Carter & Ors v The Chief Constable of the Cumbria Police

Misfeasance in public office requires proof of subjective bad faith, including knowledge of unlawfulness or reckless indifference to it. A pleading cannot convert allegations of negligence, incompetence or error of judgment into misfeasance merely by asserting that the unlawfulness was obvious. Bad faith must be properly particularised.

Under regulation 9 of the Police (Conduct) Regulations 1999, the absence of evidence when a notice of investigation is served does not, by itself, make service unlawful. A claim based on decisions to investigate or refer disciplinary allegations must show a real prospect of proving the necessary subjective state of mind. Where the pleaded particulars do not do so, the claim may be struck out or summarily dismissed.

Nine serving or former police officers brought claims in misfeasance in public office against the Chief Constable. The claims arose from Operation Pool, an internal investigation into alleged private use of police vehicles and allegedly irregular mileage claims.

The misconduct proceedings were abandoned or dismissed in 2003. The claimants alleged that notices of investigation had been served and cases referred to a misconduct hearing without evidence capable of proving private use, and that expense allegations had been pursued inconsistently.

The defendant applied to strike out the amended claim and for summary judgment under CPR 3.4(2)(a) and CPR 24.2(a)(i). The central questions were whether the pleaded facts sufficiently alleged subjective recklessness or knowledge of illegality, and whether the claims had any real prospect of success.

1. The application to strike out the claim and for summary judgment succeeded. The pleaded allegations did not disclose a properly particularised case of misfeasance in public office and had no real prospect of success.
2. Applying Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, the relevant issue was the malice element of the tort, in its untargeted form. The claimants had to show that the officers knew they lacked public-law power or were recklessly indifferent to that lack of power, and that the conduct would probably cause the relevant loss.
3. The pleaded assertion that the defect in the disciplinary case was so obvious that the officers must have recognised it was insufficient. The pleaded facts were equally consistent with pressure of work, incompetence or errors of judgment. They therefore did not support an inference of subjective recklessness.
4. The absence of evidence of private use when regulation 9 notices were served could not, given the terms of that regulation, make service of the notices unlawful by itself. The notices initiated an investigation and were required to be served as soon as practicable.
5. The misconduct panel’s criticism focused on unclear force instructions and poor record keeping, rather than the particular flaw alleged in the claim. The available material gave no real prospect of proving that the named officers knew, or recklessly disregarded, that the investigation or referrals were based on a fatal evidential defect.
6. The expenses allegations were also inadequately particularised. There were no particulars supporting the assertion that the cases were pursued to bolster the vehicle allegations, nor identifying the other officers said to have made comparable claims. The claimants had no real prospect of proving unlawfulness accompanied by knowledge or subjective recklessness.

Not stated in the judgment.