5. Comparative Observations

The differences between the starting points of the English and French laws of administrative liability are very striking, but their full force is not reflected in the reality of the imposition of liability in cases such as the regulation of product safety. Here, I wish to make five main comparative observations.

First, the starting point in the sources of administrative power remain fundamentally different, reflecting differences in constitutional principle and the sources of the law in the two legal systems. So, as a matter of French constitutional principle, it is the role of the executive to govern and this brings with it among other things an inherent power to intervene in the interests of the health and safety of citizens: the pouvoir exécutif justifies intervention in the interests of ordre public conceived in a very broad sense. For a French public lawyer, the existence of powers in the executive of a type and a range which are not enjoyed by ordinary citizens (prérogatives exorbitantes du droit commun) does not need to rest on special legislative authority, but does require ‘special controls’, both in terms of review by reference to principles of legality and by the imposition of special administrative responsabilités, some of which are stricter, some less onerous than the liabilities imposed by private law.²¹⁰ These general starting points are reflected in the law governing the powers and liabilities of the administration as regards the safety of products, for central and local authorities enjoy general powers of intervention and can be liable to a person harmed as a result of their exercise or non-exercise, certainly on the basis of faute lourde and possibly merely faute simple.²¹¹ On the other hand, as in many other areas, there is a good deal of special legislation in France creating special powers for the administration in the area of product safety and where this is the case, the starting point for the administrative courts’ analysis of liability is an examination of the nature and extent of these powers. Moreover, while French public lawyers consider the question of liability for this police administrative under this heading, they admit that there is a good deal of ‘empiricism’, that is, sensitivity to context and the practicalities of that context.²¹² The decision of the Assemblée of the Conseil d’Etat in the affaire du sang contaminé can be seen as a perfect example of such sensitivity, the court overtly relying on the particular involvement and degree of control of the central authorities in the blood transfusion service (p.361) in requiring mere faute simple, though perhaps also taking into account the wider impact of its decision in a highly politically charged case.²¹³

By contrast, the starting point of the English courts to both the sources of administrative power and to the liabilities which may result from its exercise is fundamentally particular. This may be seen to result from two interconnected aspects of the role of statutes in the English constitutional and legal context. For, first, it has been a consequence of Dicey’s claims for parliamentary competence that executive power should be channelled through Parliament, leaving Crown prerogative as exceptional and somewhat anomalous.²¹⁴ This way of thinking has placed statutes at the head of the sources of administrative powers, though more recently the Crowns inherent power to enter contracts and possibly to act otherwise as a ‘person of full age’ have become prominent.²¹⁵ Secondly, moreover, in the English way of thinking statutes are necessarily special, however broad.²¹⁶ And while generally statute intervenes exceptionally in the context of a body of regulation already provided by the common law, in the case of special statutory powers for public authorities, statute intervenes so as to create a basis for action in the absence of any general common law provision. Let me emphasise, this is not to deny the importance and the breadth of modern legislation empowering the executive, but, however broad, modern statutory powers exist in the context and for the purposes of the statute in question. As I have described, this particularity of approach is fully, one could even say too fully, reflected in the approach of the English courts to the imposition of liability in negligence for harm caused in the exercise of statutory powers, aided and abetted by the very open nature of the Caparo ‘test’ for the existence of a duty of care in the tort of negligence.²¹⁷ As a result, taken together, the law governing the liability of the administration has descended into an increasingly impenetrable casuistry as to this threshold requirement for the existence of liability.

Overall, secondly, even after the degree of liberalisation in the English approach to duty of care after Osman, Phelps and Barrett,²¹⁸ French law remains much more open in principle to the imposition of liability in cases such as the supervision of the safety of products than does English law. For the French law sees this sort of case as falling within the category of liability for activities, rather than for actes and as a result avoids the technical link between administrative illegality and administrative liability: liability can simply rest on ordinary fault (faute simple) or serious fault (faute lourde)—it is as to these different bases rather than the existence of liability where the ‘empiricism’ of the Conseil d’Etat is found.²¹⁹ And while French lawyers do draw attention in deciding between faute simple and faute lourde to the relative difficulty of the task entrusted to the administration in respect of which liability is sought, they do not appear overtly concerned that the imposition of liability will itself interfere with the proper exercise of administrative powers. Indeed, rather the contrary: the imposition of liability is seen as part of the controls which form the corollary to the recognition of ‘extraordinary powers’ in the administration.²²⁰

