Houchin v Lincolnshire Probation Trust

The tort of misfeasance in public office requires bad faith, unlawful conduct, causation and special damage. Targeted malice involves an improper purpose directed at the claimant. Untargeted malice involves knowingly acting without public-law power, or subjective reckless indifference to that lack of power and probable injury. An employer may be vicariously liable for an employee's misfeasance committed in the course of employment. Strike-out is appropriate only where a claim is bound to fail; summary judgment requires no real prospect of success. The claim was summarily dismissed because the evidence disclosed no credible motive or bad faith and provided a proper basis for the impugned recommendation.

The claimant, a recalled life prisoner, claimed that the defendant probation trust was vicariously liable for its employee's alleged misfeasance in public office. He alleged that the employee had improperly and dishonestly engineered his transfer from open to closed prison conditions.

The defendant applied to strike out the claim under CPR 3.4(2)(a), alternatively for summary judgment under CPR 24(2)(a) and (b). Earlier judicial-review proceedings had concerned the claimant's transfer and the Secretary of State's later response to the Parole Board, but had left the civil claim to be determined. The central issue was whether the evidence gave the claim a real prospect of success.

1. Application granted. The claim had no real prospect of success, and the defendant was entitled to summary judgment.
2. The court adopted the distinction in Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1 between targeted and untargeted malice. Targeted malice requires conduct directed at the claimant for an improper or ulterior purpose. Untargeted malice requires knowledge that the officer lacked power to act, or subjective reckless indifference to that lack of power, together with knowledge or reckless disregard of probable injury. Lack of power includes public-law unlawfulness, such as breach of statutory provisions, excess of power or an improper purpose.
3. Subjective recklessness requires awareness of a serious risk of loss arising from unlawful conduct and a deliberate decision to disregard it. Causation is an essential element and is ordinarily a question of fact. Special damage is also essential. An employing authority is vicariously liable where its employee committed the tort in the course of employment: Racz v Home Office [1994] 2 AC 45; Watkins v SSHD [2006] 2 WLR 807.
4. Strike-out should not be ordered unless the claim is bound to fail. For summary judgment, the question is whether the claim has a real, rather than fanciful, prospect of success: Hughes v. Colin Richards and Co [2004] EWCA Civ 266; Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1.
5. The evidence disclosed no credible motive for malicious conduct, no dishonesty or bad faith, and a proper basis for the recommendation. The pleaded inaccuracies and other matters relied on by the claimant did not establish misfeasance.

This was a first-instance application. The judgment records earlier judicial-review proceedings concerning the claimant's transfer and the Secretary of State's later response to the Parole Board. Those proceedings did not determine the civil misfeasance claim, which was decided summarily in favour of the defendant.