(I) The relative attractiveness of claiming in the ordinary courts and in the administrative courts

There are at least five different factors which might weigh with a claimant in deciding whether to sue in the ordinary courts or the administrative courts in circumstances such as our hypothetical case of a failure of a public authority to intervene appropriately in the interests of product safety.

First, a private law claim brought in the ordinary courts will often not require him to prove a defendants fault, whereas the basis of this claim in the administrative courts will do so. I do not need to stress this point, for I have already explained the many ways in which French courts have imposed liability on private persons in respect of harm caused by the things which they use, supply or manufacture, whether this liability is put in terms of liability for the ‘deeds of things’, under the garantie légale or contractual ‘non-conformity’ in sale, or for breach of an obligation de sécurité de résultat.¹²⁴ By contrast, a public authority will not be liable in respect of its exercise of powers of control over product safety without proof of fault, whether faute simple or faute lourde.¹²⁵

Secondly, in general (though by no means universally), a claimant will have more time within which to bring a claim before the ordinary courts than before the administrative ones. For in private law the general period of prescription is 10 years either from the ‘manifestation of the harm’ for extra-contractual claims or from the non-performance for contractual claims against a trader,¹²⁶ though with the awkward exception of the bref délai which has governed claims brought under the garantie légale in the law of sale.¹²⁷ By contrast, as I mentioned earlier, any action for damages brought against a public authority is subject to a delay of two months from the time of rejection of the claimant’s application to that authority¹²⁸ and to an overall four-year prescription period which extinguishes all debts owed by the majority of French public bodies,¹²⁹ a rule which has been said to dominate all litigation against the administration.¹³⁰ The prescription period starts from the first day of the year following that in which the rights were acquired,¹³¹ this being (p.322) seen as the time of death as regards claims in respect of a persons death,¹³² and either the date when injuries occur or when they become fully apparent (‘consolidated’) as regards claims for personal injuries. Although time does not run ‘against a person who may be legitimately regarded as unaware of the existence of the ‘créance’,¹³³ the Conseil d’Etat has taken a rather narrow approach to the discretion to allow more time which this offers. For example, in its decision in 1987 in Chartrousse…Soc. Normand the claimant had been injured and his car damaged in a road accident and, having failed to recover damages against another driver in the ordinary courts, he claimed damages from the Minister of Transport alleging a failure to maintain the road.¹³⁴ However, his claim was held barred by expiry of the four-year prescription period: the accident had occurred in 1972, and in the view of the Conseil d’Etat, the claimant’s injuries were ‘consolidated’ by 1973. Furthermore, the state of the road was known at the time of the accident so that he could not be said to have been unaware of his possible claim against the Ministry, even though the ordinary court had rejected his claim only in 1977. The Conseil d’Etat also held that bringing proceedings in the ordinary courts does not interrupt the running of time for the purposes of the four-year prescription rule.¹³⁵

This strict and relatively short period for claims in the administrative courts might suggest that it is in a claimant’s interest to claim first against the public body, leaving litigation against the private person until later; but given the general balance of advantage in favour of suing in the ordinary courts, where a claimant claims first against a private person, its likely effect is that any later administrative claim is barred; it is rare for a claim (and in particular a serious claim) in respect of death or personal injuries to be concluded by the ordinary courts within four years of the accident or ‘consolidation’ of a claimant’s injuries.¹³⁶

The third factor in a claimant’s choice whether to sue a private defendant in the ordinary courts rather than a public defendant in the administrative courts is that he is likely to recover more money in the ordinary courts.¹³⁷ Here, the most important cause is the Conseil d’Etat’s rejection for the last half century of the joint liability of private and public persons in respect of the same harm caused by their respective faults or, to use the French terminology, the various ‘co-authors of the harm’ are not liable in solidum for fault.¹³⁸ The (p.323) practical expression of this rejection is that where a public person is sued for harm which is partly its responsibility (based on its fault) and partly the responsibility of a private person (whether based on the latter’s fault or otherwise) the public authority possesses a defence known either as fait d’un tiers or fait d’une tierce personne, the effect of which is to reduce or exclude liability in the administration.¹³⁹ Moreover, the decision whether and to what extent to reduce liability is based on the relative ‘responsibilities’ of the public and private ‘co-authors’ of the claimant’s harm in the view, of course, of the administrative courts, who take into account both their comparative fault and the comparative causal significance of their behaviour. For example, in Ville de Rueil-Malmaison the claimant and his son were injured and his wife killed in a fire at a privately owned cinema.¹⁴⁰ Here, the Conseil d’Etat took into account the relative fault of the cinema’s owner, to whom the necessary refitting of the cinema had been pointed out, and of the town, which had failed to serve a formal notice on him to perform these changes and had failed to close the cinema pending their performance. In the result, the Conseil d’Etat imposed liability on the town for half the harm caused to the claimants by the fire.¹⁴¹ This decision has much in common with our hypothetical product safety case, for it concerns the liability of a public authority for failing in its police administrative to control the failures in safety of a private and commercial operator.

