Public Law Unlawfulness and Liability in Damages Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0003

Abstract and Keywords

This chapter focuses on the theoretical relationship between public law and the notion of illegality and liability in a damages action, discussing whether the unlawfulness of an administrative act is a necessary precondition of liability for fault and determining the sufficient consideration of invalidity for administrative fault. According to the French law, illegality is a necessary precondition for administrative liability — the invalidity of an administrative act makes sufficient fault, giving rise to liability. But in English law, the idea has been a topic of debate with regard to the torts of statutory duty and negligence, and other English torts. The role of illegality in damages actions within the English system may expand problems to extension of liability, inhibition of administrative activity, or a correlative retrenchment of the scope of ultra vires, which may cause a clash between the concepts of public and private law, and add further difficulty.

Keywords:   public law, illegality, liability, fault, administrative act, statutory duty, negligence, ultra vires

1. Introduction

The focus of this chapter is upon the relationship between the public law notion of illegality and liability in a damages action. This has been subject to extensive debate in both English and French law. It was of real significance in recent English cases of negligence liability. In French law, the relationship between illegality and fault is now settled, but it is instructive to take account of the role that policy concerns played in earlier case law.

This chapter will cover two distinct but linked issues. First, the focus will be upon the question whether liability arises simply from an unlawful act which causes loss. Secondly, it will be considered whether the two systems treat illegality as an obstacle for claimants to surmount prior to the finding of fault or prior to the imposition of liability. In other words, is public law illegality a necessary precondition of liability?

2. The Illegality–Fault Equation in French Law

The relationship between the illegality of an administrative act and the notion of fault is a cornerstone of French administrative law. The discussion of this liaison will be broken down into two sections. First, it will be examined whether the unlawfulness of an administrative act is a necessary precondition of liability for fault. Secondly, an analysis will be made of the invalidity of an administrative act as a sufficient condition of administrative fault.

2.1. Illegality as a Necessary Condition of Liability

It is commonly stipulated in French law commentaries that illegality is a necessary precondition of administrative liability.¹ Consequently, it is argued that if an administrative act is lawful, then liability cannot result. (p.29) To some extent this is true.² But there are some important exceptions to this rule. First, and most obviously, lawful decisions may give rise to liability under the well-developed doctrine of no-fault damages liability.³ Secondly, there are some factual circumstances in which liability for fault occurs without invalidity of an act which causes loss. Take the example of a doctor who carelessly causes personal injury to a patient in a public hospital.⁴ The unfortunate victim of this accident may attempt to sue for damages. Yet it is evident that one cannot bring an action in order to quash such administrative activities; as has been observed ‘one cannot ask for the annulment of a vehicle accident’.⁵ In these circumstances, liability will attach to an administrative act which cannot be declared unlawful, thereby providing a departure from the aforementioned rule.⁶

The explanation for this lies in the notion of illegality and its relationship with different types of administrative acts. In order to obtain the annulment of any administrative act, an applicant must bring an action pour excès de pouvoir.⁷ However, it would seem that, in principle, only administrative decisions which are capable of producing legal effects—décisions exécutoires—can be the object of such an action. Other administrative activities, known as agissements or faits matériels cannot be reviewed in an action pour excès de pouvoir. As such agissements cannot be quashed, it is not possible for them to be declared unlawful by an administrative court. Nevertheless, such administrative activities may give rise to liability.

(p.30) Thus, in terms of the agissements of public agents, for instance the negligence of a doctor, it can be asserted that illegality is not a necessary condition of administrative liability for fault.⁸ This chapter is primarily concerned with the relationship between illegality and fault. A determination whether agissements give rise to fault cannot be made by a direct reference to legality. The criteria which the courts have instead used to determine whether a faute de service derives from agissements will be discussed in the next chapter.