JUDGMENT
Morrison Sports Limited and others (Respondents)
v Scottish Power (Appellant) (Scotland)
before
Lord Rodger
Lord Walker
Lady Hale
Lord Collins
Lord Clarke
JUDGMENT GIVEN ON
28 July 2010
Heard on 16 June 2010
Appellant Respondent
Richard Keen QC R Gilmour Ivey QC
Jonathan Barne Philip M Stuart
(Instructed by Shepherd
and Wedderburn LLP)
(Instructed by Andersons
Solicitors LLP )
Page 2
LORD RODGER (delivering the judgment of the court)
1. In March 1998 Mr Brian Pitchers owned two buildings, at 23 and 25 Moss
Street, Paisley. The tenants of the ground floor shop at number 23 were Morrison
Sports Ltd (“Morrison Sports”). On 6 March 1998 the building at number 23 was
destroyed by fire. The neighbouring building at number 25 was also damaged and
had to be demolished. This left the gable wall between numbers 25 and 27
exposed. As a result, the owners of flats at 27 Moss Street had to carry out
weatherproofing work to the gable wall.
2. Investigations identified the seat of the fire as an electricity meter cupboard
in number 23. Mr Pitchers, Morrison Sports Ltd and the flat owners at 27 Moss
Street (“the pursuers”) raised three separate actions for damages against Scottish
Power UK plc (“Scottish Power”) in Glasgow Sheriff Court. The actions were
remitted to the Court of Session.
3. All three actions are framed in the same way. The pursuers aver that, in
order to improve the fit between the prongs and the fuse-holder, a metal shim had
been wrapped around the end of the prongs of the cut-out fuse before it was
inserted into the fuse-holder in the ground floor premises at number 23. The
pursuers further aver that the presence of the shim caused heating and that this led
to arcing which in turn caused the fire. The pursuers allege that the shim was fitted
by employees of Scottish Power. Scottish Power largely admit the pursuers’
averments as to the cause of the fire, but deny that the shim was fitted by their
employees. They believe and aver, rather, that the cut-out fuse had been tampered
with by someone acting on behalf of Morrison Sports.
4. On the basis of their factual averments the pursuers seek to hold Scottish
Power liable on two bases. First, they allege that Scottish Power are vicariously
liable for the negligence of their employees in fitting the shim. Secondly, and
separately, in article 6 of condescendence they aver that the fire was caused by
Scottish Power’s breach of their statutory duty under regulations 17, 24 and 25 of
the Electricity Supply Regulations 1988 (SI 1988 no 1057) (“the 1988
Regulations”). The defenders deny the averments of fault and aver that the fire was
caused by the sole fault of Morrison Sports.
5. Scottish Power accept that a proof before answer must be allowed in respect
of the pursuers’ common law case of negligence. But they plead that the pursuers’
averments in article 6 of condescendence, relating to the alleged breach of
Page 3
statutory duty, are irrelevant and should not be admitted to probation. In short,
Scottish Power submit that a breach of the relevant provisions of the 1988
Regulations does not give rise to any liability in damages to those who may suffer
loss as a result of the breach. The Lord Ordinary (Lord Wheatley) rejected Scottish
Power’s argument and allowed a proof before answer on the whole case: 2007
CSOH 131; 2007 SLT 1103. Scottish Power reclaimed, but, varying the Lord
Ordinary’s interlocutor, an Extra Division (Lady Paton, Lady Dorrian and Lord
McEwan) repelled Scottish Power’s plea to the relevancy insofar as it extends to
the pursuers’ averments in article 6 of condescendence: 2009 CSIH 92; 2010 SLT
243. In effect, therefore, they allowed a proof of those averments. Before this
Court the Dean of Faculty explained that, in pronouncing this particular
interlocutor, the Extra Division proceeded on the basis of a concession that, if they
rejected Scottish Power’s argument that a breach of the regulations did not give
rise to civil liability, the averments in article 6 should be treated as being otherwise
relevant.
