Justice, Fairness and the Common Law: The Tort of Misfeasance in Public Office

Abstract

The tort of misfeasance in public office has been described by Lord Diplock as “well established” in English common law. Similarly, it has been said by the New Zealand Court of Appeal to be a “long established though infrequently prosecuted tort.” Though long neglected, it is now frequently applied in courts in England and the Commonwealth. Though its existence was not doubted, misfeasance in public office was, in the words of de Smith, a “developing tort...the precise scope of which is not yet settled.” This article will consider the tort ins its broader constitutional role, and the way in which the tort may have been influenced, as was the development of the tort of negligence, by moral or religious concepts.