By comparison, English courts have been very much concerned to prevent the imposition of a duty of care from interfering with the free and effective exercise of statutory (p.362) powers. The language by which this concern has been expressed has changed over the course of the last quarter of the twentieth century. At first a distinction was drawn between the ‘operational sphere’ where a duty of care can be imposed without risk to the administrations discretion and the sphere of ‘policy’ where administrative illegality (acting ultra vires) was seen as a threshold before any duty of care could be imposed, but later the question was put more broadly in terms of the lack of ‘justiciability’ of the issues which a court would have to decide before imposing a duty of care, and even more broadly simply in terms of the public policy against such a duty. Even after dicta in the House of Lords in Barrett and Phelps appear to have divorced the issues of administrative illegality and liability,²²¹ English courts are likely to remain concerned with the risk of an inhibiting effect on the proper exercise of statutory powers. And, even outside the public context, the tort of negligence itself does not take as its starting point a principle that ‘fault causing harm attracts liability’: outside established authorities, new situations for the imposition of a duty of care must be justified as a matter of ‘fairness, justice and reasonableness’ and can be denied as a matter of policy, even where the harm consists of death, personal injuries or damage to property.²²² By contrast, the French law of administrative liability is ‘autonomous’ from a private law of delict whose articles 1382 and 1383 of the Civil Code do indeed accept a principle of liability for fault of extraordinary generality.

Thirdly, at first there appears to be a marked contrast in the approach of English and French courts to the question of liability for the regulation of the behaviour of others in cases such as the safety of products. For some English decisions reflect a perception that while a regulator may be negligent in its exercise of powers of control over an enterprise, it is nevertheless the enterprise which is ‘primarily responsible’ for any harm which its own negligence causes.²²³ This perception may be seen as a reason for the rejection of a duty of care in the public authority towards a person injured by the enterprise’s negligence, but has been seen even more as a reason for refusing a claim by an enterprise for pure economic loss caused (it alleges) by the public authority’s own regulatory failure.²²⁴ This perception is sometimes linked to judicial statements that they would look more favourably on a claim by a person who has suffered personal injuries or death against a public authority in respect of its negligent failure in the exercise of regulatory powers than it would on a claim for financial loss. As has been explained, however, to an extent the validity of this last distinction breaks down in English law because of the availability of claims for contribution between tortfeasors, an enterprise ‘primarily’ liable to a victim of personal injuries being able to claim contribution from the regulator ‘secondarily’ liable for failing to control its own action.²²⁵

By contrast, French administrative courts have proved willing to impose liability on a public authority to a person harmed by its failure to control other people, the issue being whether this situation justifies the imposition of liability only on the ground of faute lourde or merely faute simple²²⁶ On the other hand, I earlier explained that a number of characteristics and rules of the French system as a whole work together so as (p.363) to lessen the practical impact of this general position, including the divided jurisdiction, the relative attractiveness of private and administrative law claims, rules as to the prescription of administrative law claims and the attitude of the Conseil d’Etat to recourse claims brought by private defendants held liable by the ordinary courts.²²⁷ Taken together, in general if a person is injured by the failure of a public authority to control the activities of a manufacturer or a supplier of a product, then he is likely to sue the private person in the ordinary courts; and any claim for contribution by that private person in the administrative courts may well fail. Given French acceptance of liability in the administration (whether for faute lourde or faute simple), this has the odd result that a claimant’s choice of defendant (and therefore jurisdiction) impacts directly on the channelling of liability.

Fourthly, though, I am struck by the considerable differences in treatment of the concept of fault in the two laws, quite apart from their different treatment of the relationship between fault and illegality. So, while French administrative law differs from its private law by distinguishing between faute simple and faute lourde, they have in common a very open understanding of what constitutes ‘fault’ for these purposes: neither set out any criteria for elucidation of this concept nor for distinguishing between faute lourde and faute simple.²²⁸ On the other hand, the affaire du sang contaminé furnishes an example of French judicial understanding of these concepts in the context of product safety; there the court found that after a certain date when the State authorities had been informed of the exceptional nature of the risk of infection with HIV through the provision of blood products they had committed faute lourde, but before this date it found only faute simple owing to the degree of uncertainty as to the risks involved.²²⁹ Clearly, then, the nature and degree of risk of the harm which their exercise of powers could avert is significant for this purpose.