6. The 1988 Regulations were made by the Secretary of State by virtue of his
powers under section 16 of the Energy Act 1983 (“the 1983 Act”). So far as
relevant, section 16 provided:
“The Secretary of State may make such regulations as he thinks fit
for the purpose of –
(a) securing that supplies of electricity by Electricity
Boards or other persons are regular and efficient; and
(b) eliminating or reducing the risk of personal injury,
or damage to property or interference with its use,
arising from the supply of electricity by an Electricity
Board or any other person, from the use of electricity
so supplied or from the installation, maintenance or use
of any electrical plant.
…
(3) Regulations under this section may provide that any person who
contravenes any specified provision of the regulations, or any person
who does so in specified circumstances, shall be guilty of an offence
under this section.
(4) A person guilty of an offence under this section shall be liable on
summary conviction to a fine not exceeding level 5 on the standard
scale.”
7. In 1988 section 16 was the latest embodiment of a power to make
regulations, for securing the supply of electricity and for preserving the safety of
life and property, which has existed in different incarnations since the earliest days
Page 4
of the public supply of electricity in this country. See, for instance, section 6 of the
Electric Lighting Act 1882 and section 60(1) of the Electricity Act 1947.
8. Part I of the 1983 Act, including section 16, was repealed by the Electricity
Act 1989 (“the 1989 Act”), but the power to make regulations was maintained in
section 29 of the new Act which, so far as relevant, provides:
“(1) The Secretary of State may make such regulations as he thinks
fit for the purpose of –
(a) securing that supplies of electricity are regular and
efficient;
(b) protecting the public from dangers arising from the
generation, transmission, distribution or supply of
electricity, from the use of electricity interconnectors,
from the use of electricity supplied or from the
installation, maintenance or use of any electric line or
electrical plant; and
(c) without prejudice to the generality of paragraph (b)
above, eliminating or reducing the risks of personal
injury, or damage to property or interference with its
use, arising as mentioned in that paragraph.
(2) Without prejudice to the generality of subsection (1) above,
regulations under this section may—
…
(e) make provision requiring compliance with notices given by the
Secretary of State specifying action to be taken in relation to any
electric line or electrical plant, or any electrical appliance under the
control of a consumer, for the purpose of—
(i) preventing or ending a breach of regulations under
this section; or
(ii) eliminating or reducing a risk of personal injury or
damage to property or interference with its use….
(3) Regulations under this section may provide that any person –
(a) who contravenes any specified provisions of the
regulation; or
(b) who does so in specified circumstances,
shall be liable on summary conviction to a fine not exceeding level 5
on the standard scale; but nothing in the subsection shall affect any
liability of any such person to pay compensation in respect of any
damage or injury which may have been caused by the
contravention.”
Page 5
9. In the Court of Session Scottish Power argued that, even though the 1983
Act had been repealed by the 1989 Act, the court should proceed on the basis that
the 1988 Regulations still have effect on the basis that they were made under the
1983 Act. Under reference to para 3(a) of Schedule 17 to the Electricity Act 1989
(“the 1989 Act”), however, the Extra Division rejected that argument and held that
the 1988 Regulations have effect as if they were made under section 29 of the
1989 Act. Scottish Power now accept this and so there is no need to examine that
particular argument: the 1988 Regulations are to be treated as having effect as if
they had been made under section 29(1) of the 1989 Act.
10. The difference between section 16 of the 1983 Act and section 29 of the
1989 Act – and, hence, the point of the dispute in the Court of Session – lies in the
concluding words of section 29(3). While both section 16(3) and (4) of the 1983
Act and section 29(3) of the 1989 Act envisage that regulations may provide for a
person who contravenes the regulations, or who does so in specified
circumstances, being guilty of a criminal offence and liable to a fine not exceeding
level 5 on the standard scale, section 29(3) goes on to provide that nothing in
subsection (3) “shall affect any liability of any such person to pay compensation in
respect of any damage or injury which may have been caused by the
contravention.”
11. Regulation 39 of the 1988 Regulations does indeed provide that any
supplier who fails to comply with any provision of the Regulations shall be guilty
of an offence under section 16 of the 1983 Act, now section 29(3) of the 1989 Act.
