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E. Misfeasance in public office
E. Misfeasance in public office
E.1 The constituent elements of the tort
The tort of misfeasance in public office has as its essence a deliberate and dishonest abuse of his or her powers by a public officer. The rationale of the tort is that in a legal system based on the rule of law executive or administrative power must be exercised only for the public good and not for ulterior and improper purposes; Three Rivers DC v Bank of England (No.3) (HL(E)) [2003] 2 AC 190H per Lord Steyn, with whose judgment Lords Hope and Millett agreed. Policy and principle require the tort to be confined to the abuse of power in subjective bad faith and not to negligent acts or unintended or unforeseen consequences. Bad faith in this context includes dishonesty and acting with an improper or corrupt motive.
The constituent elements of the tort can be distilled from Lord Steyn’s speech.
The defendant must be a public officer. In this case it is common ground that Sir Peter, Mr Smith and Ms Forton were public officers and the Defendant accepts vicarious liability for their actions.
The conduct complained of must be a purported exercise of power by the public officer. This ingredient is also not in issue in this case.
The public officer must have the requisite bad faith when exercising his or her powers, namely:
a specific intent to thereby injure a person or persons (targeted malice); or
knowledge that the public officer has no power to do the act, or reckless indifference whether there was such power, and knowledge that the act will probably injure the claimant or reckless indifference about the consequences of the act (non-targeted malice).
The exercise of power must have caused the claimant loss.
Lord Millett expressed the view that targeted and non-targeted malice were merely different ways in which the necessary element of intention is established. In targeted malice it is established by evidence. In non-targeted malice an improper intention is established by inference from a combination of knowledge that the public officer is acting in excess of his or her powers and knowledge that harm is likely to be caused to the claimant. This view of the tort has been endorsed by the Supreme Court of Canada; see Odhavji Estate v Wodehouse [2003] 3 SCR 263. Neither side suggested that Lord Millett’s analysis had any practical impact on this case.
- Heading
- Introduction
- B. The witnesses
- Expert evidence of Vivian Cohen
- C.2 The relevant principles
- C.3 The facts of this case
- C.4 Decision
- D.1 The SFA
- D.2 Carter & Carter
- D.3 The Company and the Funding Agreement
- D.4 2015: The proposed Inflexion acquisiton, Information Memorandum and Baker Tilly report
- D.5 Appointment of Sir Peter Lauener
- D.6 Nick Linford and FE Week
- D.7 2016: The Apprenticeship Levy and proposed Non-Levy Cap
- D.8 Autumn/Winter 2016: The Trilantic Acquisition
- D.9 December 2016: The ‘blood pressure’ email
- D.10 The 13 December 2016 meeting
- D.11 December 2016 – January 2017: The Decision Letter and aftermath
- D.12 Further attempts to sell the business
- D.13 2017-2018: Emergence of irregularities in 3AAA’s records
- E. Misfeasance in public office
- E.2 The pleaded claim
- E.3 Targeted malice - a specific intent to injure
- E.4 Discussion – targeted malice
- E.5 Discussion - untargeted malice
- F. The claim in negligence
- F.1 A duty of care
- F.2 Pure economic loss
- F.3 Assumption of responsibility
- F.4 Communications crossing the line
- F.5 The task
- F.6 A White v Jones lacuna
- F.7 Conclusion on duty of care
- G. Loss
- H.1 “Net Cash Consideration”
- H.2 Value of Claimants’ shares in December 2016
- H.3 The significance of data manipulation
- Conclusions