By comparison, though, and in common with their approach to establishing breach of duty in the tort of negligence more generally, in the English context we find that the criteria for negligence are much more clearly articulated, the courts looking at the costs and benefits of the defendant’s behaviour. In this respect, cases involving the public regulation of product safety share with the generality of cases in negligence a concern with the foreseeability of a risk and the cost of precautions, but the concept of ‘cost’ needs to be understood in broad terms, including considerations of the substantive public interest in question (for example, wider costs to society of removing a particular product from the market). So, for example, in Smith v Department of Health the court accepted that the overall end of securing an effective withdrawal of aspirin from use for children, had to take into account the need not to undermine confidence generally in aspirin as it remained a useful medicine.²³⁰ On the other hand, in other cases English courts accept that breakdowns in administrative communication,²³¹ unexplained delays when acquainted with a risk²³² and acting for improper purposes can constitute negligence of a sort to encourage the acceptance of a (p.364) duty of care.²³³ If the courts’ more liberal approach to duty of care foreseen in Barrett and Phelps continues and is attended by a tendency to control the ambit of liability of public authorities at the level of breach of duty rather than duty of care,²³⁴ then increasingly the courts will need to take into account the public interest in a public authority’s action or inaction in their assessing whether or not it is negligent.²³⁵ On the other hand, in some cases bringing in the public interest to the assessment of breach of duty will require the consideration of circumstances which genuinely lack ‘justiciability’. For example, where a public body charged with the monitoring of products on the market fails to detect a seriously dangerous defect in a product, it may well argue that it did not have sufficient resources to police the market as effectively as it would have liked, but it was doing its best within the resources allocated to it by central or local government. In these circumstances, it may be foreseen that a court would not wish to address the question whether the allocation of resources to the product safety body was sufficient for its task, for the allocation to a particular body cannot be divorced from the distribution of resources as between different public purposes and services, a sort of decision which is archetypically ‘non-justiciable’. On the other hand, if a court were to accept such an argument from a public authority, it would mean applying a different, more subjective standard to the issue of the ‘reasonableness of precautions’ to be taken in the face of the risk than is normally applied in the tort of negligence, where the actual resources of a defendant are usually irrelevant.²³⁶ Perhaps in this way, the courts would take into account that public authorities have no choice as to the roles which are entrusted to them by statute and so in a sense have the need to deal with danger thrust upon them.²³⁷ It may well be, however, that the sort of difficulties which these questions reflect would be seen by courts as a reason to draw the line more firmly against liability than qualification of the standard of negligence in this way would allow and return to a greater willingness to deny the existence of a duty of care. In this light, the concept of a duty of care can be seen to play a double function. In one sense, it continues to define the scope of the tort of negligence, delineating in which circumstances negligence will give rise to liability. But in another sense, the denial of a duty of care serves rather to enable a defendant to avoid the costly and disruptive process of disclosure before trial and the examination and cross-examination at trial as to the issue of negligence itself. As Lord Woolf has recognised, striking out actions on the ground that the legal position is clear and an investigation of the facts would provide no assistance, is a useful mechanism for saving costs²³⁸ and avoiding the courts being faced with unmeritorious claims very much in keeping with the overriding objective of the Civil Procedure Rules.²³⁹ Striking out on the ground of a lack of a duty of care is certainly more straightforward than on the ground of the absence of breach of duty.

Notes:

(¹) See further Fairgrieve, State Liability , for a general comparative treatment.

(²) Above, Chap. 12.

(³) Above, p. 320.

(⁴) Formerly, there were shorter periods of limitation applicable where a person acted in pursuance or execution or intended execution of an Act of Parliament, but these were abolished by the Law Reform (Limitation of Actions etc.) Act 1954. The Public Authorities Protection Act 1893 had imposed a limitation period of six months. After the 1954 Act public authorities are in this respect treated in the same way as all other defendants: Birkett v James [1978] AC 296, 332.

(⁵) Above, pp. 172–3.

(⁶) Above, pp. 319–25.

(⁷) Above, pp. 306–10.

(⁸) As Sir Edward Coke CJ put it, ‘the King hath no prerogative, but that which the law of the land allows him’: The Case of Proclamations (1610) 12 Co Rep 74, 76.

(⁹) See Sir William Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford, 1st. edn., 1765–1769) . Book I, Chap. 7, esp. 240, 272–3; Sir W. Wade and C. Forsyth, Administrative Law (OUP, 8th. edn., 2000), 219–23 .

(¹⁰) Above, Dicey, Introduction to the Study of the Law of the Constitution, 83–4 ; Craig, Administrative Law, 4–5 .

(¹¹) Craig, Administrative Law, 48–52 .

(¹²) Local Government Act 1972.

(¹³) Wade, op. cit. n. 9, 219.

(¹⁴) Notably, Craig, Administrative Law, 21 et seq .