It follows that, if, as the pursuers aver, Scottish Power failed to comply with
regulations 17, 24 and 25 of the 1988 Regulations, they would be liable to a fine
under section 29(3).
12. In these circumstances the Extra Division attributed critical importance, for
present purposes, to the concluding words of section 29(3). They noted that section
27(5) of the 1989 Act provides for a licence holder to be liable in damages to those
suffering loss as a result of a breach of a final or provisional order; similarly,
section 39 provides for a public electricity supplier to make compensation to any
person affected by a failure to meet a prescribed standard of performance. The
Extra Division then said, 2010 SLT 243, 252, paras 43-46:
“This is not therefore a regulatory scheme conferring no private
rights of action for damages. On the contrary, it is a regulatory
scheme conferring certain private rights of action for damages. Thus
it is a different type of statutory scheme from those being considered
by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County
Council [1995] 2 AC 633 when he noted at page 731G-H:
Page 6
‘Although the question is one of statutory construction
and therefore each case turns on the provisions in the
relevant statute, it is significant that your Lordships
were not referred to any case where it had been held
that statutory provisions establishing a regulatory
system or a scheme of social welfare for the benefit of
the public at large had been held to give rise to a
private right of action for damages for breach of
statutory duty.’
44. Against that background, while criticisms might be levelled at
the style of drafting (in particular the apparent introduction of an
important private right of action for damages by reservation in
section 29(3) of the 1989 Act), we consider that the plain meaning of
section 29(3) is that Parliament intended any member of the public
who suffers ‘any damage or injury which may have been caused by
the contravention’ of the 1988 Regulations to be entitled to raise an
action for damages against the person who contravened the
regulations, founding the action upon that breach of statutory duty.
45. We accept that a similar reservation provision relating to
compensation did not appear in the 1983 Act. Thus the wording of
section 29(3) represents an important innovation. However as was
made clear in Stevens v General Steam Navigation Co Ltd [1903] 1
KB 890, the proper approach to the construction of statutory
provisions may change if Parliament directs that the provisions are to
be construed in terms of a later, modified, enactment.
46. In the result therefore, when construing the Electricity Supply
Regulations 1988 as if they had been made under section 29 of the
Electricity Act 1989, Parliament’s intention is in our view clear, and
it is unnecessary to define a protected class…”.
13. The Extra Division were, of course, right to point out that the scheme of the
1989 Act makes provision in section 27(5) for individuals to recover damages and
in section 39 for the payment of compensation to individuals. But, where
Parliament has made specific provision of this kind in two sections, the natural
inference is that it does not intend there to be a right to damages or compensation
for loss or injury caused by other breaches of the statute or of subordinate
legislation for which no such specific provision is made.
14. As emerges from para 44 of their judgment, however, the Extra Division
thought that, by enacting section 29(3), Parliament had indeed made specific
provision for a private right of action of damages for loss caused by breaches of
the regulations. They considered that in section 29(3) Parliament had introduced an
important private right of action for damages “by reservation”. In other words,
although the Division appear to have accepted that, on its face, the relevant words
Page 7
in section 29(3) merely make a reservation, they nevertheless held that, by using
these words, Parliament actually intended to introduce, and did introduce, a new
right of action. The Division indicate that the drafting of this provision might be
open to criticism for the style of the legislative language used to create the right.
Nevertheless, in their view, “the plain meaning” of section 29(3) of the 1989 Act is
that Parliament intended any member of the public who suffers any damage or
injury due to a contravention of the 1988 Regulations to be entitled to raise an
action of damages for loss caused by the contravention.
15. In the hearing before this Court, Mr Ivey QC, who appeared for the
pursuers, adopted the reasoning of the Extra Division. Indeed, he expressly
conceded that section 29(3) was the only indication in either the 1989 Act or in the
1988 Regulations that a person who contravened a provision of the Regulations
would, ipso facto, be liable in damages to anyone who suffered loss as a result.
