1. Judgment of 28 Oct. 1998, available in English and in French at: http://dhcour.coe.fr/ eng/judgments.htm (the text therein is subject to editorial revision before production in final form).

2. The contemporary debate probably started with Cappelletti, M. (Ed.), New Perspectives for a Common Law of Europe (1978).Google Scholar An attempt to teach jus commune is the proposed series of casebooks for the common law of Europe, where the first to be published is on torts: Gerven, W. Van, Lever, J., Larouche, P., Bar, C. von and Viney, G., Cases, Materials and Text on National, Supranational and International Tort Law—Scope of Protection (1998).Google Scholar

3. [1993] 4 All E.R. 344.Google Scholar

4. [1989] A.C. 53 at 63.Google Scholar

5. Supra n.1, at para.147, referring to Tinnelly & Sons Ltd and Others and McElduff and Others v. UK, judgment of 10 July 1998Google Scholar, para.72 (1999) 27 E.H.R.R. 249Google Scholar, also available from the Council of Europe's website, supra n.1.

6. Supra n.1, at para.154. Which was also the conclusion reached by the European Commission, App.No.23452/94, Osman v. UK, decision of 12 Srpt. 1997Google Scholar, available at http://194.250.50.201.

7. Idem, para.150.

8. Idem, para.151.

9. Ibid.

10. Supra n.3, at p.353Google Scholar, citing Glidewell LJ in Alexandreou v. Oxford [1993] 4 All E.R. 328, 340.Google Scholar

11. Strictly speaking the public policy arguments in Hill are obiter dicta because the lack of proximity was held to be “sufficient for the disposal of the appeal”: supra n.4, at p.63 (per Lord Keith).Google Scholar

12. Lord Templeman agreed with the result for the same reason as the rest of the Law Lords (idem, p.65) but also added the fact that in his view the claim had as its object to obtain an investigation into the conduct of the West Yorkshire police force so that future investigations would be carried out more efficiently. He held that tort law was inappropriate to achieve such purposes and that a public enquiry would be better suited. This would no doubt have incurred the wrath of the European Court of Human Rights as His Lordship second-guessed the applicant's motive in bringing the action on the basis that she had proposed that damages would be given to charity.

13. Idem, p.63.

14. Viz. the “need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights”: Brogan (1988) Ser.A, No.145, para.48.Google Scholar This argument was also made by Mr Bratza's dissent to the Commission's decision, supra n.6.

15. Supra, n.1, at para.151.

16. E.g. Knightley v. Johns [1982] 1 W.L.R. 349Google Scholar; Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242Google Scholar; Welsh v. Chief Constable of the Merseyside Police [1993] 1 All E.R. 692.Google Scholar

17. [1996] 3 All E.R. 449.Google Scholar

18. Idem, p.464.

19. Idem, pp.464–465 (emphasis added).

20. Idem, p.466 (per Peter Gibson LJ).

21. See Golder v. UK (1975) Ser:A, No.18Google Scholar: Ashingdane v. UK (1985) Ser.A, No.93, para.57.Google Scholar

22. Fayed v. UK (1994) Ser.A, No.294B, para.75.Google Scholar

23. Caparo v. Diekman [1990] 2 A.C. 605, 617–618 (per Lord Bridge).Google Scholar

24. In Fayed, supra n.22, at paras.69–70, the Court considered the legitimacy of a limitation of a system set out under the Companies Act 1985.

25. This is confirmed by the following passage: “In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision”: Delcourt (1970) Ser.A, No.11, para. 10.Google Scholar

26. Janesch v. Coffey (1984) 155 C.L.R. 549, 584–585.Google Scholar This was already inherent in Lord Atkin's classic judgment: “I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act”: Donoghue v. Stevenson [1932] A.C. 562, 581.Google Scholar

27. E.g. Marc Rich & Co. v. Bishop Rock Marine Co. Ltd (The Nicholas H) [1996] A.C. 211.Google Scholar

28. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, 411.Google Scholar

29. See Rogers, W. V. H., Winfield & Jolowicz on Tort (15th edn., 1998), pp.108–111.Google Scholar

30. By Lord, Steyn in The Nicholas H, supra n.27, at pp.235–236Google Scholar, and by the Court of Appeal in Capital A Counties plc v. Hampshire CC [1997] 3 W.L.R. 331, 352–353.Google Scholar

31. The Nicholas H [1994] 1 W.L.R. 1071, 1077 (emphasis added).Google Scholar

32. See e.g. Caparo v. Dickman, supra n.23; Goodwill v. British Pregnancy Advisory Services [1996] 1 W.L.R. 1397.Google Scholar

