European Community — Council Directive — Implementation — Claim for damages for failure to transpose Council Directive into United Kingdom law — Whether Directive granting rights to individuals — Whether claim statute barred — Council Directive 73/239

Poole v Her Majesty’s Treasury [2006] EWHC 2731(Comm)

QBD: Langley J: 8 November 2006

Council Directive 73/239/EEC (the Insurance Directive) did not grant rights to underwriting Names at Lloyd's either as insurers or insureds so as to enable them to found a claim against the government for damages for non implementation.

Langley J so held in the Queen’s Bench Division when dismissing the claims of Frederick Thomas Poole and others, underwriting Names at Lloyd’s, against Her Majesty’s Government for damages for losses incurred by the Names in consequence of the Government’s alleged failure to implement the Insurance Directive.

LANGLEY J said that the purpose of the Insurance Directive was not to protect those who were regulated, in the manner claimed by The Lloyd's Names (although different rights might be granted to insurers, such as the right to establish) but to protect those to whom they supplied their services or products. Furthermore that having regard to the nature and purpose of the relevant provisions in their context, the purpose of the Insurance Directive was to facilitate the development of an open market in the provision of direct insurance and, in that context, to harmonise existing national supervisory provisions. Those purposes had nothing to do with the complaint that the Lloyd’s Names sought to pursue in the proceedings. Just as the depositor could not claim rights under the Banking Directive 77/780/EEC in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 because the rights they were claiming were not covered by the interests the Banking Directive sought to protect, namely the right of establishment, so by analogy the want of rights in the Lloyd’s Names made their claims unsustainable. Furthermore, in the event that the Insurance Directive had granted rights to the Lloyd’s Names, their claims would have been statute barred both under European and domestic law.

Appearances: Richard Plender QC, Hugh Mercer and Gordon Nardell (Grower Freeman) for the claimants; David Friedman QC, Jemima Stratford and Andrew Henshaw (Treasury Solicitor) for the defendant.

Reported by: Jessica Giles, solicitor.