(P.14) 2.4. Conclusion: Vestiges of Immunity?

In France, a historical overview indicates a gradual development of administrative liability. In the present day, the only major exception to the broad justiciability of administrative acts is to be found in the category of actes de gouvernement.⁷⁴ There is immunity in damages for administrative acts concerning France's international relationship with other countries,⁷⁵ the relationship between the executive and Parliament,⁷⁶ and measures taken to protect French nationals and their property abroad.⁷⁷ In keeping with the move away from irresponsabilité, the ambit of immunity for actes de gouvernement has been circumscribed.⁷⁸ Various statutory immunities have also been whittled away.⁷⁹

In English law, vestiges of immunity still exist.⁸⁰ First, in parallel with French-law actes de gouvernement, the English courts have acknowledged a defence of Act of State for certain sensitive executive acts which are outside the jurisdiction of the courts.⁸¹ Of more relevance today is the refusal of the courts to adjudicate upon claims against public authorities which involve sensitive policy issues, but this will be covered in greater depth in Chapter 4.⁸² Secondly, the immunity of the armed forces deriving from the Crown Proceedings Act 1947 was suspended by statute in 1987,⁸³ only to be revived by the courts for negligence occurring in battle (p.15) conditions.⁸⁴ Thirdly, the post office enjoyed immunity under the Crown Proceedings Act 1947,⁸⁵ and, unlike in France,⁸⁶ this has been preserved as the status of the post office has evolved away from the penumbra of the Crown.⁸⁷ No action lies against the post office or its servants for loss caused by the ordinary post, although a sender has recourse for registered inland post.⁸⁸ Fourthly, judicial officers enjoy a wide immunity from suit, and personal liability may arise only in exceptional circumstances.⁸⁹ State liability for judicial acts is ruled out by the Crown Proceedings Act,⁹⁰ but two potential openings should be mentioned here.⁹¹ State liability may arise for breach of EC law by judicial acts.⁹² A damages remedy may be available under the Human Rights Act 1998,⁹³ although no award may be made for judicial acts done in good faith.⁹⁴ Nonetheless, English law contrasts sharply with French law on this point.⁹⁵ Finally, account must be taken of the defence of statutory authorization.⁹⁶ Liability may be curtailed where acts are authorized by statute.⁹⁷ Statutory authorization (p.16) is most commonly encountered in the context of nuisance actions,⁹⁸ and also applies to the principle of Rylands v Fletcher.⁹⁹ In the context of negligence actions, it applies in a different manner: statutory authority provides no defence to a free-standing cause of action for the careless exercise of statutory functions.¹⁰⁰

3. Overview of Modern State Liability

We have viewed the historical progression of administrative liability and it is now appropriate to turn our attention to the present situation. A short overview of modern governmental liability will be given, accompanied by an explanation of the structure of this book.

In English law, an action for damages against a public authority for administrative wrongdoing must fall within one of the diverse and varied torts. Therefore, the torts of assault, breach of statutory duty, nuisance, and negligence have all been applied by the courts to public bodies. Unlike in the French system, there is no broad principle of administrative liability, and the claimant is required to show that the facts of his or her claim lie within one of the established heads of tort. A counterpoint to this pigeon-hole approach to civil liability is the ‘staggering march’ of the tort of negligence during the twentieth century.¹⁰¹ The tort of negligence has expanded to become the predominant tort, somewhat overshadowing its brethren ‘torticles’.¹⁰² This development has been facilitated by the generalization of the duty of care in negligence,¹⁰³ a phenomenon which is explained by Ibbetson in the following passage:

By around 1970 the law of negligence was beginning to be conceptualized in terms of an ocean of liability for carelessly causing foreseeable harm, dotted with islands of non-liability, rather than as a crowded archipelago of individual duty situations.¹⁰⁴

The generalizing tendency originated in Donoghue v Stevenson,¹⁰⁵ but was (p.17) explicitly articulated in the case of Dorset Yacht v Home Office,¹⁰⁶ and reemphasized in the two-stage approach to a duty of care in Anns v Merton London Borough Council.¹⁰⁷ According to this latter test, a judge ruling on a novel duty-situation, would ask if it were reasonably foreseeable that the defendant's carelessness would cause damage to the claimant.¹⁰⁸ If so, a duty of care would arise unless there were any considerations which ought to ‘negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may arise’.¹⁰⁹

