Challenging the state: The tort of misfeasance in public office and the case of Three Rivers District Council v The Bank of England

Noel Cox, Auckland University of Technology

Abstract

The tort of misfeasance in public office is designed to target “the deliberate and dishonest abuse of power”. Public officers are not liable merely because a bona fide administrative act is later found to be unlawful. However, there is a misfeasance in public office if a person suffers loss or damage as a result of administrative action known to be unlawful by those persons taking it, and those persons knew that the plaintiff would suffer loss or were recklessly indifferent as to whether the plaintiff would suffer loss. A deliberate and vindictive act by a public official, targeted at the plaintiff, is not necessary. This article is based on the House of Lords decision in Three Rivers District Council v. Governor and Company of The Bank of England, which is considered a definitive statement of the law on misfeasance as it stands in England. This case serves to illustrate the principle that not only do corporate legal strategies have to comply with the specific requirements of state decision-making processes, so too do the responses to those strategies by the state and its agents. The tort is thus a useful – though limited – device for limiting governmental wrongs.