signed and returned to Npower. The applicant had instructed Dylan Coomber to act on their behalf. Prior to April 2023, the applicant failed to bring to the attention of Npower that they were not receiving invoices for their consumption of electricity. Later the billing address was updated. The applicant did not make payments throughout 2023 but made a single payment of £4.5K in December 2023, leaving a balance of £20K.

4.

Npower confirmed the meter was working properly and was issuing meter readings.

5.

The applicant acknowledged that they did not make regular payments because of the disputed energy costs which were linked to the meter. The applicant disputed was the right model meter had been installed for their commercial premises. The applicant was of the view that the meter was over-specified for their business.

6.

Npower confirmed that they offered payment plans to the applicant and these offers were declined because of the same reasons as above regarding the meter and costs.

7.

On behalf of the applicant, it was contended that,

a.

An engineer installed the electric meter on 21 December 2022. The building was derelict for many years and was being wired up at the time for installation. As a result, the applicant did not connect the meter until February 2023.

b.

On 12 April 2023 the applicant received the first invoice with a demand for immediate payment in the sum of £6776.06 from Npower.

c.

The applicant lodged a complaint to the Npower through their agent. Npower sent bills through the applicant’s agent in the region £22,000 for 3 months’

supply. On investigation Npower admitted that the meter was faulty and was not sending out readings. The applicant was asked to send photographs of the readings which is an indication that the meter was faulty.

d.

The applicant raised concerns that the wrong company and address had been billed. The applicant also raised concerns that the bill was too high as

it included readings from December 2022 to part of February 2023 prior to the time when the meter was connected for supply. The applicant raised concerns with the type of meter installed. The applicant contented that they had the use of two fridges and two freezers all with newly LED lights. Npower refused to investigate their complaint and maintained that the meter were providing the correct data for billing purposes.

e.

The applicant had discovered that the meter installed was initially 07 meter which was too large for their operations. 07 meter was described as NonDomestic Maximum Demand meter with peak load factor between 30% to 40% suitable to for big businesses such as large pub, leisure centre or giant Supermarkets.

f.

Despite the complaints by the applicant about the unsuitability of the meter for their business, Npower upgraded the meter in November 2023 to 00 meter. 00 meter was described as meter profiled for businesses with peak load usage of electricity about 100 KW at top scale. The meter most suitable for the applicant’s business was 03 meter described as Non-Domestic

Unrestricted meter intended for small businesses that do not consume large amounts of electricity.

g.

The applicant made proposals at different stages to pay £500 per month and at another time £1000 per month but the proposal was rejected by Npower.

h.

In January 2024 the applicant paid £4000 towards the billing and asked for a reasonable payment plan but the request was declined by Npower demanding immediate payment of £12000 which the applicant could not

afford to pay.

On behalf of the respondent, it was contended that:

a.

Invoices were sent to DYLAN COOMBER, The Bull, Rainham Road South, Dagenham, Essex, RM10 8AQ. This was the agent that the applicant had instructed to act on their behalf. The Bull, Rainham Road South, was listed as “Billing address” on the contract that the applicant signed and returned to Npower. The applicant never raised any issues regarding the address then. The applicant did not contact Npower prior to April 2023 to advise they were not receiving invoices despite knowing they were consuming power. The billing address was updated as soon as Npower were notified the changes were required.

b.

Invoices were billed to the applicant at the billing address provided by the applicant at point of contract. The applicant referred to the supply address which was originally listed as: Food & Firkin - The Bitter End, 15 High Street, 15 Romford, Essex, RM1 1JU. This address was taken from Ecoes (The National Database for Electricity) as per normal process when an account was set up. The company name listed on the supply address at the time, was likely a previous occupant, and this was removed upon request. The address itself was correct other than a duplicate of the door number in the second line. This address was listed on the contract that the applicant signed and returned to Npower.

c.

The meter was not faulty. There was a communication fault which was fixed, and the applicant had continued to receive actual readings since. There was no evidence provided by the applicant to suggest that there were issues with the meter readings.

d.

