Ain’t misbehavin’?

• 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