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Administrative Law - Week 7 |
Liability of public bodies in tort
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Hilary
2002 |
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Introduction |
Damages or, if you prefer, compensation. This
week’s work is about seeking damages from public officials and public bodies.
English Law’s traditional starting point has been that this is only possible
when a claimant can point to a private law wrong (tort). But this answer has
put pressure on tort to adapt. Moreover, some would seek to persuade us to
overthrow the orthodoxy! NB – Negligence is not the only tort! |
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The
Texts |
Craig, pp. 845-887; Wade,
Ch. 20; Cane, Ch. 12 **Harlow & Rawlings, Law and Administration
(2nd ed.), Ch. 18 |
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Breach of Statutory Duty |
*R v Deputy Governor of Parkhurst
Prison, ex p. Hague [1992] 1 AC 58 M v Newham LBC; X v Beds CC; E v Dorset CC [1995]
3 All ER 353 |
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Negligence
in a Public Law Context |
*Dorset Yacht v Home
Office [1970] AC 1004 Anns v Merton LBC [1978] AC
728 (remember Murphy v Brentwood!) *Rowling v Takaro [1988]
AC 473 *Hill v Chief Constable of
West Yorkshire [1989] AC 53 *M,X & E, [1995] 3 All
ER 353, esp 363-373; noted by Cane 112 LQR 13 *Stovin v Wise [1996] 3
All ER 801, HL (do read Nicholls and Hoffmann) *Compare Capital
& Counties v Hampshire C.C. [1997] QB 1004 and Kent v Griffiths [2000] 2
All ER 474 *Osman v UK (1998)
European Court of Human Rights (judgment from http://www.echr.coe.int/Eng/Judgments.htm) **Z v UK (2001) European
Court of Human Rights (judgment from http://www.echr.coe.int/Eng/Judgments.htm) *Barrett v. Enfield LBC
[2001] 2 AC 550, [1999] 3 All ER 193, HL W v Essex CC [2001] 2 AC
592, [2000] 2 All ER 237, HL Phelps v Hillingdon LBC [2001] 2 AC 619, [2000] 4
All ER 504, HL |
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Selected
Articles |
Weir [1988] Public Law 40
(though NB the date) Craig & Fairgrieve
[1999] Public Law 626 *Gearty (2001) Modern Law
Review 159, and (2002) MLR ___
(on Z) Commentary on recent cases: Bagshaw (1998) 25 Student
L.R. 62; (1999) 27 StuLR 61; 28 StuLR. 61; (2000) 30 StuLR 68, 31 StuLR 69,
71 (2001) 34 StuLR 62, (2002) 35 StuLR 63 and http://www.booksites.net/mcbrideandbagshaw |
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Misfeasance
in Public Office |
*McBride and Bagshaw, Tort
Law, ch. 23 (website update on 3 Rivers) Jones v Swansea CC [1989]
3 All ER 162 (to HL [1990] 1 WLR 1453) Racz v Home Office [1994]
1 All ER 97 *Three Rivers v Bank of England (no 3) [2000] 3
All ER 1 (not the EC law issues…) and [2001] 2 All ER 513 |
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Ultra
Vires Tort? (NOT) |
Dunlop v Woollahra [1982] AC 158 |
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Human
Rights Act 1998 |
*McBride
and Bagshaw, Tort Law, ch. 36 Human Rights Act 1998, ss.
6, 7, 8; **Craig, pp. 571-573 (detail)
Law Com No 266, “Damages Under the Human Rights Act 1998” |
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EC
Developments |
Factortame (No 4) [1996]
E.C.R. 1-1029; [1996] All ER (EC) 301 (sub nom. Brasserie
de Pecheur) Factortame
(No 5) [2000] AC 524 |
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Strategic guidance |
You know some tort law already. But perhaps you
did not study this area in depth. Anyway, it is a mistake to think that this week’s
work is just a second-chance to read the tort cases. For administrative
lawyers different questions are prominent: 1. What role can and should
private law play in holding public authorities to account? 2. Do the ordinary
principles of private law help or hinder? 3. Would it be better to have a
separate public law of damages liability? |
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Essay Title: |
“The imperfect interface in English Law between
notions of unlawful acts in judicial review proceedings and rights to damages
in tort means that some victims of bureaucratic error currently go
uncompensated. … But … even if greater compensation for invalid
administrative acts is desirable, it does not inevitably follow that creating
a new [public law] action for damages is the most appropriate mechanism for
providing it.” (De Smith, Woolf and Jowell). Discuss. |
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