QB-2020-004171 - [2025] EWHC 2773 (KB)

The Claimants advance claims in misfeasance on two bases, namely:

This common law tort imposes liability for “an abuse of power accompanied by subjective bad faith” (per Lord Steyn in Three Rivers DC v Bank of England (No.3) [2001] UKHL 16; [2003] 2 AC 1 at p.191). The tort of misfeasance is an intentional tort, that is to say negligence or gross negligence falling short of reckless indifference will not suffice. The leading authority in respect of misfeasance in public office remains the case of Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 ("Three Rivers"). As explained in the speech of Lord Steyn, the constituent elements of the tort (set out at 191-196) are that:

Malice is an essential ingredient of this tort. Lord Steyn said that there were not two separate torts, but that there was one tort with two forms, namely misfeasance in public office with targeted malice and with untargeted malice. Lord Steyn explained in Three Rivers (No.3), at p.191:

“First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.”

He said at p.192A-B that although there were differences between the two different forms, "…there are unifying features, namely the special nature of the tort, as directed against the conduct of public officers only, and the element of an abuse of public power in bad faith." In other words, the unlawful element had to be established in both forms. The official concerned must be shown not to have had an honest belief that they were acting lawfully.

In further amplification of "untargeted malice", this was referred to by Lord Hobhouse in Three Rivers at p. 230H as follows:

“…the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge …is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences: Garrett v Attorney General [1977] 2 NZLR 332, 349-350.

“…there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involved in the intended act. His recklessness arises because he chooses wilfully to disregard that risk.”

Malice covers not only “spite and ill-will” but “reckless indifference to the consequences of an unlawful act” Hughes v Revenue and Customs Commissioners [2025] EWCA 113 at [22]. In Hughes (at first instance, [2024] EWHC 1765 (KB)), Jay J analysed the ‘reckless indifference’ concept and the application of misfeasance:

“116.

I pressed counsel on the meaning of "reckless indifference". At first blush, this concept appears to weaken or relax the mental element of the tort, and is more generous to claimants than malice simpliciter in the context of the tort of malicious prosecution where reckless indifference is not available. In my judgment, the test is undeniably a subjective one. At para 18 of his judgment in Keegan v Chief Constableof Merseyside [2003] EWCA Civ 936; [2003] 1 WLR 2187 , Kennedy LJ explained that an essential ingredient of the tort is the presence of an improper motive, and– in appearing to endorse a submission of counsel – the claimant may prove a state of mind "of reckless indifference to the illegality of his act". That formulation was drawn from Lord Steyn's Opinion in Three Rivers (No 3) , at 192C-D. Lord Steyn also emphasised "the meaningful requirement of bad faith in the exercise of public powers which is the raison d'être of the tort".