16. The Extra Division’s construction of section 29(3) is untenable. There is no
basis whatever for thinking that the drafter of the provision intended to introduce a
civil right of action but – somehow – botched that comparatively straightforward
task and came up with the words in the subsection which are so singularly illsuited to the supposed purpose. On the contrary, the main thrust of the subsection
is to provide that, where the regulations so stipulate, a person who contravenes a
provision is to be guilty of a criminal offence carrying a maximum penalty of a
fine not exceeding level 5 on the standard scale. The subsection then goes on, in
unmistakable terms, to provide that this criminal liability is not to affect “any
liability” of that person to pay compensation in respect of any damage or injury
caused by the contravention. So far from itself providing that such a person should
be liable to pay compensation, the subsection merely confirms that liability to the
criminal penalty is not to affect “any liability” of the offender to pay
compensation. By “any liability” Parliament means the offender’s liability, “if
any”, to pay compensation.
17. Since section 29(3) cannot be construed as introducing a private right of
action, it is, strictly speaking, unnecessary for present purposes to determine its
precise scope. One feature which stands out, however, is the reference to liability
to pay “compensation”. As the Extra Division held, this cannot be a reference to
the compensation which may be payable under section 27(5) or section 39(3) of
the 1989 Act, since section 29(3) is dealing with contraventions of regulations
made under section 29(1). The industry of junior counsel for Scottish Power has,
however, cast some light on the language of the subsection, which can be seen to
reflect language used in earlier regulations.
18. As already noted, section 6 of the Electric Light Act 1882 gave the Board of
Trade power to make such regulations as they might think expedient for securing
Page 8
the safety of the public from personal injury or from fire or otherwise. Section 2 of
the Electricity (Supply) Act 1919 made provision for Electricity Commissioners to
exercise that power. The Commissioners proceeded to do so. Regulation 35 of the
(A) Regulations for Securing the Safety of the Public made by the Electricity
Commissioners under the Electricity (Supply) Acts 1882 to 1922 provided for
undertakers who failed to comply with any of the regulations to be liable to a
criminal penalty. Regulation 35 added: “The recovery of a penalty under these
regulations shall not affect the liability of the undertakers to make compensation of
any damage or injury which may be caused by reason of the default.”
19. In Stevens v Aldershot Gas, Water and District Lighting Co (1932) LJKB
12 the plaintiff alleged that she had suffered damage to electrical apparatus and
loss of profits because the defendants had failed to supply electric current at the
voltage at which they had said that they would. Macnaghten J explained that the
question was “whether, if they have failed in that obligation, the plaintiff has a
remedy at common law or is she limited to penalties in a court of summary
jurisdiction?” His Lordship held that the plaintiff was limited to the penalties. In
the course of what appears to have been an extempore judgment, Macnaghten J
noted that the (B) Regulations which he had to apply, and which related to
ensuring a proper supply, did not contain an equivalent of regulation 35. This may
suggest that he took the inclusion of regulation 35 in the regulations for securing
the safety of the public to be some kind of an indication that an undertaker would
be civilly liable for a breach of those regulations. But the remark was obiter and he
did not explore the point.
20. In December 1936 the Commissioners made a new set of Regulations, the
Electricity Supply Regulations 1937. Regulation 39 again made provision for a
criminal penalty to be imposed for non-compliance with the Regulations, but
provided that “The recovery of a penalty under these Regulations shall not affect
the liability (if any) of the Undertakers to make compensation in respect of any
damage or injury which may have been caused by reason of the default.” Note that
“the liability (if any) of the Undertakers” replaces the reference to “the liability of
the undertakers” in the old regulation 35.
