(P.326) (II) Recourse actions by private persons in the administrative courts

So far I have argued that in cases of a public authority’s failure to control product safety, the public authority is unlikely to find itself sued by a person injured by a product where, as often, he has an alternative claim against a private person. However, this likelihood would not be enough to lead to the practical ‘irresponsibility’ of the public authorities in this sort of case if they could be sued for contribution by any private person held liable in full to the product’s victim. In principle such a right of recourse by private law defendants (and their insurers) has existed since the late 1940s,¹⁶⁵ but it is complicated in three ways, the last of which has a particularly protective effect on public authorities.

First, any recourse by a person held liable in the ordinary courts may have as its legal basis either the rights of the primary claimant to which he is subrogated or an independent right on the ground that his loss was caused by the public authority’s fault.¹⁶⁶ The main disadvantage in this context with reliance on the primary claimant’s rights against the administration is that they may well have ceased to exist owing to the expiry of the four-year prescription period.¹⁶⁷ By contrast, any independent right of recourse does not suffer from this disadvantage, for here time runs from the beginning of the year after it was acquired and this has been held not to take place until settlement¹⁶⁸ or final judgment in favour of the initial claimant.¹⁶⁹

Secondly, however, when a recourse claim by a person held liable in full by an ordinary court comes before the administrative courts, the latter do not consider themselves bound by the view taken earlier by the ordinary court as to the liability, share in responsibility or causal role of the action of the public authority.¹⁷⁰ This is understandable given the ‘autonomy’ of the liability of public authorities, for in principle it is only for the administrative courts applying special public law rules to determine the existence and extent of administrative responsibility.¹⁷¹ Having said this, in many cases the Conseil d’Etat has been content to follow the earlier judgment on these matters,¹⁷² but on occasion has taken a very different view, as may be seen in a case decided in 1962.¹⁷³ There the primary victim owned a house in a narrow street to which was attached an electricity console which was hit by a lorry, damaging the house wall. A few years later, the house owner rebuilt the wall and recovered damages in the ordinary courts to cover (p.327) its cost from the owner of the lorry. However, the Conseil d’Etat rejected the lorry owners claim for contribution against the State as responsible for the position of the electricity console, on the basis that the cost of rebuilding the wall was not a direct consequence of the accident as it been incurred too long afterwards. In the result, therefore, the civil defendant (or rather his insurer) bore all the loss and the public body escaped liability altogether.

Thirdly, the Conseil d’Etat has sometimes refused a person held liable in the ordinary courts any recourse against a public authority simply on the basis of the wrongful character of that person’s behaviour. This can be seen in two important cases which concerned product safety and which had led not merely to the imposition of liability but also to the criminal conviction of the private persons involved: the affaire Stalinon¹⁷⁴ and the affaire du ‘Cinq-Sept’.¹⁷⁵

In the affaire Stalinon a company director and a scientific consultant responsible for the composition of the licensed pharmaceutical of that name were convicted of involuntary homicide and held liable in damages for the many deaths and serious injury which its use had caused.¹⁷⁶ Ten years later, the insurers of the director and the company which marketed Stalinon claimed to be indemnified by the State owing to its fault in granting the drug a licence, relying on their subrogated rights from their assured.¹⁷⁷ In rejecting this claim, the Conseil d’Etat catalogued the faults in the director and the company in the drug’s research, in their application for its licence, in its manufacture and in post-marketing care and concluded that they:

could not effectively take advantage of the fautes lourdes which the State might have committed, by giving [the drug] a licence without any investigation and by failing to withdraw its ministerial licence soon enough…or by failing to supervise its manufacture.

And their insurers could be in no better position than those (the original criminal defendants) to whose rights they were subrogated. So, while the Conseil d’Etat accepted that the State could have been liable in respect of its fautes lourdes in relation to its licensing of Stalinon, any person who was directly responsible for the promotion of a drug (and those who claimed through them) had no right of recourse against the State.

Exactly the same attitude may be found in the administrative law aftermath to the affaire du ‘Cinq-Sept’, where a fire killed and injured many young people at a discotheque. A criminal court had held the managers of the companies which owned the discotheque, the suppliers of its heating system and the managing director of the manufacturers of a polyeurethane-based product which had been used in its decoration guilty of involuntary homicide and condemned all of the companies responsible for these individuals to pay damages in respect of the deaths and personal injuries which (p.328) their crimes had caused.¹⁷⁸ However, while the criminal court also found the local maire guilty of the same crimes, it did not impose liability on either him or the commune, following the general rules excluding the imposition of liability on public bodies and public servants by the ordinary courts.¹⁷⁹ So again, the issue of liability in either the commune or the State¹⁸⁰ for the failure in their respective officers to exercise their powers of control of public health and safety arose in the Conseil d’Etat a decade after the tragic fire had taken place and by way of a claim for contribution by the liquidators and liability insurers of the companies which ran the discotheque.¹⁸¹

The Tribunal administratif de Grenoble held that the maire had indeed committed a faute in failing to exercise his powers concerning the construction, opening and health and safety of the discotheque, and in particular in passing on to the prefet an application for operation of the discotheque at night with his approval, despite knowing that it was already operating without proper permission. The Tribunal also accepted that, despite having been informed by a police report of the irregular operation of the discotheque, the State services failed to close the discotheque or to require its operators to conform to legal requirements, had failed to ensure that the safety aspects of its planning controls were enforced, and had failed to invite the maire to attend the Departmental Safety Commission, even though a member of it. Nevertheless, neither the Tribunal nor the Conseil d’Etat considered that these faults-even though in the case of the commune they were characterised as fautes lourdes¹⁸²-were ones on which the liquidators of the companies which had built and run the discotheque or their insurers could rely so as to obtain contribution, since the faults of the private persons through whom they claimed were the ‘determining cause’ of the fire and of all the harm which it caused.¹⁸³

