The Gazette 1990

GAZETTE

JULY/AUGUST 1990

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

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

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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