Misfeasance in public office

March 5th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

Young v Chief Constable of Warwickshire (2020) EWHC 308 (QB) recites the applicable principles in relation to the tort (and crime) of misfeasance in public office. There are four ingredients: (1) the defendant must be a public officer; (2) the conduct complained of must be in the exercise of public functions; (3) malice; and (4) damage.

Malice, the requisite state of mind, is either “targeted malice” or “untargeted malice”.

For “targeted malice”, the conduct is specifically intended to injure a person or persons. This type of case involves bad faith, in the sense of the exercise of a public power for an improper or ulterior motive.

For “untargeted malice”, the public officer acts knowing that he/she has no power to do the act complained of, or acts with “reckless indifference” as to the lack of such power and knows that the act will probably injure the claimant. Read more »

 

Executive Functions

March 3rd, 2020 by James Goudie KC in Decision making and Contracts

The decision of Swift J in Williams v Caerphilly Council, noted in this Bulletin on 29 June 2019, has been upheld by the Court of Appeal: (2020) EWCA (Civ 296).  Cabinet had the power to adopt a Sports and Recreation Strategy. This was not a decision that had to be taken by Full Council. The default position applied. A distinction is to be drawn between approval of a plan and its implementation. The adoption of the 10 year Strategy was not concerned with the Council’s annual budget or its capital expenditure plan. Future closure and other decisions would be distinct matters that would need to be considered on their own merits.  There was nothing in the Strategy to say that the closure of any existing facility would inevitably happen, let alone that it would happen in the then current financial year.

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Talking in public

March 3rd, 2020 by James Goudie KC in Standards

A press conference given by senior politicians is not to be regarded as an occasion for casual statements. On the contrary, “there is a clear public interest that politicians talking in public should observe high accuracy and fairness”. This is because “the public need to know the position” and are inevitably influenced by what politicians say. See paragraph 36 in Ramadhar v Ramadhar (2020) UKPC 7.

On the other hand (paragraph 37), those who are themselves engaged in public life and courted the media, cannot expect to be free from scrutiny or criticism in public. “Politicians cannot expect to be free from banter and ridicule, good-humoured or otherwise, or from scrutiny of their motives”. If politicians were entitled to be protected (by the law of defamation) against mere criticism, that might have a “chilling effect on democratic debate”. As Brendeis J said in the UK Supreme Court, “sunlight is said to be the best of disinfectants”. Lady Arden added, at paragraph 43: “Politicians are not expected to be shrinking violets when answering their critics or giving their opinion as to what is in the public interest”; and, at paragraph 54, “The need for politicians to follow high standards in political debate and the expectation that politicians should be open to reasonable criticism are universal features of a democratic society”.

 

Inducing Breach of Contract

February 28th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

The issue in Allen v Dodd (2020) EWCA Civ 258 was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract and causing loss by unlawful means. To be liable for inducing a breach of contract, you must know that you are inducing a breach. Negligence, even gross negligence, is not enough. Mere suspicion is not enough. The touchstone is knowledge.

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Legitimate Expectation

February 28th, 2020 by James Goudie KC in Decision making and Contracts

In order for there to be a substantive or procedural legitimate expectation based on a practice, what is required is that there must be a practice which is impliedly tantamount to a practice.

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Homelessness

February 28th, 2020 by James Goudie KC in Housing

A family are homeless, but not intentionally. They are in priority need. The local housing authority has (1) made a decision that their existing accommodation is not “suitable” for their needs and (2) accepted that it has a duty, under Section 193(2) of the Housing Act 1996, to provide accommodation.  In AM v Newham (2020) EWIC 327 (Admin) it is held by Linden J, following a review of the relevant case law, that the authority is in continuing breach of its duty if it leaves them in their existing accommodation, even for a short period, and even if a reasonable time is required in which to secure suitable alternative accommodation.

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Election Expenses

February 28th, 2020 by James Goudie KC in Elections and Bylaws

The primary purpose of the Police and Crime Commissioner Elections (Amendment) Order2020, S.I. 2020/190, is to provide that “election expenses” are not to count towards a candidate’s spending limit to the extent that they are reasonably incurred and reasonably attributable to a candidate’s disability.

 

LGPS Exit Payments

February 28th, 2020 by James Goudie KC in Local Authority Powers

The Local Government Pension Scheme (Amendment) Regulations 2020, S.I. 2020/179, provide that LGPS “administering authorities” are to have a discretion to determine the amount of “exit credit: which should be paid to a “scheme employer” leaving the LGPS.

 

Borrowing

February 25th, 2020 by James Goudie KC in Capital Finance and Companies

Following Consultation in 2016, the Public Works Loan Board (“the PWLB”) has been abolished by the Public Bodies (Abolition of Public Works Loan Commissioners) Order 2020, S.I. 2020/176.

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PSED/ECHR Articles 6 & 14

February 21st, 2020 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Leighton) v Lord Chancellor (2020) EWHC 336 (Admin), Cavanagh J considered allegations including breaches of the PSED under Section 149 of the Equality Act 2020 and of Article 6 of the ECHR or Article 14 of the ECHR in conjunction with Article 6.

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