3. Learning from Comparative Law

3.1. Comparative Law and the Courts

One of the main goals of this comparative study is explanatory, to look closely at the legal rules governing compensation for administrative wrongdoing and discover the underlying themes of administrative liability in these two systems. Over and above the explanatory role, another complementary objective of comparative law is to provide a critique of one's own legal system.⁶⁵ Although the objective of this book was not to provide a holistic solution for the problems of modern state liability, it was indeed hoped that, by comparing these two systems, comparative law might thereby be deployed as a tool for challenging assumptions inherent in the English system, and that this might even facilitate an exchange of ideas between the two legal systems.⁶⁶

We should now turn to ways in which this dialogue may occur. The role of foreign law in the English and French systems is currently developing. The English courts have long been open to considering how legal problems are solved in other jurisdictions, and in some recent tort cases the courts have even shown an interest in looking further afield than common law jurisdictions.⁶⁷ In Fairchild v Glenhaven Funeral Services Ltd, (p.270) Lord Bingham conducted a comparative law survey on a point of causation and declared that:

Development of the law in this country cannot of course depend on a head-count of decisions and codes adopted in other countries around the world, often against a background of different rules and traditions. The law must be developed coherently, in accordance with principle, so as to serve, even-handedly, the ends of justice. If, however, a decision is given in this country which offends one's basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question. In a shrinking world…there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome.⁶⁸

In French administrative law, foreign law sources are becoming an increasing and, in doctrinal terms, somewhat overlooked reference point for judicial decision-making. In Kechichian,⁶⁹ which concerned administrative liability for failure to supervise banks and was heard by the Plenary Chamber of the Conseil d'Etat, CG Alain Seban started his detailed and impressive conclusions⁷⁰ with a survey of comparative law covering Germany, America, and England,⁷¹ concluding with the remark that ‘despite the different legal and administrative traditions, the same features may be found [in the three systems]’. Whilst noting the English courts' tendency to broaden the tort of misfeasance in public office,⁷² CG Seban concluded that the comparative law survey highlighted the ‘liberalism of French administrative law’. Similarly, in two recent decisions concerning wrongful life actions brought independently before the (p.271) Conseil d'Etat and Com de Cassation, both courts were referred to comparative law solutions respectively in the conclusions of CG Pécresse⁷³ and Avocat Général Sainte-Rose.⁷⁴

Of course these examples by no means entail that the English and French courts are systematically having recourse to comparative law in decision-making, but they do highlight the fact that in certain circumstances foreign legal systems are accepted by the courts as an important reference point in tackling domestic problems.

Moreover, there are indirect entry points for foreign legal concepts. In English law, we have seen the influence of European Community law, which has both focussed attention upon the illegality-fault relationship in English law⁷⁵ and provided an example of alternative ingredients for determining state liability, most notably with the ‘sufficient seriousness’ test.⁷⁶ It is interesting to note that not only have the courts adopted the Community law test for state liability with equanimity, avoiding the protectionist language that has often marked the domestic law, but the application of Community law has also led certain judges to go through remarkable metamorphoses. This is illustrated by Lord Hoffmann's views on state liability. In the well-known case of Stovin v Wise,⁷⁷ Lord Hoffmann was in a restrictive frame of mind regarding the conditions of public authority liability. This case concerned an allegedly negligent failure of a local authority to exercise a statutory power to direct a private landowner to remove an obstruction from his land in order to improve visibility at a dangerous road junction. In rejecting the claim, Lord Hoffmann held that ‘the trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person (preferably insured or a public authority) whose act or omission can be said to have caused it. The default position is that he is not.’⁷⁸ He later described Stovin v Wise as one of an established line of cases denying financial compensation for claimants who had failed to receive a benefit from public services.⁷⁹

In a different case, looking again at the topic of state liability, but this time through the lenses of Community law, his Lordship was in more (p.272) liberal mode. When the Factortame litigation returned to the House of Lords on the issue of liability for damages, Lord Hoffmann upheld the lower court's decision that the enactment of the Merchant Shipping Act 1988 constituted a sufficiently serious breach of Community law.⁸⁰ In a crucial part of his judgment, his Lordship boldly declared: ‘I do not think that the United Kingdom…can say that the losses caused by the legislation should lie where they fell. Justice requires that the wrong should be made good.’⁸¹

Another avenue for the introduction of comparative law influences, and perhaps even the changing of mindsets, is the Human Rights Act 1998. The jurisprudence of the ECtHR has clearly been influenced by civil law systems. This can be seen in various fields, including the articulation of the rules concerning just satisfaction. In terms of loss the ECtHR has, in contrast with English courts, made monetary awards for a wide variety of non-pecuniary loss, as well as taking a broad approach to the recovery of pure economic loss⁸² and lost chances.⁸³ In its apparently open attitude to the heads of loss for which compensation can be awarded, the ECtHR is probably closer to the French law tradition⁸⁴ than the common law. In formulating the rules governing damages under the HRA, the English courts must take account of this more liberal attitude.⁸⁵ In turn, this might well prompt a more general re-evaluation of the present stance of the courts in respect of pure economic loss and moral damage in light of practice under the HRA, through the first-hand application of concepts shaped by foreign law influences. In a broader sense, it has been argued that the HRA is challenging orthodox common law philosophy of state liability with the introduction of a rights-based approach, rather than the traditional focus on defining wrongs by reference to duties⁸⁶ and not rights.⁸⁷

The plurality of approaches currently at work in the sphere of state liability is illustrated by the principles underpinning certain alternative sources of compensation. Indeed, the public law Ombudsmen's outlook and philosophy are in many respects closer to French administrative law (p.273) traditions,⁸⁸ with the Local Government Ombudsman's attachment to principles of good administration,⁸⁹ broad conception of loss,⁹⁰ the yardstick of an abstract model of proper administration to determine ‘maladministration’,⁹¹ and a flexible approach to causation, taking account of chances as well as outcomes.⁹²

In general terms, it is thus clear that the law of governmental liability is by no means self-contained and insular. It is in fact a particularly porous system, open to external influences, through European Community law and European human rights law. We now turn to examine how in practical terms lessons might be learned from comparative law.