Escott & Anor v Tunbridge Wells Borough Council

A claim in misfeasance in public office accrues when the relevant bad-faith conduct causes material damage. A claimant need not first obtain judicial review, or secure withdrawal or quashing of the impugned decision, before bringing a damages claim. A continuing effect or continuing loss from a completed act does not itself create a continuing tort. Such a tort requires continuing conduct containing the essential elements of the tort, including malice or bad faith, and recovery is limited to loss sustained within the limitation period.

The claimants alleged that the defendant local planning authority had maliciously issued and maintained enforcement notices regulating noise from their joinery business. The claim was pleaded principally as misfeasance in public office. The defendant relied on the six-year limitation period under the Limitation Act 1980.

Two preliminary issues were ordered: whether the claim was statute-barred and whether the claimants could recover losses allegedly sustained by companies they operated. The central questions were when the cause of action accrued, whether the enforcement notices prevented the claimants from suing before their withdrawal, and whether the alleged misconduct was continuing.

1. Limitation. The claimants bore the burden of showing that the claim was brought within the applicable limitation period. Under section 2 of the Limitation Act 1980, the relevant period was six years from accrual. The claims relating to the issue and earlier maintenance of the enforcement notices accrued when the alleged conduct caused material damage, not when the notices were later withdrawn.
2. Validity of the enforcement notices. Section 285 of the Town and Country Planning Act 1990 did not prevent a damages action for misfeasance in public office. Its ouster effect was limited to challenges which could have been pursued under Part VII. Following Davy v Spelthorne B.C. [1984] AC 262, a claim could proceed despite the notice where the complaint was that it had been issued or maintained through bad faith. No prior quashing order or withdrawal was legally required.
3. Continuing tort. The issue of the notices and the prosecutions for breach were once-and-for-all events. The continuing obligation to comply with the notices, and any continuing loss resulting from the original acts, did not itself constitute a continuing tort. Under Iqbal v Legal Services Commission [2005] EWCA Civ 623, a continuing tort would require continuing conduct and, in this case, continuing malice or bad faith. Recovery would in any event be limited to loss sustained during the limitation period.
4. The evidence did not support malice or bad faith in the authority’s original conduct or its later refusal to withdraw the notices. The claim was therefore statute-barred and dismissed. It was unnecessary to determine the claimants’ entitlement to losses sustained by the companies, and no order was made on that preliminary issue.