Misfeasance in Public Office

‘Misfeasance in Public Office’ is a term frequently used when a public official does his job in a way that is not technically illegal, but nevertheless he is mistaken or wrong.

Parliament intended that statutory powers were exercised in good faith and for the purpose for which they were conferred.

The tort of Misfeasance in Public Office was designed to target ‘the deliberate and dishonest abuse of power’ in the event of a person suffering loss or damage as a result of administrative action known to be unlawful or carried out with reckless disregard or indifference to the consequences.

The offence of ‘Malfeasance’ takes the reckless element a stage further and is when a public official intentionally does something either legally or morally wrong which he had no right to do. It always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons. It is conduct in violation of the law.

The tort of Misfeasance in Public Office is an intentional tort that can be committed only by a public official and the core concept is abuse of power. This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose.

Power is granted to a public official for a public purpose. It is an abuse of that power for him to exercise it for his own private purposes, whether out of spite, malice, revenge, or merely self-advancement.

If an act is done deliberately and with knowledge of its consequences the official cannot argue that he did not intend the consequences of his actions or that they were not aimed at the person who he knew would suffer loss.

In a legal system underpinned by the rule of law, administrative power must be exercised in good faith and not for ulterior or improper purposes. Where it can be shown that a body or official was not acting in good faith, liability in the tort of misfeasance in public office might exist.

The constituent elements of the tort of misfeasance are as follows:

  • That the act or conduct has been committed by a public officer.
  • The act or conduct must have been done by him in the purported exercise of his power as a public officer.
  • That the act or conduct must have been done either:

a) maliciously; or

b) knowing that the impugned act or conduct is invalid/unauthorised and knowing that it will probably injure the claimant.

  • The act or conduct must cause loss or harm to the claimant.

There are two forms of liability for misfeasance. The first form of the tort involves targeted malice by a public officer, or in other words, conduct specifically intended to injure a person. Where a public officer had this intention, it is irrelevant whether the public officer exceeded his powers or acted within the letter of the law.

The second form of liability applies where the public officer acts knowing he has no power to do the act complained of and that the act will probably injure a person or persons. The element of bad faith arises, as the public officer does not have an honest belief that his conduct is lawful. In this scenario, it is not necessary to show that the public officer acted with the purpose or object of inflicting harm on the claimant.

Misfeasance does not require a claimant to identify a legal right that is being infringed or a particular duty owed to him, beyond the right not to be damaged or injured by a deliberate or reckless abuse of power by a public officer.

The tort of Misfeasance in Public Office 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.