Damages Claims Against Public Bodies :
Misfeasance in Public Office
Duncan Fairgrieve
1 Crown Office Row; Biicl.
Introduction
1. Misfeasance in public office is the only specifically ‘public law’ tort, 1 and provides
a remedy for citizens who have suffered loss due to the abuse of power by a public
officer acting in bad faith. The cause of action has an ancient, albeit chequered,
history and can be traced back to the well-known election cases in the 18th century,
in particular Ashby v White.2 Other cases followed,3 and by 1828, Best CJ was able
to state that:
Now I take it to be perfectly clear, that if a public officer abuses his office, either by an
act of omission or commission, and the consequence of that is an injury to an
individual, an action may be maintained against such public officer. The instances of
this are so numerous, that it would be a waste of time to refer to them.4
2. The wheel of fortune however turned and the tort slipped into obscurity during the
late 19th Century, with one authoritative study concluding that its existence was
1 See Bourgoin SA v MAFF [1986] QB 716, 776; Dunlop v Woollahra Municipal Council [1982] AC 158,
172.
2 Ashby v White (1703) 3 Ld Raym 320.
3 Malice was accepted as the basis for the action: Harman v Tappenden (1802) 1 East 555; Cullen v Morris
(1819) 2 Stark 577; Tozer v Child (1857) 7 E & B 377.
4 Henly v Lyme Corporation (1858) 5 Bing 91 at 107. See Wade and Forsyth, 768.
1
almost completely forgotten.5 Indeed, in the case of Davis v Bromley Corporation
in 1908,6 the Court of Appeal appears not even to have recognised its existence.
3. In more recent times, the tort has again returned to favour, experiencing something
of a renaissance,7 in part due to the publicity generated by the well-known, and now
somewhat controversial, damages claims brought against the Bank of England in
respect of supervision of the Bank of Credit and Commerce International (BCCI).
Misfeasance and the BCCI Litigation
4. This litigation arose out of alleged wrongdoing by the Bank of England in
supervising the Bank of Credit and Commerce International. Following the
liquidation of BCCI, depositors brought damages claims against the Bank of
England for alleged failures in its supervisory role.
5. In terms of potential liability, a statutory immunity from damages liability in favour
of the Bank of England had been introduced under the Banking Act 1987.8 Under
the terms of the statute, liability could only arise if the impugned act or omission
‘was in bad faith.’ The Financial Services Authority benefits from just such an
immunity today under Schedule 1, Section 19(1) of the Financial Services and
Markets Act 2000:
19. - (1) Neither the Authority nor any person who is, or is acting as, a
member, officer or member of staff of the Authority is to be liable in
5 L. Busch, Misfeasance in Public Office (Mstud thesis, University of Oxford, 1998).
6 [1908] 1 KB 170.
7 See Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (No 2) (2000) 72 Con
LR 21 (breach of public procurement rules as regards new Parliament building) ; Weston v Foreign and
Commonwealth Office [2005] EWHC 2953 (FCO arguably liable for the consequences arising from
legalisation of documents).
8
Banking Act 1987 Section 1(4). See now Schedule 1, S. 19(1) of the Financial Services and Markets Act
2000. For an in-depth analysis of UK law, see C.Hadjiemmanuil, Banking Regulation and the Bank of
England (London, 1996) and the more general discussion in R. Cranston, Principles of Banking Law (Oxford
1997) p. 91 et seq.
2
damages for anything done or omitted in the discharge, or purported
discharge, of the Authority's functions.
(2) Neither the investigator appointed under paragraph 7 nor a person
appointed to conduct an investigation on his behalf under paragraph 8(8) is
to be liable in damages for anything done or omitted in the discharge, or
purported discharge, of his functions in relation to the investigation of a
complaint.
(3) Neither sub-paragraph (1) nor sub-paragraph (2) applies(a)
if the act or omission is shown to have been in bad faith; or
(b)
so as to prevent an award of damages made in respect of an act or
omission on the ground that the act or omission was unlawful as a
result of section 6(1) of the Human Rights Act 1998.”