(¹⁵) Below, pp. 336–8.

(¹⁶) Above, p. 307.

(¹⁷) SI 1994 No. 2328.

(¹⁸) Council Dir. 92/59/EEC of 29 Jun. 1992 on general product safety.

(¹⁹) Dir. 2001/95/EC of the European Parliament and of the Council of 3 Dec. 2001 on general product safety (‘GPSD’).

(²⁰) Consumer Protection Act 1987, s. 11(2).

(²¹) Consumer Safety Act 1961, s. 1.

(²²) E.g. The Plugs and Sockets Etc. (Safety) Regulations 1994, SI 1994 No. 1768; The Gas Appliances (Safety) Regulations 1995, SI 1995 No. 1629.

(²³) The 1987 Act’s scheme of measures in response to lack of safety in ‘consumer goods’ provided in Part II of that Act was extended in 1994 to the ‘products’ governed by the General Product Safety Regulations 1994 (‘GPSR 1994’): ibid., r. 11.

(²⁴) 1987 Act, s. 13; GPSR 1994, r. 11(a).

(²⁵) 1987 Act, s. 14; GPSR 1994, r. 11(b).

(²⁶) Department of Trade and Industry, Consumer Affairs Directorate, Transposing the revised General Product Safety Directive (Nov. 2001) 25 .

(²⁷) GPSD 2001, art. 8(1)(f)(ii).

(²⁸) Department of Trade and Industry, op. cit. n. 26, 15.

(²⁹) GPSD 2001, art. 8(2).

(³⁰) Department of Trade and Industry, op. cit. n. 26, 26.

(³¹) GPSD 2001, art. 1(2).

(³²) Department of Trade and Industry, op. cit. n. 26, 8.

(³³) Above, p. 168. For a general discussion of this tort, see above, pp. 219–24. Its use of parliamentary intention as a criterion for the imposition of civil liability has been borrowed by some judges in the context of the tort of negligence: see below, pp. 336–7.

(³⁴) Caparo Industries plc v Dickman [1990] 2 AC 605, 617–18 and see above, p. 161. This approach has been followed in X v Bedfordshire CC [1995] 2 AC 633, 729, 739, 749; Stovin v Wise [1996] AC 923, 931–2, 949; Barrett v Enfield LBC [2001] 2 AC 550 (‘Barrett’) 564, 566; Phelps v Hillingdon LBC [2001] 2 AC 619 (‘Phelps’), 653; JD v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151 [1]; [2004] 2 WLR 58.

(³⁵) E.g. K v Home Office [2002] EWCA Civ 775 (2002) 152 NLJ 917 (no proximity between Home Secretary’s release of a repeat offender and subsequent victim of crime).

(³⁶) Craig, Administrative Law, 899. E.g. Hill v Chief Constable of West Yorkshire [1989] AC 53; Yuen Kun-Yeu v Att.-Gen. of Hong Kong [1988] AC 175; X v Bedfordshire CC [1995] 2 AC 633.

(³⁷) There has also been an important influence of the law of human rights, above, pp. 168–9.

(³⁸) X v Bedfordshire CC [1995] 2 AC 633, 739. See also Stovin v Wise [1996] AC 923, 935.

(³⁹) [1998] 2 Lloyd’s Rep. 255, below, pp. 352–3.

(⁴⁰) JD v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151; [2004] 2 WLR 58.

(⁴¹) This is the public body charged with the policing of legislation governing health and safety at work under the Health and Safety at Work Act 1974 (as amended).

(⁴²) [1998] 1 WLR 1285, below, pp. 350–1.

(⁴³) Above, pp. 219–20.

(⁴⁴) Cf. Gorringe v Calderdale MBC [2004] UKHL 15 [3], [2004] 1 WLR 1057 per Lord Steyn.

(⁴⁵) Cf. B. Nicholas, in Harris and Tallon, Chap. 4, ‘The Pre-contractual Obligation to Disclose Information, English Report’, 178.

(⁴⁶) Above, p. 307.

(⁴⁷) Above, pp. 307–8.

(⁴⁸) Above, p. 312.

(⁴⁹) Osman v United Kingdom [1999] 1 FLR 193; Z v United Kingdom [2001] 2 FLR 612, above, pp. 168–9.

(⁵⁰) The phrase originates in a dictum of Brennan J in Sutherland Council v Heyman (1985) 60 ALR 1, 43–4 and is found in Caparo [1990] 2 AC 605, 618, 628, 633–4; X v Bedfordshire CC [1995] 2 AC 633, 751; Barrett v Enfield LBC [2001] 2 AC 550, 564.

