Cornelius v London Borough of Hackney

A claim should not be struck out where the legal issue is uncertain or developing, or where the pleaded facts raise a serious issue requiring evidence. The court must be able to give a certain answer that the claim cannot succeed before terminating it at the pleading stage.

Misfeasance in public office is not confined to the exercise of a formal statutory power. The tort may arise from an abuse of the defendant’s position as a public officer, provided that the other elements of the tort are established. Whether conduct constitutes such an abuse is ordinarily a fact-sensitive question requiring proper factual investigation.

Mr Cornelius, an accountant formerly employed by the London Borough of Hackney, alleged that council officers had published statements damaging his reputation after his dismissal and had failed to provide appropriate information or a reference. He relied ultimately on misfeasance in public office.

A deputy High Court judge struck out his claim. On a limited appeal, the proposed amended pleading was considered. The central issues were whether misfeasance required the exercise or purported exercise of a public power, and whether the pleaded facts could properly be determined without disclosure or evidence.

1. Appeal allowed. The claim was not suitable for striking out under Civil Procedure Rules 1998, rule 3.4(2)(a).
2. The governing approach to strike out is that the court should not terminate a claim unless it can give a certain answer that the claim cannot succeed. This is particularly important where the law is uncertain or developing, or where the pleading raises a serious issue of fact that requires oral evidence.
3. The tort of misfeasance in public office is not necessarily limited to an act done in the exercise or purported exercise of a specific power or authority. The reasoning in Peter Elliott v Chief Constable of Wiltshire Constabulary supported a distinction between exercising a power and abusing the position held as a public officer.
4. The draft pleading alleged that the council’s chief executive and other officers had abused their positions as public officers. A local authority’s chief executive and councillors could in principle hold offices capable of being abused so as to found liability. The council’s possible vicarious liability was not contested.
5. Whether the pleaded conduct amounted to an abuse of public office was essentially a question of fact. The court had considerable doubts about the ultimate merits, but the issue could not properly be resolved before disclosure and evidence. The claim therefore had to proceed, subject to consideration of the precise publication relied on in paragraph 8A.
6. The proposed negligent-misstatement claim was rightly abandoned. Spring v Guardian Assurance Plc concerned reliance in the preparation of an employment reference, which was absent here. The possibility of an overlapping defamation claim did not itself exclude another cause of action where its ingredients were otherwise present.

• Court of Appeal (Civil Division): Appeal allowed against the strike-out order.
• High Court of Justice, Queen’s Bench Division: Mr Walter Aylen QC, sitting as a Deputy High Court Judge, struck out the whole claim on 27 July 2001.