33. See X (minors) v. Bedfordshire CC [1995] 2 A.C. 633.Google Scholar

34. Idem, p.736.

35. See Rogers, , op. cit. supra n.29, at pp.144–145 for discussion.Google Scholar

36. Barrett v. Enfield BC [1997] 3 All E.R. 171, 177Google Scholar; X v. Bedfordshire CC, supra n.33, at p.739.Google Scholar

37. Stovin v. Wise [1996] A.C. 923.Google Scholar

38. Fayed, supra n.22, at para.65.

39. Blanco, decision of the Tribunal del Conflits of 8 Feb. 1873, in Long, M., Weil, P., Braibant, G., Delvolvé, P. and Genevois, B., Les grands arréts de la jurisprudence administrative (9th edn, 1990), p.15.Google Scholar

40. Brown, N. and Bell, J., French Administrative Law (5th edn, 1998), p.191Google Scholar; Braibant, G. and Stirn, B., Le droit adminisiratif français (4th edn, 1997), p.283.Google Scholar

41. Ville de Paris v. Marabout, 20 10 1972, Recueil des decisions du conseil d'état (hereinafter Rec ) 664.Google Scholar

42. Brown, and Bell, , op. cit. supra n.40, at p.283.Google Scholar

43. Judgment of 26 07 1985, Rec. 209.Google Scholar

44. Brown, and Bell, , op. cit. supra n.40, at pp.193–194.Google Scholar

45. Garde des sceaux, ministre de la justice v. Banque populaire de la region economique de Strasbourg, 29 04 1987, Rec. 158.Google Scholar

46. Ministre de la justice v. Thouzellier, 3 02 1965, Rec. 49.Google Scholar

47. Garde de Sceaux, ministre de la justice v. Theys, 2 12 1981, Rec. 546.Google Scholar

48. Garde de Sceaux. ministre de la justice v. Henry, 27 03 1985, Rec 92.Google Scholar

49. Errera, R., “The Scope and Meaning of No Fault Liability in French Administrative Law” (1986) 39 C.L.P. 157, 168–169.Google Scholar

50. Braibant, and Stirn, , op. cit. supra n.40, at p.296.Google Scholar

51. Ashingdane, supra n.21, at para. 57.

52. Capital & Counties plc, supra no.30, at p.353Google Scholar although recognising that the police in certain circumstances do have immunity.

53. X v. Bedfordshire CC, supra n.33, at p.749 (emphasis added).Google Scholar

54. Errera, R. (1989) P.L. 175, 178Google Scholar has questioned why the French system allows for limitations: “Their need for special protection before the administrative courts in liability actions is far from evident.”

55. Jones, M., Text book on Torts (6th edn, 1998), p.40.Google Scholar

56. [1969] 1 A.C. 191.Google Scholar

57. The Times, 19 Nov. 1998.Google Scholar

58. Kelley v. Corston [1997] 4 All E.R. 466, 489.Google Scholar

59. Van, Gerven et al. , op.cit. supra n.2, at p.448Google Scholar (citing Tolstoy Miloslavsky v. UK (1995) Ser.A, No.376-BGoogle Scholar and Pressos Compania Naviera SA v. Belgium (1995) Scr.A, No.332).Google Scholar

60. E.g. Rigby, supra n.16. See Jolowicz, J. A., “Public Interest and Private Damage” [1985] C.L.J. 370Google Scholar, lamenting the unwillingness to deploy strict liability, and compare the French case law on this point—Brown and Bell, op. cit.supra n.40, at p.196.

61. Samuel, G., The Foundations of Legal Reasoning (1994), pp.77–78.Google Scholar

62. Dunne v. North Western Gas Board [1964] 2 Q.B. 806, 832.Google Scholar

63. Errera, R. (1987) P.L. 466.Google Scholar

64. Home Office v. Dorset Yacht [1970] A.C. 1007 at 1070 (emphasis added).Google Scholar The position of the Home Office in the Court of Appeal ([1969] 2 W.L.R. 1008, 1012)Google Scholar was similar, proposing that the Court should “hold that the administration of the Borstal system was among the primary and inalienable functions of a constitutional government and that as a result the administrators were immune from such actions, just as were the administrators of justice”. For a damning review and comparison with French law see Hamson, C. J., “Escaping Borstal Boys and the Immunity of Office” [1969] C.L.J. 273.Google Scholar

65. In the Court of Appeal Lord Denning imposed a duty of care in Dorset Yacht on the basis that otherwise the public would lose confidence in the law. idem, p.1014.

