Richards v Secretary of State for Transport

On an application to stay a trial of a preliminary issue, the court should not determine a wider question of Francovich liability unless that is necessary to decide the application. Where competing arguments about the availability of another remedy are properly arguable, the stay question is approached pragmatically. Relevant considerations include the likely duration of the delay, the claimant’s injuries and interest in progress, the stage reached in preparing the trial, court resources, and the risk that the preliminary issue may dispose of the claim. A possible claim against another defendant does not automatically make a Francovich claim academic. The court may leave the decision whether to proceed with the claimant’s representatives where the balance of case-management considerations does not justify judicial intervention.

The claimant brought a Francovich damages claim against the Secretary of State for Transport arising from serious injuries caused by the use of a vehicle on private land. The claim alleged that the United Kingdom had failed to give adequate effect to Directive 2009/103/EC. The first element of the claim was admitted. The remaining issues concerned whether the breach was sufficiently serious and whether it had caused loss.

The defendant applied to stay the trial of the preliminary issue pending the appeal in Lewis v Tindale and MIB and Secretary of State for Transport, where Soole J had held that the Motor Insurers’ Bureau was an emanation of the State and that the claimant could pursue a claim against it. The central question was whether uncertainty about that appeal, and the possible availability of a claim against the MIB, justified postponing the preliminary issue trial.

1. Application dismissed. The court declined to decide, on a three-hour stay application, the broader legal questions concerning the relationship between a Francovich remedy and a possible claim against the Motor Insurers’ Bureau. Both proposed knock-out arguments were properly arguable, but neither was so overwhelming as to make a stay appropriate.
2. The court treated Spencer v Secretary of State for Work and Pensions [2009] QB 358 as a highly persuasive statement that exhaustion of all domestic remedies is not a precondition to pursuing a Francovich claim. That authority meant that the possible availability of a claim against the MIB could not simply be assumed to prevent the claimant’s claim against the Secretary of State from proceeding.
3. The stay application was therefore determined by pragmatic case-management considerations. The appeal in Lewis v Tindale and MIB and Secretary of State for Transport might not be heard for several months, and a stay could defer the preliminary issue for about two years. Further delay would prolong the claimant’s lack of compensation after serious injuries. The trial date was close, witnesses had been warned, disclosure was complete, and the court had already allocated time.
4. In those circumstances, the court considered that the claimant’s representatives should decide whether proceeding was in her interests, having regard to costs and litigation risks. If they wished to proceed, there were no sufficient grounds for judicial intervention. The defendant’s application to stay the preliminary issue trial was rejected.