| TORT — Cause of action — Misfeasance in public office — Definition of “public officer” — Whether Society of Lloyd’s falling within definition
Society of Lloyd’s v Henderson and others
Lowe and others v Society of Lloyd’s
Society of Lloyd’s v Stockwell and others
CA: Buxton, Smith and Moore-Bick LJJ: 27 July 2007
The Society of Lloyd’s was not a “public officer” for the purposes of the tort of misfeasance in public office.
The Court of Appeal so stated when dismissing appeals and applications in litigation between names at The Society of Lloyd’s identified as the “UNO names”, and others, and the Society. The appeals arose out of the judgment of Andrew Smith J of 11 May 2005 in the Queen’s Bench Division (Commercial) [2005] EWHC 850 (Comm), dismissing, inter alia, applications (i) to amend the pleadings by adding a claim in the tort of misfeasance in public office, and (ii) to admit fresh evidence going to the tort. The judge found, inter alia, that Lloyd’s was not a “public officer” in the sense required by the tort.
BUXTON LJ said that the elements of the relevant tort were definitively set out in Three Rivers District Council v The Bank of England (No 3) [2003] 2 AC 1; and in Ammoo-Gottfried v Legal Aid Board (unreported) 1 December 2000 Hale LJ stated that the tort was directed at “the exercise of power by a public official, not for the purpose for which it was given, but for some ulterior or impermissible purpose, knowing or being reckless as to whether it will damage the plaintiff”. Nevertheless there was a paucity of general authority as to how “public officer” was defined, although there were two observations in the Three Rivers case, viz: per Lord Steyn, at p 190, that “the rationale of the tort is that in a legal system based on the rule of law executive or administrative power may only be exercised for the public good”; and per Lord Hobhouse of Woodborough, at p 229, that the tort concerned “the acts of those vested with governmental authority and the exercise of executive powers”. Lloyd’s did not exercise governmental power; and, as Brooke LJ stated in R (West) v Lloyd’s of London [2004] EWCA Civ 506, paras 7, and 38-39, “the objectives of Lloyd’s are wholly commercial . . . and it was impossible to convert it into a body exercising public functions itself within the meaning of the Strasbourg case law”, or, it should be added, at all. It was true that misfeasance in public office was a tort in private law where the nature of a defendant was an element in the definition of liability, whereas in judicial review the nature of the defendant was an element in the jurisdiction of the public law court; but the persuasive relevance of the observation was not thereby reduced. On the facts, the claim that Lloyd’s was a public officer for the purposes of the tort failed, and so did the appeals and applications.
SMITH LJ and MOORE-BICK LJ agreed. |
