(C) Law, facts and the legal characterisation of facts

Very closely related to these questions which I have been discussing are further fundamental questions as to the relationship between law and fact in the context of the process of adjudication. My starting point here is that the question whether the characterisation of facts (for example, a defendant’s conduct as ‘negligent’ or a product as ‘defective’) is treated as a question of law, of fact or something in between (as in English law’s ‘secondary fact’) is a function of the purpose or purposes for which the distinction between law and fact is itself drawn. In the context of the present study, I see two main legal purposes in the domestic legal systems of France and England.

First, the line between law and fact is fundamental to the allocation of the relative roles of the parties and the courts, for it is used to help in deciding which questions are subject to burdens of proof for the parties and which are for the court to determine as the public body invested with the power and duty to declare and to apply the law. In this respect, though, there has been an evolution in French thinking, moving (p.646) somewhat away from the traditional division of function (by which it is for the parties to bring forward evidence of the facts on which they base their claims and to which the courts must then apply the law) towards a more nuanced division of function, the courts themselves seeking actively to collect evidence on which they can come to their decisions and sometimes re-classifying the basis of the parties’ claims.⁸³ This procedural background affects significantly what it means to a French court that a party in a civil case bears the ‘burden of proof’ as to an issue such as the defectiveness of a product or the non-conformity of goods.

By contrast, the English understanding of the relative roles of the parties and the court to evidence, fact and law has remained relatively constant, even after the introduction of a degree of judicial interventionism in the civil process required by the Civil Procedure Rules.⁸⁴ For, it is still for the parties to put forward the claims which they wish the court to accept and to give effect, and for them to support their claims with both legal argument (which presupposes the classification of their claim in terms of a recognised legal basis), and evidence: it is not for the court to make a claimant or a defendant’s case and the court does not ‘share’ the burden of proof on issues with the parties.⁸⁵ In this way, by contrast with the French civil process where the court is entitled to a degree of investigation of the parties’ pretensions, the English civil process remains fundamentally adversarial, and the classification of a claim (in terms of one legal basis rather than another) remains a private matter for the parties.

Secondly, it will be seen from my earlier discussion that of very prominent significance for drawing the line between issues of law and issues of fact is the need to locate the judicial institution or institutions which are responsible for their authoritative and final determination. In this respect, in the French system, the juges du fond are empowered to decide issues of fact, of law and of the legal characterisation of facts—so much is straightforward. However, while the Cour de cassation decides issues of law, it recognises a ‘sovereign power’ in the juges du fond as to issues of fact, though it polices the way in which decisions of fact are reached. Most importantly for present purposes, the Cour de cassation allocates the final decision as to the legal characterisation of facts (whether behaviour is fautif whether a product is defective) on an essentially ad hoc basis, drawing the line as a function of its own view in the context. Moreover, with a concept as broad and multi-faceted as la faute, some issues can be reserved by the Cour de cassation for its own final decision (for example, whether imprudence is sufficient to count as une faute in the context⁸⁶) but leave other questions for the juges du fond (for example, whether the defendant’s conduct amounted to imprudence in the circumstances). Indeed, no description of French private law is complete without an indication of how the Cour de cassation draws the line between its own competence and that of the juges du fond.

In the English context, the line between law and fact and the characterisation of facts used to be drawn in a similarly strict way, allocating to juries issues of fact and to judges issues of law. This left issues of the characterisation of facts (such as whether a defendant is guilty of negligence) as stretched uncomfortably between the two, the judges setting out when a person could be negligent and the jury deciding whether a (p.647) person was negligent, but then at times seeking to circumscribe further the discretion of the jury by finding new issues of law or by techniques such as the withdrawal of an issue of fact from the jury on the ground of insufficient evidence.⁸⁷ While this division of function between judge and jury is all but dead in the English civil context, it is very much alive in the criminal context with the result that a description of the modern substantive criminal law where juries are involved (as in murder or manslaughter) is often put in terms of the proper questions to be put and possible explanations to be offered to a jury.⁸⁸

However, given the demise of the jury in civil cases, judges in civil trials decide all issues—fact, law and the legal characterisation of facts. Moreover, the extent to which an English appellate court is willing to interfere with a decision of fact or of the characterisation of fact depends more on differences between the nature of decisions at trial and on appeal, rather than on formal distinctions between ‘law’, ‘primary fact’ and ‘secondary fact’.⁸⁹ So the House of Lords seeks to impose on the Court of Appeal a degree of constraint in overturning issues such as the negligence of a defendant not because these are factual rather than legal but because the trial judge is seen as being likely to have been in a better position to weigh up conflicting oral evidence, assessing the likely reliability of witnesses of fact and the relative persuasiveness of experts.⁹⁰