3.2. Comparative Law and State Liability

There are various specific areas in which the English law of governmental liability might be influenced by comparative law. We will look at a series of different proposals for change, in light of comparative law influences. We will look at the potential for extending both the section 8 damages remedy under the HRA and the various alternative systems of redress. Reference will then be made to the impact that comparative law might have upon policy concerns. Finally, we will look at the way in which control mechanisms may be developed in respect of the tort of negligence.

3.2.1. Public Law Unlawfulness and Liability

In broad perspective, a variety of reform options for English law have been mooted over the years.⁹³ One particularly prominent proposal has (p.274) been to draw a closer link between public law illegality and state liability. In an earlier chapter, we examined the consequences of allowing a broad principle of liability for loss caused by illegal administrative acts, and highlighted the reasons why this is unlikely to be attractive to the English judiciary.⁹⁴ In particular, there are worries that a general right in damages for public law unlawfulness would result in a vast extension of liability, an inhibition of administrative activity, or a retrenchment of the scope of ultra vires.

This has not, however, prevented commentators⁹⁵ and members of the judiciary⁹⁶ from expressing concerns about the present state of the law. The current approach does leave a lacuna in certain specifically public law scenarios where the private law principles of tort are ill-suited to addressing the consequences of unlawful decision-making.⁹⁷ One way to redress this, without incurring the negative side effects adverted to above, would be to extend the section 8 damages remedy under the HRA.⁹⁸ This remedy would remain a residual one,⁹⁹ applicable only where the common law is deficient. It could be used sparingly, and only in exceptional cases,¹⁰⁰ so that traditional concerns of basing liability on public law illegality would be obviated. The judiciary would have honed this new remedy under the HRA and it therefore would not be a totally new innovation.

(P.275) 3.2.2. Alternative Methods of Redress

We have seen that in English law there has been a certain attraction for granting compensation for administrative wrongdoing on an ex gratia basis.¹⁰¹ Non-judicial means of redress play an important part in procuring compensation for administrative wrongdoing. It is indeed sensible that litigation in the sphere of state liability should be minimized by encouraging flexible, swift, and informal alternatives to litigation. On the other hand, the existence of alternative methods of redress should not be allowed to displace legally enforceable rights. So, the existence of alternative avenues of complaint should not oust a duty of care. Recourse to the courts should not be excluded.

There are many benefits of facilitating redress by non-judicial means. The desirability of exploring such methods in the sphere of state liability is not clear only in theory: there are examples in practice as well. This is illustrated by the Reeman case covered in Chapter 8.¹⁰² The claimants had lost money when the seaworthiness certificate of a fishing boat they had purchased was withdrawn as it had been based upon faulty calculations previously carried out by a Department of Transport (DoT) surveyor. The Court of Appeal held that the DoT did not owe these boat purchasers a duty to exercise reasonable care to avoid causing them economic loss.¹⁰³ The unsuccessful litigants subsequently made a complaint to the Parliamentary Commissioner for Administration (PCA), who investigated the facts and concluded that both the surveyor and the DoT were guilty of gross maladministration in respect of the boat survey.¹⁰⁴ The PCA recommended that an ex gratia payment should be made to the Reemans, covering the financial loss on the vessel (£134,500) plus interest and reasonable expenses and loss which had been caused by the purchase of the boat.¹⁰⁵ The claimants expended time, effort, and expense in bringing a claim against the government. Having failed in their legal action, the Reemans then turned to the PCA, who remedied the situation in a prompt and efficient manner. This shows that not only can the Ombudsman facilitate a swifter and easier resolution of disputes, but in certain circumstances, a remedy may exist where it would not before the courts. This is not surprising, given the broader rules applied by the Ombudsmen in facilitating compensation, particularly through the extended notions of maladministration and injustice.¹⁰⁶

(p.276) There are ways of reinforcing and encouraging the non-judicial methods of dispute resolution. Two particular areas of interest will be highlighted: alternative dispute resolution (ADR) in public law disputes and statutory schemes in the medical sphere.

The courts have been encouraging recourse to ADR in public law remedies. In challenging the legality of administrative action, judicial review has always been a remedy of last resort: claimants must exhaust alternatives remedies.¹⁰⁷ The Court of Appeal has recently emphasized the importance of ADR in the context of a judicial review action. In Cowl v Plymouth City Council,¹⁰⁸ residents of a residential care home had challenged the legality of the council's decision to close the home on the basis that they had been promised a ‘home for life’ and had thus gained a legitimate expectation that the premises would remain open.¹⁰⁹ Their claim for judicial review was refused by Scott Baker J, and this decision was subsequently upheld by the Court of Appeal. The particular point of interest was the general guidance given by the Court of Appeal on the importance of ADR. Lord Woolf CJ made much of ‘the paramount importance of avoiding litigation wherever this is possible’ in disputes with public authorities.¹¹⁰ His Lordship continued that ‘both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress’.¹¹¹ Lord Woolf CJ emphasized that judges had the means under the new Civil Procedure Rules to facilitate this approach:

The courts should then make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts…. To achieve this objective the court may have to hold, on its own initiative, an inter partes hearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts. In particular the parties should be asked why a complaints procedure or some other form of ADR has not been used or adapted to resolve or reduce the issues which are in dispute.¹¹²

These comments were made in the context of a judicial review action. There is however no reason why they should not extend to tort claims. (p.277) Indeed Lord Woolf's valuable comments were intentionally cast in general terms. The advantage for claimants in gaining satisfaction outside the courts was underlined by Lord Woolf: it ‘saves time, expense and stress’.¹¹³

Moreover, there might be ways of using statutory schemes as an effective alternative to litigation. We have already seen that in response to increasing litigation in the medical sphere, a radical new medical compensation system has been set up in France.¹¹⁴ This new system is still in its infancy, and has not been immune to criticism,¹¹⁵ but it nonetheless presents an opportunity to reduce costs and increase efficiency in providing compensation. In the United Kingdom, there has been a good deal of concern about costs and delays in the current system. A recent National Audit Office Report established that the legal and other costs of settling claims exceeded damages awarded in 65 per cent of settlements below £50,000.¹¹⁶ The Department of Health is currently producing a White Paper setting out reforms to the system for dealing with clinical negligence claims.¹¹⁷ Professor Ian Kennedy has argued that the current system requires urgent review and has recommended the introduction of an administrative system.¹¹⁸ It is not possible here to examine the potential options in detail. But it is suggested that the French system could provide a useful reference point in the current debate.