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

Although there is no valid plea of untargeted malice, I observe that a claim for untargeted malice against Sir Peter would also have failed. Untargeted malice requires the act complained of to be in excess of the powers available to the public officer. If the other elements of this limb are present (knowledge or recklessness as to unlawfulness of the act and the likelihood of consequent harm to the claimants) it is no answer that the act is done for noble reasons or for the benefit of other members of the public; see Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716, Three Rivers per Lord Millett at 236B. The cases suggest that this limb is usually engaged when the public officer has knowingly done an act which is not within the letter of the power. In principle, if the act is within the letter of the power, but it is proved that it is done for an improper purpose, it is unlawful. There are at least two reasons why the claim against Sir Peter in untargeted malice would have failed.

Firstly, it was quite clear that all of Sir Peter, Mr Smith and Ms Forton believed they had the power to send the Decision Letter. Sir Peter had checked what the relevant powers were and been provided with the wording of clauses 5.9 and 5.10 in November 2016. When Ms Forton brought the matter back to him on 8 December 2016 she did so expressly by reference to the correct contractual question in clause 5.10. The Decision Letter then expressly referred to clauses 5.9 and 5.10. So there was no knowledge on the part of Sir Peter that he had no power to act and no reckless indifference as to whether he did or did not have power.

The second point is that the Decision Letter is not unlawful. It is not in excess of the SFA’s powers. There is no contractual obligation on the SFA to provide a response to a request for approval, and no contractual duties owed by the SFA to the Company if it does. The SFA’s consent to the sale was not required and Trilantic could have continued with the acquisition if it wished. The Decision Letter is simply correspondence from the SFA expressing the views of the SFA, primarily in relation to future contracts which the Company may acquire. The sending of correspondence is clearly within the power of the SFA. The predominant purpose behind the Decision Letter, which caused it to be sent rather than the standard letter, was probably to discourage Trilantic and other private investors from entering the market, but the Claimants have not established that that was an improper purpose, and one which made the Decision Letter unlawful.