King's / Queen's Bench Division of the High Court

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

Fecha: 30-Oct-2025

The principles applicable to determining whether there is a right to claim damages for breach of section 8(4) of the WTA 2006

48.

Mr Holmes began by taking me to X (minors) v Bedfordshire County Council [1995] 2 AC 633 at 731D-F, where Lord Browne-Wilkinson said this in relation to the principles which are applicable to determining whether a cause of action exists in relation to a breach of a statutory duty to carry out a particular function simpliciter i.e. a claim based on the fact of breach alone, regardless of any misfeasance, or carelessness of performance, or the existence of a duty of care at common law:

“The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty….”

49.

Lord Browne-Wilkinson went on to say:

“…There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action…: However, the mere existence of some other statutory remedy is not necessarily decisive... ”

50.

He added, at 731H-732B, that:

“Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Thus legislation regulating the conduct of betting or prisons did not give rise to a statutory right of action vested in those adversely affected by the breach of the statutory provisions, i.e. bookmakers and prisoners: see Cutler's case [1949] A.C. 398; Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 A.C. 58.…”

51.

At 732B, Lord Browne-Wilkinson noted that:

“The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions.”

52.

Mr Holmes also relied on various passages from Clerk & Lindsell on Torts 16^th Edition, including the following at 8-12:

“The difficulty in applying the indicators is compounded by the fact that there is no explicit weighting of the indicators, though as a general proposition where the damage is physical, particularly personal injuries, the claimant is on stronger ground than where the damage is economic loss; and where the claim is against a public authority, especially in respect of the failure to perform some regulatory function, the claimant’s prospects of success are low.”

53.

He also relied on De Smith “Judicial Review” 9^th Edition at 19-048 to 19-050 including the following passage at 19-049:

“Most statutory duties in the public law context are owed to the public at large rather than to private individuals. Where the legislation in question establishes an administrative system to promote the social welfare of the community, exceptionally clear statutory language will be needed to show a parliamentary intention to create a right to damages for breach of statutory duty.”

54.

Mr Holmes took me to a series of authorities which illustrated or expanded on these principles and what was said by Lord Brown-Wilkinson in X v Bedfordshire. These included:

Barrett Homes Ltd v Dwr Cymru Cyfyngdig (No 2) [2013] EWCA Civ 233, [2013] 1 WLR 3486 at [99]-[103] and [113] which highlighted the reluctance of the courts to read private law claims in damages into detailed statutory regulatory schemes, and that the expectation in that context is that any breach of duty on the part of the public body will be enforceable in public law rather than private law.

ii)

Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 A.C. 58 to which Lord Browne-Wilkinson referred in the passage from X v Bedfordshire cited at [50], above. Mr Holmes drew particular attention to the speech of Lord Jauncey at 170H-173D. At 171A Lord Jauncey emphasised that “The fact that a particular provision was intended to protect certain individuals is not of itself sufficient to confer private law rights of action upon them, something more is required to show that the legislature intended such conferment.” He went on to conclude, on the basis of a survey of the Prison Act 1952 and the Prison Rules themselves, that the Secretary of State’s power under section 47 of 1952 Act, to make rules for the regulation and management of prisons, did not confer on prisoners a cause of action sounding in damages. Any remedy for breach of the Prison Rules lay under the Rules themselves or by way of a claim for judicial review.

iii)

Olotu v Home Office [1997] WLR 328 CA at 336E-337E (Bingham LJ as he then was) and 338G-339D (Mummery LJ) where the Court of Appeal held that there was no private law action in damages available against the Crown Prosecution Service (“CPS”) for breach of regulation 6 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 in circumstances where the accused had been held for 81 days longer than the prescribed time limit. The breach was that the CPS had not applied for an extension of time or arranged for the claimant to be brought before the Crown Court for admission to bail. Although the aim of the legislation was to protect prospective defendants, consideration of the legislation as a whole led to the conclusion that there was a right to apply for bail or to claim habeas corpus, or judicial review for failure on the part of the CPS, but no additional remedy in damages for breach of statutory duty.

iv)

Sebry v (1) Companies House (2) the Registrar of Companies [2015] EWHC 115 (QB) which illustrated the caution in relation to claims for pure economic loss referred to in Clerk & Lindsell at 8-12 (see [52], above). Mr Holmes also referred to The Claimants in the Royal Mail Group Litigation v Royal Mail Group Limited (supra) at [122] in this regard. Sebry concerned a claim against the Registrar of Companies in relation to their functions in maintaining the register under the Companies Act 2006. The complaint was that information relating to a company which had been recorded in the register was inaccurate. Edis J (as he then was) proceeded on the basis that, whilst there might be a common law claim available in negligence, there was no claim for damages based simply on breach of the relevant statutory duties. At [106] he explained that:

“The reason for this is that the 2006 Act is a statute which regulates the keeping of the Register and imposes duties on the Registrar for that purpose. The Register publishes information which is available to the whole world, because it is available on the internet. Whereas the common law of negligence has control mechanisms designed to restrict the class of person who can claim damages for economic loss, the imposition of a statutory duty which gave rise to a claim for damages at the suit of anyone who suffered economic loss by reason of any act or omission which was a breach of the statutory duties imposed would create a very wide duty indeed. I can see nothing in the Act to justify a finding that this was the intention of Parliament.”

55.

Mr Holmes also relied on T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373 as illustrating, by analogy, that judicial review is an appropriate remedy in this context. And he relied on section 104 CA 2003, which expressly provides a remedy in damages in relation to certain breaches of obligations under that Act subject to specified conditions. This, he suggested, illustrated that where Parliament intended such a remedy to be available it said so.

56.

Overall, Mr Holmes’ submission was that section 8(4) of the WTA 2006 forms part of a complex regulatory scheme for the benefit of the public in general. Plainly, Parliament did not intend there to be a private law claim in damages available for failure to make regulations pursuant to its terms, particularly having regard to the fact that any such claim would be for pure economic loss and would subject Ofcom to potentially substantial claims by a wide range of potential claimants. The functions of Ofcom at issue in Edge’s claim were general administrative functions imposed on a public body which involved the exercise of administrative discretion and were therefore properly the subject of judicial review rather than a private law action.