(⁵¹) See e.g., the treatment of Dorset Yacht Co. Ltd. v Home Office [1970] AC 1004, Stovin v Wise [1996] AC 923 and X v Bedfordshire CC cit. n. 50 by the HL in Barrett v Enfield LBC [2001] 2 AC 633, at 572, 578–80, 586 and 584–6 respectively and of Stovin v Wise and X v Bedfordshire CC in Phelps [2001] 2 AC 619, 673, 657–8 respectively.

(⁵²) Fairgrieve, State Liability, 41 et seq .

(⁵³) Dorset Yacht Co. Ltd. v Home Office [1970] AC 1004, 1031 and see also Anns v Merton LBC [1978] AC 728, 755.

(⁵⁴) Above, p. 313.

(⁵⁵) Rowling v Takaro Properties Ltd. [1988] AC 473, 501; X v Bedfordshire CC [1995] 2 AC 633, 739.

(⁵⁶) Barrett [2001] 2 AC 550, 572 per Lord Slynn; cf Phelps [2001] 2 AC 619, 653; Gorringe v Calderdale MBC [2004] UKHL 15 [5]; [2004] 1 WLR 1057. See further Fairgrieve, State Liability, 46 et seq .

(⁵⁷) See Fairgrieve, State Liability, 49–51 for criticisms .

(⁵⁸) S v Gloucestershire CC [2001] 1 Fam. 313, 329–30.

(⁵⁹) Gorringe v Calderdale MBC, cit., [5] quoting Craig, Administrative Law, 898 with approval .

(⁶⁰) Cf Hill v Chief Constable of West Yorkshire [1989] AC 53, 63; Phelps [2001] 2 AC 619, 672.

(⁶¹) Marc Rich & Co. AG v Bishop Rock Marine Co. [1996] AC 211.

(⁶²) Above, pp. 269–70.

(⁶³) Above, p. 333.

(⁶⁴) [1970] AC 1004.

(⁶⁵) The leading case outside the context of public authorities is Smith v Littlewoods Organisation Ltd. [1987] AC 241.

(⁶⁶) [1996] AC 923, 943–4.

(⁶⁷) Ibid., at 946. Lord Hoffmann considered that in these circumstances it was a minimum precondition for the imposition of a duty of care that any decision made whether or not to intervene was irrational so that there was in effect a public law duty to act: 950, 953. However, in Calderdale v MBC [2004] UKHL 15; [26] [2004] 1 WLR 1057, Lord Hoffmann accepted that this ‘controversial’ suggestion may have been ill-advised.

(⁶⁸) Cf. Craig, Administrative Law, 903–04 criticising this application of the ‘ordinary approach’ on the basis that ‘the position of a public body vested with a discretionary power is not the same as that of a private individual who simply ‘happens upon some accident’.

(⁶⁹) On these topics in general see above, pp. 161–2, 183–6, 298–9.

(⁷⁰) [1991] 1 AC 398.

(⁷¹) [1978] AC 728.

(⁷²) [1991] 1 AC 398.

(⁷³) [2003] EWCA Civ 1151; [2004] 2 WLR 58.

(⁷⁴) Ibid., [1], [106].

(⁷⁵) Above, pp. 161–2.

(⁷⁶) Fairgrieve, State Liability, 66 . On medical liability, see above, pp. 286–92.

(⁷⁷) X v Bedfordshire CC [1995] 2 AC 633, 763; Phelps v Hillingdon LBC [2001] 2 AC 619, 670–2, 653–5; Gorringe v Calderdale MBC [2004] UKHL 15 [38]; [2004] 1 WLR 1057.

(⁷⁸) [2001] 2 AC 619, 655 and for this test see above, p. 188.

(⁷⁹) P. Craig and D. Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ [1999] PL 626 ; Craig, Administrative Law, 902 ; Fairgrieve, State Liability, 84–6 .

(⁸⁰) CPR Part 24.5.

(⁸¹) Fairgrieve, State Liability, 85–6 giving S v Gloucestershire CC [2001] 1 Fam 313 as an example.

(⁸²) [2001] 2 AC 619, 653.

(⁸³) [1970] 1 AC 1004.

(⁸⁴) See esp. ibid. at 1030 (Lord Reid).

(⁸⁵) Marc Rich & Co. Ag. v Bishop Rock Marine Co. [1996] AC 211, 237, per Lord Steyn.

(⁸⁶) Capital & Counties plc v Hampshire CC [1997] QB 1004, 1031–2, 1042.

