Damages in public law

In this passage the Chief Justice powerfully applies what has been called a ‘fundamental tenet’² of the common law that whereas damages are the basic remedy for torts and breaches of contract, they are, by contrast, not available as a remedy for breaches of public law rules as such (‘public law wrongs’ if you like).³ On the other hand, although the remedies of declaration and injunction started out their lives in private law, they have been easily transplanted and have come to play an important role in relation to breaches of public law rules. In this article I wish to examine the role of damages in remedying public law wrongs, and the reasons why the remedy has traditionally been seen as less suitable for use in public law than in the private law of obligations. To some extent, this may be a result of no more than an unthinking identification of damages with certain causes of action and not others, and the fact that in common law systems, public law has been a quite recent development. Beyond this, however, are there any sound reasons of legal or social policy why damages should play a lesser role in redressing breaches of public law than in redressing breaches of private law? In answering this question, I think that it is important to distinguish between three different issues relevant to the availability of the remedy. The first is the nature of damages as a remedy; the second is the basis of liability to pay damages; and the third is the institutional source of the remedy. I will deal with each of these issues in turn.