In June 2023 Npower emailed that applicant to explain that the applicant had been billed up to an actual reading and the total amount of consumption used was correct. It was explained that instead of just having

the consumption spread between February up to April it had been spread from December to April. It was the way Npower system bills, but the total amount of electricity used, and cost would be the same.

e.

The applicant was offered a payment plan based on the proposal he suggested, and the applicant failed to adhere to this, so it was revoked.

f.

The applicant was advised that as Npower were receiving actual readings, Npower had no reason to believe that the meter was faulty. The applicant was asked to provide photographs of the meter so that Npower could compare them to the actual readings to see if they aligned. The applicant failed to do this.

g.

This was a new connection. The applicant’s requirements were given to Npower by the agent and applicant and a meter was installed based on that information. The applicant’s estimated consumption was also listed on the first page of the contract agreement which he has signed, and the applicant never raised any issues.

h.

The meter was upgraded as part of P272. P272 was a mandatory regulation that required energy suppliers to use half-hourly consumption data to calculate customer's bills.

i.

Npower had addressed all the applicant’s concerns as soon as they had been raised to Npower.

8.

We were referred to paragraph10 Schedule 6 of the Electricity Act 1989

9.

We were of the opinion that:

a.

The contract was binding and if the applicant failed to keep payments, then Npower had a legitimate request for the warrant.

b.

The applicant entered a contract with Npower and the condition of the contract was for the applicant to pay the bills.

c.

Npower made reasonable efforts with the applicant with payment plans options.

d.

The protracted discussion about meter models was not relevant to the applicant’s defence. What was relevant was the signed a contract and the failure to pay the bills.

e.

Consequently, we found that the applicant had failed to pay the bills and we granted a warrant to Npower to enter premises at 15 High Street, Romford, Essex, RM1 1JU in order to inspect the fittings, pipes, lines or plant, to ascertain the quantity of fuel conveyed to the premises, to cut off or discontinue the supply, to ascertain whether the supply has been reconnected following disconnection, to remove or replace any meter or other fitting, do any other such thing for which they have a right of entry under Schedule 6 of the Electricity Act 1989 if needs be by force.

10.

The questions of the High Court are:

Were the Magistrates correct in finding as a matter of law that there was no requirement for the Magistrates to have technical knowledge of the model of meter and suitability of meter for the type of business of the applicant to decide the contested hearing.”

Before stating the case, the magistrates had provided a draft to the parties. Solicitors representing the Appellant had invited the magistrates to ask a different question. It was asserted that:

“The Applicant did not contend in his grounds of application that the Magistrates needed to have “technical knowledge of the model of metre for the type of business of the applicant to decide the contested hearing.” The Applicant’s case is that the Magistrates misdirected themselves in law in contending that they were not required to understand metre readings or model or arguments relating to disputed metre readings or model in order to determine whether there was a genuine dispute over the amount allegedly owed, and were wrong on the facts to rule that there was no dispute relating to the amount claimed by Npower, and further that if the Magistrates had applied their mind correctly to the question to be decided, they would have come to the inevitable conclusion that the matter fell within the provisions of paragraph 2 (2)(a) of schedule 6 of the Electricity Act 1989.”

The magistrates did not amend the question to be asked, and it was accepted by Mr Daniel Henderson, who represented the Appellant before me that the Court had to consider the question as posed by the magistrates. No application was made by Mr Henderson, pursuant to section 28A of the Senior Courts Act 1981, for the Court to send the case back to the magistrates “for amendment”.

Schedule 6 to the Electricity Act 1989 (“the 1989 Act”) contains what is described as “The electricity code”.

Paragraph 2 of Schedule 6 to the 1989 Act provides that:

Thus, it can be seen that the electricity supplier has the power to install a pre-payment meter, or disconnect the electricity supply, where a customer has not paid their electricity bill, but that power cannot be exercised in respect of any amount which is “genuinely in dispute”.

