R Cruickshank Limited v Chief Constable of Kent County Constabulary

Misfeasance in public office may arise where public officers knowingly exceed their powers and act with subjective recklessness as to the probable injury caused. A claim raising the officers’ state of mind should not ordinarily be determined summarily before disclosure and oral evidence, particularly where the legal and factual issues are complex. The economic tort of unlawful interference with contractual relations is not, as a matter of law, unavailable against public officials. However, it requires the claimant to establish the necessary intention to injure or target the claimant, which will commonly be difficult where officials act in the public interest.

R Cruickshank Limited imported luxury motor vehicles from Dubai. Kent police suspected that some vehicles had been stolen in Japan and seized or threatened to seize vehicles in the possession of Cruickshank’s customers. Cruickshank claimed damages for misfeasance in public office and unlawful interference with contractual relations.

Gray J entered summary judgment for the Chief Constable on those claims, although a conversion claim concerning one vehicle was allowed to proceed. Cruickshank appealed, relying on amended particulars alleging unlawful police conduct, bad faith and reckless indifference to the lawfulness and consequences of the officers’ actions. The central questions were whether the amended claims were legally viable and whether the misfeasance claim was suitable for summary determination.

1. The appeal was allowed in relation to misfeasance in public office. The amended claim was restored and permitted to proceed to trial. The claim for interference with contractual relations remained struck out.

2. Lord Justice Brooke held that the second form of misfeasance in public office is established where a public officer acts knowing that he has no power to do the act and that it will probably injure the claimant. Subjective recklessness as to those matters may suffice. Public officers act in bad faith where they are not making an honest attempt to perform their duties, whether they deliberately seek injury or are recklessly indifferent to the consequences.

3. The alleged police conduct included seizures, retention notices and threats concerning vehicles whose ownership involved Japanese, United Arab Emirates and English law. The solicitors’ letters had put the police on notice both of the legal complexity and of potentially disastrous financial consequences. Whether the officers had been properly advised, and whether their failure to address the legal issues amounted to recklessness, depended on their state of mind and could not fairly be resolved on the documents before disclosure and oral evidence.

4. The approach in Three Rivers District Council v Governor and Company of the Bank of England (No 2), [2001] UKHL/16, supported allowing a properly arguable misfeasance claim to proceed rather than determining it by a mini-trial without discovery or oral evidence.

5. Lord Justice Brooke considered the pleaded interference claim hopeless because the alleged conduct was not shown to have been directed against Cruickshank or intended to harm it. Lord Justice Sedley, whose reasoning Lord Justice Tuckey expressly accepted, rejected the broader submission that the tort could never lie against public officials. Public officials remain answerable in the ordinary courts for unlawful acts exceeding their powers, but in practice such claims will usually fail for want of evidence of the required malign intent.

• Court of Appeal (Civil Division): R Cruickshank Limited v Chief Constable of Kent County Constabulary, [2002] EWCA Civ 1840. Appeal allowed in relation to misfeasance in public office; the claim was restored for trial. The interference claim remained struck out.
• Queen’s Bench Division: Gray J entered summary judgment for the Chief Constable on the misfeasance and interference claims. The conversion claim concerning one vehicle was allowed to proceed.