The England & Wales Court of Appeal reminds of how novel points in a case should impact on the penalty imposed (National Grid)

Businesses and their advisors are often confronted by situations where the law in relation to their behaviour is either unclear or uncertain. This raises an underlying concern that if their conduct is later deemed illegal, what impact should the uncertainty have on the illegality and/or any penalty imposed. These issues arose in the English Court of Appeal in National Grid v Gas & Electricity Markets Authority (and others). The Court explored the application of the OFT's fining policy and the effect of uncertainty of the legal issues has on the assessment of a financial penalty. The Court found that for there to be “uncertainty”, there must be novel issues at stake, and comparisons from existing case-law should be difficult. If these circumstances are established, fines should not be