Hilda Amoo-Gottfried v Legal Aid Board (No 1 Regional Committee)

Misfeasance in public office requires more than an unlawful decision or maladministration. It involves an abuse of public power for an ulterior or impermissible purpose, with knowledge or subjective reckless indifference to likely damage. In the second form of the tort, an official must lack an honest belief that the act is lawful.

The legality of the act is not decisive. A committee acting to protect service users and public funds may have legitimate grounds to seek clarification before complying with a disputed direction. An honest belief in lawfulness defeats the necessary bad faith, even if the conduct was unlawful.

Mrs Amoo-Gottfried appealed from Mrs Justice Smith's judgment of 24 March 1999, which gave judgment for the Legal Aid Board in her claim for misfeasance in public office.

The claim arose from repeated decisions concerning her inclusion in duty solicitor schemes. A national committee directed her reinstatement, but the regional committee adjourned while seeking reasons and clarification before complying. The judge found that the committees might have acted unlawfully, but had acted honestly and without knowledge or reckless disregard of unlawfulness or harm.

The central issue was whether those findings nevertheless established the second form of misfeasance in public office.

Disposition

Lady Justice Hale delivered the judgment of the court. Lord Justice Mantell and Lord Justice Otton agreed. The appeal was dismissed with costs, and permission to appeal to the House of Lords was refused.

1. Maladministration and unlawfulness do not automatically create a claim for damages. There is no general right to damages for maladministration. A claimant must establish a recognised tort, and the ordinary limits on negligence claims remain applicable.

2. The tort of misfeasance in public office concerns the abuse of public power. The relevant conduct is the exercise of power for an ulterior or impermissible purpose, with knowledge or recklessness as to whether it will damage the claimant. The second form requires the public officer to act without an honest belief that the act is lawful and with subjective reckless indifference to illegality and its consequences. Mere foreseeability is insufficient.

3. The court distinguished excess of power from abuse of power. An unlawful act, or even a conscious excess of power, does not necessarily amount to misfeasance where the official honestly believes the conduct lawful and acts for the public benefit.

4. The statutory context was important. The duty solicitor scheme was designed principally to protect clients and the public purse, while also ensuring fairness to solicitors. The regional committee was seeking to further that purpose, not to act arbitrarily, out of prejudice or favouritism. There was legitimate doubt about the national committee's unexplained direction, and it was capable of being lawful to seek reassurance before complying.

5. The judge was entitled to find that the regional committee honestly believed it was lawful to act as it did. That conclusion was open on the evidence and could not be disturbed on appeal. In addition, the earlier maladministration could not have caused the claimed loss because a proper rehearing would have determined whether the claimant met the eligibility criteria.

1. Court of Appeal (Civil Division): Appeal dismissed with costs. Application for permission to appeal to the House of Lords refused.
2. Queen's Bench Division: Mrs Justice Smith gave judgment for the Legal Aid Board on 24 March 1999 in the misfeasance claim.