Three Rivers DC v Bank of England (2001)

House
of Lords held there were three
essential elements of the tort of misfeasance in public office:
1.
Had to be an unlawful act or omission made in the exercise of power by the
public officer.
2.
As essence of the tort was abuse of power, act or omission had to be made with
required mental element
3.
The act or omission had to have been made in bad faith.
What
is required to satisfy these requirements differs for each of the two limbs of
the tort.
First
limb is targeted malice.
Present
case concerned second limb – untargeted malice.
Required
mental element here would be satisfied if act or omission was made
intentionally by the public officer in the knowledge that it was beyond his
powers and would probably cause claimant to suffer injury, or recklessly because,
although he was aware there was a serious risk claimant would suffer loss due
to an act or omission which he knew to be unlawful, he chose to ignore that
risk.
Bad
faith requirement would be satisfied if act or omission was made without an
honest belief that it was lawful.
[This
case therefore answers key question which has dogged this tort for some time,
namely whether untargeted malice limb includes objective recklessness as to the
illegality as well as actual knowledge and subjective recklessness – it does
not.]