Two reasons have been advanced for this defence. The first is that there can be no joint liability (solidarité) where liability in the two co-authors of the harm is judged according to different sets of legal principles, the one public, the other private,¹⁴² but this is a circular argument as it rests on a preconceived idea of which liabilities may be joint which sits uneasily with the Conseil d’Etat’s earlier acceptance of liability in solidum. More convincingly, there is said to be general principle of law (principe général de droit) that a public authority should not be made to pay more than it owes and that this prevents the application of the solidarity rule under which one co-author of a harm pays out in full to a claimant, even though he is responsable only in part, an argument which gives weight to one’s suspicion that the rule was conceived to protect public finances. However, French jurists have been very critical of the defence of fait d’un tiers, Vedel and Delvolvé calling it one of the ‘carbuncles disfiguring the law of administrative liability’.¹⁴³ First, it creates an unjustified difference from the law applied in the ordinary courts; secondly, it is inconsistent with the rights of victims as it puts on them the risk of insolvency in a third party; thirdly, the private and public jurisdictions may disagree as to the proper division of responsibility between the two (p.324) persons both liable; and, fourthly, the rule is inconsistently applied, not applying to liability in respect of ‘public works’ even where this is based on fault.¹⁴⁴

At a first reading the decision in 1993 of the Assemblée of the Conseil d’Etat in the affaire du sang contaminé suggests a move away from use of the special defence, perhaps in part owing to these criticisms.¹⁴⁵ While the recipients of contaminated blood sued the administration for its alleged failures to regulate and supervise the distributors of blood products, they certainly could have sued a number of other people or bodies: local blood transfusion centres, public hospitals, private sector clinics and doctors.¹⁴⁶ Should the States liability for its failures to supervise properly the supply of blood in France be reduced so as to take into account the contribution to the claimant’s harm of the National Blood Transfusion Centre,¹⁴⁷ a private body, whose liability was governed by private law, even though it acted in furtherance of a service public?¹⁴⁸ The Conseil d’Etat thought not, owing to the close collaboration between the blood transfusion centres and the State’s own general organisation of the service public regarding blood products and the distribution of their respective roles.¹⁴⁹ In so holding, the Conseil d’Etat went further than its earlier case law, where it had rejected the defence where two public bodies had collaborated in the same service public.¹⁵⁰ For some jurists, the Conseil d’Etat’s decision may be a welcome signal towards its abandonment of the defence of fait d’un tiers altogether,¹⁵¹ but it may rather be an expression of its unwillingness to rely on a technical rule to protect the State from full responsibility for its part in the affaire du sang contaminé: certainly, the defence has been subsequently upheld in other contexts.¹⁵² While it still exists, it creates a strong disincentive to a person harmed by both a private person and a public person from suing the latter first.

Fourthly, a common reason for an English claimant to sue a public authority where a private person is also liable (such as in the famous line of cases concerning liability of local authorities in respect of their powers under the Public Health Acts),¹⁵³ is that the private person cannot pay, whereas the public person is insured or has ‘deep pockets’. This may also be a reason for a French claimant to sue a public authority rather than a private person¹⁵⁴ and the question of insolvency actually attracts special rules governing (p.325) liability in the French law of public works’.¹⁵⁵ However, in many situations of liability for products, French private law provides a number of possible defendants and there by spreads the risk of insolvency in any one. So, a buyer may sue not merely his own seller, but any other seller in the line of distribution of the property in question directly, avoiding any intervening insolvency;¹⁵⁶ an employer commissioning a building or its relatively recent buyer may sue a range of persons responsible for its construction, all of whom are liable jointly in respect of their contribution.¹⁵⁷ Others may in principle sue any person by whose fault his harm has arisen, but more helpfully may sue the product’s gardien.¹⁵⁸ And this extensive potential list of private law defendants should be seen in the light of the incidence of liability insurance, which is sometimes compulsory.¹⁵⁹

Fifthly, the procedural incidents of claiming in the ordinary courts or the administrative courts are fairly evenly balanced for this purpose. Certainly, the Conseil d’Etat’s power to order the production of documentary evidence from public bodies is much broader than its civil court counterpart’s powers to order the disclosure of documents, for it recognises a general power in administrative courts to ‘demand from the appropriate public body the production of all documents susceptible to establish the court’s view and to allow the determination of the claims of the applicant’.¹⁶⁰ While French law accepts that a court may not order the production of a document protected by ‘legal secrecy’,¹⁶¹ including medical secrecy and national secrecy, since 1998 an independent administrative authority decides whether or not material falls within this category.¹⁶² However, these powers in the administrative courts are on a par with those enjoyed by a criminal court’s juge d’instruction.¹⁶³ And the position as to both costs and legal aid is much the same in the ordinary civil and administrative courts.¹⁶⁴

Given all these factors, it can be seen that in many cases involving a failure in a public authority to control a private person in relation to the safety of their products, a claimant is likely to prefer to claim damages first in the ordinary courts (whether civil or criminal) from any private law defendant rather than from the public body in the administrative courts. On the other hand, if such a person does sue in the ordinary courts and fails (or fails in part), he is very likely to be faced with an expired prescription period. Overall, therefore, suing the administration in this sort of case risks recovering too little or being too late.