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27 February 2026 / Nicholas Dobson
Issue: 8151 / Categories: Features , Tort , Liability , Public
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Ain’t misbehavin’?

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A recent case has provided a timely reminder of the key ingredients of the tort of misfeasance in public office: Nicholas Dobson reports
  • This article outlines the elements of the tort of misfeasance in public office, which the claimants failed to meet in Whiteway-Wilkinson and others v Revenue and Customs Commissioners.

Although Fats Waller sang that he ‘Ain’t misbehavin’, even if he had been, he wasn’t a public officer, and it was obvious from the song’s romantic context that there was no question of legal liability. However, for public authorities it may not always be so straightforward. For, depending upon the circumstances, misfeasance (the improper performance of a lawful act) by public bodies may, if it results in actionable damage, constitute the tort of misfeasance in public office (MPO). This is important for such organisations, for authorities always need to ascertain that their decisions are lawful, reasonable, consistent with fiduciary duty and taken for a proper, lawful public purpose. An intentional abuse of power, accompanied by subjective bad faith, causing claimant

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MOVERS & SHAKERS

Clarke Willmott—Matthew Roach

Clarke Willmott—Matthew Roach

Partner joins commercial property team in Taunton office

Farrer & Co—Richard Lane

Farrer & Co—Richard Lane

Londstanding London firm appoints new senior partner

Bird & Bird—Sue McLean

Bird & Bird—Sue McLean

Commercial team in London welcomes technology specialist as partner

NEWS
The legal profession’s claim to be a ‘guardian of fairness’ is under scrutiny after stark findings on gender imbalance and opaque progression. Writing in NLJ this week, Joshua Purser of No5 Barristers’ Chambers and Govindi Deerasinghe of Global 50/50 warn that leadership remains dominated by a narrow elite, with men holding 71% of top court roles
A legal challenge to police disclosure rules has failed, reinforcing a push for transparency in policing. In NLJ this week, Neil Parpworth examines a case where the Metropolitan Police required officers to declare membership of groups like the Freemasons
Bereavement leave is undergoing a quiet but profound transformation. Writing in NLJ this week, Robert Hargreaves of York St John University explains how the Employment Rights Act 2025 introduces a day-one right to leave for a wider range of losses, alongside new provisions for pregnancy loss and bereaved partners
Courts are beginning to grapple with whether AI-generated material is legally privileged—and the answers are mixed. In this week's issue of NLJ, Stacie Bourton, Tom Whittaker & Beata Kolodziej of Burges Salmon examine US rulings showing how easily privilege can be lost
New guidance seeks to bring order to the growing use of artificial intelligence (AI) in expert evidence. Writing in NLJ this week, Minesh Tanna and David Bridge of Simmons & Simmons set out a framework stressing ‘transparency’, ‘explainability’ and ‘reliability’
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