6. Over and above the statutory provisions, regulators have traditionally been wellprotected by the common law. The English courts have generally been very wary of
imposing liability in respect of claims for economic loss concerning public
authorities, including safety inspection and certification,9 social welfare payments,10
planning regulation,11 and decisions of licensing authorities.12
7. Claims against regulators for failure to undertake adequately their supervisory
obligations have thus foundered in the sphere of financial supervision.13
9
Philcox v Civil Aviation Authority The Times, 8 June 1995; Gaisford v Ministry of Agriculture Fisheries and
Food The Times, 19 July 1996.
10
Jones v Department of Employment [1989] QB 1; Flynn v Department of Social Security (CA, 16
November 1994).
11
Strable v Dartford BC [1984] JPL 329; Lam v Brennan [1997] PIQR P488; Ryeford Homes Ltd v
Sevenoaks District Council [1989] 2 EGLR 281.
12
Partridge v General Medical Council [1890] 25 QB 90; Rowling [1988] AC 473. See also David v Abdul
Cader [1963] 3 All ER 579 (based on delict under Roman-Dutch law); Ballantyne v City of Glasgow District
Licensing Board (1987) SLT 745 (Scottish case).
13
See Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175; Davis v Radcliffe [1990] 2 All ER
536.
3
Unsurprisingly, actions for regulatory failure have also been rejected where the
supervisee has sued the supervisor.14 Amongst reasons for rejecting such claims,
reference has been made to the classic list of policy factors traditionally invoked in
the context of public authorities exercising statutory discretion, 15 including the fear
that potential liability would prompt authorities to engage in liability-avoiding
defensive practices, as well as diverting time and resources to repelling speculative
claims.16
8. The statutory immunity in favour of the Bank of England was not applicable to acts
taken in bad faith. To take advantage of this exception, the claimants in the Three
Rivers case formulated claims based on the tort of misfeasance in public office (as
well as a claim under Community law). These claims were however struck out in
the High Court and Court of Appeal.17 Appeal was made to the House of Lords, and
in order to simplify matters the procedure was divided into two hearings.18
9. The first hearing focussed upon two questions of law. The first issue concerned the
exact ingredients of the tort of misfeasance in public office. However, the way in
which the relevant elements of this tort were dealt with, in four separate speeches,
has not aided the process of clarification. The impact of this decision on the
elements of the tort of misfeasance will be examined in the next section. The second
issue was whether the Bank of England was capable of being liable in damages to
the claimants for violation of Community law as laid down in the First Banking
Directive.19 As far as this point was concerned, the House of Lords held that the
14
Minories Finance Ltd v Arthur Young [1989] 2 All ER 105.
See generally C.Booth QC and D.Squires, The Negligence Liability of Public Authorities (Oxford, 2005);
D.Fairgrieve, State Liability in Tort : A Comparative Law Study (2003, Oxford University Press).
16
Cf Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175, 198.
17 At first instance, after initial proceedings concerning various preliminary issues of law, Clarke J acceded
to the Bank of England’s application to strike out the action (Judgment of 30 July 1997 (unreported)). The
Court of Appeal upheld Clarke J’s decision in a joint majority judgment of Hirst and Robert Walker LJJ;
Auld LJ dissented: Three Rivers DC v Bank of England [1999] EuLR 211.
18
The two decisions, reported together at [2003] 2 AC 1, were decided on 18 May 2000 and 22 March 2001.
19 First Council Banking Co-ordination Directive of 12 December 1977 (77/780/EEC).
15
4
claimants did not have a damages remedy under Community law.20
10. The second hearing before the House of Lords dealt with the question whether it
was right to strike out the claimants’ action on the basis that there was no
reasonable prospect of the claim succeeding at trial.21 The Bank of England’s
application to strike out the claim was rejected by a majority of the House of
Lords.22 A crucial factor in the decision of the majority of the House of Lords was
the reliance of the lower courts on the findings of the Bingham Report concerning
the supervision of BCCI.23 The crux of the argument was that Bingham LJ (as he
then was) had not been in a position to conduct a fair trial of the issues pertaining to
the tort of misfeasance in public office,24 and thus it would not be right to treat the
Bingham Report as effectively conclusive on the questions that arose in the
litigation. The majority held that if the conclusions in the Bingham Report were
thus disregarded, it could not be said that the claim had no real prospect of
succeeding. In consequence the action was allowed to go to trial but, as is now wellknown, the claims were discontinued in November 2005.25
Elements of Misfeasance in Public Office
11. The specificity of the tort derives from the fact that to make out misfeasance, it
must be shown that the defendant is a public officer,26 and that the claim relates to
the defendant’s exercise of power as a public officer.27
20 Which itself is controversial, see further M. Andenas and D. Fairgrieve, ‘Misfeasance in Public Office,
Governmental Liability and European Influences’ (2002) 51 ICLQ 757.
