(B) Substantive law and legal process

There is also a relationship between the understanding and development of legal concepts and the procedural mechanisms by which their application is determined and between substantive rights and the procedural mechanisms by which they are given practical effect.

The second of these has been seen very clearly in the law governing what an English lawyer would see as remedies for breach of contract and a French lawyer the sanctions of the non-performance of contractual obligations. As the differences in terminology used by the two systems suggest, there are here a number of differences in outlook and, indeed, in substantive response to contractual non-performance, stemming partly from their different historical backgrounds and partly from the different practical strategies to which these backgrounds are related: the common law emerging from the forms of action and possessing a general commercial sense that damages are a sufficient remedy; and the modern civil law resting on a fundamental principle of pacta sunt servanda and giving a resulting importance to the performance of contractual obligations.⁷¹ These differences can be seen in the fundamentally civilian approach of the Consumer Guarantees Directive and its resulting lack of fit with existing English remedial responses to breach of contract.⁷² However, even where the ‘same’ legal response is made available to a party to a contract, the mechanisms for its putting into effect may differ. This may be seen in the case of specific enforcement of the buyer’s rights to repair or replacement after implementation of this Directive, which in (p.644) English law are supported by a special form of specific performance and therefore ultimately the full rigours of contempt of court and in French law by court order itself enforceable by the relatively less stringent device of astreintes.⁷³ It may also be seen somewhat differently in the different procedural expressions and consequences of ‘rescission’ of the contract for non-conformity of the goods under the French and English implementations of this Directive.⁷⁴

However, even more fundamental is the relationship between the understanding and development of legal concepts and the procedural mechanisms by which their application is determined. This relationship can be seen in a purely civil context. So, in English law, the modern elaborate definitions of negligence, ‘satisfactory quality’ in section 14 of the Sale of Goods Act, or ‘defect’ under the Consumer Protection Act are supported by the existence of procedural mechanisms for the collection of a vast range of evidence—testimonial evidence from witnesses of fact, documentary evidence and expert evidence—which allow the parties to argue and the court to assess the reality and importance of the various elements of which these definitions are constructed. In the English context, the issues to which these definitions give rise remain fundamentally controversial, a characteristic which is particularly important when they require an assessment tying scientific or technical knowledge to a legal standard. For often ‘scientific fact’ or perhaps more sensibly, scientific interpretations of facts may well be of decisive importance in the evaluative decisions which legal concepts of this nature require.

I have explained earlier that the French civil process has a number of attributes which distinguishes it quite sharply from its English counterpart, the most important for present purposes being the absence of a far-reaching mechanism of disclosure of documents and the essentially uncontroversial nature of expert evidence.⁷⁵ It is therefore of great interest, I believe, that some French lawyers have realised that the sorts of question which their courts will have to decide under the provisions of the Product Liability Directive (notably, as to development risks, though I would add as to defect as well) are not easily satisfied by French law’s existing means of obtaining and evaluating evidence, as they assume the sorts of mechanisms for the gathering of information associated with the common law.⁷⁶ Here, then, implementation of the EC Directive introduces into the French system (if only to a very limited extent) the sort of legal issue which really requires different procedural devices.

However, in the French context, a second and more obvious context where legal substance and legal procedure have become particularly intertwined is the relationship between the criminal process, the action civile and the interpretation of civil fault by French courts. Here, it is widely acknowledged that French criminal courts have interpreted both criminal non-intentional fault and its requisite causal connection to a victim’s harm in a very demanding way so as to maximise the chances of the victim to recover compensation in damages.⁷⁷ This effect is all the more striking in that French lawyers have rebelled against it, first, by redefining (in part and somewhat uncertainly) what can constitute faute pénale for this purpose,⁷⁸ but also by attempting to divorce (again in part) the historic link between faute pénale, faute civile and the imposition of (p.645) civil liability by either the criminal or the civil courts.⁷⁹ Nevertheless, despite this rebellion, the commission of a criminal offence still itself constitutes a ‘civil fault’ so as to attract liability in damages and the French criminal process remains a very important means of recovery of damages for death and personal injury, not least because the criminal courts possess investigative powers in relation to evidence without equivalent in the civil process.⁸⁰

By contrast, in English law, the criminal courts and the criminal process have remained entirely divorced from the imposition of civil liability, and have been involved in the award of compensation for victims of accidental personal injuries and death only in a rather marginal way, despite the courts’ possession of very considerable powers in this respect.⁸¹ As I have explained, the reasons for this divorce lie in the substantive definitions and classifications of the crimes available for sanctioning behaviour which causes personal injury or death, in the lack of any procedural role for the victims of crime in the criminal process of a type which is played by the French partie civile and in the absence of a procedural mechanism by which the court can become sufficiently aware of the extent and financial consequences of the victim’s harm, but most of all in a perception by English judges that a criminal court is not the proper forum for the resolution of the ‘essentially civil’ issues of the causal relationship between an offender’s crime and the victim’s harm and the latter’s practical assessment. In this way, the general perception of the proper role of the criminal and civil processes is in part caused by their attributes, but in part sustains them. But it leaves the civil process as the main mechanism for the recovery of compensation by the imposition of liability in the person who caused the harm; and the courts keep very clearly distinct the questions of the incidence of crime, breach of any statutory duty and the imposition of civil liability.⁸² As a result, civil liability for negligence has not been affected by (perhaps one could say, not distorted by) any direct connection with criminal responsibility or the criminal process.