Alternative Means of Redress Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0008

Abstract and Keywords

This chapter discusses alternative, non-judicial means to compensate citizens aggrieved by public bodies by examining the two jurisdictions, and includes a comparative analysis of statutory and administrative compensation schemes in England and France. Modes alternative to French litigation include creating a formalized settlement of dispute between parties (transaction), involvement of a third party to find a solution (conciliation), and seeking the Médiateur from the institution of the French Ombudsman, le Médiateur de la République, to investigate complaints referred by a Parliamentary deputy or senator from members of the public or companies (mediation model). The use of the mediation model extends to local and other public authorities such as the post office, the SNCF, and educational institutions. In England, public bodies may grant compensation to victims of administration blunders through ex gratia payment without admitting legal liability, although the statutory authority for doing so is not entirely clear.

Keywords:   non-judicial means, aggrieved citizens, compensation schemes, transaction, conciliation, French Ombudsman, mediation model, ex gratia payment

1. Introduction

If all the grievances that citizens have against the state were channelled through the courts, the present systems would be utterly swamped. In fact, the means of redressing grievances in England and France are diverse, and non-judicial mechanisms play an important role.¹ It is essential to take account of the operation of the legal system as a whole when examining the granting of reparation for administrative wrongdoing.²

In this chapter, we will consider the non-judicial means by which aggrieved citizens may obtain compensation from public bodies. We will first examine the two jurisdictions in autonomous sections. This will be followed by a comparative law analysis of the various statutory and administrative compensation schemes in England and France.

2. France

The serious delays in the French judicial system have created a keen interest in alternative means of dispute resolution.³ And yet, there has been a certain reluctance to persuade the administration to avoid litigation. We will examine the different means of dispute resolution available in the French system, and the reasons for the continuing reticence.

The French administration invariably has a chance to avoid litigation by reaching an out-of-court settlement with aggrieved citizens owing to the procedural rule which stipulates that a claim must have been made to the administration prior to the commencement of an action in damages.⁴ Litigation can be avoided by means of an agreement between (p.240) the parties to settle the dispute, which may result in a formalized settlement (transaction).⁵

In 1993, a Conseil d'Etat report commissioned by the Prime Minister on non-judicial means of dispute resolution concluded that the resolution of disputes by transaction in the public sector was very patchy.⁶ In some areas of administrative activity, it was found that out-of-court settlements were the norm. The tax authorities often settle disputes.⁷ Likewise, the Minister of the Interior had reduced litigation in some areas, such as damages actions arising from the failure to enforce court orders to evict tenants (the Couitésas case law).⁸ Almost all disputes arising out of road accidents were settled.⁹ On the other hand, the report revealed worrying gaps in the use of transactions: many public authorities simply did not resolve claims amicably. This was especially true for loss caused by travaux publics,¹⁰ which explained the large amount of litigation in this area. The Conseil d'Etat concluded in the study that public authorities should be encouraged to settle more cases amicably.¹¹ It was argued that providing redress without recourse to the courts was an essential element of modern public service provision.

In response to the report, the government issued a circular which specifically encouraged public bodies to make greater use of negotiated settlements to avoid litigation.¹² Government accounting rules were modified in order to make it easier for departments to make out-of-court settlements.¹³ Indeed, efforts were made by the administration to increase the number of settlements.¹⁴ Although it is difficult to obtain statistical information, evidence does suggest that the results have been very mixed.¹⁵ French commentators have given various reasons why the (p.241) administration is reluctant to make greater use of transactions.¹⁶ First, there is a ‘psychological’ predisposition of public servants to prefer recourse to the courts rather than attempt to resolve disputes by out-of-court settlements.¹⁷ Some public servants still believe that the threat of litigation encourages claimants to drop their claims entirely, and in any case delays the moment of reckoning.¹⁸ Secondly, despite the improvements that have been made in government accounting rules,¹⁹ reticence is caused by confusion over the budgetary implications of settling out of court.²⁰ Thirdly, public servants are sometimes unsure about the legal rules, and thus do not feel confident in negotiating an agreement.²¹ Fourthly, local authorities are covered by insurance policies which generally include a clause giving the insurance company control over the payment of compensation.²² Insurers may prefer to delay payment by starting litigation rather than reaching a prompt settlement.²³ Fifthly, many attempts to settle fail simply because the aggrieved citizen feels that the amount proposed by the public body is insufficient.²⁴

