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BCL Law Notes Comparative Public Law Notes

Damages Readings Notes

Updated Damages Readings Notes

Comparative Public Law Notes

Comparative Public Law

Approximately 465 pages

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Damages Liability

OVERVIEW

History

UK

  • Crown immunity — King can do no wrong

    • King under the law since Magna Carta

    • Feudalism — feudal lords can’t be sued in own court = King can’t be sued in central courts

    • Complex procedure of appealing directly to the King by Petition of Right — did at times give remedy, eg for seized property

  • 19th c — Crown immunity in tort confirmed until WWII

    • Mitigated by—

      • piecemeal legislative relief from immunity

      • Crown would stand behind civil servant being sued de facto vicarious liability

      • Ex gratia payments

  • Protections as tort liability grew—

    • Public Authorities Protection Act 1893 guarded—

      • Short time limits

      • Rules on costs to discourage litigation

      • Not repealed until 1954

    • Judicial protections — East Suffolk Rivers v Kent (fresh damage test for emergency services)

  • Crown Proceedings Act 1947 — formal recognition of Crown as ordinary litigant

    • (surprising that modern liability ushered in by judicial decision in France & legislative change in UK)

    • Imposed vicarious liability for civil servants

    • Still several exclusions —

      • police

      • post office — preserved even though has moved away from State

      • army

        • Immunity of armed forces suspended by statute in 1987

        • But revived by courts for negligence in battle: Mulcahy v Ministry of Defence (1996)

      • Judicial acts

        • Francovich liability arises re actions of courts

  • Immunity

    • Justiciability question — now fading in light of Osman and Barrett

    • Still immunity for Act of State (particularly sensitive executive acts)

France

  • le Roi ne peut mal faire under ancien regime

    • But by 18th c, systematically granted compensation to workers injured through public works

  • Post-revolution (1789)

    • Statute provided for damages for losses caused by public works, customs & army, postal service, police in limited circs

    • General rule still immunity of administration

    • Rationale & factors —

      • Rise of popular sovereignty gave legislature broad powers — Sovereignty & liability in damages considered mutually exclusive

      • Strict separation of powers — due to abuses of pre-revolutionary Parlements — courts unable to pass judgment on administration — no administrative jurisdiction until creation of CE in 1799 and was still only consultative body

  • 1799 — Coup d’Etat & Napoleon established CE to deal with complaints put forward by public as to treatment by public bodies — very quickly complaint mechanism becomes independent

    • 1804 — Civil code adopted — deals with all of private law — provides context & pressure for administrative liability to develop

      • Code civil based on fault — replicated in administrative liability

    • CE is the only institution except the Cour de Cassation that has survived since 1799 — survived by establishing independent body of rules for public bodies

  • Code Civil excluded from application to public bodies in Blanco (1873) (Tribunal des conflits) (B injured by wagon owned by public sector accorded jurisdiction to admin courts to hear damages action — rejected application of civil delict laws — thus established liability in public law)

    • Extended to local authorities in Feutry (1908)

  • Immunity —

    • Distinction Actes d’autorité (involving implementation & enforcement of laws = non-justiciable) <> actes de gestion (everything else — can give damages)

    • Immunity abandoned in Tomaso Grecco (police case)

    • Now only actes de gouvernement non-justiciable

      • Acts re other countries, relationship b/w executive & parliament

    • NB — similar to UK policy <> operational justiciability distinction — long since abandoned

EU — Discretionary <> non-discretionary acts

  • Pre-Bergaderm

    • where no discretion, simple illegality sufficed to give liability

    • discretionary acts — must show that “sufficiently serious / flagrant” Schöppenstedt (1971)

      • Quantum of the loss — Bayerische HNL

      • Flagrant nature of breach = verging on arbitrary: Amylum

        • Very difficult to surmount — EU rarely promulgated regulation wholly unrelated to the goals of the policy

  • “Discretionary” = mainly acts of legislative nature, but stretched (control mechanism)

    • legislative acts (directives & regulations) made under Common Agricultural Policy

    • But form not conclusive — also where DM otherwise has real discretion:

      • Bergaderm (2000) (directive prohibited use of certain chemicals in cosmetics must prove ‘sufficiently serious breach’)

      • Antillean Rice (1999) (“decision” affecting rice imports from Dutch colony Commission had wide discretion — must show sufficiently serious breach — doesn’t matter that was a decision rather than rule)

      • Schröder (1997) (decisions banning export of pigs from Germany legislative in nature because of general application & discretionary nature — had to prove serious breach)

  • If non-discretionary — any illegality suffices — but “illegality” narrowly defined — also stretched control mechanism

    • Requires culpable error: Richez-Parise (1970) (wrong advice to EU employees re pension — D misinterpreted statute — realised it was wrong but delayed in informing them misinterpretation of statute not “illegality” giving damages — but undue delay in informing them was)

  • Post-Bergaderm — presence & scope of discretion one factor in determining whether breach “sufficiently serious”

Comparison — Current state liability

UK

  • No broad principle of administrative liability — must bring within private law tort

  • But tort of negligence has advanced considerably since Donoghue v Stevenson general rather than particular duties of care in Dorset Yacht v Home Office

  • 2-stage test in Anns v Merton LBC — if loss reasonably foreseeable, then duty or care imposed unless negative by other considerations

    • Had adverse effect on public authorities — subsequently abandoned

  • Reverted to ‘incremental’ development of duties — but substantially the same criteria framed as positive rather than negative — foreseeability & proximity + whether fair, just & reasonable

France

  • General principle that...

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