(⁸⁷) [1988] AC 175.

(⁸⁸) Ibid., 195–6.

(⁸⁹) See below, pp. 354–6.

(⁹⁰) [2002] EWHC 200; [2002] Lloyd’s Rep Med 333, below, pp. 354–6.

(⁹¹) 1987 Act, s. 10; GPSR 1994, r. 2 and r. 10(2), below, p. 406.

(⁹²) Below, p. 405.

(⁹³) Below, p. 354.

(⁹⁴) Cf above, p. 341.

(⁹⁵) Cases C-6/90 and 9/90, Francovich and Bonifaci v Italy [1991] ECR I-5357; Cases C-178–9/94, 188–190/94 Dillenkofer and others v Germany [1996] ECR I-4845 paras. 26–27. For French law, see above, p. 314 n. 76.

(⁹⁶) Craig, Administrative Law, 389–92 .

(⁹⁷) For an example of such a breakdown between two public bodies, see The Creutzfeldt-Jakob Disease Litigation, above, pp. 295–9.

(⁹⁸) Cf. below, p. 356.

(⁹⁹) Hill v Chief Constable of West Yorkshire [1989] AC 53 cited with implicit approval though distinguished by Lord Slynn in W v Commissioner of the Police of the Metropolis [2000] 1 WLR 1607, 1611–13.

(¹⁰⁰) Elguzouli-Daf v Commissioner of the Police of the Metropolis [1995] QB 335, 348.

(¹⁰¹) See Thames Trains plc v Health and Safety Executive [2002] EWHC (QB) 1415; [2003] PIQR 202 (Morland J), [2003] EWCA Civ 720; (2003) 147 SJLB 661, 2003 WL 21047574 (app. dismissed).

(¹⁰²) Ibid., [3]–[4].

(¹⁰³) Thames Trains were convicted on 5 Apr. 2004 of offences under the Health and Safety at Work Act 1974 and fined £2 million: The Times, 6 Apr. 2004.

(¹⁰⁴) [2003] EWCA Civ 720 [9].

(¹⁰⁵) [2002] EWHC (QB) 1415 [16], [25], [28], [34], [38].

(¹⁰⁶) Ibid., [54].

(¹⁰⁷) Ibid., [60], [63].

(¹⁰⁸) [1988] 1 AC 175, above, pp. 343–4. Harris v Evans [1998] 1 WLR 1285 was distinguished on similar grounds: [81]–[83].

(¹⁰⁹) [1996] 1 AC 211, above, p. 343.

(¹¹⁰) [1991] 80 DLR 741.

(¹¹¹) Thames Trains, [2002] EWHC (QB) 1415 [66]–[67].

(¹¹²) The claimants argued that Stovin v Wise [1996] AC 923 should not be followed: [2002] EWHC (QB) 1415 [71].

(¹¹³) Ibid., [79].

(¹¹⁴) Ibid., [87].

(¹¹⁵) cit.

(¹¹⁶) [2003] EWCA Civ. 720 [24–29].

(¹¹⁷) Ibid., [34], per May LJ.

(¹¹⁸) Ibid., [11], [35].

(¹¹⁹) [2002] EWHC (QB) 1415 [54]–[55].

(¹²⁰) DHSS v Kinnear 134 NLJ 886, The Times, 7 July 1984, 1984 WL 281999. The children also claimed damages against their local area health authorities and the manufacturers of the vaccine in the UK. The subsequent history of this litigation, which was representative of some 200 claims, is complex, but it was concluded by a trial decision holding that on a balance of probabilities the vaccine did not cause the claimant’s condition: Loveday v Renton The Times, 31 March 1988, 1988 WL 624143 (Stuart-Smith LJ).

(¹²¹) National Health Service Act 1946, ss. 1, 26(2).

(¹²²) [1998] PIQR P226.

(¹²³) The claim for breach of statutory duty was abandoned before the CA.

(¹²⁴) [1998] PIQR P226, P229–P230.

(¹²⁵) Ibid., at 230.

(¹²⁶) Ibid., 232–3 and see [1995] 2 AC 633, 738.

(¹²⁷) Above, pp. 339–40.

(¹²⁸) [1998] PIQR P226, P233, per Leggatt LJ.

(¹²⁹) Ibid., per Roch LJ.

(¹³⁰) [1998] 1 WLR 1285.

(¹³¹) Hedley Byrne & Co. v Heller & Partners [1963] AC 465; Spring v Guardian Assurance plc [1995] 2 AC 296; White v Jones [1995] 2 AC 207.

