4. Public Law and Private Law

This study has looked at the impact of the French and English laws of liability for products from the perspective of administrative law as well as of private law or, in the English context, of law more generally. In doing so, it is clear that in some ways the two laws remain very different, both at the levels of jurisdiction and of substantive law.

First, the jurisdictional divide between the administrative and the ordinary courts in France continues to have an important effect in the preservation of the distinctive nature of the substantive law, this being reinforced by differences in training and wider culture of the two sets of personnel which participate in the process, whether the judges who decide cases or the jurists who suggest or criticise developments. However, (p.649) the jurisdictional divide can have other effects. So, I have explained how in the case where a claimant could claim either against a private defendant in the ordinary courts or against a public defendant in the administrative courts, the jurisdictional divide together with other factors can have a practical effect on the incidence of liability, to the extent that one can legitimately speak of a practical ‘irresponsibility’ in the administration even where its behaviour qualifies as giving rise to liability under the rules of administrative law.⁹⁶

Secondly, the way in which administrative law applies to a context such as liability for products is both complex and has been the subject of considerable change. True, there is a certain sense in which liability in the administration is becoming less specially administrative where the context does not involve issues which are (at least to an English lawyer) distinctively public, as in the case of liability for road accidents and for medical accidents (which were put on the same basis by legislation in 1957 and 2000 respectively) or in the case of damage done by persons who escape from control and who are likely to do harm.⁹⁷ Nevertheless, there remain considerable differences in treatment in the public and private laws: in particular, French administrative law does not possess a basis of liability without fault approaching the generality of the private law liability for the ‘deeds of things’, but does possess a special set of liabilities linked to ‘public works’.⁹⁸

Perhaps more interesting, though, than these differences in the substantive bases of liability in public and private law is the way in which French law (taken as a whole) uses different layers of regulation to give effect to different types of or intensities of public involvement. This can be seen very clearly in relation to its treatment of the provision of services to the public (‘public services’ in a very broad and non-technical sense). Here, French law distinguishes between those services which count as ‘services publics’ by reference to the ultimately functional idea of the ‘public interest’ rather than by reference to the institutional nature of its provider: this means that the law can see the provision of services as ‘public’ (and therefore subject to a set of legal principles which allow the Conseil d’Etat to give effect to the concerns of the public interest) whether their provider is institutionally public or private and whatever the legal nature of the provision to their recipient.⁹⁹ However, apart from the question of the law governing institutions themselves (which follows their public or private nature), the law then distinguishes as regards the nature of the relationship between the provider of the service and its recipient betweeen services which are ‘administrative’ or ‘industrial and commercial’, this being determined by reference to a set of factors which seek to assess whether or not the provider is acting in the same sort of way and context as would a private sector supplier.¹⁰⁰ The decision between the two then affects the basis of liability of the provider of the service—administrative public services being governed by administrative law and ‘industrial and commercial’ public services being governed by private and, typically, contract law.¹⁰¹ Even here, however, an exception is made for cases where liability to a non-recipient of the service (a ‘third party’) is involved and the harm is caused by ‘public works, where liability is determined by a (p.650) special set of administrative law rules, the ‘public’ nature of the works being determined by yet another set of criteria.¹⁰² Rather, then, than two large and separate blocks of law—public and private—French treatment of the provision of public services demonstrates its willingness to layer its regulation, applying now public, now private rules and determining ‘publicness’ according to different criteria for different legal purposes.

The fundamental differences with English law remain obvious. The first is the absence of a jurisdictional divide between public and private approaching that found in French law. The second, relating to differences in the two substantive laws is rather more difficult to characterise. Certainly, English law has for at least 50 years recognised a distinct ‘administrative law’, this centring now on the availability of judicial review of administrative action (and action which is to be assimilated to administrative action) and whose more recent history has been very closely associated with statutory powers and the doctrine of ultra vires. More difficult, however, is the position of areas of law where the basic framework of the law is shared with other, ‘private’ disputes, as in the case of liability. Here, the ‘ordinary law’ still applies, but it is qualified or its application affected by the public element.¹⁰³

This sort of qualification is very well-known as regards liability in the tort of negligence for harm caused in the course of the exercise of statutory powers, where the duty of care has been used to take into account the nature of a defendant’s public activities in deciding whether to allow liability for negligence and/or where decisions as to breach of duty may take into account the utility of a defendant’s conduct as well as the financial cost of avoiding the harm in question as balanced against the danger.¹⁰⁴ Both these ways of restricting liability in the administration can be seen in English law’s attitude to liability in the exercise of public powers affecting the safety of products.¹⁰⁵

However, sometimes the public or, perhaps more accurately, statutory nature of a relationship can impact on liability in other, less obvious ways, as I have explained in relation to the provision of public services. English law does not possess any overarching legal understanding of the ‘public service’ or ‘public services’ as is found in French law, but it does take into account the public interest in the provision of particular categories of services by putting in place special institutions or rules for their supervision or regulation. Moreover, the legal relationship between the provider of a service and its recipient may either be classed as contractual, where the ordinary conditions for this concept’s application apply (as in the case of the provision of gas and electricity or public transport services) or instead ‘statutory’, where the statutory legal framework in which the service is provided is considered inconsistent with the existence of a contract (as in the case of the provision of health care in the NHS or the provision of public water supplies).¹⁰⁶ One of the effects of this difference is that (apart from liability under the Consumer Protection Act) where a product is supplied in the course of provision of a contractual service, liability in its provider in respect of harm caused by the product can rest on the strict terms implied into contracts for the transfer of goods, (p.651) whereas if the provision is non-contractual, liability can rest in practice only on the tort of negligence.¹⁰⁷

The impact of liability under the Product Liability Directive here is particularly interesting as regards both French and English law. For the provider of a public service may be liable as ‘supplier’ or even as producer’ of a product under the Product Liability Directive, whether the liability of the provider of the service would otherwise count as public or private, contractual or non-contractual as a matter of national law.¹⁰⁸ As the European Court stated in Veedfald in the context of public health care, ‘the fact that products are manufactured for a specific medical service for which the patient does not pay directly but which is financed from public funds maintained out of taxpayers’ contributions cannot detract from the economic and business character of that manufacturer’; as a result no defence should be accorded to a defendant on the ground that its provision of a service belonged to the public sector and did not therefore count as for ‘an economic purpose or in the course of business’ as ‘a private hospital would undoubtedly be liable for the defectiveness of the product pursuant to the provisions of the Directive’.¹⁰⁹ Here, therefore, the interpretation of the 1985 Directive is true to its stated purpose of concern with the harmonisation of laws affecting the working of the internal market, rather than merely with the harmonisation of the private laws of Europe.¹¹⁰ From this perspective, the common law’s traditional lack of a formal categorisation between public and private law fits well with the EC directives’ fundamental concern with the market.