A Public Law Tort: Understanding Misfeasance in Public Office

Abstract

This chapter provides a theoretical analysis of the tort of misfeasance in public office. The current vitality of the tort is attested to by the frequency with which it appears in the law reports, and by the spirited opposition which met a (subsequently abandoned) proposal by the Law Commission of England and Wales that the cause of action be abolished. However, although case law has clarified the scope and elements of the cause of action for misfeasance, academic commentary demonstrates that the underlying nature of the tort remains highly contested. In this chapter, I argue that misfeasance in public office is best understood as a distinctively public law tort, put forward a public law rationale for its recognition, and consider some analogous legal doctrines. I also critique two rival conceptions of the cause of action, which I call the ‘tort law’ conception and the ‘private law’ conception. Finally, I consider some practical implications of my analysis for the future development of the tort.