21. Regulation 39 of the 1937 Regulations was considered by the Court of
Appeal (Morton, Tucker and Somervell LJJ) in Heard v Brymbo Steel Company
Ltd [1947] KB 692. The plaintiff was injured in an explosion at the factory in
which he worked. It was held that the explosion had been due to a short-circuit
which had occurred because of breaches by the second defendants, the North
Wales Power Co Ltd, of regulations 24 and 25 of the Electricity Supply
Regulations 1937. It was accepted that the Electric Lighting (Clauses) Act 1899
applied to the power company. Paragraph 77 of the schedule to that Act provided
for undertakers to be answerable for all accidents, damages and injuries happening
through their act or “default” – “default” being a word that was to be found in
Page 9
regulation 39. In these circumstances the Court of Appeal held the power company
liable in damages for the plaintiff’s injuries. Somervell LJ explained, at p 699, that
the default, which was a breach of regulations 24 and 25, and which might cause
damage or injury under regulation 39, was a default for which undertakers were
answerable under para 77 of the schedule to the 1899 Act. In other words, the
power company were held liable to pay damages, not because the breaches of
regulations 24 and 25 of the 1937 Regulations per se gave rise to civil liability, but
because the default which constituted the breach of those regulations was also a
“default” which made the company liable to pay damages under para 77 of the
schedule to the 1899 Act. The 1899 Act was repealed by the 1989 Act.
22. It is unnecessary to trace the subsequent course of the legislation governing
the supply of electricity before the 1983 Act. Enough has been said to suggest that,
when Parliamentary counsel came to draft section 29(3) of the 1989 Act, the
choice of language was influenced by the language which had been used in the old
regulations. Hence, in particular, the use of the term “compensation”. On the other
hand there is nothing to show why the tailpiece was omitted from section 16(4) of
the 1983 Act but inserted in section 29(3) of the 1989 Act.
23. The fact that the language of section 29(3) can be traced back at least as far
as the earlier of the two sets of regulations made by the Electricity Commissioners
does, however, undermine part of the reasoning of Mr Peregrine Simon QC,
Deputy High Court Judge, in A E Beckett & Sons (Lyndons) Ltd v Midland
Electricity Plc 2000 WL 664506. The claimants alleged that they had suffered loss
as a result of the defendants’ breach of regulation 25(1) of the 1988 Regulations.
Having referred to the indicators of liability for breach of a statutory provision in
the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County
Council [1995] 2 AC 633, the Deputy High Court Judge continued at para 31:
“It is arguable that the claimants fell within a class which was
intended to be protected by regulations introduced under the powers
conferred by section 29(1)(c): namely, those affected by the risks of
damage to property. However, in my judgment, the claimants fail at
the second stage of the analysis in that it is clear that Parliament did
not intend to confer a private right to claim damages for a breach of
the statutory duty. First, the sanction of the criminal law for breach
of the Regulations provides a clear method of securing the protection
that the statute was intended to confer and militates against the
intention to create private rights of action. Secondly, by section
29(4), the power to bring criminal proceedings is confined to the
Secretary of State and the DPP. This suggests that Parliament did not
intend a breach of the regulations to be widely invoked. Thirdly, the
claimants rely on the reference to compensation in section 29(3) as
showing that the Act contemplated a civil action for breach of the
Page 10
[regulations]. However, the reference to compensation in section
29(3) is, in its context, clearly a reference to a claim for
compensation under section 35 of the Powers of Criminal Courts Act
1973 and not to a civil action.”
Although the decision was reversed on appeal, [2001] 1 WLR 281, this part of the
reasoning was not affected.
24. The equivalent of section 35 of the Powers of Criminal Courts Act 1973 in
Scots Law is to be found in section 249 of the Criminal Procedure (Scotland) Act
1980, which derives from section 58 of the Criminal Justice (Scotland) Act 1980.
25. Since, as has been seen, the term “compensation” was being used in the
present context long before Parliament made provision for criminal courts to make
compensation orders, it is implausible to confine the reference in section 29(3) to
that kind of compensation. We would therefore reject the construction adopted in
A E Beckett & Sons (Lyndons) Ltd v Midland Electricity Plc.
26. It is apparent that, in Heard v Brymbo Steel Company Ltd [1947] KB 692,
the Court of Appeal considered that the reference to “compensation” in regulation
35 of the then current regulations was apt to cover a liability to pay damages for a
default in complying with regulations which also constituted a default for purposes
of para 77 of the schedule to the 1899 Act.
