Duncan Fairgrieve Recent Developments in Public Authority Liability Tort Law Centre, British Institute of International and Comparative Law

State Liability : the Backdrop Restrictive position → Incremental evolution Why change? Current state of play Consequences Whither state liability?

Lord Keith : “The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it.” (Hill v Chief Constable of West Yorkshire [1989] 1 AC 53).

Lord Hoffmann: “The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person (preferably insured or a public authority) whose act or omission can be said to have caused it. The default position is that he is not.” (Stovin v Wise, 1996)

Incremental evolution Development of duty:- *Barrett v Enfield LBC [2001] 2 AC 550; *Phelps v Hillingdon LBC [2001] 2 AC 619 Justiciability clarified Public law hurdles abandoned Role of policy concerns

Reasons for change? “Administrative consumerism” Greater expectations re: public service delivery Compensation as public policy issue European influences

Reasons for change? “Administrative consumerism” Greater expectations re: public service delivery Compensation as public policy issue European influences

Extension of Duties of Care Education professionals Social services Rescue services and police Regulatory activities

Rise of other torts – misfeasance in public office Evolution Three Rivers Litigation : requisite mental element examined. Weir v Secretary of State for Transport (2005) EWHC 2192: restrictive view of targeted malice. Watkins v Home Office [2006] UKHL 17: Need for proof of material damage.

Some successes Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (No 2) (2000) 72 Con LR 21: Breach of public procurement rules as regards new Parliament building. Weston v Foreign and Commonwealth Office [2005] EWHC 2953: FCO arguably liable for the consequences arising from legalisation of documents.

Shift away from duty of care: Importance of breach Causation as crucial issue Quantum in new areas of liability Consequences

Rise of non-judicial remedies: Resort to Ombudsmen NHS Redress Scheme Open-textured approach to influences: Account taken of comparative law Human rights influences