Report on the first annual Oxford French Law Moot
The first Oxford French Law Moot took place on 4th March 2008 at St Catherine’s College. The two teams were given four weeks to acquaint themselves with the facts of the problem and research French law. The Moot concerned the re-opening of the famous Perruche case.
In Perruche, a pregnant mother was concerned that she might have contracted rubella from her daughter. She went to the doctor to get herself checked. Conscious of the fact that having rubella could lead to birth defects and disabilities in her unborn child, she informed the doctor that she would voluntarily end her pregnancy if she was found to be positive for the virus. The doctor declared that she did not have rubella and the mother, in our case Mrs X, went on to have the baby. The baby was born deaf, dumb and partially blind. Nearly eighteen years after his birth, the Perruche family brought a case against the negligent doctor (in our case Dr Y) in their son’s name. The Cour de cassation, the highest court in France, recognised the doctor’s negligence and allowed damages to the disabled child. Perruche has thus been a landmark decision in French law because it allowed recovery for wrongful birth.
Thus, the interesting moot point was whether or not damages should be allowed for wrongful birth of the child. Both the teams prepared extensive arguments, having thoroughly researched the law. While counsel for Dr Y cited that Article 2 of the European Convention of Human Rights does not and should not be extended to wrongful birth cases, counsel for the family X argued for the application of Code Civil provisions such as Articles 1147 and 1382 relating to breach of contract and negligence. What was different about the moot compared to the original case was that in the moot, it was not only the son (Nicolas X) who brought a claim, but also the mother Mrs X, and the father and the daughter. Thus the scope of argumentation was wider. The teams therefore applied the concepts of delict and contract well in their submissions, relying on French cases such as Dame Quarez and Mercier as well as arguments of policy to support their points. Both teams also used comparative law techniques to persuade the court in their favour – for example the English case of Parkinson v St James was relied upon by the counsel for the family to strengthen the argument that costs to bring up a disabled child should also be recognised in French law.
Each team spoke in French, first for 30 minutes to make their submissions and then for 10 minutes to make their rebuttal points. The rebuttal clarified the teams’ position and demonstrated the high level of research undertaken by both as they smoothly manoeuvred through difficult concepts in both French and English law. The judges, Professor Théry and Dr Descheemaeker, in a contrast to the original decision in Perruche, decided in favour of the doctor explaining that there was not any scope for the court to extend the law to such wrongful birth type cases. The Moot concluded with the public being invited to drinks and canapés, and the first Oxford French Law Moot was declared a success.
The mooters, all second year students, were:
Respondents (Counsel for Dr Y)
- Hannah Illett – Jesus College (Law with Law Studies in Europe)
- Hannah Noyce – Wadham College (Law with Law Studies in Europe)
- Jane Rooney – St Catherine’s College (Law with Law Studies in Europe)
Appellants (Counsel for Mrs X and family)
- Robert Amey – Christ Church (Law with Law Studies in Europe)
- Rini Banerjee – Pembroke College (Law)
- George Mackenzie – Mansfield College (Law with Law Studies in Europe)