Nabadda and Others v Westminster City Council and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE WALLER,LORD JUSTICE PETER GIBSON |
| Judgment Date | 03 February 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0203-8 |
| Docket Number | Case No: CCRTF/99/0945/6/7 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 2000 |
[2000] EWCA Civ J0203-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LONDON COUNTY COURT
His Honour Judge Cowell
Lord Justice Peter Gibson
Lord Justice Waller and
Lord Justice Buxton
Case No: CCRTF/99/0945/6/7
Mr. Robin Allen Q.C. and Mr. Tim Eicke (instructed by Messrs. Luqmani Thompson & Partners of Wood Green for the Appellants)
Mr. Nigel Giffin (instructed by the Solicitor of Westminster City Council) and
Miss Jenni Richards (instructed by the Solicitor for the London Borough of Haringey) for the Respondents)
Thursday, 3rd February 2000
Background
In these proceedings four Swedish nationals, currently students in the UK, sue two local authorities, Westminster and Haringey. The four students have identical interests, as do the two authorities.
The students are pursuing a variety of courses which do not need to be described further. Each of the students has for the purposes of their course both a grant and a loan from a Swedish organisation, shortly called SNB. Each of the students applied to the relevant English local authority for what is conveniently called a "fees only" award: that is, an award not in relation to their maintenance, but in order to defray the costs of their education. That award is a "mandatory" award: meaning that, if the student fulfils the qualifications laid down in the subordinate legislation creating the award, the local authority is obliged by that legislation to make the award.
The relevant legislation in this case is the Education (Mandatory Awards) Regulations 1997. The crucial regulation for this case is regulation 23, which provides that a qualifying student shall not receive an award if he receives from other sources any scholarship or similar award equalling the amount of his fees. There is not to be taken into account in that process of calculation any award or loan made under various English statutes. The authorities both took the view that that required them to take into account the SNB loans: with the result that the students received less than a full award. In so determining, the authorities acted on the regulations as they stood in 1997. The regulations were significantly amended in 1998 to add to the "exempted" loans or awards any award made under legislation of any other member state of the Community. An explanatory note to the amending regulations said that the change had been made in order to avoid discrimination against students supported by other member states.
As a direct result of that change, all of the students were informed in February 1998 that they would receive a full award for that and any subsequent years of their studies. Two of them had commenced judicial review proceedings in relation to the authorities' earlier decision, but those proceedings were necessarily and properly abandoned. With the students having received full grants, and it being provided by the regulations that anyone in their position was entitled to such a grant, that might have been thought to be the end of it so far as the law was concerned. In these proceedings, however, the students seek damages in respect of the initial refusal of a grant, though only in terms of damages for injury to their feelings. For instance, in paragraph 13 of the particulars of claim filed by Miss Nabadda, the particulars of damage are said to "include" injury to feelings, but all the particulars in fact relate to that latter head and no other.
The claims and the proceedings
The authorities have brought third party proceedings against the Secretary of State asserting that in originally withholding the awards they were doing no more than acting in obedience to his directions in the regulations. Accordingly, if that act exposes them to liability, the Secretary of State should indemnify them. In the court below the Secretary of State sought to meet this claim by inviting the judge to hold, on a preliminary point of law, that it had been open to the authorities to make the awards despite the terms of the regulations. The judge rejected that argument in a cogent and wholly convincing judgment. The Secretary of State entered a notice of appeal against the judge's ruling, but the appeal was, prudently, withdrawn shortly before the hearing before us. I need therefore say no more directly about this aspect of the matter; though the relationship between the national government and the authorities will re-emerge at a later stage of this judgment.
I turn to the students' claim against the authorities. The legal basis of that damages claim is as follows. Although education as such does not come within the competence of the institutions of the EU, vocational training does so, as an adjunct to the EU provisions on freedom of movement of workers: see Case 152/82 [1983] ECR 2323. ( Forcheri v Belgium). Provisions for access to such training are therefore governed by the prohibition on discrimination on grounds of nationality contained in article 6 of the Treaty of Rome (now article 12 of the Consolidated Treaty). For the purpose of the present applications it is assumed, though very emphatically not conceded, that the students' courses consisted of vocational training. On that basis, the authorities concede that the witholding of the grant because of the SNB loan constituted discrimination contrary to the terms of article Such discrimination was what, in English terms, would be characterised as indirect: that is to say, that the students were not refused the grant because they were Swedish, but because they were subject to a condition that, although not confined to Swedish persons (because it would appear that a person of another nationality living in Sweden would be eligible for an SNB loan), was plainly much more likely to affect Swedish nationals than nationals of other EU countries.
So far so good. The next and crucial step in the students' case is, however, that they are by reason of such discrimination entitled to damages within the English system under the Race Relations Act 1976 [the 1976 Act]. To the extent that (as is the case) certain provisions of the 1976 Act stand in the way of granting the remedy sought in this case in respect of the breach of article 6, those provisions must be disapplied or ignored, in deference to the primacy of Community law. As it was put in the students' skeleton argument before this court:
Parliament has chosen the Race Relations Act 1976 as the mechanism by which acts of discrimination on grounds of nationality including discrimination contrary to Community Law are to be remedied and…any provision of domestic law which is inconsistent with directly enforceable Community Law rights must be disapplied.
The 1976 Act in its relationship to Community law is thus crucial to this case. It is important also at this stage to note that the claim is deliberately not made under what might be called the general mechanisms required of national law for recovery of reparation for breaches of directly effective Community provisions that have been recognised by the Court of Justice, in such cases as Case C6–90 [1991] ECR I-5347 ( Francovich) and Case C-46/93 [1996] ECR I-1631 ( Brasserie du Pêcheur). The most convenient summary of that jurisprudence is to be found in the most recent case in the Court of Justice, Case C-127/97 [1998] ECR I-1531 ( Norbrook), at paragraphs 106–107 of the judgment. I shall refer to the relief envisaged by that jurisprudence as Norbrook damages. To ground recovery for such damages it has to be established, inter alia, that the breach of Community law was "sufficiently serious" to justify a claim for compensation. No such allegation is made in this case.
The formulation of the damages claim in terms of the 1976 Act gives rise to a series of issues. The proceedings in the court below took the form of the investigation of a list of preliminary questions agreed by the parties, which were intended to illuminate those issues. Whilst readily acknowledging how very much easier it is to see how a case can be shortened and clarified after rather than before it has been argued, I nonetheless consider that the question paper put before the judge was unnecessarily elaborate, and in some respects did not accurately isolate the matters in dispute. That feeling is reinforced by the fact that in both written and oral argument before this court the questions were largely abandoned, in favour of an investigation of the essential issues to which, it can now be seen, the case gives rise. The judge did conscientiously address and answer each question, but again, significantly, not in the forefront of his judgment, but in the course of a judgment that addressed the issues in general terms. That judgment, if I may say so, was a realistic and careful survey of an unfamiliar subject-matter, which subject-matter was before the judge perhaps made to seem more complicated than it in fact is. In what follows I shall address the issues as they emerged in this court, rather than the preliminary questions as such. I trust that in so doing I shall not be thought to intend any discourtesy to the judge, with whose conclusions on the substance and outcome of the case I largely agree.
The rules of Community law on reparation
In some instances provisions of Community law, notably Directives, contain requirements as to the penalties or compensation to be provided by member...
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