However, this generalized approach to determining a duty of care was subsequently disavowed by the judiciary, partly due to the effect it had upon the liability of public authorities.¹¹⁰ Preference was instead expressed for an ‘incremental’ development of negligence based upon previously recognized duty situations.¹¹¹ In this context, the following elements have been laid down for determining the existence of a duty of care:¹¹² foreseeability of harm; whether the parties were in a sufficiently proximate relationship; and whether it is fair, just, and reasonable to impose a duty of care. In Chapter 4, we shall see that this has resulted in a more restrictive approach to the establishment of duties of care in respect of public bodies.¹¹³ The existence and extent of a duty of care have also been shaped by the type of loss that has occurred. This will become clearer in Chapter 7, when we will compare the approaches in English and French law to the type of loss sustained by the claimant.

Although the tort of negligence now predominates in English tort law, there is still a stark contrast with the general system of liability found in French law.¹¹⁴ French law is based upon the general principle that a claimant may gain damages for the fault of a public body which has caused loss.¹¹⁵ This is supplemented by a well-developed doctrine of no-fault liability. In terms of fault liability, the notion of a faute de service is a crucial concept. This both demarcates the circumstances in which the state (p.18) will be liable for the actions of its servants and provides the contours of wrongful behaviour. We will investigate the former issue in the next section. The actual articulation of governmental fault will then be examined in Chapters 3 and 4. There are vast differences in the conception of ‘fault’ in English and French law. Modern French administrative liability is premised upon the parity between public law illegality and administrative fault, a proposition which has been rejected in English law. The large number of torts in English law has meant that the wrongdoing which gives rise to liability for causing loss is conceived differently according to the head of tort invoked by the claimant. These differences explain the structure of this book. The relationship in substantive law between the public law notion of unlawfulness and liability in a damages action will be examined in Chapter 3. We will then go on to look at those cases in which there is a dissociation between public law illegality and fault in Chapter 4. In that chapter, we will investigate the elements that are required in English tort law for a defendant public body's conduct to be categorized as wrongful, so that liability will be incurred for loss that has been caused. We will also look at those French cases where it is necessary to determine whether the administration is at fault without reference to standards of legality.

No-fault liability of the administration is trumpeted as one of the great achievements of French administrative law. This doctrine has predominantly been based upon two distinct principles, the principle of égalité devant les charges publiques and the principle of risk. There are also heads of no-fault liability which defy ready categorization, such as the area of medical malpractice. The French approach stands in stark contrast to the restricted English law. The development of no-fault liability will be examined in Chapter 5.

The wide conception of fault and the existence of no-fault liability in French law have shifted the emphasis to causation and damage in restricting the scope of state liability. In Chapter 6, we will examine the position of the French and English courts in formulating the tests of causation. We will see that the test of causation has played a significant restricting role in French administrative law.

Compensation and loss will be examined in Chapter 7. In fact, we will examine two questions that are generally kept separate in the common law: that of the type of loss for which damages can be recovered by claimants and that of the manner of calculating damages. These questions are closely related, and from a comparative law perspective it is necessary to cover both issues in order to understand how the French courts have dealt with the expansive propensities of liability for economic loss and lost chances.

Having examined the courts' attitude to the granting of damages for (p.19) administrative wrongdoing, we will then turn our attention further afield. In Chapter 8, we will consider the non-judicial means by which aggrieved citizens may gain compensation from public bodies.

Finally, a word must be said about the procedure for damages actions against the state. We have seen that the French administrative courts gained jurisdiction in state liability claims, whereas in contrast, in English law, the ordinary courts have traditionally applied the ordinary rules of tort law to claims against public bodies. The institutional differences are by no means absolute, however. The French civil courts have gained jurisdiction over activities as closely linked to the functions of the state as the police judiciaire.¹¹⁶ There have also been movements away from the Diceyan ideal of equality in English law. Although no special system of administrative liability has been developed, we shall see there are now special rules applying to claims against public authorities. The development of the Crown Office List (now renamed as the Administrative Court) has meant that judges with expertise in administrative law hear applications for judicial review, to which damages claims may be joined. In practice, however, this marks a very limited development in contrast with the specialized administrative jurisdiction in France.¹¹⁷ The award of damages in an application for judicial review rarely occurs,¹¹⁸ and due to the procedural restrictions on judicial review, it is common for the damages claim to be transferred out of the Crown Office List after the public law issue has been decided and for the action to proceed along the private law route as if begun by writ.¹¹⁹