Introduction Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0001

Abstract and Keywords

This book examines the conditions of French and English laws and their respective government system in dealing with the question of state liability. It is a complex matter that debates the function, methodology, and role of a comparative approach; but through this approach, the book aims to uncover the underlying principles and administrative ability, historical background, policies, and non-judicial procedures, and provide a critique of and possible changes in the English law. The examination of state liability is confined to the sphere of tort and delict, focusing on the rules of state liability and not on the introduction of administration of each country. The challenge of the research comparison is to analyse the liability of the state in French and English law based upon differences in their conceptualization of the state.

Keywords:   state liability, comparative approach, English law, tort, delict, French law

State liability in damages is a complex topic lying on the crossroads of administrative law, constitutional law, European law, and tort law. Actions against the state cover a wide range of factual scenarios stretching from the ubiquitous ‘slipping and tripping’ claims to attempts to question sensitive governmental decision-making. In deciding these cases, the courts have had to balance the desire to provide redress for the victims of administrative wrongdoing with the need to take account of the public service framework within which the defendants are operating. A senior judge has described the question of determining whether a common law duty of care may occur in a statutory framework as a ‘nightmare world’.¹ These nightmares have been replicated across frontiers, as all systems have attempted to resolve this ‘problem without solution’.²

The aim of this book is to examine state liability in comparative perspective by looking closely at English and French law.³ In many ways, the French and English systems of governmental liability are very different. In procedural terms they diverge, as in France autonomous rules of governmental liability have been created by the administrative courts, whereas in England the ordinary courts have applied the rules of tort law to claims against public bodies. In substantive law terms, these two systems also appear to be very different. The French system has attracted much attention as a liberally conceived regime of administrative liability premised upon a general theory of damages for wrongful administrative acts, supplemented by a sophisticated system of no-fault liability. This is contrasted with public authority liability in English law which has traditionally been marked by judicial restraint.

The initial objective of this study was to investigate how these two (p.2) neighbouring countries had dealt with a common problem in such seemingly different ways. However, on examining closely the substantive law, it gradually emerged that approaches which initially seemed strikingly different were in fact not so dissimilar. The English and French law of governmental liability is not as different as traditionally might be thought.⁴ In French law, the courts have moulded the rules of responsabilité administrative to provide for potent control mechanisms, often underpinned by policy concerns which are familiar to common lawyers. In English law, the approach of the judiciary has traditionally been marked by considerable restraint, but there have recently been signs that the traditional approach is waning. As one eminent judge has declared: ‘[t]he law is on the move’.⁵ Recent decisions indicate that the direction the English courts are taking is a markedly more liberal one.