The formal basis of the decision denying a causal role to the maire’s faute lourde, was thought unconvincing even by its contemporary commentators, which saw it as merely a way of justifying its decision to refuse recovery.¹⁸⁴ In Richer’s view the key motivation of the court was the seriousness of the faults of the persons through whom the companies’ insurers claimed,¹⁸⁵ these being ‘deliberate and inexcusable’ and, of course, criminal. Indeed, the decisions in the affaire du ‘Cinq-Sept’ and in the affaire Stalinon could be seen as examples of the maxim nemo auditur propriam turpitudinem allegans,¹⁸⁶ (p.329) or a general ‘defence of illegitimacy’ (exception d’illégimité) available to the administration to prevent a person who suffers harm caused by it to recover damages where this occurs ‘in an illegitimate situation arising from his own irregular behaviour’.¹⁸⁷

Both the affaire du ‘Cinq-Sept’ and the affaire Stalinon appeared to have concerned claims for recourse based on the private law defendant’s own ‘independent’ right, as distinct from any subrogated right taken over from the primary victims of the two tragedies.¹⁸⁸ Could reliance on the primary victims’ rights lead to any different outcome? In my view, this is unlikely. In the first place, in some cases any rights in the primary victims will have expired owing to the four-year prescription period.¹⁸⁹ For example, in ‘Cinq-Sept’ the fire occurred in 1970; the criminal proceedings (in which liability in damages was imposed) were concluded in 1974;¹⁹⁰ claims for recourse against the administration were introduced in 1976 and final adjudication given in 1980.¹⁹¹ Moreover, even if a subrogated recourse claim were introduced within the prescription period, it is likely that the Conseil d’Etat would still reject it for the same substantive reason (that is, that the private law defendants’ wrong doing should bar their recovery) either by manipulation of causation or by more openly invoking the nemo auditur maxim.¹⁹²

However, denial of any recourse in this type of case leads to a rather strange position. For if those injured in the fire at the ‘Cinq-Sept’ Discotheque had started by claiming damages against the commune in the administrative courts, they would have recovered (even if only in part),¹⁹³ and then would have been able to recover any residue from the private law defendants in subsequent civil or criminal proceedings (subject to the applicable rules of prescription there). This means that the question whether a public authority in this sort of case will actually bear any financial responsibility for the harmful consequences of its failure to intervene on the grounds of public health and safety so as to prevent a private person from causing harm will depend on the decision of the primary victim as to the jurisdiction in which to bring his or her first claim, as well as the degree of ‘wrongfulness’ of the conduct of the private person. (p.330) Where, as often, a primary victim prefers to claim first in the ordinary courts, the public authority will not have to pay, however bad its own failures. Despite allowing liability in public authorities in this sort of case for either faute simple or faute lourde, the system as a whole does indeed tend to lead to their practical ‘irresponsibility’. To this complex and contradictory position, therefore, the affaire du sang contaminé forms a notable and very striking exception.

Notes:

(¹) Below, pp. 319–30.

(²) Below, pp. 315–9.

(³) Above, p. 103.

(⁴) Above, p. 107.

(⁵) Above, Chaps. 6 and 7.

(⁶) Below, pp. 378, 387–93.

(⁷) M. Waline, Traité de droit administratif (Sirey, Paris, 9th. edn., 1963) , 16.

(⁸) E.g. Projet de déclaration des droits naturels, civils et politiques des hommes, art. 27 in the Constitution Girondine of 1793.

(⁹) Dicey, An Introduction to the Study of the Law of the Constitution, 336 .

(¹⁰) The key discussion is found in C. de S. Montesquieu, De l’esprit des lois (1748), Book XI, Chap. 6 .

(¹¹) E.g. Loi of 25 Feb. 1875 art. 3 (the constitutional legislation of the Third Republic).

(¹²) Constitution of 1958, art. 21.

(¹³) While the administration may not be able to create a service public without legislative authority, (Chapus, Droit administratif général, Tome I, 625–6 ) its pouvoir exécutif allows it to set up bodies and to employ people in order to carry out those tasks which are necessary to give effect to a service public.

(¹⁴) Vedel and Delvolvé, Droit administratif Tome 1, 31 .

(¹⁵) Cf. the reference in the arrêt Blanco to the ‘droits de l’Etat’ as needing to be reconciled with ‘droits privés’ in the context of the liability of the adminstration: TC 8 Feb. 1873, DP 1873.3.17, above, pp. 19–20.

(¹⁶) Vedel and Delvolvé, Droit administratif Tome 1, 31 .

(¹⁷) Chapus, Droit administratif général, Tome I, 665 .

(¹⁸) The notion of acte administratif is of crucial importance as only this type of action of the administration is subject to annulment on the grounds of illegality: Gaudemet, Droit administratif Tome 1, 513 et seq.

(¹⁹) For a striking example see CE 8 Aug. 1919, Labonne, D 1920.3.23 (inherent power in President of the Republic as Chef de l’Etat to enact road traffic regulations for the whole of France). The power of maires to intervene on the grounds of ordre public has long been codified, now appearing as art. L. 2212–2 C.G.C.T, on which see below, p. 308. There is a further complication as the Constitution of the Fifth Republic created a distinct and exclusive area for administrative law-making (the pouvoir autonome réglementaire) as distinct from the parliamentary pouvoir législatif on which see Bell, French Constitutional Law, 78 et seq.

(²⁰) CE 30 Jul. 1997, Boudin, D 1999 Somm. 59 obs. Bon and de Béchillon.

(²¹) Chapus, Droit administratif général, Tome 1, 712 et seq.

(²²) Art. 2215–1 C.G.C.T.

(²³) ‘Le bon ordre, la sûreté, la sécurité et la salubrité publique’: Art. 2212 al. 2 C.G.C.T (formerly art. L. 131–2 of the Code des communes).