Paragraph 7(4) of Schedule 6 to the 1989 Act creates a power of entry to fit a pre-payment meter. Paragraph 8(2) of Schedule 6 to the 1989 act creates a power of entry to disconnect any premises. The powers of entry are governed by the Rights of Entry (Gas and Electricity Boards) Act 1954 (“the 1954 Act”): see paragraph 10(1) of Schedule 6 to the 1989 Act.

Section 1(1) of the 1954 Act provides that a power of entry can be exercisable under a warrant granted by magistrates under section 2. Section 2 of the 1954 Act provides that:

“(1)

Where it is shown to the satisfaction of a justice of the peace, on sworn information in writing,

(a)

that admission to premises specified in the information is reasonably required by a gas operator or an electricity operator or by an employee of a gas operator or an electricity operator;

(b)

that the operator or any employee of the operator as the case may be, would, apart from the preceding section, be entitled for that purpose to exercise in respect of the premises a right of entry to which this Act applies; and

(c)

that the requirements (if any) of the relevant enactment have been complied with, then subject to the provisions of this section the justice may by warrant under his hand authorise the operator or any employee of the operator, as the case may be, to enter the premises, if need be by force. …

(4)

Every warrant granted under this section shall continue in force until—

(a)

the time when the purpose for which the entry is required is satisfied; or

(b)

the end of the period of 28 days beginning with the day on which the warrant was granted, whichever is the earlier. …”

Mr Henderson, for the Appellant, submitted that the magistrates were not entitled to grant a warrant in this case because the parties were “genuinely in dispute”. That term has not been defined in the legislation concerning electricity, but it was considered by Foster J in Albany Lions Hotel Ltd. v Opal Business Gas [2020] EWHC 3872 (Admin), a case concerning identical provisions under the Gas Act 1986, where a warrant had been sought to disconnect a customer’s gas supply. Foster J found that the magistrates had asked themselves the wrong question: whether there had been a “genuine substantial dispute” about the monies owed. Foster J stated, in obiter remarks, that the phrase “genuine dispute” means:

“a dispute that is not shown to be a sham. In other words, the magistrates must be satisfied that any dispute to which a respondent makes reference has not been concocted or is a mere evasion tactic. If the respondent raises the existence of a genuine dispute, the magistrates must grapple with the question and decide it. Only if their view that it is not genuine is not a view reasonably open to a properly directed bench of magistrates would it be successfully appealable by way of case stated.”

Mr Henderson submitted that, in the instant case, there was a “genuine dispute” about the appropriateness of the meter that had been installed by Npower. That was recognised in the 1989 Act as being a valid type of dispute, as there was a bespoke statutory regime for resolving such a dispute.

Paragraph 1(1) of Schedule 7 to the 1989 Act provides that:

“where a customer of an authorised supplier is to be charged for his supply wholly or partly by reference to the quantity of electricity supplied, the supply shall be given through, and the quantity of electricity shall be ascertained by, an appropriate meter”.

Paragraph 1(6) of Schedule 7 provides that:

“For the purposes of this paragraph a meter is an appropriate meter for use in connection with any particular supply if it is of a pattern or construction which, having regard to the terms on which the supply is to be charged for, is particularly suitable for such use.”

Paragraph 1(7) of Schedule 7 provides that:

“In relation to a dispute arising under this paragraph between an electricity supplier and a customer, section 23 of this Act applies with the substitution, for references to the Authority (and references treated as references to the Authority) of references to the Secretary of State.”

Section 23 of the 1989 Act makes provision for the determination by either the Secretary of State or “the Authority” (currently Ofgem) of disputes to which that section applies.

In these circumstances, Mr Henderson submitted that the magistrates erred in setting out in their stated case at paragraph 9(d) that:

“The protracted discussion about meter models was not relevant to the applicant's defence. What was relevant was the signed a contract and the failure to pay the bills.”

Mr Henderson pointed out that the Appellant had raised with Npower, and repeated before the magistrates, that he was disputing the charges that were being made by Npower as a result of the fact that the wrong type of meter had been installed. Rather than recognising that issue and identifying that there was, therefore, a “genuine dispute” between the Appellant and Npower, the magistrates simply found that the Appellant had entered into a contract with Npower and was therefore obliged to make payment to Npower under that contract.

