3.3. Public Law Unlawfulness and Other English Torts

We have seen in the previous section that the English courts have not accepted that illegality which causes loss should per se lead to liability in negligence. It is therefore unsurprising that the House of Lords has also rejected the potentially broad principle deriving from Beaudesert Shire Council v Smith,¹⁷⁰ according to which ‘a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other’.¹⁷¹

An exception to the reluctance of the English courts to inject public law notions of illegality into tort liability is found in the evolving tort of misfeasance in public office. At present, this tort is subject to restrictive conditions, and essentially provides a remedy for citizens who have suffered loss due to the abuse of power by a public officer acting in bad faith.¹⁷² The mental element of the defendant is a key element of this tort, and unlawfulness per se is not a sufficient condition of fault. The elements of this tort are thus very different from the French law parity between illegality and fault, and will thus be examined in more detail in the next chapter.¹⁷³

Account must also be taken of the influence of European law, of both Community law and human rights law provenance, which potentially may challenge the traditional approach to public law illegality and liability in damages.¹⁷⁴

3.3.1. Community Law

In Community law, the elements of an action against national authorities for breach of EC law have been set out in a number of cases,¹⁷⁵ and its (p.52) impact on domestic law is now being felt. It would seem that the English courts have opted for the most straightforward solution of treating these cases as giving rise to an autonomous cause of action, without trying to shoehorn the claim into one of the existing heads of tort.¹⁷⁶

The element of this action which is of most relevance in the present context is that the breach of the Community provision must be ‘sufficiently serious’. This test, and its two constituent components, manifest and grave breach,¹⁷⁷ involves the balancing of a variety of factors, including:¹⁷⁸ the clarity and the precision of the rule breached; the measure of discretion left by the rule to the national authorities; and whether any error of law was excusable or inexcusable. It should be underlined that no further fault, such as negligence, on the part of the Member State above and beyond a sufficiently serious breach of Community law is a necessary precondition for liability.¹⁷⁹ Nonetheless, this does not mean that the mind of the infringing party is always irrelevant. As Lord Clyde held in the latest judgment in the Factortame litigation before the House of Lords: ‘[a] deliberate intention to infringe would obviously weigh heavily in the scales of seriousness. An inadvertent breach might be relatively less serious on that account. Liability may still be established without any intentional infringement.’¹⁸⁰

Significantly for the discussion of the illegality–fault rapport in English law, it would appear that, in certain situations, the mere infringement of Community law may constitute the necessary fault for the purposes of damages liability.¹⁸¹ In such a case, a claimant will in essence be able to seek damages for the loss caused by a public law unlawful act. This (p.53) stands in stark contrast to the position of victims of administrative unlawfulness where there is no element of Community law, who will have the more onerous task of proving that the claim falls within one of the private law causes of action. The anomaly of allowing damages for loss caused by a breach of Community law but not for a breach of a Statute of the Westminster Parliament has been criticized.¹⁸² Academics and members of the judiciary have acknowledged that Community law may prompt a more general rethink.¹⁸³