Misfeasance in public office
Encyclopedia
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 his power. The tort can be traced back to 1703 when Chief Justice Holt decided that a landowner could sue a police Constable who deprived him of his right to vote. 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.
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.
For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet.
In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a failure to act that results in harm to another party. Misfeasance, by contrast, describes 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.
To illustrate, consider the example of the wet bathroom floor. One court could call a resulting injury the product of misfeasance by focusing on the wetness of the floor. The washing of the floor was legal, but the act of leaving the floor wet was improper. Another court could call a resulting injury the product of nonfeasance by focusing on the janitor's failure to post a warning sign.
. 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 his or her position with the motive of inflicting damage upon the claimant. The second is termed "untargeted malice", this is committed by a public official who acts knowing that he has no power to do the act complained of.
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. 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.
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
and certain Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries. It is an action against the holder of a public office, alleging in essence that the office-holder has misused or abused his power. The tort can be traced back to 1703 when Chief Justice Holt decided that a landowner could sue a police Constable who deprived him of his right to vote. The tort was revived in 1985 when it was used so that French Turkey producers could sue the Ministry of Agriculture
Ministry of Agriculture
An agriculture ministry or department of agriculture is a ministry or other government agency charged with agriculture. The ministry is often headed by a minister for agriculture....
over a dispute that harmed their sales.
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.
For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet.
In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a failure to act that results in harm to another party. Misfeasance, by contrast, describes 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.
To illustrate, consider the example of the wet bathroom floor. One court could call a resulting injury the product of misfeasance by focusing on the wetness of the floor. The washing of the floor was legal, but the act of leaving the floor wet was improper. Another court could call a resulting injury the product of nonfeasance by focusing on the janitor's failure to post a warning sign.
Grounds
In most cases, the essentials to bring an action of misfeasance in public office are that the office-holder acted illegally, knew he was 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 InternationalBank of Credit and Commerce International
The Bank of Credit and Commerce International was a major international bank founded in 1972 by Agha Hasan Abedi, a Pakistani financier. The Bank was registered in Luxembourg with head offices in Karachi and London. Within a decade BCCI touched its peak...
. 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 his or her position with the motive of inflicting damage upon the claimant. The second is termed "untargeted malice", this is committed by a public official who acts knowing that he has no power to do the act complained of.
Railtrack
Its most recent high-profile use was in the largest class action ever brought in the English courts, when 49,500 private shareholders of Britain's national railway infrastructure company RailtrackRailtrack
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 its formation in April 1994 until 2002...
sued the Secretary of State for Transport
Secretary of State for Transport
The Secretary of State for Transport is the member of the cabinet responsible for the British Department for Transport. The role has had a high turnover as new appointments are blamed for the failures of decades of their predecessors...
for damages, alleging that in October 2001 the then holder of that office - Stephen Byers
Stephen Byers
Stephen John Byers is a British Labour Party politician who was the Member of Parliament for North Tyneside from 1997 to 2010; in the previous parliament, from 1992, he represented Wallsend...
MP - had acted unlawfully in planning to put their company into administration on the grounds that it was insolvent. The legal action failed because - as an action involving reflective loss
Reflective loss
Reflective loss is a concept used in UK company law for losses of individual shareholders that are inseparable from general losses of the company...
- 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.