(²⁴) See below, pp. 328–9, concerning CE 7 Mar. 1980, affaire du ‘Cinq-Sept’, D 1980.320 note Richer, concl. Massot, AJDA 1980.423 note Albertini.

(²⁵) Art. L. 2212–2 4° C.G.C.T. and see C. Gabolde, ‘Hygiene publique’ Jur.-Cl. Adm. Fasc. 220 (2000) 220, 27 .

(²⁶) Loi of 1 Aug. 1905, art. 11. The loi also created criminal offences, on which see below, pp. 369–70.

(²⁷) Arts. L. 5111–1 et seq. C. santé pub.

(²⁸) Loi no. 83–660 of 21 Jul. 1983.

(²⁹) Art. L. 221–1 et seq. C. consom. France did not amend this legislation so as to implement the Dir. 92/59/EEC of 29 Jun. 1992 on general product safety, but a government ordonnance has implemented its reformulated version, Dir. 2001/95/EC of 3 Dec. 2001 on general product safety: ord. no. 2004–670 of 9 Jul. 2004, JO Rép. fr. no. 159, p. 12520 made under loi no. 2004–237 of 18 Mar. 2004 portant habilitation du Gouvernement à transposes par ordonnance, des directives communautaires et à mettre en oeuvre certaines dispositions du droit communautaire. According to Calais-Auloy and Steinmetz, 287 while the 2001 Directive uses a different formulation to describe the general safety requirement (referring to the European version as ‘gibberish’), in their view it has the same significance as the existing French version. Unlike the present European directives, the French legislation extends to services generally rather than being restricted to those involving the provision of products.

(³⁰) Art. L. 221–1 C. consom. The provisions following this statement of principle were amended by ord. no. 2004–670 of 9 Jul. 2004 J.O. Rép. fr. 12520 by way of implementation of EC Dir. 2001/95/EC of 3 Dec. 2001 on general product safety.

(³¹) Calais-Auloy and Steinmetz, 293 .

(³²) Ibid., 294 , quoting art. L. 200–1 C. rur.

(³³) CE 11 Sept. 2002, D 2002 IR 2579.

(³⁴) This is made clear by art. L. 221–2 C. consom. which states that ‘products which do not satisfy the general obligation of safety…are to be forbidden or regulated under the conditions hereafter provided’.

(³⁵) Art. L. 221–3 1 ° C. consom.

(³⁶) Art. L. 221–3 2 ° C. consom.

(³⁷) Art. L. 221–9 C. consom.

(³⁸) Art. L. 221–9 C. consom.

(³⁹) Art. L. 221–3 C. consom.

(⁴⁰) Arts. L. 224–1–224-6 C. consom.

(⁴¹) Art. L. 221–8 C. consom.

(⁴²) Art. L. 221–3 3°C. consom.

(⁴³) Ibid.

(⁴⁴) L. Bihl, ‘La loi du 21 juillet 1983 sur la sécurité des consommateurs,’ in Ghestin, Sécurité des consommateurs, 49, 60 .

(⁴⁵) Art. L. 221–7 C. consom.

(⁴⁶) Ibid., art. L. 221–5.

(⁴⁷) Ibid., art. L. 221–5 al. 4. A prefet may also use these emergency measures within the Department, subject to review by the relevant national minister: Ibid. art. L. 216 al. 2.

(⁴⁸) Above, p. 31. E.g. CE 23 Oct. 1959, Doublet (no.1), Leb. 540, D 1960.191 note Lavroff (faute lourde); CE 28 Apr. 1967, Lafont, JCP 1967.II. 15296 note Rabinovitch (faute simple); CE 9 Feb. 1966, Ville de Touquet-Paris Plage, Leb. 91, AJDA 1966.439 note Moreau (faute lourde); CE Sect. 13 May 1983, Lefebvre, Leb. 194, AJDA 1983. 476 concl. Boyon (faute simple).

(⁴⁹) Chapus, Droit administratif général, Tome I, 1303 .

(⁵⁰) G. Cas and D. Ferrier, Traité du droit de la consommation (PUF, Paris, 1986), 221, 227 ; Bihl, Droit pénal, 132 ; J.-Cl. Vindreau, La responsabilité pénale du fabricant (Thèse, Lille, 1984) 369 .

(⁵¹) CE Ass. 9 Apr. 1993, Req. no. 138652 D 1993.312, concl. Légal, obs. Maugüé and Touvet, AJDA 1993 Chron. 344 and see below, pp. 315–19.

(⁵²) Above, pp. 144–6.

(⁵³) Droit administratif Tome 1, 808 .

(⁵⁴) Above, p. 307.

(⁵⁵) CE 4 Mar. 1932, Ville de Versailles, Leb. 274 (police directing traffic: faute grave); CE 3 Apr. 1981, Ville de Bayonne, Leb. 905 (police directing traffic: faute lourde); CE 20 Oct. 1972, Marabout, Leb. 664, AJDA 1972.625 concl. Guillaume, GP 1973.1.265 note Rougeaux, JCP 1973.17373 note Odent (police failure to enforce parking restrictions:faute lourde).

(⁵⁶) CE 9 Feb. 1966, Ville de Touquet-Paris Plage, cit. (faute lourde); CE Sect. 13 May 1983, (faute simple). Cf CE Sec. 28 Apr. 1967, Lafont, Leb. 182.

(⁵⁷) CE 28 Jun. 1968, affaire Stalinon, JCP 1968.II.15578 note anon and see below, p. 315.

(⁵⁸) CE 23 Dec. 1981, Andlauer, D 1982 IR 450 obs. Moderne and Bon.

(⁵⁹) Chapus, Droit administratif général, Tome 1, 1303 et seq.

(⁶⁰) Ibid., 1313 .

(⁶¹) Vedel and Delvolvé, Droit administratif Tome 1, 583 et seq. An example of this criterion being adopted by the CE may be found in CE 20 Oct. 1972, Marabout, cit.