27. Be that as it may, section 29(3) obviously envisages a situation where a
person may contravene a provision of regulations made under the section and be
liable to pay compensation for damage or injury which he has thereby caused. But
it does not follow that Parliament is saying that someone who contravenes any
provision of any regulations made under the section is automatically liable to pay
compensation for any resulting damage or injury. Rather, it will all depend on the
terms of the regulations which the Secretary of State decides to make. And, of
course, the drafter of section 29(3) did not know what regulations the Secretary of
State might choose to make in the years to come. So section 29(3) simply provides
that, if in terms of any regulations made under the section a person is to be liable to
pay compensation for damage or injury caused by a contravention of some
provision of the regulations, then the person’s liability to pay that compensation is
not affected by his liability to pay a fine for the selfsame contravention. So it all
depends on what the regulations made by the Secretary of State provide.
28. There is, of course, nothing in the 1988 Regulations which makes express
provision for a person who contravenes them to be liable to pay compensation for
Page 11
damage or injury. In that situation, it is common ground that the well-known
authorities, as to whether a breach of a statute or subordinate legislation gives rise
to a private law statutory right of action, are conveniently summarised in the
speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council
[1995] 2 AC 633. Having separated out a number of different types of case, he
dealt with breaches of statutory duty simpliciter, at pp 731-732:
“This category comprises those cases where the statement of claim
alleges simply (a) the statutory duty, (b) a breach of that duty,
causing (c) damage to the plaintiff. The cause of action depends
neither on proof of any breach of the plaintiffs’ common law rights
nor on any allegation of carelessness by the defendant.
The principles applicable in determining whether such statutory
cause of action exists are now well established, although the
application of those principles in any particular case remains
difficult. The basic proposition is that in the ordinary case a breach
of statutory duty does not, by itself, give rise to any private law
cause of action. However a private law cause of action will arise if it
can be shown, as a matter of construction of the statute, that the
statutory duty was imposed for the protection of a limited class of the
public and that Parliament intended to confer on members of that
class a private right of action for breach of the duty. There is no
general rule by reference to which it can be decided whether a statute
does create such a right of action but there are a number of
indicators. If the statute provides no other remedy for its breach and
the Parliamentary intention to protect a limited class is shown, that
indicates that there may be a private right of action since otherwise
there is no method of securing the protection the statute was intended
to confer. If the statute does provide some other means of enforcing
the duty that will normally indicate that the statutory right was
intended to be enforceable by those means and not by private right of
action: Cutler v Wandsworth Stadium Ltd [1949] AC 398; Lonrho
Ltd v Shell Petroleum Co. Ltd. (No 2) [1982] A.C. 173. However, the
mere existence of some other statutory remedy is not necessarily
decisive. It is still possible to show that on the true construction of
the statute the protected class was intended by Parliament to have a
private remedy. Thus the specific duties imposed on employers in
relation to factory premises are enforceable by an action for
damages, notwithstanding the imposition by the statutes of criminal
penalties for any breach: see Groves v Wimborne (Lord) [1898] 2
QB 402.
Although the question is one of statutory construction and therefore
each case turns on the provisions in the relevant statute, it is
significant that your Lordships were not referred to any case where it
had been held that statutory provisions establishing a regulatory
Page 12
system or a scheme of social welfare for the benefit of the public at
large had been held to give rise to a private right of action for
damages for breach of statutory duty. Although regulatory or welfare
legislation affecting a particular area of activity does in fact provide
protection to those individuals particularly affected by that activity,
the legislation is not to be treated as being passed for the benefit of
those individuals but for the benefit of society in general. Thus
legislation regulating the conduct of betting or prisons did not give
rise to a statutory right of action vested in those adversely affected
by the breach of the statutory provisions, i e bookmakers and
prisoners: see Cutler’s case [1949] AC 398; Reg v Deputy Governor
of Parkhurst Prison Ex parte Hague [1992] 1 AC 58. The cases
where a private right of action for breach of statutory duty have been
held to arise are all cases in which the statutory duty has been very
limited and specific as opposed to general administrative functions
imposed on public bodies and involving the exercise of
administrative discretions.”
