Public Duties and Private Remedies: Floods or Floodgates?

Simon Brown QC and Kim Franklin

October 2005

A paper given to the Society of Construction Law in London on

1st February 2005 and in Birmingham on 10th June 2004

The paper begins with consideration of the case of Marcic v Thames Water Utilities, where the House of Lords unanimously overturned the Court of Appeal, adopting a 'conservative approach' to the law of nuisance. The issue is whether an individual has a common law remedy for damages against a public body for breach of a statutory duty. As the authors explain, by going through the case law both before and since Marcic, the answer is far from straightforward. They contrast the 'orthodox approach' whereby public authorities are adjudged by the public law concept of ultra vires and the 'new approach' whereby in certain circumstances the common law standard of care also comes into play.

Marcic v Thames Water Utilities - Background to the legal perspective - the concurrent development of common and administrative law - The rise of the new approach - The clash of the two approaches - The arguments - The Human ights Act 1998 - Conclusions.

The authors: Simon Brown QC and Kim Franklin are barristers at Crown Office Chambers in London.

Text: 21 pages

PDF file size: 100k