Mr Henderson submitted that the magistrates had not analysed the terms of the contract or considered how it interacted with meter profiling. Indeed, there was no indication from the stated case that the magistrates had even looked at the contract.

In the alternative, if the magistrates did assess and analyse the Appellant’s case as to the appropriateness of the meter, but concluded that the dispute was not a “genuine” one, that was inconsistent with the stated case: paragraph 9(d) makes it clear that the magistrates reached no conclusion at all on the issue of the meters. Further, there was no evidence before the magistrates from which they could have reached that conclusion. Npower had not presented any such evidence; Npower had simply asserted that they installed the meter based on the information provided by the Appellant. In the circumstances, it was not open to the magistrates to conclude that the dispute raised by the Appellant was a “sham” or a “concoction”.

Npower were represented before me by Miss Priya Gopal. Miss Gopal contended that there was no basis for the appeal. First, she submitted that the question of whether the sums sought from the Appellant were “genuinely in dispute” is not before the Court as that was not the question posed in the stated case. Second, Miss Gopal submitted that the question that was before the magistrates was whether all of the relevant payments that should have been made by the Appellant to Npower had been made, and the issue of the meter was not of any relevance. As a matter of principle, a dispute about a meter does not fall within paragraph 2 of Schedule 6 to the 1989 Act.

In any event, Miss Gopal argued that it was implicit in the magistrates’ decision that the issue of whether sums were “genuinely in dispute” was not engaged on the facts. The meter was confirmed to have been working properly, and the Appellant had admitted that he did not make regular payments. Although the Appellant had said that the meter was “over-specified” for the business, he had signed a document which referred to the anticipated usage and was properly billed for the actual consumption of electricity. The magistrates were not concerned with the question of what the contractual arrangement and/or meter ought to be, but were required to consider the dispute based on the contractual arrangement as it was.

The question posed by the magistrates in the stated case was whether they were “correct in finding as a matter of law that there was no requirement for the magistrates to have technical knowledge of the model of meter and suitability of meter for the type of business of the applicant to decide the contested hearing”. The answer to this question turns on whether or not the model and suitability of the meter provided to the Appellant had any bearing on the amount that he was due to pay Npower. If it was, then evidence as to different models and their suitability would have needed to be before the magistrates.

In my judgment, the suitability of the meter that had been installed at the Premises was totally irrelevant to the matter before the magistrates. The magistrates were, therefore, correct in expressing their opinion at paragraph 9(d) that:

“The protracted discussion about meter models was not relevant to the applicant’s defence. What was relevant was the signed . . . contract and the failure to pay the bills.”

It is clear from the evidence before the magistrates that whatever meter had been installed would have made no difference to the payment that the Appellant was required to make to Npower. The Appellant had entered into an agreement for a fixed price for his electricity usage: fixed for the duration of the contract, and at a price that did not vary during different times of the day. Npower stated that the meter provided to the Appellant was not faulty, and this was accepted by the magistrates. Accordingly, the charges for electricity were accurate based on the Appellant’s consumption and the unit price that he had agreed to.

The contract that the Appellant entered into was for “Fixed Certainty Electricity Supply”. The contract terms were set out in a quote document produced by Npower on 2 December 2022, and signed by the Appellant on the same date. The quote specifically provided that a signature from the customer constituted “the Customer's offer to enter into a binding contract with the Company on the terms of the Proposal”, and once countersigned by Npower it would form “a binding electricity supply contract between the Company and the Customer”. The period of the contract was set for 15 December 2022 until 31 March 2024. Payment was to be made by direct debit 14 days from invoice date, with invoices produced monthly.

The “Charges” were set out in the “Service Price Annex”, and it was stated in the quote that the charges would be “fixed for the Term and as such will not be amended, varied, reconciled or added to, save that, Conditions 7.6, 7.11 and 7.14 of the Conditions shall continue to apply”. The “Service Price Annex” set the charges at 71.919p/kWh.

