3.4. Procedural Impact

It is a truism to remark that in terms of procedure the English and French systems are starkly different.⁴⁹⁸ The inquisitorial character of the administrative courts' procedure in France⁴⁹⁹ contrasts greatly with the adversarial nature of English procedure.⁵⁰⁰ The interventionist character of the French administrative judge has encouraged a very active role for the judge in establishing the elements of a liability action. There are various (p.123) ways in which this has assisted claimants. First, the inquisitorial procedure can aid claimants in extracting information from secretive administrative bodies. The administrative judge may order the administration not only to produce documents appertaining to the case before it,⁵⁰¹ but also to require the administration to elucidate the ‘legal and factual’ reasoning behind the contested decision,⁵⁰² and sometimes even to give the exact motives for the action taken.⁵⁰³ As a sanction for failure to comply, a presumption will arise in favour of the applicant's allegations.⁵⁰⁴

Secondly, another important feature of the inquisitorial procedure is the manner in which the administrative judge may initiate further investigation into the facts of the alleged incident. If it is thought that the parties' submissions have not sufficiently clarified any issue, the judge may order one or more ‘means of investigation’, including an expertise (expert's report),⁵⁰⁵ a visit to the location of the incident,⁵⁰⁶ an enquiry or a cross-examination of the parties.⁵⁰⁷ Expert's reports are a particularly common phenomenon in liability cases.⁵⁰⁸ They allow the judge to gain an objective assessment of the incident, and invariably play an important role in persuading the judge of the veracity of the applicant's allegations.⁵⁰⁹

(p.124) Certainly, the inquisitorial procedure would seem to assist in establishing the claimant's allegations.⁵¹⁰ The importance of this contribution is exemplified by the number of cases in which the court asserts in its decision that the elements of the liability action are proved in the instruction.⁵¹¹ This highlights the fact that it was not merely the applicant's evidence which had convinced the judge of the veracity of the claim, but rather this coupled with the exterior elements obtained by the judge through the inquisitorial procedure.⁵¹²

4. Comparative Law Remarks

Having looked at the two systems in a predominantly autonomous manner, we now turn to the comparative law dimension. At first glance, there are many differences in the approaches of the two systems to liability for fault. In French administrative law, it is readily accepted that the administration is under an obligation to administer competently. The focus of attention is not upon the existence of a duty, but rather upon the exact content of that duty and the standard of care expected of the administration. In English law, the position is entirely different: there is no general duty to administer efficiently.⁵¹³ Indeed, in many cases the courts have been occupied with the question whether the administration should be under a duty of care to the recipients of public services. Until recently, this question was dominated by a catalogue of policy concerns. These concerns are most obviously felt in the tort of negligence, but can also be detected in respect of claims in breach of statutory duty.⁵¹⁴

Despite these fundamental differences, it is submitted that lessons may be drawn from the French administrative law system, and that indeed similarities may be felt. In an initial section, we will investigate these signs of similarity, and then in a second and final section evaluate how lessons may be learned in English law, in particular in respect of the policy concerns commonly invoked by the courts.