Misfeasance in public office

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Misfeasance in public office is a cause of action in the civil courts of England and Wales and certain Commonwealth countries. It is an action against the holder of a public office, alleging in essence that the office-holder has misused or abused their power. [1] The tort can be traced back to 1703 when Chief Justice Sir John Holt decided that a landowner could sue a police constable who deprived him of his right to vote ( Ashby v White ). [2] The tort was revived in 1985 when it was used so that French turkey producers could sue the Ministry of Agriculture over a dispute that harmed their sales.

Contents

Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.

In theory, misfeasance is distinct from nonfeasance. Nonfeasance is a failure to act that results in harm to another party. Misfeasance, by contrast, is some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.

Grounds

In most cases, the essentials to bring an action of misfeasance in public office are that the office-holder acted illegally, knew they were doing so, and knew or should reasonably have known that third parties would suffer loss as a result.

BCCI

As a civil law action, the use of misfeasance of public office has grown in recent years, the law having been clarified in the litigation involving the collapse of the Bank of Credit and Commerce International. The ruling clarified that there are two types of misfeasance in public office. One known as "targeted malice" occurs when a public officer intentionally abuses their position with the motive of inflicting damage upon the claimant. [3] The second is termed "untargeted malice"; this is committed by a public official who acts in a generalized way, knowing that they are not legally empowered to do the act complained of. [2]

If misfeasance in public office did not tenuously exist as an historical survival,
it is doubtful whether anyone would invent it, at least in the form of a tort.

Philip Allott, The Cambridge Law Journal , Vol. 60, No. 1. (Mar. 2001) [4]

Railtrack

In July 2005, 49,500 private shareholders of Britain's national railway infrastructure company Railtrack sued the Secretary of State for Transport for damages, alleging that in October 2001 the then holder of that office, Stephen Byers MP, had acted unlawfully in planning to put their company into administration on the grounds that it was insolvent. [5] The legal action failed because – as an action involving reflective loss – the shareholders had to prove, in addition to the grounds specified above, malice on the part of Byers. They did not have the evidence to do so. [6] [7]

See also

Related Research Articles

Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but for test is ineffective. Since but-for causation is very easy to show, a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of Insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

Railtrack British railway infrastructure owner and manager (1994-2002)

Railtrack was a group of companies that owned the track, signalling, tunnels, bridges, level crossings and all but a handful of the stations of the British railway system from 1994 until 2002. It was created as part of the privatisation of British Rail, listed on the London Stock Exchange, and was a constituent of the FTSE 100 Index. In 2002, after experiencing major financial difficulty, most of Railtrack's operations were transferred to the state-controlled non-profit company Network Rail. The remainder of Railtrack was renamed RT Group plc and eventually dissolved on 22 June 2010.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences in some jurisdictions and tort is the general term used in comparative law. The word tort stems from Old French via the Norman Conquest and Latin via the Roman Empire. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centred on the notion of wrongful conduct.

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.

An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing or perverting regularly issued court process not justified by the underlying legal action. In common law it is classified as a tort distinct from the intentional tort of malicious prosecution. It is a tort that involves misuse of the public right of access to the courts. In the United States it may be described as a legal process being commenced to gain an unfair litigation advantage.

Malicious prosecution is a common law intentional tort. Like the tort of abuse of process, its elements include (1) intentionally instituting and pursuing a legal action that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings.

Intentional infliction of emotional distress is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Some courts and commentators have substituted mental for emotional, but the tort is the same.

Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.

English tort law Branch of English law concerning civil wrongs

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed, while strict liability torts refers to situations where a party is liable for injuries no matter what precautions were taken.

<i>De facto</i> corporation and corporation by estoppel

De facto corporation and corporation by estoppel are both terms that are used by courts in most common law jurisdictions to describe circumstances in which a business organization that has failed to become a de jure corporation will nonetheless be treated as a corporation, thereby shielding shareholders from liability.

Malice is a legal term referring to a party's intention to do injury to another party. Malice is either expressed or implied. For example, malice is expressed when there is manifested a deliberate intention to unlawfully take away the life of a human being. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Malice, in a legal sense, may be inferred from the evidence and imputed to the defendant, depending on the nature of the case.

Malfeasance in office is often grounds for a just cause removal of an elected official by statute or recall election. Malfeasance in office contrasts with "misfeasance in office", which is the commission of a lawful act, done in an official capacity, that improperly causes harm; and "nonfeasance in office," which is the failure to perform an official duty.

Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party, causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.

A civil conspiracy is a form of conspiracy involving an agreement between two or more parties to deprive a third party of legal rights or deceive a third party to obtain an illegal objective. A form of collusion, a conspiracy may also refer to a group of people who make an agreement to form a partnership in which each member becomes the agent or partner of every other member and engage in planning or agreeing to commit some act. It is not necessary that the conspirators be involved in all stages of planning or be aware of all details. Any voluntary agreement and some overt act by one conspirator in furtherance of the plan are the main elements necessary to prove a conspiracy.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods and trespass to land.

Responsibility for criminal law and criminal justice in the United States is shared between the states and the federal government.

References

  1. Evans, R. C. (1982). "Damages for Unlawful Administrative Action: The Remedy for Misfeasance in Public Office". The International and Comparative Law Quarterly. 31 (4): 644. doi:10.1093/iclqaj/31.4.640. JSTOR   759402. The general principle should be that a public officer is one who discharges a duty in which performance the public are interested and who is paid out of funds provided by the public.
  2. 1 2 Finance (11 July 2005). "The 300-year-old beginnings of Byers' day in court". Telegraph. Retrieved 21 November 2013.
  3. Three Rivers District Council and Others v Governor and Company of The Bank of England(UKHL18 MAY 2000)("The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer i.e. conduct specifically intended to injure a person or persons."). Text
  4. Allott, Philip (March 2001). "EC Directives and Misfeasance in Public Office". The Cambridge Law Journal . 60 (1): 5. Retrieved 25 August 2021.
  5. "Railtrack shareholders accuse Byers". The Guardian. London. 27 June 2005. Retrieved 22 September 2020. Alleging ″targeted malice″, Mr Rowley said there had been conduct by a public officer which was on the face of it lawful, but which was rendered unlawful by his acting in bad faith with the intention of injuring a person, or persons, or class of persons.
  6. Weir & Ors v Secretary of State for Transport & Anor, 2192Ch , 285(EWHC2005)("(Mr Justice Lindsay) ...As I say, no direct evidence was given that he had that intent, no good reason why he should have had it was established and there were many and various other and acceptable reasons why he should have acted as he did. In all the circumstances I am quite unable to hold that he had the required intent.").
  7. Osborne, Alistair (15 October 2005). "′Embarrassing stink′ that will track back to Westminster". The Daily Telegraph. Retrieved 22 September 2020. To prove their case, Sumption said, they would have to prove Byers deliberately made Railtrack insolvent ″with the specific aim of harming the shareholders″. After a summer′s deliberation, Mr Justice Lindsay decided the shareholders could not prove that.