21 Under the transition arrangements guiding the introduction of the Civil Procedure Rules (CPR) in 1999,
the question whether the misfeasance claim should be struck out was determined according to the CPR.
22 The Bank of England asked the House of Lords to give summary judgment against the claimants under
Rule 24.2 CPR. Lords Steyn, Hope and Hutton allowed the appeal against the striking out of the claim. Lords
Hobhouse and Millett dissented.
23 Inquiry into the Supervision of the Bank of Credit and Commerce International (HC Paper (1992-93) No
198.
24 The findings and conclusions in the Bingham report were the result of an investigation that lacked the
benefit of statutory powers and was conducted behind closed doors. The claimants were not present nor were
they represented. Bingham LJ had no power to compel the attendance of witnesses or to require the
production of documents, and there was no counsel to the inquiry.
25 See Three Rivers DC v Bank of England [2006] EWHC 816 (Comm).
26 Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1, 191.
5
12. The crux of the tort, however, is the mental state of the defendant. The position in
this regard is not simple,28 but essentially boils down to two alternative elements.
First, the most stringent arm of this tort is known as targeted malice and requires
proof that a public officer has acted with the intention of injuring the claimant.29
The second limb is less strict and in essence is made out when a public officer acts
in the knowledge that he thereby exceeds his powers and that this act would
probably injure the claimant.30
13. It was the second limb of this test that was examined in the Three Rivers litigation.
For the purposes of the second limb of the tort, the current position is as follows.
First, there must be knowledge as to illegality. The claimant must show either that
the officer had actual knowledge that the impugned act was unlawful or that the
public officer acted with a state of mind of reckless indifference to the illegality.
14. Conditions as to awareness of consequences must also be fulfilled. Counsel for the
claimants in Three Rivers had argued that that there was no need for the public
officer to have actually known that his actions would probably injure the claimants,
arguing that recovery should be made for all reasonably foreseeable loss.31 This had
been supported by Lord Justice Auld’s dissenting judgment in the Court of
Appeal.32 Lord Steyn and Lord Hutton rejected the test of reasonable foreseeability.
The claimants must show not only that the public officer acted in the knowledge
that the act was beyond his powers but also in the knowledge that his act would
probably injure the claimant. As with the knowledge as to the unlawfulness of the
27 Ibid.
28 As illustrated by the two House of Lords decisions on this topic: Three Rivers DC v Bank of England (No.
3) [2003] 2 AC 1 (House of Lords’ first and second decision).
29 Bourgoin SA v MAFF [1986] QB 716, 776. This limb of the tort has most recently been examined by the
courts in the case Weir v Secretary of State for Transport [2005] EWHC 2192 (concerning the actions of then
Secretary of State for Transport, Stephen Byers, as regards the entering into administration of Railtrack plc
(Railtrack). The misfeasance claim was dismissed as there was “no sufficient reason to find an intent to
impair the financial interests of the shareholders in Group as being the sole, the predominant or as any intent
lying behind Mr Byers' actions.”
30 Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1.
31 See argument in the Court of Appeal: Three Rivers DC v Bank of England [1999] EuLR 211, 243.
32 Three Rivers DC [1999] EuLR 211, 270-272, 370 (CA).
6
act, it would seem that reckless indifference as to the consequences, in the sense
that the officer acted without caring whether the consequences happened or not, is
sufficient.
15. The majority in the Court of Appeal had indicated that the notion of proximity used
in negligence actions was of relevance in the tort of misfeasance in public office.33
It was implied by the majority in the Court of Appeal that the test of proximity
might play a limiting role where the number of claimants was large and alleged
‘range of duty’ was wide.34 This test of proximity was rejected by Lord Steyn and
Lord Hutton in the House of Lords.35
Misfeasance and European Influences
16. One last point to make is the European law influence on the development of this
tort. In the Three Rivers litigation, there are signs of the influence of both European
Community and Human Rights law.
