Conclusion Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0009

Abstract and Keywords

This chapter reviews the differences in the systems of substantive English and French governmental law in liability in terms of the approach, philosophy, and procedural factors, and similarities in the division between personal and state liability, concepts, approach, system of reparation, outcomes, and reasonable limitations of liability that make the two jurisdictions less divergent than they may at first seem. They also have parallels in the evolution of liability and the gradual liberalising of the substantive law. French law might learn from English law, as English law might learn from French law, to cope with the limitations of each system and to provide reference for progress and significant improvement.

Keywords:   state liability, liability, governmental law, substantive law, French law, English law

1. Similarities and Differences

There are major differences between the substantive law of governmental liability in England and France. English courts have not been prepared to accept that an ultra vires act which has caused loss should per se lead to monetary reparation.¹ The French courts have, on the other hand, accepted a wide notion of fault, premised upon a duty to administer competently, which is in turn supplemented by various heads of no-fault liability. The English courts have traditionally placed repeated reliance upon a number of policy concerns in order to avoid imposing a duty of care upon public authorities.² In brief, it would seem that the French courts have created a broad and liberal system of state liability, whereas the English courts have exercised remarkable restraint in imposing liability upon public authorities.

And yet, when one looks closer, the two systems are not as divergent as one might have thought. Outcomes can often be very similar, and the legal concepts used to reach them are not always dissimilar. There are similarities in the division between personal and state liability.³ The contrasting notions of faute de service in French law and vicarious liability for the torts of individual public servants in English law have in fact resulted in similar rules dividing individual and employer's liability.⁴ We have also seen that in some circumstances the French courts will resort to a common law-like concept of duty to control and define the existence of administrative fault.⁵ In practical terms, the finding of fault is influenced by similar factors in both countries, such as foreseeability of loss and the complexity of the impugned activity.⁶ We have also seen that although the common law does not recognize a general right to compensation for loss caused by administrative wrongs, the English ombudsmen and administration now accept that loss caused by administrative malpractice warrants the provision of redress.⁷ As in France, citizens in England are now systematically granted reparation in order to offset loss caused by maladministration. Unlike in France, this is not based upon entitlement, but rather upon equity.

(p.262) A similarity is also found in the common need to keep state liability within reasonable limits. In order to circumvent liability, the French courts have had recourse to the conveniently amorphous criteria of direct and certain harm. We have seen that concepts of causation are used as significant control factors, including the rejection of joint and several liability, the malleability of the test of causal directness, the expansive notion of contributory acts of the victim, and the restrictive application of the but-for test in respect of the illegality-fault equation.⁸ The doctrine of assumption of risk has played a similar role, motivated by the need to protect public finances.⁹ We have also seen that, although the French system may seem very liberal in respect of recoverable loss, this liberalism is often more apparent than real.¹⁰ So, damages for pure economic loss in France are circumscribed by control mechanisms on the occurrence and extent of recovery. In practice, similar results are often reached.¹¹ There are also parallels in the approach to the recovery of damages for loss of a chance.¹² It is clear that the measurement of damages for personal injury and dependency loss reflect unfavourably upon the French system.¹³

Similarly, though French judicial decision-making may for a common lawyer at first seem alien,¹⁴ it is submitted that first impressions may be deceptive. Other authors have detected resemblances in reasoning between French judges and their common law brethren, both in the public law¹⁵ and private law¹⁶ arenas. My study confirms this similarity, in both the influence of precedent in reaching decisions,¹⁷ and arguments based on consistency.¹⁸ The most marked similarity, however, is in terms of the (p.263) power of policy concerns. It is clear that policy concerns have shaped the development of French administrative liability. These concerns are not explicitly recognized in the courts' judgments, but they have been invoked by academic commentators, practitioners, and crucially by members of the judiciary in the conclusions of Commissaires du Gouvernement. We have seen the influence of the desire to avoid administrative defensive practices,¹⁹ to limit the strain on public funds,²⁰ to prevent excessive liability for repercussive claims,²¹ to accord a ‘margin of manœuvre’ to public authorities involved in sensitive activities,²² to avoid second-guessing discretionary administrative choices,²³ and to prevent extensive liability for certain types of loss.²⁴

There are also parallels in the evolution of state liability towards a modern system of reparation. This may first be seen in the growing constitutionalization of tort law.²⁵ In English law, we have already noted (p.264) the gradual reshaping of existing torts under human rights law.²⁶ French administrative law has by no means escaped the human rights influence.²⁷ There are various illustrations of this trend. In the Bitouzet case, the Conseil d'Etat ‘revealed’ an additional exception to the statutory immunity²⁸ for loss caused by servitudes in the planning sphere. This decision was subsequently explained in another case as an example of the technique of interpreting rules in conformity with the European Convention.²⁹ In another recent decision, Magiera, the Conseil d'Etat set aside the traditional standard of faute lourde concerning liability for judicial acts, so that the mere violation of the right to a hearing within a reasonable time, underpinned by Article 6(1) of the ECHR, gave rise to liability.³⁰

Another feature of modern governmental liability in both systems is the gradual liberalizing of the substantive law. A historical overview indicates a gradual development of administrative liability.³¹ In French law, this broadening of the elements of state liability has, as we have seen, continued apace. In English law, the pace of change has been very different, but despite the traditionally restrictive approach to state liability, recent English decisions have signalled a more generous approach. In terms of negligence, the courts are taking a more liberal approach, relying less on a macro-level duty enquiry and shifting emphasis to other elements of this tort. There are similar developments in terms of misfeasance in public office. This is now an intentional tort for which (subjective) recklessness suffices and in respect of which the requirement of ‘bad faith’ no longer dominates. There are even tentative signs of an evolution in terms of no-fault liability.³²