2. Delimitation of the Study

The ambit of this study has been carefully delimited. The examination of state liability is confined to the sphere of tort and delict, thus excluding an analysis of actions based on contract and restitution. The study focuses on (p.5) the rules of state liability, and does not purport to give a broad introduction to either English or French administrative law.

There have been some challenges in the delimitation exercise. Differences in the conceptualization of the state¹⁷ have created some difficulties of comparison.¹⁸ It is hard to delimit a study on state liability in English law, where there is no precise legal definition of the state.¹⁹ In investigating this topic, a rather amorphous sphere of English law will be covered, encompassing the rules of tort as applied to central government, local authorities, and other public bodies, such as the police. In France, on the other hand, the concept of the state has been debated and developed over centuries,²⁰ thus helping to provide contours of the scope of administrative liability.²¹ The French system poses different delimitational problems. These stem from the jurisdictional complexities of the civil and administrative court systems. Although the majority of state liability claims fall within the purview of the administrative law courts, the French civil courts have gained jurisdiction in the following cases: accidents caused by vehicles belonging to the administration;²² claims concerning ‘commercial’ or ‘industrial’ public services;²³ certain accidents at school;²⁴ some claims against the tax authorities;²⁵ cases which entail a flagrant irregularity (voie defait) by the administration infringing a fundamental freedom or a property right;²⁶ activities of the judicial organ (justice judiciaire)²⁷ including the police judiciaire, which is predominantly concerned with the prevention and apprehension of criminal activity.²⁸ (p.6) We will examine the jurisdictional conflicts between the civil and administrative courts in the next chapter. However, the primary focus will be upon rules of state liability as enunciated by the administrative courts.

The structure of the book will be presented in the next chapter, along with an overview of the law relating to administrative liability. The text of this book is accompanied by a number of translations of French administrative law cases.

Notes:

(1) Lord Browne-Wilkinson in an extra-judicial speech entitled ‘The X Case: Implications for Education Lawyers’ (Education Law Association, The Cavendish Conference Centre, 14 Nov. 1996).

(2) C. Harlow, ‘State Liability: Problem Without Solution’ (1996) 6 NJCL 67 .

(3) There have been a number of comparative law studies of governmental liability: B. Markesinis, J.-B. Auby, D. Coester-Waltjen, and S. Deakin, Tortious Liability of Statutory Bodies: A Comparative and Economic Analysis of Five English Cases (Oxford, 1999) ; J. Bell and A. Bradley, Governmental Liability: A Comparative Study (London, 1991) ; C. Harlow, Administrative Liability: A Comparative Study of French and English Law (Thesis, University of London, 1979); H. Street, Governmental Liability: A Comparative Study (Cambridge, 1953) . See also W. Van Gerven, J. Lever, and P. Larouche, Tort Law (Oxford, 2000) 358–94 .

(4) K. Zweigert and H. Kotz have famously noted that ‘the legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results’: An Introduction to Comparative Law (3rd edn, Oxford, 1998) 34 .

(5) Per Auld LJ in G (A Minor) v Bromley LBC [1999] ELR 356, 359 (upheld in the HL in Phelps v Hillingdon LBC [2001] 2 AC 619 (see especially Lord Slynn's judgment at 644)).

(6) See especially M. Bussani and U. Mattei, ‘The Common Core Approach to European Private Law’ (1997/98) 3 Columbia Journal of Comparative Law 339 ; W. van Gerven, J. Lever, and P. Larouche, Tort Law (Oxford, 2000) ; P. Legrand, Fragments on Law-as-Culture (Deventer, 1999) ; B. Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis (Hart Publishing, Oxford, 1997) ; B. Markesinis, Always on the Same Path: Essays on Foreign Law and Comparative Methodology (Hart Publishing, Oxford, 2001) ; A. Peters and H. Schwenke, ‘Comparative Law beyond Post-modernism’ (2000) 49 ICLQ 800 ; H. Muir Watt, ‘La Fonction Subversive du Droit Comparé’, RIDC 2000.503; R. Sacco, ‘Legal Formants, A Dynamic Approach to Comparative Law (I)’ (1991) 39 American Journal of Comparative Law 1 (1991) 39 American Journal of Comparative Law 343; A. Watson, Legal Transplants: an Approach to Comparative Law (London, 1993) ; R. Zimmerman, ‘Savigny's Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science’ (1996) 112 LQR 576 ; Zweigert and Kotz, An Introduction to Comparative Law (3rd edn, Oxford, 1998) . In particular, in respect of public law see P. Beaumont, C. Lyons, and N. Walker (eds.), Convergence and Divergence in European Public Law (Hart Publishing, Oxford, 2002) ; J. Beatson and T. Tridimas (eds.), New Directions in European Public Law (Oxford, 1998) 157 ; J. Schwarze, European Administrative Law (London, 1992) .