(⁶²) CE 21 Feb. 1964, Ville de Wattrelos, Leb. 118 concl. G.Braibant; CE 18.1.1974, Millet, Leb. 48 (rescue from a well).

(⁶³) CE 28 May 1984, Soc. fançaise de production, Leb. 736.

(⁶⁴) J.-H. Stahl, concl. CE Sect. 20 Jun. 1997, Theux, Leb. 253 (liability of emergency medical services).

(⁶⁵) CE Sect. 13 Mar. 1998, Améon, D 1998 no. 535 note Lebreton, JCP 1998.I.181 chron. Petit; CE 29 Apr. 1998, Comm. de Hannappes, Leb. 185, D 1998.535 note Lebreton, JCP 1999.II.10109 note Genovèse.

(⁶⁶) CE 29 Apr. 1998, Comm. de Hannappes, cit.

(⁶⁷) Chapus, Droit administratif général, Tome 1, 1312 .

(⁶⁸) Fairgrieve, State Liability, 115–16 .

(⁶⁹) Chapus, Droit administratif général, Tome 1, 1313 ; Braibant, concl. CE 21 Feb. 1964, Ville de Wattrelos, cit .

(⁷⁰) Chapus, Droit administratif général, Tome 1, 502 . As a result, some administrative decisions in a loose sense do not constitute décisions in this technical sense: e.g. a failure to provide a proper life-saving service at a beach. However, the notion of a décision is an open-textured one, in the view of some jurists conditioned by the rule that only actes administratif are subject to review on the grounds of illegality.

(⁷¹) Chapus, Droit administratif général, Tome 1, 1295–96 ; Vedel and Delvolvé, Droit administratif, Tome 1, 584 ; CE Sect. 26 Jan. 1973, Driancourt, Leb. 78; CE 28 Mar. 1980, Iverneau, RDP 1980.1744 obs. de Soto. There are exceptions where the CE has required faute lourde even as regards actes: e.g. CE 7 Jul. 1971, Gérard, Leb. 513. For a very useful comparative discussion see Fairgrieve, State Liability, Chap. 3 .

(⁷²) See CE Sect. 19 Jun. 1981, Carliez, concl. Genevois, AJDA 1982.103; CE Sect. 25 Jun. 1999, Leb. 215, but cf. CE 17 Jun. 1983, SCI Italie-Vendrezane, Leb. 267 (substantial damages awarded for expenses incurred in reliance on illegal planning decision); CE 20 Jan.1989, Arbet, Leb. 907 (interested person recovered damages for loss of opportunity to put his view and consequential inconvenience).

(⁷³) Above, pp. 309–10.

(⁷⁴) CE 30 Jun. 1982, Leb. 249.

(⁷⁵) On this basis of ‘illegality’ more generally, see Braibant and Stirn, Droit administratif fançais, 281–3 ; Brown and Bell, 256 et seq .

(⁷⁶) CE 28 Jan. 1987, Union fédérate des consommateurs, No. 37945 (unreported) (failure to regulate caustic soda). In CE 23 Oct. 1959, Doublet, Leb. 540, D 1960.191 note Lavroff it was held that a maire’s refusal to regulate a camping site in the interests of public health would be annulled only if ‘by reason of the seriousness of the peril resulting from a situation which was particularly dangerous for good order, public safety or public health, this authority, by not promulgating those measures which were indispensable to stop the serious peril, failed to recognise his legal obligations’. Cf. CE 27 Nov. 1964, Dame Renard, Leb. 590 where the State was held liable in damages for failing to enact a regulation which would have set the terms on which the claimant’s rights under a décret could be exercised.

(⁷⁷) Braibant and Stirn, Droit administratif fançais, 281–3 .

(⁷⁸) CE 27 Apr. 1988, D 1988 IR 147 (erasers to look like sweets); CE 21 Apr. 1994, D 1997 IR 123 (beef products).

(⁷⁹) Above, p. 308.

(⁸⁰) CE 14 Dec. 1962, D 1963.117.

(⁸¹) CE 28 Jun. 1968, JCP 1968 II 15578 note anon. See similarly, CE 7 Mar. 1980, affaire du ‘Cinq-Sept,’ D 1980.320 note Richer, concl. Massot, AJDA 1980.423 note Albertini, below, pp. 327–9.

(⁸²) Paris 3 Jan. 1958, S 1958.336 note Bredin. For the Paris Criminal Court of Appeal, it appeared from the documents submitted to it by the Minister of Health relating to the Commission’s workings that its investigation of the drug was ‘too superficial’, but the court concluded that in the absence of fraud, it was not for it to assess the scientific validity of the Commission’s controls: Ibid., 338–9 . For further discussion of the criminal court’s decision, see below, pp. 373–4.

(⁸³) CE 28 Jun. 1968 (2 cases), JCP 1968.II.15578 note anon.

(⁸⁴) Below, p. 327.

(⁸⁵) CE 26 Feb. 1954, Vacher, Leb. 132; CE 1 Oct. 1976, Cie d’assurances, Leb. 388 (recourse claim by the shipowners and their insurers).

(⁸⁶) CE Sect. 13 Mar. 1998, Améon, D 1998 no. 535 note Lebreton, JCP 1998.I.181 chron. Petit.

(⁸⁷) Fairgrieve, State Liability, 109 points to decisions which reaffirm the basis in faute lourde, notably as regards the supervision of banks: e.g. CE 30 Nov. 2001, Kechichian, AJDA 2002 136. There may here be a distinction between liability for personal safety (based on faute simple) and for economic harm (based on faute lourde): Fairgrieve, Ibid., 119–20 referring to M. Guyoma and P. Collin AJDA 2002.133 at 134.

