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Play up, play up and play the game. This is the message coming through loud and clear from Europe and which has recently been given practical effect by the Divisional Court in the most recent instalment of the Factortame litigation (R v Secretary of State for Transport ex parte Factortame & ors). If the UK wants to play in the European game it is not possible to take back the ball and go home sulking if the game does not go its way.
Factortame or, as it has become popularly (albeit misleadingly) referred to by the media, the "Spanish quota hopper" case was once again before the English court for the most significant decision in the history of this litigation, which has been going on for almost 12 years.
The Merchant Shipping Act 1988 radically revised the conditions for registration of fishing vessels on the British register. At a stroke, more than 100 boats owned or managed by the applicants in this case which had previously satisfied the conditions for registration were excluded from the new register. The applicants were thus prevented from making a living through their chosen occupation as fishermen.
The challenge by the applicants to the new conditions raised major questions of English constitutional and EU law.
Interim relief suspending the operation of the Act was granted until the European Court ultimately decided that the provisions of the Act were illegal.
The court then decided, in March 1996, that compensation for losses suffered by reason of such a breach of European law could be awarded by the courts of a member state if the breach in question was found to be "sufficiently serious".
It was a significant test, but one which the court found that the applicants easily overcame. The court did not find that the Government was guilty of bad faith in enacting the Merchant Shipping Act but had no hesitation in finding that there had been a grave and manifest disregard by the UK government of the superior principles of EU law without sufficient justification.
The obvious and intentional effect of the illegal Act was to prevent the applicants from earning a living. The most recent decision now enables them to set about the task of quantifying those losses.