(7) See P. Legrand, ‘European Systems are not Converging’ (1996) 45 ICLQ 52 . See also G. Samuel, The Foundations of Legal Reasoning (Maklu, Antwerp, 1994) .

(8) C. Harlow, ‘Changing the Mindset: The Place of Theory in English Administrative Law’ (1994) 14 OJLS 419 and ‘Voices of Difference in a Plural Community’ in P. Beaumont, C. Lyons, and N. Walker (eds), Convergence and Divergence in European Public Law (Hart Publishing, Oxford, 2002) 209 .

(9) P. Peters and H. Schwenke, ‘Comparative Law beyond Post-Modernism’ (2000) 49 ICLQ 800, 831 . Indeed, Legrand himself refers to the ‘legitimate desire to overcome barriers of communication across legal traditions’ and how a deeper understanding across legal cultures ‘may then be used to encourage new forms of problem-solving’: P. Legrand, ‘Public Law, Europeanisation and Convergence: Can Comparatists Contribute’ in P. Beaumont, C. Lyons, and N. Walker (eds.), Convergence and Divergence in European Public Law (Hart Publishing, Oxford, 2002) 228 and 241 .

(10) J. Bell, ‘Mechanisms for Cross-fertilisation of Administrative Law in Europe’ in J. Beatson and T. Tridimas (eds.) New Directions in European Public Law (Oxford, 1998) 157 .

(11) K. Zweigert and H. Kötz, An Introduction to Comparative Law (3rd edn, Oxford, 1998) 34 ; Peters and Schwenke, n. 9 above, 808.

(12) K. Zweigert and H. Kötz have described this aspect of comparative law as the ‘theoretical-descriptive form’ where the principal aim is ‘to say how and why certain legal systems are different or alike’: An Introduction to Comparative Law (3rd edn, Oxford, 1998) 11 . Sacco opines also that ‘[c]omparative law, understood as a science, necessarily aims at the better understanding of legal data’: ‘Legal Formants, A Dynamic Approach to Comparative Law’ (1991) 39 Am. J Comp. Law 1, 4.

(13) However, this topic has not been subject to examination from the standpoint of law and economics by evaluating the legal rules in comparative law context from the point of view of economic efficiency: B. Markesinis, J.-B. Auby, D. Coester-Waltjen, and S. Deakin, Tortious Liability of Statutory Bodies: A Comparative and Economic Analysis of Five English Cases (Oxford, 1999) . See the work of Ugo Mattei in this respect: Comparative Law and Economics (Ann Arbor, Mich., 1997).

(14) See Chap. 8 below.

(15) Many interviews have been conducted with practitioners, representatives of public authorities, and civil servants in order to ascertain how the substantive rules apply in practice, the effect of procedural rules, and the attitudes to alternative methods of dispute resolution.

(16) I am very grateful to the members of the Conseil d'Etat for allowing me access to their Centre de Documentation and excellent library, thus allowing me to consult a large number of unpublished decisions as well as the rich material contained in the conclusions of the Commissaires du Gouvernement and the notes documentaires, particularly concerning the technique of the calculation of damages.

(17) For broader discussion see K. H. F. Dyson, The State Tradition in Western Europe (Oxford, 1980) .

(18) These differences also explain the diversity of terms which will be used interchange ably to refer to state liability: ‘public authority liability’, ‘administrative liability’, ‘governmental liability’.

(19) See C. Harlow and R. Rawlings, Law and Administration (2nd edn, London, 1997) chap. 1 .

(20) See Allison, chap. 4.

(21) M.-A. Latournerie, ‘The Law of France’ in Bell and Bradley, Governmental Liability: A Comparative Study (London, 1991) 202 .

(22) Law of 31 Dec. 1957. For the extensive meaning of “vehicle” see Chapus, para. 1106.

(23) TC 22 Jan. 1921, L'Ouest Africain [1921] Rec 91 (applying the rules of the Civil Code).

(24) Law of 5 Apr. 1937. See Chapus, para. 1103. The administrative courts nonetheless still have jurisdiction over some educational disputes, e.g. educational malpractice claims: CE 27 Jan. 1988, Giraud [1988] Rec 39. A translation of this case may be found in the Appendix.

(25) See C. Bréchon-Moulènes, ‘Régimes législatifs spéciaux d'indemnisation relevant de la juridiction judiciaire’ in F. Gazier and R. Drago (eds.), Dalloz Encyclopédie de Droit Public: Répertoire de la Responsabilité de la Puissance Publique (Paris, 1988), paras. 116–148 .

(26) See Chapus, para. 1087.

(27) See ibid., paras. 1477–1483. Note that the civil courts apply rules of responsabilité administrative (and not civil law): Cass Civ 2nd 23 Nov. 1956, Dr Giry, AJDA 1957.91.

(28) Not only do some actions against public bodies go before the ordinary courts, but also some actions against private persons may go before the administrative courts (typically contractors undertaking travaux publics).