R v Secretary of State for the Home Dept, ex parte Adams, Queen's Bench Division (Crown Office List) The Independent 28 April 1995, CO/925/94, (Transcript: John Larking)

HEARING-DATES: 12 April 1995 12 April 1995

JUDGMENTBY-1: LEGGATT LJ

JUDGMENT-1:

This case is to determine the validity of an exclusion order that prevented the applicant from travelling freely within the country. The Home Secretary later revoked that order. Two preliminary matters were raised by the applicant. First, the applicant objected to the Court’s makeup. Second, the applicant amended his complaint and added a claim for exemplary damages.

The Court held that: "Although the Court may, when the same judges are readily available, arrange for them to sit for purposes of a further hearing in the same proceedings, whether to do so or not is entirely within the discretion of the Court."

The Court also rejected any claims for damages because it "far too late" to introduce such a claims to the case.

In addition, no economic loss had occurred as the applicant himself conceded.

The Court also decided that neither domestic law nor EC law allowed the Court to query the statement of the Home Secretary that the ministry cannot reveal it reason behind the exclusion order because that would be contrary to national security. Accordingly there was no basis for concluding that the decision to make the order was not justified.

Mr Allen argues that the European Court has ruled that the need to ensure fully effective protection of Community law rights may involve the provision of compensation in cases where the Community rights of an individual have been violated. He refers us to Francovich v Italian Republic (joined cases C-6/90 and C-9/90) [1992] IRLR 84. As Mr Stephen Richards on behalf of the Home Secretary points out the decision in Francovich is concerned with the State's liability for actual loss caused by failure to implement a directive. That involves very different considerations to those posed by a claim for exemplary damages.

Perhaps more pertinently, Mr Allen points to two cases currently before the European Court. In Firma Brasserie du Pecheur SA v Federal Republic of Germany Cases 46 and 48/93 and The Queen v Secretary of State Ex Parte Factortame Ltd, the European Commission has taken the position before the European Court that:

"Where national law provides for the award of special or exemplary damages, the rules relating to such damage must be applied without discrimination in the case of interference with Community law rights."

The applicant contended that at least until the European Court of Justice decides these cases the possibility of an award of exemplary damages has to be considered. However, the domestic Court did not accept such an assertion.

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