29. As Lord Browne-Wilkinson explains, if a statute provides some means,
other than a private law action for damages, of enforcing any duty which it
imposes, that will normally indicate that the statutory right was intended to be
enforceable by those means and not by private right of action. In Cutler v
Wandsworth Stadium Ltd [1949] AC 398, 408, Lord Simonds observed that, where
the statutory remedy was by way of criminal proceedings for a penalty, it could be
argued that the criminal sanction emphasises that the statutory obligation is
imposed for the public benefit and, hence, that the breach of it is a public rather
than a private wrong. This is indeed one of the arguments advanced against private
law liability for breach of the 1988 Regulations in Beckett & Sons (Lyndons) Ltd v
Midland Electricity Plc 2000 WL 664506. But, in the case of regulations made
under section 29 of the 1989 Act, that argument is really neutralised by the terms
of section 29(3): the mere fact that there was criminal liability for a contravention
would plainly not be inconsistent with there being civil liability to pay
compensation for the same contravention.
30. On the other hand, section 29(2)(e) of the 1989 Act envisages regulations
being made to give the Secretary of State power to take enforcement action “in
relation to any electric line or electrical plant, or any electrical appliance under the
control of a consumer” for the purpose of preventing or ending a breach of the
regulations or eliminating or reducing a risk of personal injury or damage to
property or interference with its use. And regulation 38 of the 1988 Regulations
does indeed contain a regulation with precisely that effect.
Page 13
31. Section 30 of the 1989 Act provides for the Secretary of State to appoint
inspectors to carry out various checks of electric lines and electrical plant,
including lines and plant on consumers’ premises, with a view to determining,
inter alia, whether any requirement imposed by or under Part I of the Act has been
complied with. Regulation 33 of the 1988 Regulations provides for inspections by
people authorised by the Secretary of State to ascertain whether a breach of the
Regulations has occurred.
32. These provisions point strongly to the conclusion that the regulations are to
be enforced by the Secretary of State and those appointed to act on his behalf,
rather than by individuals raising private actions. Indeed, a private right of action
to require, say, a supplier to comply with a regulation would be basically
inconsistent with this scheme for enforcement by the Secretary of State and his
representatives. Presumably for that reason, Mr Ivey felt obliged to argue that the
only right of action arising out of the 1989 Act and the 1988 Regulations was a
right to damages, not, say, to interdict or to an action to require compliance with a
duty. Of course, in theory, Parliament could provide for a limited right of this kind.
But, if it had been its intention to do so, it would surely have said so in express
terms.
33. There are further indications that the 1989 Act, as it applied in 1998,
envisaged that the legislation would be enforced by means other than private
action. Section 1 provided for the appointment of a Director General of Electricity
Supply. By section 45 it was his duty to investigate any matter which appeared to
him to be an enforcement matter. While the range of such matters was prescribed
by section 25 of the Act, section 46 also provided for consumers’ committees to
investigate certain other relevant matters.
34. The Dean of Faculty drew attention to two other factors which tend to point
against a private right of action for contraventions of the 1988 Regulations.
35. First, regulation 27(1) envisages that a consumer may use his electrical
installation in a way that may give rise to danger or cause undue interference with
the supplier’s system or with the supply to others. Regulation 28 then contains an
elaborate scheme under which the supplier can discontinue supply to the
consumer’s installation. In addition, where the Secretary of State is satisfied that
the supplier’s works are being used otherwise than in accordance with the
Regulations, he may serve notice on the consumer requiring him to take various
steps to deal with the situation. These regulations therefore envisage situations
where a consumer may be in breach of a requirement of the Regulations and where
that breach may give rise to a risk of danger to others. While some consumers of
electricity will, of course, be large businesses, others will be individuals. If the
pursuers’ argument were correct, the Regulations would confer a right of action
Page 14
against them for any failure to comply with a requirement made under these
provisions. Again, it seems unlikely that Parliament intended the legislation to
operate in that way and more likely that it intended any such failures to be dealt
with in accordance with the specific mechanisms in the legislation.