Another alternative to litigation is conciliation.²⁵ This technique involves the intervention of a third party to find a solution to an administrative dispute. Various attempts have been made to encourage dispute-resolution along these lines. Indeed, an amendment was made to the Code des Tribunaux Administratifs to allow the lower courts to facilitate conciliation.²⁶ However, the amended provision has rarely been used in practice.²⁷ An experimental scheme creating consultative bodies to conciliate (p.242) in damages claims has been similarly unsuccessful.²⁸ Various attempts to find alternative means of resolving damages actions against the urban development and planning authorities have failed.²⁹ In the medical sphere, a new attempt has, however, been made to encourage conciliation. We will look at this in more detail below.³⁰

An institution which has made more impact on dispute-resolution is the French Ombudsman, le Médiateur de la République.³¹ The Médiateur de la République was created in 1973,³² and is now viewed as the principal non-judicial institution for resolving administrative disputes.³³ The Médiateur is empowered to investigate complaints referred by a Parliamentary deputy or senator from members of the public or companies.³⁴ The ambit of the Médiateur's intervention is generously framed. He can inquire into the provision of public services by a wide range of public bodies, including central and local government, public companies such as the utilities, the post office, and transport companies. The Médiateur is not only permitted to investigate alleged maladministration, where a public body has failed to act ‘in accordance with its public service mission’,³⁵ but may also examine whether a public body has acted contrary to ‘equity’. Under this latter rubric, the French Médiateur can scrutinize the merits of administrative decisions, and can try to renegotiate those which are unfair.³⁶

If a complaint is found to be justified, then it is open to the Médiateur to make a formal recommendation to the public body on how the dispute could be settled.³⁷ However, this power of recommendation is relatively rarely used as the Médiateur prefers to resolve disputes by facilitating an amicable agreement between the parties using techniques of persuasion, negotiation, and arm-twisting.³⁸

(p.243) Each year the Médiateur receives around 45,000 complaints,³⁹ which would seem to exceed the workload of his British counterparts.⁴⁰ Moreover, the Médiateur's success rate seems to be impressive. Amongst those complaints which the Médiateur agrees to pursue, it is claimed that a satisfactory result is reached in 88 per cent of the cases.⁴¹

Illustrations of the Médiateur's interventions are found in the annual reports. A typical example is in the sphere of travaux publics. A hotel owner was able to obtain compensation from the government when road changes restricted access to his property thus causing a serious loss of custom.⁴² A wide variety of other grievances are covered in the reports. Many complaints concern maladministration arising from social welfare payments, such as unemployment benefit and state pensions.⁴³ Tax,⁴⁴ planning,⁴⁵ and public works⁴⁶ disputes also pepper the annual reports.

The Médiateur has been able to secure compensation for a wide variety of losses, including non-pecuniary loss caused by the improper removal of voting rights,⁴⁷ and pure economic loss sustained by a pharmacist owing to the granting of an unlawful authorization to open a competing pharmacy in the same commune.⁴⁸ There are also many examples of compensation for personal injury.⁴⁹

The fruits of the mediation can be considerable. In resolving a marathon dispute concerning an expropriation procedure which had spanned thirty years, the Médiateur obtained a payment of two million Francs for the property owners.⁵⁰ On the other hand, other cases indicate less impressive results.⁵¹ Indeed, the reports reveal that the Médiateur will (p.244) often settle for less than the monetary value of the loss which the complainant has sustained.⁵² This willingness to compromise may partly explain the high success rate.

Local authorities have also turned to the mediation model, and a number of large French towns now have their own Médiateur.⁵³ This has been extended to other public authorities:⁵⁴ mediator posts have been created to cover the activities of the post office,⁵⁵ the SNCF,⁵⁶ and educational institutions.⁵⁷