(¹³²) Harris v Evans [1998] 1 WLR 1285, 1296–8, per Scott V-C.

(¹³³) Ibid., at 1302.

(¹³⁴) Above, pp. 349–50.

(¹³⁵) [1998] PIQR P226, P233.

(¹³⁶) [2002] EWHC 200 (QB); 67 BMLR 34, below, pp. 354–6.

(¹³⁷) Above, pp. 340, 342.

(¹³⁸) (1995) 92(27) LSG 33, The Times, 8 June 1995, (unpaginated LexisNexis transcript used).

(¹³⁹) Staughton LJ and Millett LJ considered it damage to property; Ward LJ did not express a view on the matter.

(¹⁴⁰) Staughton LJ.

(¹⁴¹) Staughton LJ and Millett LJ (who also saw no ‘proximity’).

(¹⁴²) [1998] 2 Lloyd’s Rep 255.

(¹⁴³) Ibid., 276, 265.

(¹⁴⁴) Ibid., 257.

(¹⁴⁵) Ibid., 258.

(¹⁴⁶) Ibid., 259, 272, 274.

(¹⁴⁷) Ibid., 274.

(¹⁴⁸) Ibid. 275.

(¹⁴⁹) Ibid., 276–7.

(¹⁵⁰) Ibid.

(¹⁵¹) See similarly, Robinson v Dept of Environment [1988] 6 NIJB 24 (QBD) (duty of care in department in respect of MOT certification of motor vehicles).

(¹⁵²) Above, pp. 347–8.

(¹⁵³) Below, pp. 557–61.

(¹⁵⁴) [2002] EWHC 200 (QB); 67 BMLR 34.

(¹⁵⁵) Medicines Act 1968, s. 6(1).

(¹⁵⁶) [2002] EWHC 200 (QB), at [20].

(¹⁵⁷) Medicines (Committee on Safety of Medicines) Order SI 1970 No. 1257, para. 3.

(¹⁵⁸) [2002] EWHC 200 (QB) [90].

(¹⁵⁹) Ibid., at [38].

(¹⁶⁰) Ibid., at [42].

(¹⁶¹) Ibid., at [45].

(¹⁶²) Ibid., at [61] (expert evidence at trial).

(¹⁶³) Ibid., at [57]–[58].

(¹⁶⁴) Ibid., at [99], per Morland J and [79] respectively.

(¹⁶⁵) Ibid., at [72].

(¹⁶⁶) Ibid., at [76].

(¹⁶⁷) Ibid., at [78].

(¹⁶⁸) Ibid., at [81].

(¹⁶⁹) Ibid., at [86].

(¹⁷⁰) Ibid., at [82].

(¹⁷¹) Ibid., at [87].

(¹⁷²) Ibid., at [106].

(¹⁷³) Above, pp. 192–200.

(¹⁷⁴) See especially The Creutzfeldt-Jakob Disease Litigation, Plaintiffs v United Kingdom Medical Research Council (July, 1996) (2000) 54 BMLR 8, above, pp. 295–9.

(¹⁷⁵) [2002] EWHC 200 (QB) at [91]–[93].

(¹⁷⁶) Ibid., at [95] citing Phelps v Hillingdon LBC [2000] 3 WLR 776, 790 and 808.

(¹⁷⁷) Above, pp. 213–14.

(¹⁷⁸) Below, p. 359.

(¹⁷⁹) Above, pp. 149–51, 315–19, 394–401.

(¹⁸⁰) The Times, 21 September 1990, 1 and 4.

(¹⁸¹) The nature of the claims appears from the decision of the Court of Appeal on ‘public interest immunity’: HIV Haemophiliac Litigation (1998) 41 BMLR 171; [1996] PIQR. P220.

(¹⁸²) The main statement of claim extended to 117 pages: [1996] PIQR P220, P223.

(¹⁸³) Ibid., at P242.

(¹⁸⁴) Ibid., at P228, quoting the terms of the Minister’s certificate.

(¹⁸⁵) Ibid., at P226.

(¹⁸⁶) Subsequently, the House of Lords has held that a minister has a discretion whether or not to claim public interest immunity in proceedings, though once a court has accepted the claim, the ‘immunity’ cannot be renounced: R v Chief Constable of the West Midlands Police ex p Wiley [1995] 1 AC 274.

(¹⁸⁷) [1996] PIQR P220, P229. On ‘public interest immunity’ generally, see Craig, Administrative Law, 857–70 .

(¹⁸⁸) [1996] PIQR P220, P229, per Ralph Gibson LJ. This principle was affirmed by the House of Lords in Conway v Rimmer [1968] AC 910.

