Misfeasance in public office

March 5th, 2020

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.As regards damage, the public officer must have foreseen the probability of damage of the type suffered. See Three Rivers DC v Bank of England (No. 3) (2003) 2 AC 1.

The malice and damage requirements are “onerous”.

There is a “heavy burden”. The claimant must (i) specifically plead and (ii) properly particularise the “bad faith” or “reckless indifference” relied upon.

Whereas it may be possible to infer malice, if what is pleaded as giving rise to an inference is equally consistent with mistake or negligence, then such a pleading will be (i) insufficient and (ii) liable to be struck out.

The claimant must also (i) specifically plead and (ii) properly particularise both (a) the damage and (b) why the public officer must have seen it. A pleading that fails to do so is similarly liable to be struck out: Three Rivers, above.

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