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A Continental Distinction in the Common LawA Historical and Comparative Perspective on English Public Law$
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J.W.F. Allison

Print publication date: 2000

Print ISBN-13: 9780198298656

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780198298656.001.0001

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The Procedural Contrast

The Procedural Contrast

(p.207) 10 The Procedural Contrast
A Continental Distinction in the Common Law

J. W. F. Allison

Oxford University Press

The French investigative procedural tradition developed around Roman–Canonical procedure. This chapter describes its development and that of the Conseil d'Etat's expressly inquisitorial judicial procedures. It shows how the various developed procedures of the Conseil d'Etat enable it to address the complex repercussions of judicial intervention in polycentric administrative disputes. The chapter contrasts the English adversarial tradition, the origins and development of which it explains. With reference to the Factortame litigation and leading cases on liability, estoppel, and proportionality, it shows how adversarial procedures have handicapped English courts in administrative disputes. It describes the Order 53 procedural reforms to the peculiarly restrictive prerogative remedies, their culmination in the Application for Judicial Review, the attempt in O'Reilly v Mackman to prevent circumvention of its technical safeguards, the extent of the consequent criticism, and Lord Woolf's further proposal for a Director of Civil Proceedings. By not addressing the need for inquisitorial procedures, it argues, the reforms have failed to entrench an English distinction between public and private law, which is thus not in convergence with the French.

Keywords:   inquisitorial, Roman-Canonical procedure, polycentric, liability, proportionality, Factortame, Order 53, procedural reform, Woolf, Director of Civil Proceedings

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