66. “An investigation by an ombudsman is more likely to result in a satisfactory conclusion than the investigation by the courts”: Barrett, supra n.36, at p. 179 (per Lord Woolf MR).Google Scholar

67. Cf. Linden, A. M., “Tort Law as Ombudsman” (1973) 51 Can. Bar Rev. 155.Google Scholar

68. Lustgarten, L., The Governance of Police (1986), p.4.Google Scholar

69. Damaska, M., “Structures of Authority and Comparative Criminal Procedure” (1975) 84 Yale L.J. 480, 511.Google Scholar

70. [1998] 3 W.L.R. 1260.Google Scholar

71. See Secrétaire d'État auprès du ministre des transports chargé de la mer v. Société Sealink, 22 06 1984, Rec. 246Google Scholar; Secrétaire d'État v. Société Jokelson et Handstaem, 22 06 1984, Rec. 247Google Scholar and the discussion in Brown, and Bell, , op. cit. supra n.40, at p. 198. One of the issues raised in the English courts was the lack of resources which the police have. Such considerations do not find any equivalence in the French jurisprudence.Google Scholar

72. Holmes, O. W., The Common Law (1881), p.76.Google ScholarLord, Radcliffe in Bolton v. Stone [1951] A. C. 850, 869 said “a social being is not immune from social risk”.Google Scholar

73. See Harlow, C. and Rawlings, R., Law and Administration (2nd edn, 1997), chap.3, drawing on Léon Duguit's work.Google Scholar

74. For a definition or dirigisme see Cerny, P. G., “From Dirigisme to Deregulation? The Case of Financial Markets”, in Godt, P. (Ed), Policy Making in France (1989), pp.142–143.Google Scholar

75. Samuel, G., “Comparative Law and Jurisprudence” [1998] 47 I.C.L.Q. 817, 836.Google Scholar

76. Monti, G., Nejman, G. and Reuter, W., “The Future of Reservation of Title Clauses in the European Community” [1997] 46 I.C.L.Q. 866Google Scholar for another example, and Teubner, G., “Legal Irritants: Good Faith in British Law” (1998) 61 M.L.R. 11 for a sophisticated theoretical account and another example.Google Scholar

77. Legrand, P., “The Impossibility of ‘Legal Transplants’” (1997) 4 M.J. 111, 115.Google Scholar

78. Op. cit. supra n.76.

79. Hutchinson, A. C., Waiting for Coraf: A Critique of Law and Rights (1995), pp.72–73 (emphasis added).Google Scholar

80. Which is, in effect, Dworlcin's, R. response to critical legal studies in Law's Empire (1986), pp.271–275 and fn.20.Google Scholar

81. Dworkin, R., Taking Rights Seriously (1979), chap.7.Google Scholar

82. Rasmussen (1984) Ser.A, No.87, para.40.Google Scholar

83. Cf. Heringa, A. W., “The ‘Consensus Principle’. The role of Common Law in the ECHR Case Law” (1996) 3 M.J. 108, 132Google Scholar: “The Court does not view its role as merely registering whether there is a common ground or not; it also plays a part in the development of similar national rules.”

84. van Dijk, P. and van Hoof, G. J. H., Theory and Practice of the European Convention on Human Rights (3rd edn, 1998), p.90.Google Scholar

85. Handyside (1976) Ser.A, No.24, para.48.Google Scholar

86. Powell and Rainer (1990) Ser.A, No.172, para.44.Google Scholar

87. E.g. the Interception of Communications Act 1985 as a response to Malone v. UK (1985) Ser A, No.82.Google Scholar For additional examples see Dickson, B. (Ed.), Human Rights and the European Convention (1997), chap.3.Google Scholar

88. R. v. Secretary of State for Transport, ex p. Factortame Ltd (No.2) [1991] 1 A.C. 603, 659 (per Lord Bridge).Google Scholar

89. R. v. Home Secretary, ex p. Blind [1991] 1 A.C. 696, 748 (per Lord Bridge), 760 (per Lord Ackner).Google Scholar

90. This is the approach summarised by Balcombe LJ in Derbyshire CC v. Times [1992] 1 Q.B. 770, 812–813.Google ScholarBalcombe LJ accepted that the European Convention may also be used when the common law is clear, as stated in R. v. Chief Metropolitan Stipendiary Magistrate, ex p. Choudhury [1991] 1 Q.B. 429, 449.Google Scholar

91. Sir John, Laws, “Is the High Court the Guardian of Fundamental Constitutional Rights?” (1993) P.L. 59.Google Scholar

92. E.g. Derbyshire CC v. Times [1993] A.C. 534, 550–551 (per Lord Keith).Google Scholar

93. Invercargill CC v. Hamlin [1996] A.C. 624, 642 (per Lord Lloyd).Google Scholar