Regina v Secretary of State for Transport, ex parte Factortame (No 2): HL 11 Oct 1990

The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was sought against the Secretary of State to restrain enforcement of that law pending a reference. The House considered how the guidelines for the exercise of the court’s jurisdiction to grant interim injunctions laid down in American Cyanamid should be applied where there was doubt as to the adequacy of any remedy in damages to either party, and where a reference to the European Court was being made which involved the effect of European law on a national law.
Held: Where the validity of subsidiary legislation was challenged, for the court to require the infringing national rule actually to have been set aside before relief could be given by the court, would create the risk of the breach of Community law going uncompensated.
The doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants.
Lord Goff discussed the argument that because a challenge was being made to the validity of a United Kingdom national law, the test for an interim junction was no longer ‘serious case to be tried’, but ‘strong prima facie case’. He summarised the position:- ‘I myself am of the opinion that in these cases, as in others, the discretion conferred upon the court cannot be fettered by a rule; I respectfully doubt whether there is any rule that, in cases such as these, a party challenging the validity of the law must – to resist an application for an interim injunction against him, or to obtain an interim injunction restraining the enforcement of the law – show a strong prima facie case that the law is invalid. It is impossible to foresee what cases may yet come before the courts; I cannot dismiss from my mind the possibility (no doubt remote) that such a party may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just or convenient to restrain its enforcement by an interim injunction even though so heavy a burden has not been discharged by him. In the end, the matter is one for the discretion of the court, taking into account all the circumstances of the case. Even so, the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.’ He analysed the arguments and concluded:- ‘As to the final outcome on these issues after consideration by the court, your Lordships can of course express no opinion; but these two points alone led me to conclude that the applicants’ challenge is, prima facie, a strong one.’

Lord Bridge of Harwich, Lord Goff, Lord Brandon, Lord Oliver, Lord Jauncey
[1991] 1 AC 603, [1990] UKHL 13, [1990] 3 CMLR 375, [1991] 1 All ER 70, (1991) 3 Admin LR 333, [1990] 3 WLR 818, [1991] 1 Lloyd’s Rep 10
England and Wales
Referred back fromRegina v Secretary of State for Transport, ex parte Factortame ECJ 19-Jun-1990
ECJ It is for the national courts, in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions . .
See AlsoRegina v Secretary of State for Transport, Ex parte Factortame Ltd HL 18-May-1989
The applicants were companies owned largely by Spanish nationals operating fishing vessels within UK waters. The 1988 Act required them to re-register the vessels as British fishing vessels. The sought suspension of enforcement pending a reference . .
ConsideredAmerican Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
See AlsoRegina v Secretary of State for Transport ex parte Factortame Ltd HL 26-Jul-1990
(Interim Relief Order) . .

Cited by:
CitedRegina v Secretary of State for Trade and Industry Ex Parte Trades Union Congress CA 17-Oct-2000
Where a court referred an issue to the European Court, it was for that court in its discretion to decide whether interim relief might be granted, and an appellate court should not normally interfere in that exercise. The considerations for such a . .
Referred back toRegina v Secretary of State for Transport, ex parte Factortame ECJ 19-Jun-1990
ECJ It is for the national courts, in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions . .
CitedRegina v Searby and Another CACD 7-Jul-2003
The defendant had been accused of storing unlicensed pesticides. He sought to argue that the European Regulations had been implemented in the UK in an unduly restrictive form. He entered a plea of guilty on a ruling that it was not open to him to . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedInternational Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
See AlsoRegina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
CitedNational Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .
CitedFaisaltex Ltd and Others v Lancashire Constabulary and Another QBD 24-Jul-2009
The claimants wished to claim damages saying that in executing a search warrant, the defendant had made excessive seizures of material. The claimants sought inspection by independent counsel of the materials seized to establish this in a manner . .
CitedCala Homes (South) Ltd v Secretary of State for Communities and Local Government Admn 16-Dec-2010
Local authorities were presently bound to plan future housing developments in accordance with Regional Spatial Strategies which the new government intended to abolish. The respondent had previously been told by the court that primary legislation was . .
CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedHS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
CitedHussain, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 21-May-2020
No interim relief for Mosque Services
The claimant Chairman of a mosque challenged the Regulations in so far as they prohibited communal prayers. He now sought interim relief so as to allow Friday prayers. Social distancing was proposed, and a contrast was made with other activities . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.183201