[2025] EWHC 2684 (KB)

The applicable limitation period for misfeasance in public office is six years from the date on which the cause of action accrued (Limitation Act 1980, section 2 ). In the absence of a claim for damages for personal injury, there is no possibility of the time limit being extended.

At paragraph 290 of the Defendants’ Re-Amended Defence, under the heading of Misfeasance in Public Office the Defendant pleads a limitation defence in relation to “any alleged tortious conduct occurring prior to 5 March 2009”. It is the Defendant’s case that the cause of action accrued upon the charging of the Claimants on 18^th February 2008 yet the claim was not issued until 5^th March 2015 i.e. more than 12 months out of time.

No limitation defence has been raised by the Defendant in relation to the Claimants’ claims in malicious prosecution.

In the Claimants’ Reply to the Defence, they pleaded at paragraph 3 that they denied that their claim in misfeasance in public office was time-barred because;

“The loss and damage sustained in consequence of the misfeasance is on-going and it was certainly on-going up to and including the date upon which the prosecution was determined in favour of the Claimants.”

This denial was maintained through to paragraph 3 of the Re-Amended Reply to the Defence and this therefore remained the Claimants’ pleaded case as to the Defendant’s limitation defence in respect of misfeasance in public office.

At paragraph 85 of the Claimants’ skeleton argument for trial, reference is made to loss being an essential element of the tort of misfeasance in public office, while at paragraph 86 it is stated that:

“The tort is only complete at the point at which recoverable loss is incurred, which includes damage done by an investigation and prosecution.”

The Claimants submitted that this required the Court to look not at when specific acts occurred, but at their losses, as the acts are not “tortious” for the purposes of misfeasance in public office, even if an abuse of power, without the loss element of the tort being satisfied.

Mr Warnock submitted that the Schedules of Loss claim for the consequences of the Claimants’ loss of employment on 25 September 2007 and it is no answer to say that losses continued to accrue after the cause of action was complete. Time runs from the date on which the cause of action accrued. The continuation of a loss is different from the continuation of a tort – see Escott v Tunbridge Wells Borough Council [2016] EWHC 2793, per Holgate J (as he then was) at [38] to [39] for an application of this well recognised principle to a misfeasance claim. He submitted that no fresh actions were relied upon from the date the prosecution was brought (i.e. after the date of charge: 18^th February 2008) and in any event no fresh tort of misfeasance in public office is alleged to have occurred on or after 5^th March 2009.

In closing submissions on behalf of the Claimants it was argued that the Claimants’ case in misfeasance in public office is that the “prolonged investigation and prosecution” involved malice, with the intention of the Defendant’s officers that the Claimants would be convicted of the charges existing throughout. So reliance was placed on acts/omissions after the charges were laid up to the conclusion of the trial in June 2009. In respect of specific acts/omissions it was submitted that:

None of these allegations were pleaded. As I have already set out (b) above is without any foundation and (c) has no merit either on the facts of this case, as an allegation of malice or bad faith. I shall return to (a) in due course.