Statutory Duties & Remedies for Breach

Introduction

A statutory duty is an obligation created by Parliament (or delegated legislation) and placed on a person or body, often a public authority such as a government department, local council, regulator, or the police. These duties arise from the words of the statute, not from case law. When a duty is breached, the law offers several ways to challenge the breach and obtain a remedy. Choosing the correct route depends on the wording of the statute, the nature of the function, and whether Parliament intended private damages to be available.

This guide explains how statutory duties work, the main enforcement routes (public law and private law), and the remedies that courts and tribunals can grant. It also highlights important cases and practical steps for claimants and public bodies.

What You’ll Learn

• What statutory duties are and which bodies are usually bound by them
• The difference between a statutory duty and a statutory power
• The main enforcement routes: judicial review, statutory appeals, regulatory enforcement, and complaints procedures
• When a breach gives a private right to damages (and when it does not)
• The full range of remedies: quashing, mandatory and prohibiting orders, declarations, injunctions, damages (including under the Human Rights Act 1998)
• Key case law on duties owed by public authorities
• Practical steps, time limits, and common pitfalls for both claimants and authorities

Core Concepts

What is a statutory duty and who is a public authority?

• Source: Statutory duties are set out in Acts of Parliament and secondary legislation (regulations, orders, rules). They typically use directive language such as “must” or “shall”.
• Who is bound: Public authorities include central government departments, local authorities, police forces, NHS bodies, and other organisations performing public functions. Some private entities can be bound when exercising public functions (e.g., under the Human Rights Act 1998).
• Examples:
  • Environmental Protection Act 1990: duties on local authorities for waste collection and dealing with statutory nuisances.
  • Children Act 1989: duties in relation to children in need and child protection.
  • Housing Act 1996 (Part VII): duties regarding homelessness applications and accommodation.
  • Equality Act 2010 (s.149): public sector equality duty.

A key distinction is between:

• Duties (obligations to act in a specified way), and
• Powers (discretion to act, but no obligation to do so).

This difference matters. A failure to exercise a power will rarely give rise to civil liability unless the statute clearly requires action or other legal principles apply.

Public law vs private action: choosing the route

There are two broad routes.

1. Public law

   • Judicial review (JR) challenges the lawfulness of decisions, acts, or omissions by public authorities. Grounds include legality (acting within powers and for proper purposes), procedural fairness, and rationality.
   • Remedies include quashing, mandatory, and prohibiting orders, plus declarations and injunctions. Damages are only available alongside another cause of action (e.g., under the Human Rights Act 1998 or a private law claim).
   • JR is fast-moving: claims must be filed promptly and within three months (unless a shorter limit applies).
   • Statutory appeals: Many schemes provide their own appeal routes to tribunals or courts (e.g., planning, social security). These are often the preferred or required route.

2. Private law

   • Breach of statutory duty (BSD): a tort claim may be available if Parliament intended the duty to confer a right to sue for damages.
   • Negligence: a public authority may owe a common law duty of care depending on established principles (e.g., Caparo) and case law on duties owed by public bodies.
   • Misfeasance in public office: a separate tort requiring proof of bad faith or recklessness as to lawfulness.
   • Human Rights Act 1998: a claim can be brought for breach of Convention rights, with the possibility of damages under section 8.

Courts will usually expect claimants to use any adequate alternative remedy before bringing JR.

When does a breach give a right to damages?

The central question is whether Parliament intended a private right of action for breach of the duty. Courts look at:

• Wording and purpose of the statute
• Whether the duty is owed to the public at large or a defined class
• Whether the statute provides its own enforcement mechanism (e.g., appeals, ombudsman, criminal sanctions)
• Whether allowing damages would cut across the statutory scheme

Points to remember:

• Some statutes clearly allow civil claims (express right). Others are silent, so the court must infer intent.
• If the statute sets out a detailed scheme for complaints or appeals, courts often find no implied right to damages, directing claimants to the statutory process or JR.
• Even where BSD is not available, a negligence claim might still be possible if the common law duty of care exists on the facts.

Remedies and proof: what courts look for

• Public law remedies:

  • Quashing order: sets aside an unlawful decision.
  • Mandatory order: compels performance of a duty (the public law counterpart to specific performance).
  • Prohibiting order: prevents an unlawful act.
  • Declaration: clarifies the legal position.
  • Injunction: restrains unlawful conduct. Interim relief may be available.
  • Damages: only where a separate basis exists (e.g., HRA 1998).

• Private law remedies:

  • Damages: compensatory, requiring proof of breach, causation, and loss. Remoteness principles apply.
  • Injunction: to restrain ongoing or threatened breaches.
  • Declaration and (rarely) specific performance in appropriate cases.

• Proof and defences:

  • For BSD: identify the duty, show it is owed to the claimant or a class including the claimant, prove breach, causation, and damage. Consider statutory defences (e.g., reasonable practicability).
  • For negligence: apply standard duty of care principles and relevant public authority case law on omissions and policy/operational distinctions.
  • Limitation: typically three years for personal injury; six years for other torts (subject to exceptions). JR has a three-month time limit.