17. In the second House of Lords decision in Three Rivers, repeated reference is made
to the claimant’s right to a fair trial.36 Similar concerns are present when Lord Hope
expresses his hesitance in striking out claims concerning complex issues of fact and
law without examination at trial. An explicit analogy was drawn with the right to a
fair trial guaranteed by Article 6 of the European Convention when emphasising the
overriding objective of the new procedural rules.37
18. Also, Community law influences can be detected within Lord Hope’s judgment. In
various key areas of his judgment, he acknowledged the influence of European law
in shaping the elements of the cause of action. In response to the fact-sensitive issue
33
34
35
36
37
Three Rivers DC [1999] EuLR 211, 270-272 (CA).
Ibid, 270.
[2003] 2 AC 1.
[2003] 2 AC 1.
[2003] 2 AC 1.
7
of the degree of risk of which the regulator must have been aware, Lord Hope
instinctively latched upon the test of a sufficiently serious risk of loss.38
Damage and Misfeasance
19. Litigation has also focussed on issues relating to the notion of recoverable damage
in a misfeasance claim, in particular whether exemplary damages are available for
misfeasance and if misfeasance is actionable per se.
20. It is well-known that punitive damages are designed to express the court’s
disapproval of the defendant’s exceptionally bad conduct, and may be awarded
inter alia for oppressive, arbitrary or unconstitutional action by servants of the
government.39 In the case of Kuddus v Chief Constable of Leicestershire
Constabulary,40 the House of Lords held that exemplary damages could be awarded
for the tort of misfeasance. The House set aside the so-called “cause of action” test
governing the availability of exemplary damages, whereby the grant of such
damages was restricted to those causes of action for which exemplary damages
have been awarded prior to the case of Rookes v Barnard41 in 1964.42
21. Further case law has considered the issue of whether the tort of misfeasance in
public office was actionable without proof of loss. In the case of Watkins v Home
Office,43 the House of Lords was faced with a claim brought by a prisoner alleging
that the tort of misfeasance had occurred when confidential legal correspondence
addressed to him had been opened by prison officers. The prisoner’s claims were
rejected at first instance on the basis that no loss had been sustained. The Court of
Appeal had allowed the prisoner’s appeal on the basis that, if there was a right
38 [2003] 2 AC 1.
39
Rookes v Barnard [1964] AC 1129.
40
[2002] 2 AC 122.
41
Ibid.
42
See AB v South West Water Services Ltd [1993] QB 507.
43
[2006] UKHL 17.
8
which may be identified as a constitutional right, then there may be a cause of
action in misfeasance in public office for infringement of that right without proof of
damage.44 The Court of Appeal considered that there had been interference by
prison officers with the respondent’s constitutional right to have unimpeded access
to the courts and to legal advice.
22. The House of Lords set their mind against such an approach, considering that proof
of “material damage” was an essential element of the tort. Their Lordships
disapproved of the Court of Appeal’s use of the notion of a “constitutional right” in
this context. The fact that misfeasance was not actionable per se was based, in their
Lordships’ view, on both precedent and principle.
23. In terms of precedent, Lord Bingham undertook a survey of the relevant, and
sometimes ancient, case law which in his view supported the proposition that a
claimant must prove that he or she had suffered material damage as a result of the
defendant's misfeasance.45 Recognising the difficulty in evaluating some of the
case law,46 Lord Bingham nonetheless concluded that :
These authorities present a remarkably consistent body of law on the point now at
issue. The proving of special damage has either been expressly recognised as an
essential ingredient, or it has been assumed. None of these cases (and no authority,
judicial or academic, cited to the House) lends support to the proposition that the tort of
misfeasance in public office is actionable per se.47
24. It was also felt that the decision in Three Rivers48 was relevant, even though in that
case the Bank of England’s conduct was alleged to have caused the claimants
financial loss and so the issue of loss was not determinative. In the present case,
44
[2004] EWCA Civ 966; [2005] QB 883.
See also the judgments of Lord Hope (paragraph 32); Lord Rodger (paragraph 43); Lord Walker (para 72).
