2.2.2. Alternative Remedies in English Law

In the previous section, we have seen that the French administrative courts attempt to reconcile an open attitude to the recovery of economic loss with the need to avoid exponential claims. In England, the victims of administrative wrongdoing will rarely recover damages for economic loss at common law, but they do not always remain remediless. Account must be taken of intervention by the ombudsmen and the disparate statutory sources of compensation.

The English courts do not have a monopoly on extracting monetary redress from the state. Resort to the Parliamentary Commissioner for Administration (PCA) and the Local Government Ombudsman (LGO) can also lead to compensation.¹¹⁵ Importantly, a wide range of loss is recognized as recoverable by the ombudsmen and consequently, compensation for pure economic loss is more widely available than before the courts. There are numerous examples of the LGO recommending, and local authorities agreeing to pay, compensation for economic loss. So, compensation has been gained for financial loss caused by the irregular grant of planning permission,¹¹⁶ the provision of defective information,¹¹⁷ and delay in dealing with an application for a pavement café licence.¹¹⁸ On a larger scale, the PCA facilitated the award of compensation to (p.202) investors after the collapse of Barlow Clowes,¹¹⁹ in circumstances in which there would not have been tort liability.¹²⁰

Secondly, there are also some statutory sources of redress for pure economic loss. In the planning sphere,¹²¹ when planning permission is revoked or modified, compensation can be claimed for the expenditure,¹²² loss, or damage suffered by a person who is ‘interested in the land’.¹²³ Financial reparation can be gained for partial construction, professional fees, depreciation in the value of land,¹²⁴ and the loss of profits.¹²⁵ Planning authorities understandably do their utmost to avoid falling within the ambit of this statutory scheme, but some large awards have nonetheless been made.¹²⁶ In a different sphere, there is a statutory scheme for the payment of compensation, which includes recognition of loss of salary, to victims of miscarriages of justice.¹²⁷ The Land Compensation Act 1973 provides for compensation to property owners for depreciation in the value of their land due to public works.¹²⁸

2.3. Conclusion

The law governing liability for economic loss in English and French law is not as divergent as initially might seem the case. Admittedly, there is a broader potential in the French system for large claims across the spectrum of administrative activity.¹²⁹ The patchwork nature of reparation for economic loss in the English system is likely to discourage aggrieved individuals. But the French procedure is not ideal.¹³⁰ It is, however, striking (p.203) that claims may sometimes result in similar solutions. In the planning sphere, redress is available in both countries for loss caused by the irregular granting of permission,¹³¹ revocation of existing permission,¹³² and provision of erroneous information.¹³³ In both countries, financial regulatory authorities are rarely found liable for economic loss owing to the denial of a duty of care in English law,¹³⁴ and the absence of the requisite level of fault¹³⁵ or for lack of the requisite causal link in French law.¹³⁶