MISFEASANCE IN PUBLIC OFFICE: A TORT IN TENSION.

• Date: 01 August 2019
• Author: Rock, Ellen

Contents I Introduction II Defining Accountability III The Misfeasance Tort within the Accountability Framework A Who Is Subject to Liability? B To Whom Is the Government Accountable? C For What Does the Misfeasance Tort Hold an Agent Accountable? 1 An Invalid or Unauthorised Act 2 Causation 3 Malice D How Is an Agent Held Accountable? IV The Misfeasance Tort: Caught between Accountability Rationales V Conclusion I Introduction

The tort of misfeasance in public office occupies an uncomfortable position in the private law sphere. Tortious in form, it is a cause of action commenced by individuals for the purpose of repairing harm occasioned by a breach of obligations. Moves to reclassify it as a 'public law tort' (1) reflect some of its more anomalous features--most notably, the significant hurdles imposed by the high-grade mental elements that restrict liability to knowing or subjectively reckless behaviour; the narrow meaning of 'public office'; and the application of principles of vicarious liability. This article explores the concept of accountability as a possible rationale for the misfeasance tort and asks whether adopting this view might assist in explaining some of its more anomalous aspects. Accountability theorists analyse mechanisms within the framework of who is accountable to whom, for what, and how? This article adopts that accountability framework to examine the shape of the misfeasance tort. Having done so, it is possible to identify a number of points of tension in the tort, where it pulls towards different goals of accountability: restoration, desert and deterrence. This article concludes that, when conceptualised as an accountability mechanism, the misfeasance tort reflects a compromise between these various rationales for accountability. So, for instance, we can view the high-grade mental element of malice as accommodating the desert rationale (in preference to the restoration rationale), and the requirement of proof of damage as accommodating the restoration rationale (in preference to the desert rationale). Ultimately, thinking of the tort of misfeasance in public office as an accountability mechanism may assist in explaining why the tort remains a focus of fascination for public and private lawyers alike, notwithstanding that public officials are only rarely held accountable for the wrong that it reflects.

II Defining Accountability

The literature on accountability is replete with competing definitions. (2) While almost universally regarded as a desired feature of modern democratic regimes, (3) the precise content of the concept remains elusive. (4) One of the more widely accepted definitions is that offered by Bovens, who defines accountability as 'a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences'. (5) While many theorists dispute the content of the concept of accountability, most agree that accountability mechanisms can be mapped out by reference to the answers to a series of questions: who is accountable to whom, for what, and how? (6) When asking who is held accountable, authors are seeking to identify the party that will play the role of account-giver in a particular situation. (7) The answer might be relatively straightforward in cases where one person is solely and directly responsible for exercising a particular power and producing a particular result (individual accountability). However, the answer to this question will be more complex in cases where multiple parties have contributed to an impugned outcome, or where the responsibility for performance rests on someone other than the person who has in fact exercised the power. In such cases, it may be appropriate to designate a group entity as the relevant account-giver (corporate accountability), (8) or to hold a superior accountable for the conduct of inferiors (hierarchical accountability). (9) The analysis will be further complicated in circumstances where there are multiple contributors who have no direct relationship with one another--for example, where two separate entities each made decisions that were partly responsible for the impugned result. (10) In the context of public law accountability, one important subsidiary question is whether private contractors should fall within the class of government officials who should be held accountable for the exercise of public power. (11)

When asking to whom an account is rendered, there is a divergence in the literature. Some authors focus on the identification of the forum in which accountability is to be adjudicated, such as the courts. (12) Other authors are more concerned with identifying the party who is entitled to bring the actor before that forum. The entitlement to hold someone accountable may arise on the basis that a person who authorised the exercise of power in the first place is entitled to supervise its performance (delegation model). (13) Alternatively, a person who is affected by the exercise of power may be seen as entitled to hold the person who exercised it accountable. (14) In the case of this latter premise, there may be a need to distinguish between those who are affected by the exercise of power, so as to afford them a formal right to demand an account, and those stakeholders who are merely interested in the outcome. (15)

The question of about what an account is rendered is necessarily context-specific, to the extent that it involves analysis of an actor's compliance with standards of conduct. At a general level, it is possible to think about the sources of such standards (for example, legal instruments, economic imperatives, and social or democratic obligations), (16) or the nature of the conduct that might be the subject of those standards (for example, contravention of rules relating to procedure, performance, fairness, continuity, and security). (17)

The question of how accountability is enforced is focused on the procedure pursuant to which an actor is held accountable. For some authors, this question is already answered in part by the second question--to whom an account should be rendered--as they focus on the relevant forum in which accountability is adjudicated. (18) For others, this question involves a more in-depth analysis, not only of the accountability forum, but also of the process, procedure, and outcome of the enquiry. (19) For example, Mulgan sees the accountability process as involving the three stages of 'information' (being 'initial reporting and investigating'), 'discussion' (being 'justification and critical debate'), and 'rectification' (being 'the imposition of remedies and sanctions'). (20) Other authors do not adopt a prescriptive approach to the question of how accountability is to be enforced, preferring the view that the relevant procedure should be the one best suited to serving the purposes of accountability. (21)

Beyond this mechanical framework for analysis of accountability mechanisms, however, the literature again diverges in specifying the purpose of (or rationale for) accountability. There are a number of potential rationales evident in the literature. Perhaps the broadest overarching rationale for accountability is to support the legitimacy of government. (22) On this view, we are more likely to regard our system of government as legitimate if we regard it as accountable, and less likely to regard it as legitimate if accountability mechanisms are lacking. (23) But this broad objective does not take us very far in thinking about what we expect of accountability mechanisms in concrete terms. For that answer, we need to look at the more tangible rationales of transparency, control, restoration, desert, and deterrence. (24) According to the transparency rationale, the core focus of accountability is to provide the public with a means of scrutinising government decision-making and operations. The control rationale is concerned with providing those who have delegated power with a means to dictate the terms on which it is exercised, and to bring that exercise back within legal boundaries. Restoration is concerned with righting wrongs by providing a means of redress where an excess of power has caused loss or harm. The desert rationale is concerned with condemning the abuse of power. Finally, the deterrence rationale is concerned with discouraging the wrongful exercise of power and encouraging improved performance going forward. Of course, as with definitions of accountability more broadly, there are disputes amongst theorists as to whether all of these rationales are critical to achieving government accountability. (25) For present purposes, it is not necessary to come to a landing on which rationale is most important and whether others ought to be disregarded. Instead, this article proceeds on the basis that accountability is broadly concerned with furthering each of these five goals, and focuses on the role played by the misfeasance tort in that context.

At the outset, it is important to bear in mind that if we expect accountability to perform the various tasks of supporting transparency, control, restoration, desert, and deterrence, there will be circumstances in which these goals will come into conflict with one another. For instance, the transparency rationale might appear to demand a very open accountability regime, pursuant to which there would be a general right of access to government information. However, this might place the transparency rationale in potential conflict with the deterrence rationale, which is concerned with fostering improved performance; as O'Neill puts it, '[p]lants don't flourish when we pull them up too often to check how their roots are growing'. (26) A further example of potential tension might be between the desert and deterrence rationales. We might think that the desert rationale is best served through the imposition...