BCL Law Notes Comparative Public Law Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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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Not repealed until 1954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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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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