Admin Law Remedies Misfeasance In Public Office Notes

MISFEASANCE IN PUBLIC OFFICE HOW TO RECOVER DAMAGES FOR ULTRA VIRES ADMINISTRATIVE ACTION? • • • • • Even though UV admin action can cause financial and physical loss, there is no independent system or process for recovering. Not necessarily enough to use JR - you may want damages. JR forces compliance or sets an order aside but it does not remedy the damage caused. UV admin action in and of itself does not generally give rise to or create a cause of action. There are two indirect ways of doing so: 1. CORRESPONDING TORTVictims can only recover damages where the unlawful conduct corresponds to some existing tort.Must pass the filters which those torts entail! 2. Section 3 of the ECHR act 2003. Pine Valley v Minister for the Environment 1987 Finlay CJAdministrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages…if it involved the commission of a recognised tort, such as trespass, false imprisonment or negligence.Partial immunity from damages is in the public interest'persons in whom are vested statutory powers of decision.' Discretionary only?Where they acted bona fide and without negligence.To avoid indecisiveness and delay A breach in itself without deliberate intention should not attract damages for the injury caused. Misfeasance as a tortSpecialist administrative law tort restricted to serious abuse of power by public official exercising public power ESSENTIAL REQUIREMENTS Three Rivers District Council v Governor Bank of England. 2003. a. b. c. d. e. Must be a public officer Must be acting in that capacity when breach committed Must be acting illegally Must be acting with direct malice/ oblique malice/ subjective recklessness Material damage must result The mens rea: ➢ Targeted misfeasance - Acting illegally with the intention to cause harm to the plaintiff - Knows its illegal ➢ Untargeted misfeasance - Acting illegally with no intention to cause harm to the plaintiff but knowing that this harm will result - Knows it illegal ➢ Subjective recklessness/ wilful disregard. - Be wilfully reckless to the illegality that will result - Knowing that the act is objectively illegal and that harm will result but doing it anyway 1. MUST BE AN PUBLIC OFFICER • • • Rules are the same as amenability. To be a public officer, must belong to a public body. Obviously, an officer of a body established by statute is amenable ENG - PUBLIC BODY. Datafin v Panel on Takeovers and Mergers 1987 Though this case concerned the criminal twin of this offence (misconduct in public office) much of the ingredients of the offence are the same.Includes body which was not originally established by statute as part of the system of central or local government but is subsequently entrusted by the state to exercise or carry out some public function ➢ Would this mean that O'Connell is the Irish determinant of what a 'public officer' will constitute as - e.g. Henly v Lyme Corporation 1828 Not originally established by statute but. Subsequently entrusted by charter with function of keeping the sea walls in repair, which it failed to do. The crown had delegated the function to maintain the sea walls to the corporation even thougt they were not directly, civil servants or officers of the crown. Consequently, private property was ruined. The plaintiffsEveryone who is appointed to discharge a public duty And receives compensation, 'in whatever shape,' whether from the crown or otherwiseLabel as a public officer does not matter much, the remedy is concerned with the function carried out. Public function = public officer. R v Cosford 2013 ENG CA'whether the prison is run directly by the state or indirectly through a private company paid by the state to perform this function, does not alter the public nature of the duties of those undertaking the work: the responsibilities to the public are identical.'Does the indirectness alter the responsibilities in any way? IRELAND - PUBLIC BODY O'Connell v Turf Club 2015A body that was privately established but statutorily re-established to carry out statutory powers.'significant power exercised in respect of citizens with the approval of the legislature - express or tacit.'To 'ensure the exercise of power remains within their proper scope.' Coughlan v FAINot amenable because no integration by the state of FAI into wider system of governanceMust be integration'no sign of underpinning, directly or indirectly,' If originated privately, must be indirect or direct underpinning by 'an organ of agency of the state.'Has it been entrusted to exercise a public power? 2. ACTING AS A PUBLIC OFFICER • • It is possible to be a public officer, but the impugned act happens outside of the exercise of that function. WHILE ACTING AS Johnson v Westminster Magistrates Court 2019 Boris Johnson took a JR to set aside a decision that there was sufficient evidence to prosecute him for misconduct in public officer concerning claims made by him during the Brexit referendum. The charge made against him was on the grounds of misconduct in that he had deliberately made misleading claims that leaving the EU would increase revenue to the NHS by 350 million per annum in his capacity as an MP. He argued on judicial review that although he is a public officer as MP, he was not acting in that capacity when he made the statement - he was acting merely as a politician. His JR succeeded.Not enough that 'he simply held the officer and whilst holding the officer, did something wrongful.The wrongful conduct must occur as the defendant discharges their duty/ duties. Must've made the claims as he was discharging his duties as an MP, not making a speech as a politician. 3. MENTAL STATES (I) • TARGETED MISFEASANCE In its purest sense:Knows that it has no lawful power and is infected by malice or aims to hurt the plaintiff. Roncarelli v Duplessis 1959 Premier of Quebec - head of government of the province. Acting in the capacity of his public office, cancelled the license of the P who was a Jehova's witness. Duplessis was aware that this was outside of his power. His motive was malign - he was a bigot who disapproved of Ps religious beliefs and wanted to injure the P. There was no provision under any act relating to his holding of office, that permitted him to order the Commission to cancel the license. The P's family business was ruined - successful in his malicious intent.

Buy the full version of these notes or essay plans and more in our Administrative Law: Remedies Notes.