• In the case of R v Transport Secretary ex parte Factortame Ltd no 1 1990 AC 85 it was found that under English law, the courts have no power to grant interim relief against the application of an Act of Parliament.

Facts of the Case

  • The applicants, companies incorporated under United Kingdom law and their directors and shareholders, most of whom were Spanish nationals, owned between them 95 deep sea fishing vessels.
  • The vessels were registered as British under the Merchant Shipping Act 1894.
  • The statutory regime governing the registration of British fishing vessel was radically altered by Part II of the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, both of which came into force on 1st December 1988.
  • Vessels previously registered as British under the Act of 1894 required to be re-registered under the Act of 1988, subject to a transitional period permitting their previous registration to continue until 31 March 1989.
  • The 95 vessels in question failed to satisfy one or more of the conditions for registration under section 14(1) of the Act 1988 and therefore failed to qualify for registration as British fishing vessels by reason of being managed and controlled from Spain or by Spanish nationals or by reason of the proportion of the beneficial ownership of the shares in the applicant companies in Spanish hands.  
  • The applicants by application for judidical review sought to challenge the legality of the relevant provisions of the Act and Regulations of 1988 on the ground that they contravened the provisions of the E.E.C.
  • Treaty and other rules of law given effect thereunder by the European Communities Act 1972 by depriving the applicants of enforceable Community rights.
  • The Secretary of State contended that Community law did not in any way restrict a member state’s right to decide who was entitled to be a national of that state or what vessels were entitled to fly its flag and that in any event the legislation of 1988 was in conformity with Community law and designed to achieve the Community purposes enshrined in the common fisheries policy.
  • The Divisional Court of the Queen’s Bench Division decided to request a preliminary ruling from the European Court of Justice in accordance with article 177 of the Treaty on the substantive questions of Community law arising to enable them finally to determine the application.
  • They ordered that pending final judgment or further order; the operation of Part II of the Act of 1988 and the Regulations of 1988 be disapplied and that the Secretary of State be restrained from enforcing the same in respect for the applicants and their vessels to enable the existing registrations of the vessels to continue.

Issues in R v Transport Secretary ex parte Factortame Ltd no.1 1990 AC 85

  • Whether the court have power to grant an interim relief against the application of an Act of Parliament.

Held by House of Lords

  • The House of Lords held that the courts had no jurisdiction to grant interim relief in terms of which would involve either overturning an English statute in advance of any decision by the European Court of Justice that the statute infringed Community law or granting an injunction against the crown.

Lord Bride

  • The dispute between the parties as to the existence of the Community rights claimed by the applicants was one of law rather than of fact.
  • The provisions of part II of the Merchant Shipping Act 1988 were unambiguous in their terms and required no assistance from the court for their enforcement.
  • The court had no power to make an order declaring an Act of Parliament not to be the law until some uncertain future fate and conferring on the applicant’s rights directly contrary to the sovereign will of Parliament.

“In the light of these two authorities and in application of the principles laid down by the E.C.J, in S.r.l. C.I.L.F.I.T. v. Ministry of Health (Case 283/81) [1982] E.C.R. 3415, I do not think that it is open
to your Lordships’ House to decide one way or the other whether, in relation to the grant of interim protection in the circumstances of the instant case, Community law overrides English law and either empowers ^ or obliges an English court to make an interim order protecting the putative rights claimed by the applicants. It follows, I think, that your Lordships are obliged under article 177 of the Treaty to seek a preliminary ruling from the E.C.J. I would propose that the questions to be referred should read as follows:

Where—(i) a party before the national court claims to be entitled E to rights under Community law having direct effect in national law (“the rights claimed”), (ii) a national measure in clear terms will, if applied, automatically deprive that party of the rights claimed, (iii) there are serious arguments both for and against the existence of the rights claimed and the national court has sought a preliminary ruling under article 177 as to whether or not the rights claimed p exist, (iv) the national law presumes the national measure in question to be compatible with Community law unless and until it is declared incompatible, (v) the national court has no power to give interim protection to the rights claimed by suspending the applicationof the national measure pending the preliminary ruling, (vi) if the preliminary ruling is in the event in favour of the rights claimed, the party entitled to those rights is likely to have suffered irremediable G damage unless given such interim protection, does Community law either (a) oblige the national court to grant such interim protection
of the rights claimed; or (b) give the court power to grant such interim protection of the rights claimed? 2. If question 1(a) is answered in the negative and question 1(b) in the affirmative, what are the criteria to be applied in deciding whether or not to grant such interim protection of the rights claimed?” The adjournment of further consideration of the appeal which must necessarily follow is, I recognise, a most unsatisfactory result from the applicants’ point of view, and I venture to express the hope that the E.C.J, will, so far as their procedures permit, treat the reference made by your Lordships’ House as one of urgency to which priority can be given.” P68 D- 69A

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