36. Secondly, the Dean referred to section 21(b) of the 1989 Act under which a
supplier of electricity under section 16(1) of the Act may require any person who
requires a supply of electricity to accept any terms restricting any liability of the
supplier for economic loss resulting from negligence which it is reasonable in all
the circumstances for that person to be required to accept. If it really were the case
that a supplier could be held liable in damages for a contravention of any
regulations made under section 29, then the protection afforded by section 21(b)
would be ineffective in the not uncommon situation where the supplier’s
negligence constituted a contravention of the regulations.
37. Looked at as a whole, therefore, the scheme of the legislation, with its
carefully worked-out provisions for various forms of enforcement on behalf of the
public, points against individuals having a private right of action for damages for
contraventions of regulations made under it.
38. That argument is reinforced by the fact that it is difficult to identify any
limited class of the public for whose protection the 1988 Regulations were enacted
and on whom Parliament intended to confer a private right of action for breach of
the provisions of the Regulations. In A E Beckett & Sons (Lyndons) Ltd v Midland
Electricity Plc 2000 WL 664506 Mr Simon QC thought that it was arguable that
regulations introduced under the powers conferred by section 29(1)(c) were
intended to protect a class comprising “those affected by the risks of damage to
property”. The Extra Division were much bolder: assuming that a class required to
be identified, they considered that Parliament intended to confer rights upon all
members of the public within the United Kingdom: 2010 SLT 252, para 46.
39. In so holding, the Division relied on a dictum of Atkin LJ in Phillips v
Britannia Hygienic Laundry [1923] 2 KB 832, 841. But, as Neuberger J, speaking
for the Court of Appeal, recognised in Todd v Adams and Chope (The
“Margaretha Maria”) [2002] 2 Lloyd’s LR 293, 298, para 20, that dictum is
inconsistent with the approach which was authoritatively laid down by the House
of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and three
other cases. The Division also referred to Roe v Sheffield City Council [2004] QB
653, 672-673. But in that case Pill LJ did actually identify a limited class, albeit
one as broad as “road users”.
Page 15
40. The potentially far-reaching effects of the Extra Division’s approach are
well illustrated by the claim of the owners of the flats at number 27 for the costs of
weatherproofing their gable wall. After all, their property suffered no damage in
the explosion: their claim arose out of the effects of the demolition of the
intervening property at number 25. On one view, they can simply be regarded as
members of the public who are averred to have suffered loss as a result of Scottish
Power’s breach of the 1988 Regulations. It seems extremely unlikely, however,
that Parliament would ever have intended persons in that position to have a right of
action for damages for breach of the 1988 Regulations. These are the kinds of
considerations which have led the courts to hold that one of the necessary
preconditions of the existence of a private law cause of action is that the statutory
duty in question was imposed for the protection of a limited class of the public.
41. As support for their view that the Regulations gave rise to a private right of
action, the Extra Division attached some weight to the fact that the aim of some of
the 1988 Regulations is to reduce the risk of personal injury or damage to property:
2010 SLT 243, 252, para 47. Even if that is a consideration which can, in an
appropriate case, point to an intention on the part of the legislator to create a
private right of action, the mixed aims of the 1988 Regulations weaken any
argument of that kind in respect of them. In any event, the fact that legislation is
designed to reduce the risk of personal injury or damage to property is by no
means an infallible indication that Parliament intended to give individuals a private
right of action for breach of its provisions. It is simply one factor to be taken into
account. See, for example, Weir v East of Scotland Water Authority 2001 SLT
1205, 1210, para 10, where Lord McCluskey considered that, although the water
authority was under a statutory duty to supply wholesome water, it was not a duty
that was owed to a defined limited class of the public. The duty was accordingly
enforceable in various ways, but not by a private right of action.
42. For these reasons we are satisfied that contraventions of regulations 17, 24
and 25 of the 1988 Regulations do not give rise to a private right of action. The
appeal must accordingly be allowed, and the interlocutors of the Extra Division
and the Lord Ordinary recalled. The Court will sustain the first plea-in-law for the
defenders in each of the actions to the extent of excluding article 6 of
condescendence from probation. Quoad ultra the Court will allow the parties a
proof before answer.