(⁸⁸) TA Paris 20 Dec. 1991, 8 RFDA (1992) 566, concl. Stahlberger, Ibid. 552 ; CAA Paris 16 Jun. 1992, JCP 1992 Actualité nos. 33–37; CE Ass. 9 Apr. 1993, Req. no. 138652, D 1993.312, concl. Légal, obs. Maugüé and Touvet, AJDA 1993 Chron. 344. Other cases came before the CE in the affaire concerning the liability of public hospitals or blood transfusion centres, see above, pp. 150–1.

(⁸⁹) This was established by the loi no. 91–1406 of 31 Dec. 1991 which set up a special body to administer a fund from which payments were to be made to those who contracted the HIV virus after transfusion or an injection with blood derivatives: between April and December 1992, it made awards to some 6,600 people: Y. Lambert-Faivre, ‘Principes d’indemnisation des victimes post-transfusionnelles du sida (Cour d’appel de Paris, 27 novembre 1992 (20 arrêts)’ D 1993 Chron. 67. The fund is financed half by the State and half by contributions from insurance companies: J.-M. Pontier, ‘Sida, de la responsabilité à la garantie sociale (à propos de la loi du 31 décembre 1991)’ RFDA 8 (1992) 533, 544–5 .

(⁹⁰) The Minister of Health was later found guilty of involuntary homicide: Cour de Justice de la République 9 Mar. 1999, below, p. 399.

(⁹¹) The legal regime was based on the loi of 21 Jul. 1952, on which see above, p. 149.

(⁹²) For this type of claim see above, pp. 149–51.

(⁹³) Comm. gouv. Légal, concl. D 1993.312, 314. Such a pouvoir de tutelle may be over either public or private bodies. The classic example of a pouvoir de tutelle was of the State over local authorities, but this supervision was significantly changed by the laws of decentralisation in 1982: Chapus, Droit administratif général, Tome 1, 408 et seq.

(⁹⁴) D 1993.312, 321.

(⁹⁵) Ibid., 317 .

(⁹⁶) Circular of 20 Oct. 1985.

(⁹⁷) D 1993.312, 319. It was also later alleged that the decision reflected a preference for a French test: below, pp. 398, 400.

(⁹⁸) For the decision of the Conseil d’Etat on the defence of ‘fait d’un tiers’, see below, p. 324.

(⁹⁹) The TA Paris, which imposed liability on the State only after March 1985, refused compensation for those who had already been diagnosed HIV-positive at that date in respect of the physiological consequences of this recontamination on the ground that these were totally hypothetical given the existing state of scientific knowledge and that, therefore, their loss was ‘purely contingent’: TA Paris 20 Dec. 1991, 8 RFDA (1992) 552, 566.

(¹⁰⁰) Stahlberger, concl., TA Paris 20 Dec. 1991, 8 RFDA (1992) 552, 554–5 citing CE 29 Mar.1946, Caisse départementale d’assurances sociales de Meurthe-et-Moselle, RDP 1946.490 concl. Lefas (exercise by a prefet of pouvoirs de tutelle over a local financial institution).

(¹⁰¹) CE 28 Jun. 1968, affaire Stalinon, JCP 1968.II.15578 note anon and see above, p. 315.

(¹⁰²) CE Sect. 4 May 1979, Gail, Leb. 190 (failure to modify instructions for compulsory vaccine). He also cited examples of the exercise by public authorities of powers of health and safety (CE 28 Apr. 1967, Lafont, Leb. 182, JCP. 1967.II. 15296 note Rabinovitch) or of pouvoirs de tutelle (CE 26 Jun. 1970, Bartoli, Leb. 441 concl. Vught) also based on faute simple.

(¹⁰³) D 1993.312, 316.

(¹⁰⁴) D 1993.312, 321 (emphasis added).

(¹⁰⁵) Cf. CE 6 Oct. 2000, Comm. de Saint-Florent, AJDA 2001.201 note M Cliquennois (faute lourde in respect of pouvoir de tutelle of prefet over decentralised local authorities).

(¹⁰⁶) CE 13 Mar. 1998, Améon, D 1998 no. 535 note Lebreton, JCP 1998.I.181 chron. Petit.

(¹⁰⁷) Stahlberger, concl., TA Paris 20 Dec. 1991, 8 RFDA (1992) 552, 561.

(¹⁰⁸) Ibid., 562 and see Légal, D 1993.312, 320–1.

(¹⁰⁹) Maugüé and Touvet, AJDA 1993 Chron. 344, 348.

(¹¹⁰) Below, p. 324.

(¹¹¹) Above, p. 316 n. 89.

(¹¹²) Below, pp. 394–401.

(¹¹³) See above, pp. 307–10.

(¹¹⁴) Cf. the facts of Smith v Sec. of State for Health(15 Feb. 2002) 2002 WL 45404, below, pp. 354–5.

(¹¹⁵) An example may be found in the litigation in Civ. 17 Dec. 1954, JCP 1955.II.8490 note Savatier, GP 1955.1.54 where the claimant, who had contracted syphilis from the blood with which he had been supplied, brought a claim against the blood transfusion service in the ordinary courts and a claim against the public hospital in the administrative courts: above, pp. 149–50.

(¹¹⁶) Below, p. 374.

(¹¹⁷) Where a claimant loses a claim, he may be ordered to pay the costs of the winning side by the court in either jurisdiction: Brown and Bell, 125 ; R. Chapus, Droit du contentieux administratif (Montchrestien, Paris 10th. ed., 2002) 961–6 .

(¹¹⁸) Below, pp. 321–4.

(¹¹⁹) Below, p. 321.

(¹²⁰) Loi no. 68–1250 of 31 Dec. 1968, art. 2 al. 1.

(¹²¹) Pacteau, Contentieux administratif, 178–9 .

(¹²²) This is necessary so as to fulfill the rule of the décision préalable required before a claim for compensation may be brought before the administrative courts: Chapus, Droit du contentieux administratifs , op. cit. n. 117, 483 et seq.

(¹²³) Pacteau, Contentieux administratif, 163–4 .

(¹²⁴) Above, pp. 52–61, 69–72, 100–1.