On its face, therefore, the Appellant had signed a contract for a fixed price of 71.919p/kWh for electricity whenever that electricity was consumed during the period of the contract.

It is not clear from the stated case whether or not the magistrates did consider Conditions 7.6, 7.11 and 7.14 as no mention is made of them. However, based on the argument that was put to the magistrates, those conditions were not relevant and so did not need to be addressed in their stated case in any event.

Condition 7.6 obliged the Customer “to pay for all Energy the Company supplies and the Customer consumes . . . even if such consumption is not recorded by the Meters or is discovered at any time after the termination of this Contract”. Condition 7.11 deals with the question of taxes and levies.

Condition 7.14 provides that:

“The Company may change or add to the Charges at any time if:

(a)

there is a manifest error in the Charges the Company has quoted to the Customer; or the Company is given any incorrect, inaccurate, false or incomplete information (whether by the Customer or a third party) about the Charges, Meter, . . . or Profile Class: or where there is a change to the Customer's Meter (including to the way the Company is required to read or settle Data), . . . Profile Class; or

. . .

(e)

information provided by the Customer, its authorised representative or an appointed agent being incorrect, false or incomplete . . . ”

It was never suggested to the magistrates that there was a “manifest error” in the charges that had been quoted by Npower to the Company which may have called for a change to the charges being made. Nor was it suggested that any information that was provided by, or on behalf of, the Appellant was “incorrect, false or incomplete” which may have called for a change to the charges.

The quote from Npower stated that the Appellant had been determined as being a “Non Micro Business Customer for this fuel”. This was based on a number of criteria: that the company did not consume 100,000 kWh or less of electricity per year; did not have fewer than 10 employees or a turnover of 2 million euros or less and an annual balance sheet of 2 million euros or less. The quote stated that Npower should be contacted if their records were “incorrect so we can re-determine your classification”. It may well be that this information was not accurate; but it had been provided by the Appellant or his agent to Npower and it was not suggested to the magistrates that the information was wrong and that the Appellant had been subject to the wrong classification or that this had any impact on the charges that were being made. The Appellant’s case related solely to the appropriateness of the meter that had been installed.

It did not matter, however, that the meter that had initially been installed by Npower was (on the Appellant’s case) an “07 meter”, which the Appellant described as a “Non Domestic Maximum Demand meter with peak load factor between 30% to 40% suitable . . . for big businesses such as large pub, leisure centre or giant supermarkets”. The contract that the Appellant had entered into did not distinguish the pricing of the electricity supplied to the Appellant between “peak load” or non-peak load periods, and so the fact that the meter that was initially installed could make that distinction was not relevant.

Similarly, it did not matter that the meter that was subsequently installed was an “00 meter” which the Appellant contended was a meter profiled for businesses with “peak load usage of electricity about 100 KW at top scale. The meter most suitable for the applicant’s business was 03 meter described as Non-Domestic Unrestricted meter intended for small businesses that do not consume large amounts of electricity.” This was not relevant to the question of what the Appellant was being charged for the electricity supplied by Npower: that was governed by the contract that he had entered into.

What the Appellant had put forward as a dispute with Npower was not a “sham” or a “concoction” to use Foster J’s taxonomy in Albany Lions; it was simply a misconceived argument. The magistrates had found, correctly, that what was being put forward by the Appellant had no relevance or bearing on the question of the amounts that were owed by him to Npower.

In the circumstances, there was no “dispute” between the Appellant and Npower about the amount that was due to be paid, let alone a “genuine” dispute, and so the magistrates were entitled to grant the warrant for Richburns to enter the Premises.

The answer to the question posed by the magistrates is, therefore, “No”. It did not matter whether the magistrates had technical knowledge of the model of meter and suitability of meter for the type of business conducted by the Appellant, as this was not relevant to the question of what charges were due and payable to Npower and so not relevant to the amounts owing by the Appellant.

For the foregoing reasons, therefore, this appeal is dismissed.