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

First, until Brexit, Parliament plainly intended that there should be a claim for damages available to enforce the obligations which flowed from Article 5 of the Authorisation Directive in that a Francovich claim could be brought to enforce those obligations, albeit subject to satisfying the criteria for such a claim. That continues to be the intention of Parliament, albeit the available claim is now a common law claim for breach of statutory duty rather than a Francovich claim. The right to bring a claim for damages remains embedded in the domestic legislation, albeit the ingredients of the cause of action have changed in that there is no longer a need to establish a sufficiently serious breach.

Further or alternatively, in any event such an intention on the part of Parliament is apparent on the basis of the application of standard domestic law principles including those identified in X (minors) v Bedfordshire County Council [1995] 2 AC 633 on which Mr Holmes KC relied.

Mr Strickland’s first argument is wrong. This is avowedly a domestic law claim for breach of statutory duty and the question whether a breach of section 8(4) of the WTA 2006 gives rise to an actionable claim in damages turns on well-established principles of our law of tort.

Applying established domestic law principles, it is clear that Parliament did not intend that a private law claim for damages could be brought for a breach of section 8(4).