(¹²⁵) Above, pp. 311–19.

(¹²⁶) Above, p. 34.

(¹²⁷) Above, pp. 91–3, 620–1.

(¹²⁸) Above, p. 320.

(¹²⁹) It applies (with legislative exceptions) to the French State, Departments, communes, and those établissements publics which are subject to state financial control through a ‘comptable public’: loi no. 68–1250 of 31 Dec. 1968, art. 1 and see J.-M. Auby and R. Drago, Traité de contentieux administratifs, (LGDJ, Paris, 1984) Tome 2, 515 . Its origins lie in the financial instability of the French State after the revolution and during the First Empire and the desire of early nineteenth-century French governments to prevent a backlog of public debt from arising in the future: Braibant and Stirn, Droit administratif français, 317 .

(¹³⁰) A. Plantey, ‘Prescription quadriennale; Domaine, maniement, effets, contentieux’ Jur.-Cl. Adm. Fasc. 111 (2004), 4 . Cf. Braibant and Stirn, Droit administratif français, 357 who describe it as ‘an important institution which often applies in practice and which has caused the loss of large sums of money to persons who have been in the right on the merits’.

(¹³¹) Loi no. 68–1250 of 31 Dec. 1968, art. 1 and see Plantey, op. cit., 27 et seq.

(¹³²) CE 28 Sep. 1990, Centre hospitalier spécialisé’ d’Armentières, AJDA 1991.60 obs. Prétot.

(¹³³) Loi no. 68–1250 of 31 Dec. 1968, art. 3.

(¹³⁴) CE 23 Dec. 1987, Leb. 422, AJDA 1988.II.361 note Prétot. Cf. above, pp. 122–31.

(¹³⁵) Ibid. , interpreting loi no. 68–1250 of 31 Dec. 1968, art. 2 al. 2.

(¹³⁶) This may be less true as regards claims for damages brought in criminal courts by way of actions civiles, on which, see below, p. 385.

(¹³⁷) Formerly, in part this was because the Conseil d’Etat refused to award damages for dommage moral a position which it formally abandoned in 1961: CE 25 Nov. 1961, Letisserand, S 1963.59 note Hamon. French administrative courts are also said to take a very strict approach to a claimant’s contributory fault: Fairgrieve, State Liability, 177–81 .

(¹³⁸) Vedel and Delvolvé, Droit administratif, Tome I, 618–20 ; CE 16 May 1951, Veuve Pintal, D 1951.511 note F.M.; CE 15 Oct. 1976, JCP 1980.II.19319 note Brard. For a decade before liability in solidum had been accepted: CE Sect. 23 Dec. 1941, Ville de Montpellier, DC 1942.156 note J.D; CE 9 Nov. 1937, Cie d’assur. ‘La Préservatrice’ Leb. 919. The position is more complicated as regards contribution between two public bodies: J. Moreau, ‘Détérmination du patrimoine du personne responsable’ Jur.-Cl. Adm. Fasc. 836, 7–8 (1994) notes that in two situations of contributory faults by public authorities, there is ‘a true solidarity’: liability for ‘public works’ (on which see above, pp. 121–31) and where there is a ‘strict collaboration between several public services’. See also F. Roques, ‘L’action récursoire dans le droit adminis tratif de la responsabilité’, AJDA 1991.75, esp. 76 et seq. and below, pp. 326–30.

(¹³⁹) Chapus, Droit administrative général, Tome 1, 1251–3 ; CE 15 Oct. 1976, District urbain de Reims, CE Sect. 5 Oct. 1977, Gazup, CE 28 Oct.1977, Commune de Flumet, CE Sect 14 Jun. 1978 reported together JCP 1980.II.19319 note Y. Brard; CE 14 May 1986, Commune de Cilaos, Leb. 716, AJDA 1986.466 obs. L. Richer; CE 30 Nov. 2001, Kechichian, AJDA 2002.136 (liability for faute lourde of banking regulator). Cf. CE 1 Feb. 1974, Commune de Sainte-Anastasie, Leb. 79 (commune’s liability for damage to property caused by rockets left in an unlocked and unguarded cowshed and let off by a young boy accidentally not reduced on the ground of the boy’s contributory fault).

(¹⁴⁰) CE 10 Jul 1957, Leb. 457.

(¹⁴¹) Ibid. See also CE 9 Jul. 1975, Ville de Cognac, Leb. 413 (accident at a public swimming baths partly caused by the fault of a young diver and partly by the local authority’s failure to provide proper supervision or organisation of the baths: town’s liability assessed at one half).

(¹⁴²) P.L., note CE 7 Nov. 1952, JCP 1953.II.7448.

(¹⁴³) Vedel and Delvolvé, Droit administratif, Vol. 1, 620 .

(¹⁴⁴) Vedel and Delvolvé, Droit administratif, Vol. 1, 620 ; Y. Brard, note JCP 1980.II.19319.

(¹⁴⁵) CE Ass. 9 Apr. 1993, Req. no. 138652 D 1993.312, concl. Légal, obs. Maugüé and Touvet, AJDA 1993 Chron. 344, above, pp. 315–18.

(¹⁴⁶) Above, pp. 149–51.

(¹⁴⁷) The Commissaire du gouvernement, M. Légal, dismissed any possible causal role in the doctors who prescribed the transfusion on the basis of their not having at their disposal the same means or the same information as either level of the transfusion service: D 1993.312, 320.

(¹⁴⁸) The Commissaire du gouvernement, Mdme. Stahlberger, thought so: TA Paris 20 Dec. 1991, (1992) AJDA 552, 564; Paris 16 Jun. 1992, JCP 1992 Actualité no. 33–37.

(¹⁴⁹) D 1993.312, 321.