46
Notably, Ashby v White (1703) 1 Sm LC (13th ed, 1929) 253 (see the judgment of Lord Bingham, para 13).
47
at para 23.
48
Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003]
2 AC 1
45
9
their Lordships considered that the framing of the relevant mental elements in the
decision of Three Rivers presupposed the existence of proof of material injury to the
claimant. As Lord Bingham points out:
Common to both forms [of misfeasance], however, is the requirement of proving that
the misfeasance in question has caused damage and that the public officer was at least
reckless whether such damage would be caused or not.49
25. Over and above these references to judicial authority, a number of reasons of
principle were also given to support their Lordships’ view that that misfeasance
requires proof of material damage. These will be presented briefly. The first factor
was that basing the test of misfeasance on the type of right infringed was considered
to give rise to uncertainty, stemming from the absence of a clear categorisation of
rights in constitutional terms. There was clearly also a degree of concern that the
notion of a “constitutional right” should be determinative of whether proof of
damage was required.50 In their Lordships eyes,51 damage was the gist of the action,
and there was little appetite on their part to move to any form of rights-based
exception. Indeed, Lord Carswell’s reliance on the “ancient dichotomy between
actions in trespass and actions on the case”52 reminds one of the continuing vitality
of Mailtand’s famous aphorism that “the forms of actions we have buried, but they
rule us from their grave.”53
26. Second, reference was made to the availability of other potential remedies which
were supposedly open to people in the position of the claimant, such as judicial
review, disciplinary sanctions and a claim under the Human Rights Act 1998.54
However, it is interesting to note that Lord Walker, whilst agreeing with the other
judges, sounded a less optimistic note on this point:
49
Para 22.
See in particular Lord Rodger’s judgment at paragraphs 58 – 62 and Lord Walker’s judgment at paragraph
73.
51
See Lord Bingham’s judgment, at para 15.
52
Paragraph 78.
53
See A.H. Chaytor and W.J. Whittaker (eds.), The Forms of Action at Common Law (CUP, 1963), p. 2.
54
See Lord Bingham’s judgment at para 26, and Lord Rodger’s judgment at 65.
50
10
Judicial review (with the preliminary filter of the need for leave, and little prospect of
obtaining an order for cross-examination of witnesses) is hardly a satisfactory
substitute for an action in the county court. No disciplinary action was (as the
Treasury Solicitor has informed the respondent's solicitors) taken against any of the
officers. Nor has there been any prosecution, in which a different burden of proof
would apply.
Two of the incidents on which the respondent succeeded (and another twenty-two
allegations on which he failed) occurred before the coming into force of the Human
Rights Act 1998. Only the last incident at Frankland Prison occurred after the Act
came into force. Unsurprisingly, therefore, the respondent's proceedings did not seek
to rely on sections 6, 7 and 8 of the Act.55
27. Another point of principle concerned the role of exemplary damages within the law
of tort. As Lord Bingham explained :56
That exemplary damages may be awarded where a compensatory award is
insufficient to mark the court's disapproval of proven misfeasance in public office,
and deter repetition, is, as already noted, accepted. But the policy of the law is not in
general to encourage the award of exemplary damages, and I would not for my part
develop the law of tort to make it an instrument of punishment in cases where there is
no material damage for which to compensate.
28. A final reason was the inappropriateness of judicial activism in this area given the
ongoing work of the Law Commission in its various preliminary papers on
"Monetary Remedies in Public Law."57 Thus Lord Bingham expressed the
“undesirability of introducing by judicial decision, without consultation, a solution
which the consultation and research conducted by the Law Commission may show
See Lord Walker’s judgment at paragraphs 69 – 70. However, and somewhat surprisingly, Lord Walker
referred to the possibility for a claim in damages under the HRA as a policy reason for not finding
misfeasance to be actionable per se “if the facts of the case occurred again” - see his judgment; para 73.
56
See also the judgments of Lord Hope (paragraph 32) and Lord Carswell (para 81).
57
Monetary Remedies in Public Law: A Discussion Paper (Law Commission, 11 October 2004); Remedies
Against Public Bodies : A Scoping Report (Law Commission, 10 October 2006).
