The Public Law Dimension of Public Authority Liability

Abstract

In this paper I endorse the basic assumption that informed the Law Commission’s consultation paper on Administrative Redress of 2008, namely that the problem of administrative liability in English law can only be understood by examining both its tortious and its public law dimensions and that a satisfactory solution would involve a form of liability that straddled the public/private divide. In support of this view, I advance a rationale for a form of liability that involves reparation for harms resulting from acts unlawful as a matter of public law and argue that the form of liability that the rationale supports would inevitably impinge upon the territory currently occupied by the law of tort. I then proceed to criticise the views of scholars who have recently argued that a satisfactory law of public authority liability can be arrived at by the use of the concepts of orthodox tort law alone.