BL-2022-002117 - [2025] EWHC 2794 (Ch)

When bringing a claim for targeted malice, the Claimants must prove a specific intent to injure them. An awareness on the part of the public officer that the Claimants will suffer harm from the officer’s actions is not sufficient. In Weir v Secretary of State for Transport [2005] EWHC 2192 (Ch) (“Railtrack”), Lindsay J noted at paragraph 20 that;

“One of the ways in which intent is commonly proved is not open in this tort. […] The required ‘targeted malice’ cannot be proved by reference only to the knowledge or obviousness of consequences; a specific intent to harm the Claimants or the class to which they belong has to be proved.”

It has been assumed (without being formally decided) that it was sufficient that the desire to injure the claimant was a purpose of the defendant, as opposed to the purpose or the predominant purpose: Weir v Secretary of State for Transport (No. 2) [2005] EWHC 2192 at paragraph 23; Romantiek BVBA v Simms [2008] EWHC 3099 (QB) at paragraph 84. However, in both of those cases the claim failed for other reasons. It was possible to assume that a mixed purpose was sufficient because it was unnecessary to decide the point. Since the parties filed skeleton arguments, judgment was given in Wilson v Department of Transport [2025] EWHC 1387 (KB) at paragraphs 224-230 holding that, in the context of a malicious prosecution claim, a predominant improper motive needs to be established. However the concept of malice in a malicious prosecution is a much more diffuse concept (e.g “any motive other than a desire to bring a criminal to justice”; see Wilson at 215 and 216) and there are different policy considerations in play; see Wilson at 230.

The rationale for the tort of misfeasance in public office is that administrative powers must be exercised only for the public good and not for ulterior and improper purposes. In the context of targeted malice, it must be proved that “the official does the act intentionally with the purpose of causing loss to the plaintiff”; per Lord Hobhouse at 230 G-h (original emphasis). Lord Millett explained (at p.235):

It is proof of that purpose to cause harm which distinguishes the first and second limb of the tort, where an act may be done for a different, or unknown, purpose but with the knowledge of likely harm to the plaintiff. So for targeted malice establishing “the purpose of causing harm” is central to that limb of the tort. The question is whether the purpose of causing harm, even if mixed with other considerations, makes an otherwise lawful act, unlawful. If it does then the tort is satisfied. It seems to me that the prohibited purpose must be a cause of the act complained of. If the public officer would have acted in exactly the same way without the improper motive I do not see how the purpose of causing harm can have had any operative effect on the decision. On the other hand, if it had an operative effect on the decision, the decision was unlawful.