Misfeasance in public office
Cause of action in English law
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Through England
Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.
In theory, misfeasance is distinct from nonfeasance. Nonfeasance is a failure to act that results in harm to another party. Misfeasance, by contrast, is some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.
Grounds
In most cases, the essentials to bring an action of misfeasance in public office are that the office-holder acted illegally, knew they were doing so, and knew or should reasonably have known that third parties would suffer loss as a result.
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BCCI
As a civil law action, the use of misfeasance of public office has grown in recent years, the law having been clarified in the litigation involving the collapse of the Bank of Credit and Commerce International. The ruling clarified that there are two types of misfeasance in public office. One known as "targeted malice" occurs when a public officer intentionally abuses their position with the motive of inflicting damage upon the claimant. The second is termed "untargeted malice"; this is committed by a public official who acts in a generalized way, knowing that they are not legally empowered to do the act complained of.
If misfeasance in public office did not tenuously exist as an historical survival, it is doubtful whether anyone would invent it, at least in the form of a tort.
— Philip Allott, The Cambridge Law Journal, Vol. 60, No. 1. (Mar. 2001)
Railtrack
In July 2005, 49,500 private shareholders of Britain's national railway infrastructure company Railtrack sued the Secretary of State for Transport for damages, alleging that in October 2001 the then holder of that office, Stephen Byers MP, had acted unlawfully in planning to put their company into administration on the grounds that it was insolvent. The legal action failed because – as an action involving reflective loss – the shareholders had to prove, in addition to the grounds specified above, malice on the part of Byers. They did not have the evidence to do so.