Statutory duty – Electricity Supply Regulations 1988 – Respondents bringing action against appellant electricity supplier for alleged breach of regulations – Appellant’s application to strike out that ground of claim rejected – Whether alleged contraventions of regulations giving rise to private right of action – Effect of section 29(3) of Electricity Act 1989 – Appeal allowed
The first respondent was the tenant of a ground-floor shop (no 23); the other respondents were its landlord, who also owned no 25, and the owners of a neighbouring property (no 27). In March 1998, a fire broke out in no 23, destroying that property and damaging no 25; no 27 was damaged following the demolition of no 25. The respondents brought claims against the appellant electricity supplier in negligence and for breach of statutory duty under regulations 17, 24 and 25 of the Electricity Supply Regulations 1988. They alleged that the fire had been caused by the negligent fitting, by its employees, of a metal shim to improve the fit of the cut-out fuse into its holder, resulting in heating, arcing and, consequently, the fire.
The appellant denied that it had been at fault. It contended that the claim under the 1988 Regulations should not proceed because, by virtue of section 16 of the Energy Act 1983, pursuant to which the 1988 Regulations had been made, a breach of the regulations gave rise only to a criminal offence punishable by a fine and could not attract liability in damages to those who suffered loss as a result of the breach. It submitted that this continued to be the position notwithstanding that, following the repeal of the 1983 Act by the Electricity Act 1989, the Regulations were to be treated as having been made under the later Act. Section 29(3) of the 1989 Act stated that the provision for a fine on summary conviction thereunder did not affect liability to pay compensation for any damage or injury caused by the contravention. That contention was rejected by a Lord Ordinary and an Extra Division; the latter held that the plain meaning of section 29(3) was that parliament had intended to enable any member of the public who sustained damage as a result of a contravention of the regulations to raise an action for damages, notwithstanding that this represented a change from the previous position under the 1983 Act. The appellant appealed.
Held: The appeal was allowed.
The appellant’s contraventions of the 1988 Regulations did not give rise to any private right of action. Where the intention was to allow individuals to recover damages or compensation for specific breaches, the 1989 Act had stated this expressly: see sections 27(5) and 39. The natural inference was that parliament had not intended there to be a right to damages or compensation for loss or injury caused by other breaches of the statute or subordinate legislation for which no specific provision was made. Section 29(3) did not amount to a specific provision. It merely reserved rather than introduce any new right of action. Its main thrust was to provide that, where the regulations so stipulated, a party that contravened the regulations would be guilty of a criminal offence that incurred a fine. Its additional provision that such criminal liability would not affect the offender’s liability, if any existed, to pay compensation, could not be construed as introducing a private right of action. It merely provided that if, in terms of any regulations made under the section, a party was to be liable to pay compensation for damage or injury caused by a contravention of a provision of the regulations, that party’s liability to pay the compensation would not be affected by its liability to pay a fine for the same contravention. The 1988 Regulations did not provide for a party that contravened them to be liable to pay compensation for damage or injury.
Moreover, it was relevant that the statute provided alternative means, other than a private law action for damages, of enforcing the statutory duty that it imposed, not only by criminal liability but also by enforcement action by the secretary of state under section 29(2)(e) and regulation 38 of the 1988 Regulations made pursuant to it. That pointed strongly to the conclusion that the regulations were to be enforced by the secretary of state and those appointed to act on his behalf, rather than by individuals raising private actions: X (Minors) v Bedfordshire County Council [1995] 2 AC 633 applied. A private right of action to require a supplier to comply with a regulation would be inconsistent with that scheme of enforcement by the secretary of state. Moreover, although parliament could in theory have provided for a more limited right of action for damages only had it intended to do so, it would have done so expressly. Further indications that enforcement was to be other than by private action could be found in sections 1, 21(b), 45 and 46 of the 1989 Act and regulations 27(1) and 28 of the 1988 Regulations. When looked at as a whole, the scheme of the legislation, with its carefully worked-out provisions for various forms of enforcement on behalf of the public, pointed against individuals having a private right of action for damages for contraventions of regulations made under it. That conclusion was supported by the fact that it was difficult to identify any limited class of the public on whom any right of action was intended to be conferred: X (Minors) applied; Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 not followed.
Richard Keen QC and Jonathan Barne (instructed by Shepherd & Wedderburn LLP, of Edinburgh) appeared for the appellant; R Gilmour Ivey QC and Philip M Stuart (instructed by Andersons Solicitors LLP, of Edinburgh) appeared for the respondents.
Sally Dobson, barrister
