Morrison Sports Limited and others v Scottish Power (Scotland)

A breach of a statutory duty does not ordinarily create a private cause of action. Such an action arises only where, on the proper construction of the legislation, the duty protects a limited class and Parliament intended its members to have a private remedy.

A provision preserving “any liability” to pay compensation does not itself create that liability. It preserves liability arising elsewhere. A detailed public enforcement scheme, express compensation rights for selected breaches and the absence of an identifiable limited class all point against an implied right to damages.

A fire originating in an electricity meter cupboard destroyed commercial premises and damaged neighbouring property. The owners and occupier brought three actions against Scottish Power. They alleged negligence and, separately, breaches of regulations 17, 24 and 25 of the Electricity Supply Regulations 1988.

The Lord Ordinary allowed proof before answer on both grounds: [2007] CSOH 131; 2007 SLT 1103. The Extra Division substantially maintained that result, holding that section 29(3) of the Electricity Act 1989 conferred a private right to damages: [2009] CSIH 92; 2010 SLT 243.

The issue before the Supreme Court was whether contravention of the relevant Regulations gave a person suffering resulting loss a private cause of action for damages.

1. Appeal allowed. Lord Rodger delivered the judgment of the Court. Contraventions of regulations 17, 24 and 25 of the Electricity Supply Regulations 1988 did not give rise to a private right of action.

2. Section 29(3) of the Electricity Act 1989 did not create civil liability. Its main purpose was to permit regulations to make contraventions criminal offences. Its concluding words merely confirmed that criminal liability would not affect any liability, if otherwise existing, to pay compensation. The word “compensation” could encompass civil damages, but the source of liability had to be found elsewhere.

3. The question therefore depended upon the Regulations and the established principles governing breach of statutory duty. Ordinarily, breach alone creates no private cause of action. Such a cause arises only where construction of the legislation shows that the duty protects a limited class and that Parliament intended members of that class to have a private remedy.

4. The legislative scheme pointed strongly against such an intention. It contained carefully designed enforcement powers exercised by the Secretary of State, inspectors and other public bodies. It also created express rights to damages or compensation in selected provisions. Those express rights supported the inference that no right was intended for other statutory or regulatory breaches. A general private power to compel compliance would also be inconsistent with the public enforcement scheme.

5. No relevant limited class could be identified. Treating everyone who might suffer personal injury or property damage as protected would effectively encompass the public generally. The safety purpose of some Regulations was relevant but not decisive, particularly because the Regulations pursued mixed purposes.

6. The interlocutors of the Extra Division and Lord Ordinary were recalled. The defenders’ first plea-in-law was sustained to the extent of excluding article 6 of condescendence from probation. Proof before answer remained available on the parties’ other cases, including negligence.

1. United Kingdom Supreme Court: Allowed Scottish Power’s appeal and recalled the interlocutors below. The statutory-duty averments were excluded from probation, while proof before answer remained available on the other issues: [2010] UKSC 37.
2. Inner House of the Court of Session, Extra Division: Varied the Lord Ordinary’s interlocutor but, in effect, allowed proof of the statutory-duty averments, holding that section 29(3) of the Electricity Act 1989 supported a private action: [2009] CSIH 92; 2010 SLT 243.
3. Court of Session, Outer House: The Lord Ordinary rejected Scottish Power’s relevancy challenge and allowed proof before answer on the whole case: [2007] CSOH 131; 2007 SLT 1103.
4. Glasgow Sheriff Court: The three damages actions were raised there and remitted to the Court of Session.