Public law is out of step and off the pace

Nowhere is it clearer that English public law is still a work in progress than in the field of damages for public law wrongs. Currently, the law still does not recognise
a general right to damages
for breaches of public law principles.

Available remedy

While damages are an available remedy in judicial review, they must not be the only remedy sought: see CPR 54.3(2). For a successful claimant to be entitled to damages, he or she must either show a specific right to damages, such as conferred by section 8
of the Human Rights Act 1998 where a public authority has breached a convention right,
or a ‘sufficiently serious’ breach
of EU law; or establish a breach
of a private law right, such as wrongful detention.

The interaction of public law and private law claims is often an ordeal, notably where the claim concerns negligent exercise of discretionary powers. Therefore,
a claimant who establishes
that a public body exercised its statutory powers unlawfully, in breach of public law, would only get damages if the defendant also breached a (private law)
duty of care.

In turn, that will depend on whether parliament envisaged breach of the statute giving rise to a damages claim, for example, for breach of statutory duty.
If not, one cannot normally get around this obstacle by claiming that there was negligent performance of the statutory powers (see Gorringe v Calderdale MBC [2004] 1 WLR 1057).

The High Court’s recent decision in Breyer Group plc v Department of Energy and Climate Change [2014] EWHC 2257 highlights the current state of the law. The case followed Homesun Holdings Ltd [2012] EWCA Civ 28, where the Court of Appeal ruled that the government acted unlawfully by cutting the
feed-in tariff scheme for
solar electricity producers
with retrospective effect.

The policy change had a serious impact on small-scale, green electricity producers. In Breyer, some of them sued the government for losses caused by the unlawful change of policy. They had abandoned installations, lost business through contracts not being performed and lost valuable goodwill. They argued that their rights to property, guaranteed by article 1 of the First Protocol to the ECHR (A1P1) had been breached and that they had a right to damages.

The court upheld most of the claim. Much of the discussion concerns what is a ‘property’
right under A1P1, for example, whether contractual rights are possessions and whether ‘property’ includes a legitimate expectation that the pre-existing feed-in tariff scheme would continue (at least until proper notice of a change). Unless the claimants could bring their claim under A1P1, the public law illegality which the Court of Appeal had upheld did not itself create a right to damages.

Out of step

The approach of English law is out of step with many other systems of public law, including that of EU law. In EU law, if a claimant is caused loss by an unlawful act, including an unlawful legislative act, of the EU institutions, there is a claim for damages.

Equally, if a member state is responsible for a sufficiently serious breach of EU law,
a Francovich damages claim is available. Indeed, losses caused by retrospective legislation which is in breach of EU law can also be recovered (see Fleming and Condé Nast v HMRC [2008] 1 WLR 195).

In a 2008 consultation
paper the Law Commission recommended that there
should be a right to damages
for breaches of public law: ‘Administrative Redress: Public Bodies and the Citizen.’ Ultimately, however, they accepted
that stakeholders had not
been persuaded of the need
for change.

The odd thing about this resistance to change is that English law used to start from the position that damages actions were an important means of bringing the state to account (see Dr Bonham’s Case 77 Eng Rep 638).

In the light of legal aid reforms, which are making it harder for citizens to bring judicial review claims, there
is an argument for the rule
of law striking back: if public authorities’ errors cause loss, the citizen should have a damages claim against them. This would underline the importance of acting lawfully and might be a source of some funding for public law claims.

KEY POINTS

SJ

Denis Edwards is a barrister practising from Francis Taylor Buildings