Quark Fishing Ltd, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

Unlawful exercise of a public-law power does not itself create a right to damages. A claimant must establish an independent private-law cause of action or satisfy the conditions for relief under the Human Rights Act 1998.

Convention rights do not generally apply to conduct affecting persons in an overseas territory unless the relevant Convention or Protocol has been extended to that territory. Judicial review jurisdiction over an overseas territory does not consequently establish a domestic private-law claim for damages. A legitimate expectation of obtaining a licence may arguably constitute a possession, depending on the established facts, but that issue does not overcome the territorial limit or create a common-law damages claim.

The claimants sought damages after successfully challenging the exclusion of their vessel from the 2001 toothfish licensing season in South Georgia and the South Sandwich Islands. The Director of Fisheries’ original decision was quashed locally. A subsequent direction by the Secretary of State was quashed by the High Court, and the appeal was dismissed.

The claimants then amended their particulars to claim damages under the Human Rights Act 1998, alleging breach of Article 1 of the First Protocol, together with damages for breach of statutory duty and common-law rights. The Secretary of State applied to strike out the claims or obtain summary judgment. The central issues were whether the claimants were victims for the purposes of section 7 of the Act, whether a licence or expectation of a licence was a possession, and whether any private-law cause of action existed.

1. The application succeeded. The damages claims were struck out because they disclosed no reasonable cause of action and had no reasonable prospect of success.
2. English law provides no damages remedy for breach of a public-law right alone. Quashing an unlawful decision does not automatically give rise to compensation. An independent private-law cause of action is required.
3. The Human Rights Act 1998 gives domestic effect to Convention rights within the territorial limits of the Convention. Article 1 of the Convention establishes the ordinary territorial scope of those rights. The First Protocol had not been extended to South Georgia and the South Sandwich Islands under Article 4 of that Protocol. The claimants therefore were not victims within section 7(7), even though the Secretary of State acted in London and the High Court had jurisdiction to review the direction.
4. The judicial-review jurisdiction identified in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 concerns public-law remedies. It does not establish jurisdiction for a private-law damages claim or alter the divisibility of the Crown in relation to overseas territories.
5. The court would not have struck out the Article 1 claim solely on the basis that no possession existed. An existing economic licence may be a possession, and a legitimate expectation based on repeated previous grants might arguably qualify, subject to the facts. The statutory limitation issue would also not have defeated the claim, since the court considered it equitable to permit the claim to proceed if it had been arguable.
6. The alleged breach of statutory duty was not actionable. Article 5 of the SGSSI Order imposed a general duty, not a duty intended to protect a limited class with a private right of action. The common-law claim impermissibly sought to convert a legitimate expectation into a private-law right. The exemplary-damages claim was parasitic and therefore failed with the substantive claims.

• High Court of South Georgia and the South Sandwich Islands: the Director of Fisheries’ licensing decision was quashed on 1 June 2001.
• High Court (Administrative Court): the Secretary of State’s subsequent direction was quashed on 5 December 2001.
• Court of Appeal: the Secretary of State’s appeal was dismissed on 30 October 2002, and the damages claim was remitted to the Administrative Court.
• High Court (Administrative Court): the amended damages claims were struck out.