Derek Keith Spencer v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller |
| Judgment Date | 01 July 2008 |
| Neutral Citation | [2008] EWCA Civ 750 |
| Docket Number | Case No: A2/2007/1814 And A2/2007/0980 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2008 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Holland
Mr Justice Eady
Lord Justice Waller
Vice President Of The Court Of Appeal, Civil Division
Lord Justice Carnwath and
Lord Justice Stanley Burnton
Case No: A2/2007/1814 And A2/2007/0980
Robert Seabrook QC and Oliver Sanders (instructed by Messrs Russell Cooke LLP) for the Appellant
Jonathan Crow QC, Jemima Stratford and David Barr (instructed by The Treasury Solicitor) for the 1 st Respondent
Dermod O'Brien QC and Fergus Randolph (instructed by Messrs Greenwoods) for the 2 nd Respondent
Hearing dates : 29th, 30 th April 2008
These two appeals were heard together since in each is raised the question as to when a cause of action for 61990CJ0006">Francovich damages accrues (damages against the government for failing to implement Community law) and as to whether the actions are barred by limitation. In each case the claimant suffered personal injuries. In one case Mr Moore was injured by an untraced driver and received compensation from the MIB under the Untraced Drivers Agreement 1972, but claims that the compensation was inadequate because the government failed to correctly implement Council Directive 84/5/EEC. In the other Mr Spencer made a claim against Boots the Chemist Ltd (Boots) as his employers which failed, and he makes a claim against the government “for the failure of the defendant to implement Article 6(2) of the Framework Health and Safety Directive into the Management of Health and Safety at Work Regulations 1992”. In seeking a summary disposal of the cases, in each case the government have asserted that if a cause of action accrued it did so when the claimants suffered their personal injuries and that the claims are barred by section 2 of the Limitation Act 1980. In both cases the government have succeeded in their argument, in the case of Mr Moore before Eady J by a decision dated 20 th April 2007, and in the case of Mr Spencer before Holland J by a decision dated 27 th July 2007, itself a decision dismissing an appeal from a decision of Master Miller dated 19 th October 2006.
Mr Moore and Mr Spencer argue on the appeals as they did below, that until there was a decision on their case, under which they had not received that to which they assert proper implementation would have entitled them, no cause of action had accrued. In the case of Mr Moore the decision relied on is not the original decision of the adjudicating panel of the MIB but that of an Arbitrator on appeal under the 1972 Agreement; in the case of Mr Spencer, although at one time it was the decision of the Court of Appeal which dismissed his appeal from the decision of the judge which was relied on, before us it is the decision of the judge who dismissed the claim against Boots.
Under Community law it has been held that there are three conditions to be satisfied for a Member State to incur liability to an individual under Community law: (1) the rule of law infringed is intended to confer rights on individuals; (2) the breach is sufficiently serious and, in particular, there was a manifest and grave disregard by the Member State of its discretion; and (3) there is a direct causal link between the breach of the obligation resting on the Member State and the damage sustained by the injured party [see Francovich v Italian Republic (Joined cases C-6/90 and 9/90) [1995] ICR 722, Brasserie du Pêcheur SA v Federal Republic of Germany (Joined cases C-46 and 48/93) [1996] QB 404 and Sir Andrew Morritt's summary of the position in paragraph 11 of his judgment in Phonographic Performance Ltd v Department of Trade and Industry [2004] 1 WLR 2893].
Insofar as each of the appeals is an appeal against summary judgment and is concerned with the question of limitation, all three conditions can be assumed to have been fulfilled. The first question in each of the appeals is when the cause of action would have accrued.
In Mr Moore's case there are three elements to his claim: (1) costs which the Arbitrator did not award said to be due to a defect in the MIB scheme; (2) interest not awarded again alleged to be due to a defect in the MIB scheme; and (3) damages alleged to be inadequate due to an unfair procedure attributable to a defect in the MIB scheme.
