(P.265) 2. Accounting for the Differences

2.1. Introduction

Despite the similarities which we have identified, and the parallel evolution, the differences between the two legal systems are still marked.³³ The tone of the debate is strikingly different in English and French law. French commentators generally view modern administrative law as evolving towards a more pro-victim approach.³⁴ Despite the control mechanisms that have been identified, this view is supported by developments in the case law: the drastic reduction in the scope of faute lourde; the increase in presumptions of fault; the whittling away of statutory immunities; the advent of no-fault liability in the medical sphere. On the other hand, in English law, we have seen that until recently the underlying theme was very much that of judicial restraint. Why are these systems different? In attempting to explain the differences in emphasis, one can identify a difference in philosophy, as well as the influence of procedural factors.

2.2. Difference in Philosophy

The conceptual approach to administrative liability in each country is very different. Various theories have been seen as underpinning state liability in France,³⁵ including the principles of risk,³⁶ equality before public burdens,³⁷ solidarity,³⁸ and equity.³⁹ In practice, none of these (p.266) complex notions has been accepted as a holistic explanation of state liability. But, taken as a whole, they make a striking contrast with the common law approach. The French theories all have in common a shift in emphasis from the individual to the collective in bearing the burden of public service activity,⁴⁰ a phenomenon which is underpinned perhaps by a tradition of collectivist thought.⁴¹ The general theme of English law is very different. Despite the occasional flirtation with equality-inspired principles,⁴² the English judiciary has generally not been attracted by collectivist ideas in public authority liability cases.⁴³ In the context of the Rylands v Fletcher principle, we have seen that the égalité principle has been turned on its head so that the benefit to the community of the impugned act is regarded as a reason for denying liability.⁴⁴ Indeed, in many public authority liability cases it would seem that the judiciary has been more ready to accept the fact that the Tesser private right must yield to the greater public interest’.⁴⁵

2.3. Procedural Factors

Different procedural traditions may also help to account for differences in substantive law. The inquisitorial character of the administrative courts' procedure in France⁴⁶ contrasts greatly with the adversarial nature of English courts and the ‘umpire’ role of the English judge.⁴⁷ Allison has (p.267) argued that the inquisitorial nature of the French courts has facilitated the resolution of polycentric administrative disputes, whereas the English courts have been handicapped by adversarial procedures.⁴⁸ He has argued that the dependence of the English courts upon the parties to the legal action has affected the development of English administrative law, including the law of governmental liability.⁴⁹

It is clear that French inquisitorial procedure does indeed allow for recourse to information and views beyond those of the immediate parties. We have already examined the extensive information-gathering procedure of the administrative courts,⁵⁰ and this should be set within the overall institutional structure which encourages wide consultation amongst members of the Conseil d'Etat, and contributions from the Commissaire du Gouvernement and rapporteur.⁵¹ In particular, the Commissaires du Gouvernement have the freedom and, in important cases, the time to look at difficult questions in the round.⁵² The accumulation of these procedural features facilitates the resolution of polycentric questions with multilateral implications.⁵³

There is some evidence that judicial restraint in governmental liability has been influenced by the adversarial character of English legal proceedings. Lord Diplock referred to ‘the adversary procedure and rules of evidence adopted in English courts of law’ as a reason for reluctance in adjudging the civil liability of the Home Office arising from the liberal regime adopted for borstals in Dorset Yacht v Home Office.⁵⁴ There are many factors which have contributed to judicial restraint in English (p.268) law.⁵⁵ In procedural terms, one should also take account of the impact of the English law penchant for interlocutory proceedings. Many of the important decisions on governmental liability have been made on the basis of interlocutory proceedings,⁵⁶ in particular striking-out actions. In these cases, the courts were reliant upon the facts as stated in the statements of claim which were assumed to be true for the purpose of the applications.⁵⁷ The striking-out procedure has been described as one which is uniquely favourable to the claimants. However, it has its deficiencies. Interlocutory proceedings require courts to decide complex legal points in an emerging area of the law without the benefit of concrete and detailed facts obtained at trial. The combination of this restricted factual picture and the English courts' focus on bilateral disputes has exacerbated the task of giving broadly applicable principles of law.⁵⁸

There have been attempts by the courts to counter these weaknesses. In recent cases, the courts have been more reluctant to dispose of state liability claims during interlocutory proceedings, emphasizing that the fullest factual picture possible should be gained prior to deciding these complex cases.⁵⁹ As broad principles have gradually been developed on the basis of a clearer factual picture, the courts are again—and perhaps with greater prudence—developing principles to deal with weak claims at an earlier stage of procedure. This has undoubtedly been helped by the introduction of the new rules governing civil procedure,⁶⁰ which have given the courts the tools and confidence to deal with weak claims at an earlier stage.⁶¹

There are other means available for English courts to widen their scope of enquiry. Third party intervention may well increase under the Human (p.269) Rights Act 1998.⁶² The courts might also take advantage of the provision in the Civil Procedure Rules which provides for the possible appointment of an expert by the court.⁶³ It has been argued that this approach would be useful in state liability cases, allowing the judiciary to gain expert evidence of the likely effects of the imposition of duties of care on public bodies, and thus test the strength of various policy concerns.⁶⁴