55
11
to be an unsatisfactory solution to what is in truth a small part of a wider
problem.”58
29. The decision of the House of Lords does leave some issues outstanding. Recent
case law has focussed on the actual definition of “material damage” as a precondition of misfeasance. In the case of Karagozlu v Metropolitan Police
Commissioner,59 the Court of Appeal held, somewhat surprisingly,60 that for the
purposes of misfeasance, loss of liberty was a sufficent form of special or material
damage. The Court of Appeal thus refused to strike out a claim in misfesance
brought by a prisoner who was moved from open conditions as a category D
prisoner to closed conditions as a category B prisoner.
Conclusion : whither Misfeasance ?
30. There is no doubt that the elements of the tort of misfeasance are restrictive.
Although few of the claims have had much success,61 not all have been rejected,62
and one case the corporate officer of the House of Commons was successfully sued
for misfeasance in public office arising from the unequal treatment of tenders for a
construction contract concerning the new Parliament building.63
31. However, there were signs at one stage that there might be a broadening of the
elements of the tort. The Three Rivers decisions of the House of Lords can be read
in this way. It can be argued that after the Three Rivers decisions, the cause of
Paragraph 10. See also Lord Carswell’s judgment, para 82.
[2006] EWCA Civ 1691.
60
Particularly in light of Lord Bingham’s reference in Watkins to the fact that misfeasance involves proof of
financial loss or physical or mental injury, which includes recognised psychiatric illness but not distress,
injured feelings, indignation or annoyance.
61 Harris v Evans [1998] 3 All ER 522; Barnard v Restormel BC [1998] 3 PLR 27; Hall v Bank of England
(ChD, 4 July 1999); Abdul Rauf Qazi v London Borough of Waltham Forest (QBD, 3 August 1999); Jarvis v
Hampshire CC [2000] ELR 36.
62 Racz v Home Office [1994] 2 AC 45 (refusal to strike out claim in respect of vicarious liability for
misfeasance of prison officers); Elliott v Chief Constable of Wiltshire The Times, 5 December 1996 (refusal
to strike out action arising from the revelation of a journalist’s criminal convictions by a police officer).
63 Harmon Facades Ltd v The Corporate Officer of The House Of Commons (1999) 67 ConLR 1; Harmon
CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (No 2) (2000) 72 Con LR 21. See
case commentaries by S. Arrowsmith in (2000) 9 P.P.L.R. 120 and (2000) 9 P.P.L.R. 135.
58
59
12
action would seem to have evolved from being a prohibitively restrictive tort of
intentional wrongdoing to become essentially a tort of (subjective) recklessness in
which bad faith may be constituted by the elements of recklessness. On this reading,
misfeasance was an intentional tort for which recklessness suffices.
32. The practical effect of this shift is illustrated in practice by the position of the Bank
of England after the House of Lords decisions. The Bank of England was protected
by a immunity of statutory origin, according to which liability could only arise in
the highly exceptionally circumstances of an act or omission ‘in bad faith.’64 But
the House of Lords decisions indicated that there was no need to show specific
allegations of dishonesty in the sense of subjective bad faith. Proof of the elements
of the tort in terms of knowledge of unlawfulness of the act or omission and its
consequences seemed to suffice. This was a broad interpretation of the notion of
bad faith, and to a great extent dilutes the statutory immunity. A direct consequence
of the Three Rivers decisions is that the Bank of England, ostensibly conferred an
immunity in tort by the legislator, is potentially liable on the basis of subjective
recklessness.
33. On the other hand, arguments can be made that the aforementioned interpretation
has been overlooked, or potentially even resiled from, in subsequent decisions.
There is evidence that the courts have reverted to the “classic” interpretation of the
element of bad faith inherent in this tort, namely that of something close to
dishonesty.65 Clearly, such an interpretation of the mental element would confine
this tort to a very restricted sphere of application.
34. And yet there are reasons why this tort could in theory play a more prominent role
in providing compensation for governmental wrongdoing. Indeed, in the case of
64 Banking Act 1987 Section 1(4). See now Schedule 1, S. 19(1) of the Financial Services and Markets Act
2000.
65 See for instance Lord Bingham’s judgment in Watkins v Home Office [2006] UKHL 17, para 4 and Lord
Walker’s judgment at para 72.