Mr Seabrook QC, in support of his argument for Mr Moore that the date of the Arbitration award was the relevant date when Mr Moore's cause of action against the government accrued, argued: (1) the relevant breach of Community law was a continuing breach and since the United Kingdom could have remedied the breach at any time prior to the Arbitrator's award no cause of action accrued until the date of the award; (2) the damages claim element only accrued when the Arbitrator failed to award the amount Mr Moore should have recovered; (3) the costs and interest elements only accrued once the claim had been processed; (4) since Mr Moore's claim could only succeed if the driver remained untraced, and since the driver could have been traced right up until the final award it was only at the date of the final award that it was known that the claim would succeed; and (5) Mr Moore's losses were unquantifiable and impossible to measure until the final award of the Arbitrator.
In Mr Spencer's case the claim is to receive damages for personal injury not awarded against Boots. Mr Epstein QC adopted Mr Seabrook's arguments adapted to the circumstances of Mr Spencer's case. He put point (4) in a way in which it could not perhaps be put in the case of Mr Moore. He submitted that, in his action against Boots, Mr Spencer might have recovered all his losses in his action for negligence; it was not until he had lost the action and could identify a way in which he had not been able to argue his case that he could identify a loss flowing from the United Kingdom's breach.
In Mr Spencer's case further arguments were raised. It was argued that it was a principle of Community law that Mr Spencer was bound to exhaust all domestic remedies before pursuing a claim to Francovich damages. It was argued that in the result no cause of action arose until all domestic remedies had been exhausted. It was also argued that the community principle of “effectiveness” should prevent reliance on the limitation period expiring, it being said it was “virtually impossible” to pursue the government at the same time as the primary tortfeasor. Mr Seabrook, for Mr Moore, adopted the additional arguments made on behalf of Mr Spencer, adapted to Mr Moore's situation.
In Mr Moore's case, if he was to succeed on the limitation point, a further issue arose as to whether he had an arguable case on one aspect of his claim, the claim that his damages were inadequate as a result of unfairness in the procedure, alleged to be due to a defect in the MIB scheme. Eady J also ruled against him on that aspect and he appealed that part of Eady J's ruling as well. No similar point arises in Mr Spencer's case although, as will appear, it originally did when the matter was being considered by Master Miller.
The facts in Mr Moore's case in more detail
Mr Moore, then a 28 year old actor with the Royal Shakespeare Company, was very seriously injured in a road traffic accident on 19 th April 1995. The culpable driver did not stop and has remained untraced. On 7 th July 1995 Mr Moore made an application to the MIB under the 1972 Untraced Drivers Agreement. On 7 th June 1999 he was awarded by an MIB adjudication panel £376,286. He exercised his right of appeal to an Arbitrator and he was awarded £585,134 by the Arbitrator on 8 th February 2000.
Mr Moore alleges that if the government had properly implemented Council Directive 84/5/EEC he would have received an increase in his award from the Arbitrator of £605,075.44, not received due to unfairness in the procedure which the MIB scheme allowed to be adopted in his case. He further alleged that he would have received a further sum of £53,729.30 in interest and £15,051.75 in costs not received because of inadequacies in the MIB scheme, present because of a failure by the government to implement the Directive. On 3 rd February 2006 (just under six years from the award of the Arbitrator) he commenced proceedings against the Secretary of State for Transport claiming Francovich damages. MIB was granted permission to intervene in those proceedings.
The facts in Mr Spencer's case in more detail
Mr Spencer worked for Boots between 1970 and April 1997. In 1991 he was appointed manager of their shop at Bulwell, Nottinghamshire. Save for a period between January and September 1996 that remained his position until he resigned in April 1997. The Bulwell dispensary was very busy but cramped. Its lay-out was such that a left handed person could most conveniently lift “retained stock bottles so as to place the same in the returns tray.” Mr Spencer was left handed and did much of the required lifting. By the end of 1996 Mr Spencer was experiencing pain in his left shoulder. Mr Spencer's case was that the pain was due to pericapsulitis of the shoulder...
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