(¹⁸⁹) Ibid., at P229, quoting Lord Fraser in Air Canada v Sec. of State for Trade (No.2) [1983] 2 AC 394, 436.

(¹⁹⁰) [1996] PIQR P220, P230.

(¹⁹¹) Ibid., at P233–34, P247–8.

(¹⁹²) Ibid., at P240, P248–9.

(¹⁹³) Ibid., at P249.

(¹⁹⁴) It considered the claim for breach of statutory duty ‘at best of uncertain validity’: ibid., at P234.

(¹⁹⁵) Ibid., P243, per Ralph Gibson LJ.

(¹⁹⁶) Cf. above, p. 339.

(¹⁹⁷) [1996] PIQR P220 at P243.

(¹⁹⁸) Ibid., at P249, per Bingham LJ.

(¹⁹⁹) Ibid., at P249.

(²⁰⁰) Ibid., at P246–7.

(²⁰¹) Craig, Administrative Law, 863 .

(²⁰²) On the criteria, see above, p. 213.

(²⁰³) Brown and Bell, French Administrative Law, 95–7 .

(²⁰⁴) The Times, 17 October 1990, 8 and 19 October 1990, 9.

(²⁰⁵) The Times, 12 December 1990, 1 and 3.

(²⁰⁶) The Times, 12 December 1990 and see The Times, 30 January 1991, 6. In June 1991, the High Court approved the settlement of all but a handful of the claims by the haemophiliac recipients of blood products infected with HIV: The Times, 11 June 1991, 3.

(²⁰⁷) C. Miller, ‘Victims missed in the HIV payout’, The Times, 10 September 1991, 31 .

(²⁰⁸) B. Levin, The Times, 13 August 1990, 10 .

(²⁰⁹) The Times, 30 November 1991, 5.

(²¹⁰) Above, p. 30.

(²¹¹) Above, pp. 312–15, 319.

(²¹²) Above, pp. 311–12.

(²¹³) Above, pp. 315–19.

(²¹⁴) Above, p. 333.

(²¹⁵) Above, p. 268.

(²¹⁶) Above, p. 337.

(²¹⁷) Above, pp. 336–8.

(²¹⁸) Above, pp. 168, 336.

(²¹⁹) Above, p. 312.

(²²⁰) Above, p. 30.

(²²¹) Above, p. 340.

(²²²) Above, p. 162.

(²²³) Above, pp. 343–4, 347.

(²²⁴) Ibid.

(²²⁵) Above, pp. 353–4.

(²²⁶) Above, pp. 310–15, 319.

(²²⁷) Above, pp. 319–25.

(²²⁸) Above, pp. 42–6, 309–12.

(²²⁹) Above, pp. 317–18.

(²³⁰) [2002] EWHC 200 (QB); 67 BMLR 34, above, pp. 354–6.

(²³¹) The Creutzfeldt-Jakob Disease Litigation, above, pp. 297–8.

(²³²) Thames Trains v Health and Safety Executive [2002] EWHC (QB) 1415 at [87], above, pp. 347–8.

(²³³) Phelps v Hillingdon LBC [2000] 3 WLR 776, 790 and 808.

(²³⁴) Above, p. 340.

(²³⁵) Cf. above, p. 198.

(²³⁶) Above, p. 197.

(²³⁷) Cf. above, p. 197 in relation to Goldman v Hargrave [1966] 3 WLR 513.

(²³⁸) Kent v Griffiths [2001] QB 36 at 51 and see JD v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151 [15]; [2004] 2 WLR 58.

(²³⁹) CPR Part I.

Fraudes, Homicides and the Role of the Partie Civile

SIMON WHITTAKER

DOI:10.1093/acprof:oso/9780198256137.003.0014

Abstract and Keywords

This chapter examines the relationship between criminal responsibility for product safety and compensation in French law. It begins by distinguishing two broad questions in setting out the pieces of the traditional picture of the involvement of the criminal process in imposing liability in damages for death and personal injuries: the substantive criminal law, whom it governs, and the role of the partie civile. These points are illustrated with cases in which liability for products has been in issue. The chapter then discusses legal and procedural changes affecting the role of the criminal courts in the imposition of liability in damages for death and personal injuries. It looks at the proceedings related to the continued supply of HIV-infected blood products in France in the course of late 1984 and 1985, which were brought to seek to establish criminal offences in those allegedly responsible.

Keywords:   French law, product safety, product liability, criminal responsibility, partie civile