13
Watkins, Lord Bingham sketched out the role that misfeasance could potentially
play in sanctioning administrative wrongfulness:
There is great force in the respondent's submission that if a public officer knowingly
and deliberately acts in breach of his lawful duty he should be amenable to civil
action at the suit of anyone who suffers at his hands. There is an obvious public
interest in bringing public servants guilty of outrageous conduct to book. Those who
act in such a way should not be free to do so with impunity.66
35. Lord Walker added that :
Deliberate abuse of public office directed at an individual citizen calls for an
effective sanction enforceable as of right by that citizen.67
36. There are practical reasons why misfeasance could prove attractive over the
traditional torts preferred by those aggrieved by administrative wrongdoing, such as
the tort of negligence.
37. First, the notion of proximity, a prerequisite of liability in negligence, would now
seem to have no role to play in respect of the tort of misfeasance in public office.
The majority in the Court of Appeal in Three Rivers had indicated that proximity
might play a limiting role where the number of claimants was large and alleged
‘range of duty’ was wide.68 However, the House of Lords took a different view,
and the Court of Appeal’s approach to proximity was rejected by Lord Steyn and
Lord Hutton.69 The absence of the proximity requirement could indeed serve to
66 [2006] UKHL 17, paragraph 8.
67
para 75
68 [1999] EuLR 211, 270-272 (CA).
69 [2003] 2 AC 1. See also Akenzula v Secretary of State for Home Department [2002] EWCA Civ 1470, in
which as regards proximity, Lord Justice Simon Brown (as he then was) held that : “As for the respondents’
argument that it would be very strange if the claim could proceed on the basis of misfeasance in public office
(which requires that the harm should be foreseen) in circumstances where it would fail in negligence (which
only requires that the harm should be reasonably foreseeable), I see nothing strange in this at all: a claim in
misfeasance postulates that the claimant can prove altogether more blameworthy conduct that in a negligence
14
make the tort of misfeasance in certain circumstances a more realistic option to
claimants than the tort of negligence, particularly where the class of the potential
claimants to which a duty of care in negligence would be owed is very broad.
38. Secondly, the tort of misfeasance may be prove to be an attractive option where
claims are brought to recover pure economic loss, in respect of which the courts
have been reluctant to allow claims in negligence. This policy of caution has not as yet - been extended to the tort of misfeasance in public office, and it is no
coincidence therefore that many of the leading misfeasance cases concern economic
loss,70 of which Three Rivers is an example par excellence. Misfeasance in public
office might provide a remedy for those who traditionally would have difficulties in
availing themselves of a negligence claim, such as disappointed applicants for
commercial licences, or those who have suffered loss due to adverse planning
decisions.
39. Thirdly, and a point touched upon above, misfeasance presents a potential means
for circumventing statutory immunities conferred upon certain public bodies, by
utilising the “bad faith” exception as described above.
40. Will the tort of misfeasance be developed to play a more prominent role in
providing remedies in case of administrative wrongdoing? On recent authority, it
would seem unlikely as the Courts have tended towards a minimalist approach. The
reluctance stems partly from the view that misfeasance is “in truth a small part of a
wider problem”,71 and a preference that the review undertaken by the Law
Commission is a more appropriate forum for looking at this question in the round.
However, the Law Commission, on the strength of its current working papers, does
not seem to set great store by this tort. In its initial discussion paper, the
Commission noted that :
action; it is unsurprising that the law should decline to impose a further limiting requirement akin to
proximity.”
70 Bourgoin SA v MAFF [1986] QB 716; Roncarelli v Duplessis (1959) 16 DLR (2d) 689 (Canadian
Supreme Court).
71 Paragraph 26.
15
In practice, the fault element in either limb of the tort is very difficult to prove. As
such, the tort of misfeasance in public office is of limited utility to those aggrieved by
administrative action.72
41. In the later scoping paper, very little discussion is made of the role of misfeasance,
with the Law Commission indicating that : “any new remedy for unlawful
administrative action would in practice much reduce the importance of the
traditional tort.”73
Duncan Fairgrieve
1 Crown Office Row
London EC4Y 7HH
duncan.fairgrieve@1cor.com
31 January 2007
72
73
Paragraph 2.21.
Paragraph 3.68.
16