(¹⁵⁰) CE Ass. 13 Jul. 1962, Lastrajoli, Leb. 507 (State and département); CE 24 Mar. 1978, Laporta, Leb. 159 and see Moreau, op. cit. n. 138, Jur.-Cl. Adm. Fasc. 836 (1994) 7–8 ; F. Roques, ‘Laction récursoire dans le droit administratif de la responsabilité’, AJDA 1991.75, 79 et seq. Légal argued that the CE’s decision on this point was within this line of jurisprudence: D 1993.312, 317.

(¹⁵¹) Chapus, Droit administratif général, Tome 1, 1280–2 .

(¹⁵²) CE 22 Nov. 2000, Appaganou, Leb. 557. Cf. CE 15 Jan. 2001, Assistance publique-Hôspitaux de Paris, Leb. 15 (defence rejected as between blood transfusion centres).

(¹⁵³) Anns v Merton LBC[1978] AC 728.

(¹⁵⁴) E.g. CE 9 Jul. 1975, Ville de Cognac, Leb. 413; CE 1 Feb. 1974, Commune de Sainte-Anastasie, Leb. 79; CE 5 Dec. 1952, Renon et Fichaut, S 1953.3.63; CE 5 Oct. 1977, Gazup, JCP 1980.II.19319 note Brard.

(¹⁵⁵) Above, p. 129.

(¹⁵⁶) Above, pp. 96–8.

(¹⁵⁷) Above, p. 108.

(¹⁵⁸) Above, Chap. 3.

(¹⁵⁹) Above, pp. 35–7.

(¹⁶⁰) CE Sect. 1 May, 1936 Couespel du Mesnil, Leb. 485 and see Gaudemet, Droit administratif, Tome 1, 462 ; R. Chapus, Droit du contentieux administratif (Montchrestien, Paris, 10th. edn., 2002), 798 . In the absence of a law of contempt, the sanction for the administration’s refusal to comply with such an order is that the facts as alleged are deemed to be established: Ibid., 801 .

(¹⁶¹) CE Sect. 23 Dec. 1988, Banque de France, Leb. 464.

(¹⁶²) Loi no. 98–567 of 8 Jul. 1998, instituant une Commission consultative du secret de la défense nationale.

(¹⁶³) On civil courts’ restrained powers in this respect, see above, p. 48. On the wider powers of criminal courts in instruction, see below, pp. 384–5.

(¹⁶⁴) The same regime of aide juridictionnelle applies to claims in the ordinary courts as in the administrative courts: Pacteau, Contentieux administratif, 203 . As to the relative costs between criminal and civil courts, see below, pp. 385–6.

(¹⁶⁵) CE 30 May 1947, Soulié’ et Daraux and CE 26 May. 1948, Cie d’assur. La Préservatrice’, D 1949J.30 note C.L.; CE 7 Nov. 1952, Cie. L’Urbaine et la Seine’, JCP 1953.II.7448 concl. Bernard. More recently, CE 22 Nov. 1985, RGTA 1986.374.

(¹⁶⁶) Moreau, op. cit. n. 138, Jur.-Cl. Adm. Fasc. 836, 10 et seq.

(¹⁶⁷) Above, pp. 321–2.

(¹⁶⁸) CE 24 May 1964, Min. des Travaux publics, Leb. tab. 869.

(¹⁶⁹) CE 26 Apr. 1963, Centre Hospitalier de Besançon, Leb. 243 (date of judgment of Cour d’appel) and Auby and Drago, op. cit. n. 129, 516–17.

(¹⁷⁰) CE 30 May 1947, Soulié…Daraux, CE 26 May 1948, Cie d’assur. La Préservatrice’, D 1949.J.30 note C.L.

(¹⁷¹) Above, pp. 19–20.

(¹⁷²) E.g. CE 7 Nov. 1952, Cie ‘L’Urbaine et Seine’, JCP 1953.II.7448 (where the point was conceded by the State). Since this decision the approach of the administrative courts to the assessment of damages has become more liberal, thus reducing the range of possible differences.

(¹⁷³) CE Sect 16 Mar. 1962, Cie d’assur. L‘Urbaine et La Seine’, AJDA 1962.320.

(¹⁷⁴) CE 28 Jun. 1968, affaire Stalinon, JCP 1968.II.15578 note anon.

(¹⁷⁵) CE 7 Mar. 1980, affaire du ‘Cinq-Sept’, D 1980.320 note Richer, concl. Massot, AJDA 1980.423 note Albertini. See similarly also CE 1 Oct. 1976, Cie d’assurances, Leb. 388 (recourse claim by ship owners and their insurers against public body in respect of the inspection of a ship which sank).

(¹⁷⁶) For the criminal proceedings, see Paris 3 Jun. 1958, S 1958.336 note Bredin, below, pp. 373–4.

(¹⁷⁷) CE 28 Jun. 1968 cit.

(¹⁷⁸) For the criminal proceedings, see Lyon 13 Jul. 1973, GP 1973.2.830; Crim. 14 Mar. 1974, GP 1974.1.417, below, pp. 375–8.

(¹⁷⁹) Above, pp. 19–20. A public servant may be liable there for a ‘fault separable from his public role’, (see CE 26 Jul. 1918, Ep. Lemonnier, D 1918.3.9 concl. Blum, S 1919.3.41 note Hauriou) but this had apparently not been argued.

(¹⁸⁰) The State was brought into the litigation by the commune by way of a claim for contribution in respect of any liability with which it may itself be charged. The CE has accepted claims for contribution by a commune in respect of the failure in the relevant State authority to exercise the control of its own conduct, for example, in relation to its own financial management: CE 27 Dec. 1948, Commune de Champigny-sur-Marne, D 1949.408 concl. Guionin.

(¹⁸¹) CE 7 Mar. 1980, D 1980.320 note Richer, concl Massot, AJDA 1980.423 note Albertini.

(¹⁸²) The TA appeared to consider that faute simple would have been enough to establish liability in principle.

