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

Relying on Clerk & Lindsell at 8-15, the issue of whether Parliament intended to confer a private law claim for damages is inherently linked to whether the claimant can bring themself within a particular class and this is predicated on two policy objectives: the importance of limiting claimants to those within the risk of the danger envisaged by the statute, and the aim of protecting statutory undertakers from huge potential liabilities.

As to that, the duty under section 8(4) had, in effect, already been found to be for the protection of a limited class. In the Recall case (supra at [169]) Rose J had accepted that the first Francovich criterion was satisfied and had said in relation to Article 5 of the Authorisation Directive, which was implemented by section 8(4), that:

“The question for me therefore is whether art.5 of the Authorisation Directive is intended to confer on these claimants a “right” to operate COSUGs without having to apply for an individual licence. In my judgment, it is. The whole thrust of the Authorisation Directive is carefully to circumscribe the obstacles that the Member State can erect in the path of someone who wants to provide an electronic communications service as defined in the Authorisation Directive.”

Clearly that did not encompass the public at large because not all members of the public wish or are able to provide electronic communications services and, in any event, it does not necessarily matter whether the class of persons who are protected embraces the public at large: see Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841.

Moreover, the 1949 and 2006 WTAs impose no penalty, civil or criminal, for breach of section 8(4). There is therefore a presumption, albeit a light one, that there will be a remedy in damages: see Clerk & Lindsell at 8-18 (although the paragraph actually says “If such a presumption exists it tends to be given little weight.” (emphasis added)). Mr Strickland also relied on the absence of any other administrative measures to remedy default: see Clerk & Lindsell at 8-29.

Moreover, “judicial review was not available because OFCOM had no discretion to liberalise” and, in any event, in the Recall case Rose J held (supra at [228(iii)]) that “as a matter of law [the claimants were] not required to pursue domestic judicial review remedies before claiming damages”. In his oral submissions Mr Strickland also argued that any remedy by way of judicial review was inadequate.

The conclusion contended for by Mr Strickland was also said to be supported by the fact that the relevant provisions were EU derived legislation, “not purely domestic legislation and not purely administrative”. On the contrary, the domestic law provisions at issue were introduced precisely to liberalise access to radio frequencies and Ofcom’s position is not sustainable in the light of Rose J’s finding that the first Francovich condition is satisfied. “That narrow point is res judicata”.