Legal brief: Taking a regulator to court
In the aftermath of the winter floods, Simon Colvin highlights the key legal barriers organisations and individuals face when attempting to sue a regulator
When can you sue an environment regulator for getting it wrong is a question clients often ask me. Taking action against a regulator has also emerged as a hot topic since the flooding earlier in the year, which some have suggested could have been prevented or better controlled if the Environment Agency had dredged rivers more frequently or maintained flood defences more regularly.
The short answer to the question is yes, but with difficulty. Simply, the person seeking to bring the claim would need to demonstrate they were owed a duty of care by the regulator, that the duty had been breached and that the infraction resulted in them suffering harm or loss.
In environmental cases, there is a requirement to demonstrate that the regulator owed the person affected a duty of care, and this is the most difficult hurdle to overcome. It helps to consider this point in relation to the two routes open to those wanting to bring a claim against a regulator: a breach of statutory duty and a breach of common law duty.
It is notoriously difficult to successfully bring a claim for breach of statutory duty - for example, under s4 of the Environment Act 1995 (EA 1995), which places a duty on the agency to act to protect and enhance the environment. The primary reasons for this difficulty are twofold:
- many statutes do not create such a right and it was never the intention of parliament to confer that right on those affected by a breach of duty; and
- such duties are often for the benefit of the public at large as opposed to a specific group. Generally it is only where a duty is owed to a specific group that a claim can be brought for breach of a statutory duty. Also, the courts take the view it is not in the public interest to subject regulators to such duties, so they often come down on the side of the regulator when interpreting statutes.
It is important to note that EU law gives rise to a number of important duties relating to the environment - for example, arts 11 and 191 of the Treaty on European Union. There is also a EU principle that there should be effective remedies for breaches of European law. It is arguable that if a regulator were in breach of its environmental duties under EU law it would give rise to an actionable claim.
Common law duty
Generally, liability for the negligent exercise of a power conferred on a regulator will arise only where it has assumed a specific duty or responsibility to the person affected, such as through specific knowledge, or where that person has been exposed to a risk due to circumstances created by the regulator.
In practice it is rare for such circumstances to occur, at least to the extent necessary to give rise to a duty. It is the courts that are often asked to consider this question. Generally they are reluctant to interpret the circumstances as giving rise to the existence of a duty.
The justification for a reluctance to impose a duty is that it is not fair and reasonable to do so. Nor would it be in the public interest because the imposition of such a duty could inhibit the regulator's ability to exercise its various statutory functions. That said, there are situations in which the actions of the regulators - whereby they have had specific knowledge or undertake specific steps without regard to those who might be affected - can give rise to an actionable duty.
No successful environmental cases have been reported. That is probably because it is such a high hurdle to demonstrate the existence of "special circumstances" and also because any claims that are likely to be successful tend to be settled before reaching the courts. Examples of unsuccessful cases against an environment regulator include Dodson v Environment Agency  EWHC 396 and Sterling v NIEA  (see panel, below, for details).
The ever-increasing influence of EU legal principles and the growing prevalence of claims against other enforcement agencies, such as the police, suggest it is only a matter of time before we start to see more claims against the environmental regulator from those who suffer harm or losses due to the negligent or improper exercise of their powers.
Those bringing such claims will need to show the existence of special circumstances. But I wonder, if such claims become more prevalent, whether we will see a softening of the courts' stance towards the question of whether or not a duty of care was owed in the first place. I think we might.
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