Key Examples or Case Studies

• Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ)

  • Context: Judicial review of a decision taken under the Royal Prerogative.
  • What the court said: Public law principles apply to public functions regardless of source of power. Grounds of review include legality, fairness, and rationality.
  • Why it matters: JR can challenge statutory and prerogative decisions; remedies include quashing and mandatory orders.

• Anns v Merton London Borough Council [1978] AC 728

  • Context: Negligence claim relating to building control inspections under statute.
  • What the court said: Established a test for duty of care at the time. Later developments (e.g., Caparo; Murphy v Brentwood DC) refined or removed parts of this approach.
  • Why it matters: Shows the interaction between statutory functions and negligence, and why current law asks whether a common law duty arises beyond the statute’s terms.

• O’Rourke v Camden LBC [1998] AC 188

  • Context: Claim for damages for breach of the homelessness duties under the Housing Act.
  • What the court said: No private right to damages; the statutory scheme provided other remedies (reviews, appeals, and JR).
  • Why it matters: Where a statute sets out a detailed mechanism, courts are slow to infer damages unless clearly intended.

• Stovin v Wise [1996] AC 923 and Gorringe v Calderdale MBC [2004] UKHL 15

  • Context: Claims alleging failures to exercise statutory powers affecting road safety.
  • What the court said: A statutory power does not usually give rise to a common law duty to act; general public duties rarely translate into private claims for damages.
  • Why it matters: Distinguishes duties from powers and warns against turning broad public obligations into private law liabilities.

• Gorst v Commissioner of Police of the Metropolis [2001] UKHL 49

  • Context: Claim seeking damages for breach of a statutory duty by the police.
  • What the court said: Availability of damages turns on legislative intent. Where the statute does not intend a private right of action, damages are not available.
  • Why it matters: Reinforces the central role of statutory interpretation in BSD claims.

• Michael v Chief Constable of South Wales Police [2015] UKSC 2

  • Context: Police response to a 999 call and alleged negligence.
  • What the court said: No general duty of care to individuals absent assumption of responsibility or creation of danger. Human Rights Act claims may provide a separate route.
  • Why it matters: Clarifies limits of negligence claims against public authorities and flags the potential for HRA damages.

Practical Applications

For claimants and advisers:

1. Identify the relevant statute and the exact wording of the duty. Is the language mandatory (“must/shall”) or permissive (“may”)?
2. Check who the duty is owed to. Is it a general duty to the public or a duty to a defined class of persons?
3. Look for express enforcement routes: internal reviews, statutory appeals, tribunal processes, ombudsman complaints, or enforcement notices. Use these where appropriate.
4. Choose the forum:
   • JR for challenging lawfulness of decisions or failures to act.
   • Statutory appeal if the statute provides one.
   • Private law claim for BSD or negligence only where the statute or common law supports it.
   • HRA 1998 claim if Convention rights are arguably breached.
5. Time limits:
   • JR: promptly and within three months (CPR Part 54), subject to shorter statutory limits in some areas.
   • Personal injury: three years.
   • Other torts (including BSD): generally six years.
   • HRA: one year (subject to equitable extension).
6. Evidence:
   • Gather the decision, reasons, relevant policy documents, guidance, correspondence, and evidence of loss.
   • For JR, send a detailed pre-action letter under the Pre-Action Protocol.
7. Remedies:
   • In public law: consider quashing or mandatory orders, declarations, and interim relief.
   • In private law: focus on damages and, where needed, injunctions.
8. Costs and alternatives:
   • Consider costs risk and whether a quicker statutory appeal or complaint process will achieve an effective outcome.

For public authorities:

• Map duties and powers, and keep clear records of decisions and reasons.
• Use lawful procedures, consult where required, and document proportional and relevant considerations.
• Respond to pre-action letters promptly and consider remedial action where error is identified.
• Train decision-makers on statutory criteria and keep policies up to date with current case law and guidance.
• Monitor compliance with time-sensitive duties (e.g., statutory deadlines).

Summary Checklist

• Pinpoint the statute, the exact duty, and who it protects
• Decide if the provision is a duty or a power (or both)
• Check for express remedies or appeals in the statutory scheme
• Assess whether Parliament intended a private right to damages
• If damages are not intended, consider JR, statutory appeals, or HRA
• Verify standing, time limits, and any need to exhaust alternative remedies
• Prepare evidence: decisions, reasons, guidance, and proof of harm
• Select the right remedies: quashing/mandatory orders, declarations, injunctions, damages
• Follow the pre-action protocol and consider settlement options
• Keep an eye on costs, and the risk/benefit of different routes

Quick Reference

Notes:

• PA = public authority.
• For personal injury, the primary limitation is three years; for other torts generally six years (subject to exceptions).
• In JR, damages need a separate cause (e.g., HRA or an accompanying private law claim).