(¹⁸³) As the liability of the State was in issue only by way of a recourse claim by the commune, the Conseil d’Etat’s decision on the latter’s liability made any discussion of the State’s liability redundant.

(¹⁸⁴) Richer, D 1980.320 and P. Albertini, 1980 AJDA 423, 425.

(¹⁸⁵) D 1980.320.

(¹⁸⁶) Albertini, 1980 AJDA 423, 425.

(¹⁸⁷) Chapus, Droit administratif général, Tome 1, 1254–5 .

(¹⁸⁸) This appears from the judgments’ references to the insurers not being in any better position than their assured and not being able to take advantage of any faute lourde in the public authority for which the State was responsible: above, p. 328.

(¹⁸⁹) Above, p. 320.

(¹⁹⁰) Crim. 14 Mar. 1974, GP 1974.1.417 note anon.

(¹⁹¹) CE 7 Mar. 1980, AJDA 1980.423.

(¹⁹²) Cf. CE 22 Nov. 1985, RGTA 1986.374 where a recourse claim by the insurers of the parents liable strictly under art. 1384 al. 7 C. civ. for the acts of arson of their children which destroyed a school killing several pupils was upheld against the State as responsible for the personal fault of members of the administration who had been involved in the design and construction of the school. Here, the CE held the State liable up to one fifth of the cost of liability to the primary victims as the ‘serious faults’ of the administration had facilitated the spread of the fire and made it impossible to escape it in time and these faults had ‘directly led’ to the loss in question. Here, it is to be noticed, while the damage was caused by criminal acts, the insurers claimed through the parents (whose liability was strict) and the administration’s faults did not consist of a failure to control either the parents or their children, but in their distinct failures as regards the building.

(¹⁹³) This was accepted by the Commissaire du gouvernement, M. Massot in the affaire du ‘Cinq-Sept’: Albertini, 1980 AJDA 423, 425.

English Law: Recurrent Themes and Endemic Casuistry

SIMON WHITTAKER

DOI:10.1093/acprof:oso/9780198256137.003.0013

Abstract and Keywords

This chapter is concerned with liability in the administration for failures to regulate or control product safety in English law. Firstly, it explains how the sources of power in English administrative bodies relate to their potential liabilities. Secondly, the chapter sets out the recurrent themes which have been used by the courts in their overall decisions in finding or refusing to find a basis for liability in the tort of negligence in public authorities. Thirdly, it examines the types of situation which can arise in relation to the exercise of powers affecting the safety of products, and illustrates how an English court is likely to view issues both of the existence of a duty of care and of breach of duty. Fourthly, the chapter notes the possible impact of a special ‘public interest immunity’ against the disclosure of documents in these sorts of cases in the context of the English litigation brought by the haemophiliac recipients of blood products infected with HIV. Finally, it attempts to relate these approaches in the English law to the French position, which has already been described.

Keywords:   liability law, product safety, product liability, administrative liability, negligence

In examining the position of English law governing liability for the regulation or control of the safety of products and comparing it to French law, we are faced with very considerable difficulty caused by the nature of the modern English case law. For this topic forms an example or series of examples of the potential liability of public authorities in respect of the exercise of their powers, an area which the courts have themselves described as ‘developing’ and in which it is difficult to see any very clear overall direction or pattern. For while each judgment appears sensible and rational within its own frame of reference and context and attempts to place itself within the corpus of other decisions, the overall picture remains obscure.

In this chapter, I shall not attempt to describe the complexities of the general case law in this area nor make any general description or comparison with the French law of administrative liabilities.¹ Instead, I shall do five things. First, I shall explain how the sources of power in English administrative bodies relate to their potential liabilities. Secondly, I shall set out the recurrent themes which have been used by the courts in their overall decisions in finding or refusing to find a basis for liability in the tort of negligence in public authorities. Thirdly, I shall examine the types of situation which can arise in relation to the exercise of powers affecting the safety of products and illustrate how an English court is likely to view issues both of the existence of a duty of care and of breach of duty. Fourthly, I shall note the possible impact of a special ‘public interest immunity’ against the disclosure of documents in these sorts of cases in the context of the English litigation brought by the haemophiliac recipients of blood products infected with HIV. Fifthly and finally, I shall attempt to relate these approaches in the English law to the French position which I have already described.²

At the outset, though, I think it helpful to explain how the sort of situation with which I am concerned relates to wider features of the English legal system. As will be recalled, here I am concerned with the situation where it is claimed that a public authority should be liable for the harm caused by the lack of safety of a product owing to its failure to control or prevent another person (notably, the product’s manufacturer or distributor) from acting in a way which causes the claimant’s harm. There are three key features of English law which differ from the French and which impact on the way in which liability is channelled in this sort of case.

(p.332) First, in English law the lack of any jurisdictional division in the courts which decide public or private cases of the sort existing in France means that a claimant injured by a product can sue a private defendant (such as a product’s manufacturer) and a public defendant (such as the public body which licensed the product or failed to warn of its dangers) before the same tribunal and in the same litigation. Unlike a French litigant in this sort of case, an English claimant does not need to choose whether to sue one or other potential defendant first in their appropriate courts.³ Secondly, as I have explained, where a public authority is liable for the same harm in respect of which a private person is liable, then each may be held liable in full vis-à-vis the victim of the harm: in English law there is no special treatment of the joint liability of public and private persons and so, if the elements of liability can be made out, public authorities make attractive defendants from a claimant’s point of view, having deep pockets and/or insurance.⁴ Moreover, thirdly, English law has no special rule or set of rules governing the time within which claims against which public authorities must be made.⁵ In all, therefore, English law does not possess the three key elements which in French law militate against the imposition in practice of liability for failures in product safety: its divided jurisdiction, denial of full recovery against a public authority jointly liable for fault with a private person, and special rules governing the prescription of actions for damages against public authorities.⁶ In the absence of such features, English law’s control of liability in public authorities in this sort of situation must be more direct and overt.