Misfeasance in Public Office in UK Law

The rationale of the tort is that in a legal system based on the rule of law executive or administrative power "may be exercised only for the public good" and not for ulterior and improper purposes: Jones v. Swansea City Council [1990] 1 W.L.R. 54, 85F, per Nourse L.J.; a decision reversed on the facts but not on the law by the House of Lords: [1990] 1 W.L.R. 1453, at 1458.

This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.

Potentially such liability might attach to a decision of a CPS prosecutor. But, as the law stands, the plaintiff has to establish either that the holder of the public office maliciously acted to the plaintiff's detriment or that he acted knowing that he did not possess the relevant power.

If an act is done deliberately and with knowledge of its consequences, I do not think that actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them.

As to his second conclusion under this head, I have no doubt that, quite apart from any of the matters so far set out in this judgment, the attempt to introduce Misfeasance in Public Office into the case at this stage is an abuse of process. In paragraph 14 of his judgment Andrew Smith J explained how as early as 1997 leading counsel for the Names (including all of the UNO appellants) indicated that the pleading of Misfeasance in Public Office was under consideration.

It was common ground that the issue now before the House had not been an issue for decision by the House in Three Rivers (No 3), since it was clear in that case that the Bank of England's conduct, if tortious at all, was alleged to be causative of financial loss. Thus while no criticism was directed to the definition of the tort given by the House in Three Rivers (No 3), it did not resolve the present appeal.

As to the first part, the respondent admitted negligence and false imprisonment and the judge accordingly gave judgment for the appellants on those claims as appropriate, with damages to be assessed. The respondent denied battery and misfeasance in public office. The judge struck out the claim for misfeasance in public office under CPR 3.4. She also gave summary judgment for the respondent under CPR 24 in respect of both the claim for battery and the claim for misfeasance in public office.