JUNE 28 — Misfeasance in public office is a tort. A tort is a civil wrong.
The tort of misfeasance in public office is a very peculiar one. It is generally regarded as the common law’s only truly public tort (See Mark Aronson, “Misfeasance in Public Office: A Very Peculiar Tort” [2011] 35 MULR 1.)
The only people who can commit it are those holding public office. The only occasions on which it can be committed are when those holding public office misuse their public power.
The more than three century-old English case of Ashby v White (1703) is said to have introduced the tort. In that case, four borough constables were ordered to pay £200 to a poor cobbler (Ashby) because they had fraudulently and maliciously prevented him from casting his vote at a parliamentary election. By doing so, they had acted in breach of electoral duties that the sheriff’s writ had imposed upon them for election day.
Chief Justice Holt said that if “public officers will infringe men’s rights, they ought to pay greater damages than other men, to deter and hinder other officers from the like offences” and allowed the action brought by Ashby as it “will make public officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.”
The Chief Justice awarded Ashby £200 in damages even though he had suffered no material loss.
Emeritus Professor Mark Aronson identified four cases — one each in Australia, New Zealand, England and Canada — as laying down the modern statement of the tort. The English case is the case of Three Rivers District Council v Bank of England [No 3] (2003), a decision of the House of Lords, then the apex court.
The case involved a class action against the Bank of England for not pulling the plug earlier on a dodgy bank that took a long time to fail. It presented the apex court the first occasion “to review the requirements of the tort in a comprehensive manner”. (See Noel Cox, “Three Rivers District Council v The Bank of England: The Collapse of BCCI and Misfeasance in Public Office”)
The requirements are: Firstly, the plaintiff must prove that the defendant is a “public officer”. This means a person appointed to discharge a public duty and who receives compensation, in whatever shape, from the government or otherwise.
Secondly, the plaintiff must prove that the defendant acted in the exercise or purported exercise of his or her office. This requires a positive act or omission.
Thirdly, the plaintiff must prove that the defendant acted with malice towards the plaintiff or with knowledge that he or she was acting invalidly.
Lastly, the plaintiff must prove that the plaintiff suffered damage as a result of the defendant’s conduct. This may include damage to reputation, loss of employment, or other economic loss.
It is the third requirement — the mental element of malice — that is perhaps the most crucial. The Three Rivers draws a distinction between malice and illegality of the act or omission.
The House of Lords held that for malice, it must be shown that the defendant who is a public officer acted with an intention to harm the plaintiff or the class in which the plaintiff is a member. Anything short of this express intention does not suffice to qualify as malice.
It is most difficult to prove.
That makes misfeasance in public office a very peculiar, and difficult to prove, tort.
*This is the personal opinion of the writers or publication and does not necessarily represent the views of Malay Mail.
