The liability of public authorities within the public law / private law distinction

Slater, James Edwin (1995) The liability of public authorities within the public law / private law distinction. Masters thesis, University of Central Lancashire.

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The aim of the thesis is to examine the liability of public authority's within the context of the public law/private law distinction, with particular reference to the law of tort. As an adjunct to the main study, an analogy is drawn throughout to the position in
French law, Research identified a number of issues (noted below) which are relevant to a thorough appreciation of the subject and which act as continued themes throughout the entirety of the work.
I. Is there a separate category of public law in England?
2. How important is the public law/private law distinction in practice?
3. What impact does the public law/private law distinction have on the legal
process at the substantive, procedural and institutional levels?
The object of the thesis is to chart the development of administrative liability in English law over the past few decades and to examine whether such liability is "special" in nature as many commentators and judges appear to suggest and therefore separate from the ordinary rules of private law. Given that administrative law is indeed separate from private law in some legal systems an analogy to French law affords both a useful and interesting comparison.
The thesis begins by tracing the creation and development of the concept of public law and considers its relationship with private law. In assessing the growth of public law, the thesis questions how much is this a response to the new legal relationship which has arisen, that between the State and the individual (through increased governmental activity over the last half century). The law operates at a number of different levels and the thesis examines the development of the public law/private law distinction in three specific areas, substantive, procedural and institutional. In the two former areas the thesis identifies the very real establishment of a public law ethos which is unfortunately lacking in the latter. At the substantive and procedural levels, the thesis shows that the introduction of a continental style public law/private law distinction assists the courts in their employment of mechanisms which facilitate the use of public policy considerations when deciding a public authority's liability. In furtherance of this the thesis examines the rights analysis approach which has also been adopted by the English Courts which is contrary to the common law tradition. At the institutional level the thesis identifies a limited, surreptitious advance, but one which clearly lacks the requisite Parliamentary stimulation necessary to create the structures which Mitchell felt were essential to the proper development of a separate and coherent system of public law in England. In conclusion the thesis draws together the various findings and makes recommendations which are specifically aimed at reform at the institutional level.

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