QB-2022-001364 - [2025] EWHC 2758 (KB)

With respect to Mr Strickland, his argument was not always easy to follow and it appeared, at times, to be addressing arguments which were not being advanced on behalf of Ofcom: “tilting at windmills”, as Mr Holmes put it. In particular, Mr Holmes’ position was simply that ordinary English law principles apply to the question whether there is a cause of action in damages for breach of section 8(4) of the WTA 2006 in this case. He was not alleging that Edge’s claim is a Francovich claim, whether “pure” or “secondary”, or that it is excluded by the decision of the Supreme Court in Energy Solutions or by the EUWA 2018 as amended. Indeed, he did not place any reliance on Energy Solutions or the 2018 Act. He was arguing that the only claim in damages which had ever been available to Edge was a Francovich claim but this was because, he contended, Parliament did not intend that any additional and/or wider claim for damages for breach of statutory duty would be available in relation to section 8(4).

For the following reasons I agree that Mr Strickland’s first submission is wrong. Starting from first principles, a Francovich claim is a claim against a Member State of the EU, or an emanation of the state, for damages for breach of EU law. The basis for the conclusion that Parliament intended that such a claim was available in an English court was section 2 of the European Communities Act 1972, which gave effect to EU law in this jurisdiction so that it was a source of UK law: see [11] and [12] of the Phonographic Performance judgment cited at [31] and [32], above. The claimants in the Recall case were therefore able to bring a claim for breach of Article 5 of the Authorisation Directive in the English courts. However, importantly, the intention of Parliament that such a claim was available was expressed through section 2 of the 1972 Act, and the scope of the claim which Parliament intended would be available depended on the relevant EU provisions and the conditions which would apply, under EU law, to a claim for damages for breach of them. The Recall case was therefore concerned with a very different domestic law provision to the present claim (section 2 of the 1972 Act) and with the direct enforcement of EU law. There was therefore no consideration, in the Recall case, of whether a claim for damages for breach of section 8(4) of the WTA 2006 was available and, if so, on what basis.

I therefore do not agree that the availability (in principle) of a private law claim for Francovich damages for breach of EU law, as illustrated by the Recall case, means that one can infer that there was or is also a right to bring a domestic law claim for damages for breach of section 8(4) of the WTA 2006 which was or is somehow embedded in the relevant statutory provisions, and which remains embedded there. The question which requires to be addressed is whether, given the availability of a Francovich claim for breach of the Authorisation Directive, Parliament intended that the enactment of section 8(4) would provide an additional claim for breach of statutory duty which has survived the EUWA 2018. Mr Strickland’s argument begs this question rather than answers it. I also agree with Mr Holmes that this question turns on the application of well-established principles of our law of tort to the terms of the WTA 2006 in their proper context: compare the approach in The Claimants in the Royal Mail Group Litigation v Royal Mail Group Limited [2021] EWCA Civ 1173 at [89] et seq. Moreover, as noted above, Mr Holmes’ argument is that no such additional claim was ever available rather than that one was available but it has since been removed by the EUWA 2018.

Mr Strickland’s reliance on Energy Solutions was also misplaced. The key point for present purposes is that in that case there was no doubt that the claimant had an actionable claim in damages for breach of the Public Contacts Regulations 2006: regulation 47J(2)(c) made express provision for such an award. The issue was as to what needed to be established for that claim to succeed. The reasoning of the Court of Appeal in Energy Solutions was based on there being two potential claims for damages available – for breach of the Remedies Directive and for breach of the 2006 Regulations – but in the present case the availability of a claim for damages for breach of the domestic legislation is in issue. No express provision for a claim in damages is made in relation to section 8(4) of the WTA 2006. Thus, even if I accepted (which I do not) that the effect of the EUWA 2018 was that the reasoning of the Court of Appeal in Energy Solutions was restored, that reasoning would not apply in the present case. The question would remain as to whether there is any domestic law right to claim damages for breach of section 8(4). Mr Strickland’s argument therefore assumes what needs to be proved.

Mr Strickland also appeared to seek to derive more from Energy Solutions than is warranted. For example, he appeared to be suggesting that it is authority for the proposition that the only claim which could have been brought in the Recall case was a Francovich claim, and to be relying on this proposition as the foundation for his argument that the EUWA 2018 reversed the position arrived at by the Supreme Court and to explain why no common law claim was brought in the Recall litigation. As I read Energy Solutions, however, the Supreme Court’s decision that the Francovich criteria applied to a claim under the 2006 Regulations was essentially the result of an application, in the particular EU and domestic statutory context, of the broader principle that where Parliament implemented EU law there was a rebuttable presumption that it did not intend to go further, under the implementing legislation, than it was required to under EU law. Energy Solutions itself, which was decided after the Recall litigation, has no particular implications for the present case.

I therefore also agree with Mr Holmes that if a broader common law claim for breach of statutory duty in the (different) statutory context of section 8(4) of the WTA 2006 is available it could have been advanced in the Recall litigation, albeit Edge would have been required to show that Parliament intended the implementing legislation to go further than was required by Article 5 of the Authorisation Directive and to permit the additional basis for a claim in damages which Edge now contends for. Insofar as Mr Strickland was suggesting that, effectively by a sidewind, the EUWA 2018 created a domestic law cause of action in the present case which was not previously available, I do not see how that can be the effect of the provisions relied on by him. I also see the force of Mr Holmes’ argument that if that were the effect of the EUWA 2018 it would have created, post Brexit, potential liability for damages for breach of statutory duty in a host of different contexts in which domestic legislation implemented EU law which, pre Brexit, was in principle susceptible to a claim for Francovich damages because it concerned individual rights. That cannot have been the intention of Parliament in enacting the EUWA 2018.

For all of these reasons, then, I reject Mr Strickland’s first submission. The question is whether Parliament intended that there should be something more than a Francovich claim in this case. That depends on whether it intended that there be a domestic claim for damages for breach of section 8(4) and that, in turn, depends on the interpretation of the WTA 2006 applying well established principles of our law of tort. Moreover, it does not seem to me that the analysis is affected by Mr Strickland’s arguments based on the alleged difference between primary and secondary Francovich claims (even here it seemed to me that the present case is in substance concerned with what Mr Strickland would classify as a pure Francovich claim given that it is a complaint about failure by Ofcom to make regulations which would have the status of a statutory instrument: see, further, below). Nor is the analysis affected by the fact that the COSUGs claim was brought within the 2 year window under [39(7)] of Schedule 8 of the EUWA 2018.