[2025] EWHC 2684 (KB)

The exercise of public power may be by way of positive act or by omission. Lord Hutton stated in Three Rivers (at p288a-c)

“I agree with the opinion of Clarke J, 583a, that the tort can be constituted by an omission by a public officer as well as by acts on his part. As Brennan J stated in the Mengel case 69 ALJR 527, 545: "Any act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office." But whether the public officer is sued in respect of an act or an omission, it must be a deliberate one involving an actual decision and liability will not arise from injury suffered by mere inadvertence or oversight. I also agree with the opinion of Clarke J [1996] 3 All ER 558, 583b, d that it is sufficient for the plaintiff to prove that the public officer foresaw that his action would probably injure the plaintiff; to require foresight of certainty of harm would be unrealistic and, being very difficult to prove, would give inadequate protection against abuse of power.”

A Claimant’s ability to establish liability on an omission is limited. Lord Millett in Three Rivers characterised an actionable omission as one in which;

“The parties are agreed that there is no conceptual difference between sins of omission and sins of commission. This may be so; but factually there is a great difference between them. It is no accident that the tort is misfeasance in public office, not nonfeasance in public office. The failure to exercise a power is not in itself wrongful. It cannot be equated with acting in excess of power. The tort is concerned with preventing public officials from acting beyond their powers to the injury of the citizen, not with compelling them to exercise the powers they do have, particularly when they have a discretion whether to exercise them or not. There seems to be only one case in the books where a failure to exercise a power gave rise to the tort: R v Dytham [1979] QB 722 , 727g, where Lord Widgery CJ said in terms that the neglect must be "wilful and not merely inadvertent". Ferguson v Earl of Kinnoull (1842) 9 Cl & Fin 251 and the cases there cited were all cases of wilful breach of duty. Henly v Lyme Corpn 5 Bing 91 was in my opinion a case of breach of statutory duty, not of misfeasance in public office.

In conformity with the character of the tort, the failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position. In my opinion, a failure to act can amount to misfeasance in public office only where (i) the circumstances are such that the discretion whether to act can only be exercised in one way so that there is effectively a duty to act; (ii) the official appreciates this but nevertheless makes a conscious decision not to act; and (iii) he does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act.”