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State liability: betwixt & between Brexit (Pt 1)

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In his latest NLJ mini-series, Nicholas Bevan explains why the ECJ ruling in Farrell 2 opens up hundreds of new claims for accident victims wrongly excluded from cover by defective UK law

  • The direct effect of Directives is widened.
  • Directives can be invoked as though set out in statutory form.
  • MIB directly liable for gaps in the Road Traffic Act 1988.

The European Court of Justice (ECJ)’s ruling in Farrell v Whitty, Minister for the Environment and others [2017] EUECJ C-413/15 (Farrell 2 ) is the most important ruling on state liability for over a quarter century. Its impact extends beyond the Motor Insurance Directives it addresses. Its effect is to extend the range of organisations that are capable of being pinned with a direct liability to compensate individuals adversely affected by a state’s failure to implement a Directive.

Farrell 2 explains how national courts should apply the bundle of criteria (set out in paras [18] to [20] of

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