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GAZETTE
JULY/AUGUST 1990
strictions on the import of French
turkeys imposed by the UK Minister
of Agriculture. The prohibition was
imposed in the exercise of a power
conferred by Section 24(1) of the
Diseases of Animals Act 1950
which enabled the relevant author-
ities to prevent the introduction of
diseases into the United Kingdom.
The Plaintiffs whose imports were
restricted claimed approximately
£19 million damages. By the time
of the hearing of this action in the
House of Lords it had already been
held by the European Court of
Jus t i ce t hat the p r oh i b i t i on
imposed by the UK authorities was
invalid.
The Plaintiffs, following the line
of argument developed by Lord
Diplock in the
Garden Cottage
Foods
case, sought recovery of
their damages for breach of
statutory duty. Oliver LJ in a long
and very comprehensive dissenting
judgment agreed that damages
should be awarded. However,
Parker LJ in the majority judgment
distinguished this case from the
Garden Cottage Foods
case on the
basis of a distinction between
private law and public law. Parker
LJ's view was that this was a
matter of public law. His rationale
for this appears to be the fact that
it would be unacceptable in a
situation when, for instance, a
Minister must make a decision
regarding the danger to the public
of a product, where there might
also be strong scientific evidence
both pro and con and that an
incorrect decision on the dangers
would open the Government to a
large liability for damages.
Parker LJ read Article 30 and
Article 36 as one provision and
accordingly considered that there
did not exist a total prohibition on
the restriction of imports. Rather, it
was a question of a discretion left
to the relevant Minister under
Article 36. In this particular case it
was found that the exercise of his
discretion was ultra vires. As has
already been stated, the distinction
between private and public law is
one that is most unclear. Neverthe-
less, despite these unfortunate
attributes of public law and the
very strong majority decision of the
House of Lords in the
Garden
Cottage
Foods
interlocutory
application, Parker LJ distinguished
the
Garden Cottage Foods
case as
one dealing with private law.
Parker LJ's view was that unless
there was misfeasance or a
manifest abuse it was merely an
ultra vires action by the relevant
Minister and as such was an action
which should properly be pursued
by way of an application for judicial
review and not a private writ for
damages.
"An individual right may be a
right in private law or in public
law; Article 30 in my judgement
creates individual rights both in
public law and private law. A
breach simpliciter of the Article
sounds only in public law. A
breach amounting to abuse of
power sounds in private law.
Neither can be categorised as,
or be regarded as being of the
nature of a breach of statutory
duty in any sense known to
English law", per Parker LJ.
Leave to appeal to the House of
Lords was granted, but the matter
was settled.
Parker LJ's decision in
Bourgoin
certainly raises more questions
than it answers. Now if a client has
suffered due to an act of Central or
Local Government which infringes
Community law, there is the danger
of the matter falling within the
public law domain. However, it
should not need to be pointed out
that not every action against the
Government is a matter of public
law. The traffic accident involving
a local authority driver is not a
matter of public law.
"Before the expression 'public
law' can be used to deny a
subject a right of action in the
Court of his choice, it must be
related to a positive prescription
of law by statute or by statutory
rules", per Lord Wilberforce.
18
I believe there may now be made
. . . if a client has suffered due
to an act of Central or Local
Government wh i ch infringes
Commun i ty law, there is the
danger of the matter falling
within the public law domain."
the argument that if the legislative
or administrative act was not
simply a case of an error in the use
of an administrative discretion, but
was an act in an area where there
was no such discretion available,
that it may be claimed that it is not
a matter of public law but of the
enforcement of the private law
right for a breach of a statutory
duty.
Where does all this leave the
legal adviser or practitioner? Well,
as the law stands, if a client has a
problem which appears to arise
from a breach by an individual
or a public authority of a provision
of commun i ty legislation, the
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