1. Should there be compensation for all loss caused by unlawful acts of public authorities?

• It has often been called for. The courts are not about to invent it: such a form of compensation would subject public authorities to 'liability in an indeterminate amount …to an indeterminate class' (Ultramares Corporation v Touche (1931) 174 NE 441, 444, Cardozo J). Like Justice Cardozo, the English judges are against that (see Caparo v Dickman [1990] 2 A.C. 605, 621).
• Why do you think the judges are against developing common law compensation for loss caused by unlawful acts in general? One way of approaching this question is to ask what the justice ingredient is (14.4.1). If an act is unlawful, that means the law requires that it not be done. If it has been done, we face a second question: should the law require an award of compensation to someone who has suffered loss as a result?
• Should Parliament introduce general compensation for unlawful acts?
• Keep in mind that such a rule would make public authorities liable for pure economic loss. Does that matter?
• See the Law Commission’s Consultation Paper, ‘Administrative Redress: Public Bodies and the Citizen’ http://www.lawcom.gov.uk/remedies.htm

2. Should compensation depend on the wrongfulness of the official action? Why not on a principle that the public should pay for losses that are incurred in achieving benefits for the public?

• Note the role of wrongfulness –of an especially culpable kind– in the tort of misfeasance.
• Note, also, that negligence requires wrongfulness: the breach of a duty of care.
• If a public scheme (such as a child protection programme designed to protect children from abuse by their parents) causes harm without anyone doing anything wrong (e.g., if officials take a child out of her home without doing anything wrong, because there is good reason to think she is in danger when she actually isn’t), should the public compensate the victim as a cost of running the scheme?
• If that’s a good idea, can the judges invent it at common law, or should it be done by Parliament?

3. If it is not a tort for a public authority to cause you harm by acting unlawfully, why is misfeasance in public office a tort?

• What is the justice ingredient (i.e. the consideration that demands a remedy for the victim) in the tort of misfeasance?
• Is the liability a way of punishing the public authority for acting in bad faith? Or is it designed to correct an injustice to the claimant?

4. Do Human Rights Act damages make any real difference to the availability of compensation for unlawful administrative conduct?

• Yes. You can sometime get damages under the Act where they would not otherwise be available in English law: Bernard v Enfield [2002] EWHC 2282 (£10,000 for infringement of Art 8); and R (KB) v Mental Health Review Tribunal [2003] EWHC 193 (£750 to £4,000 to six claimants for delays in tribunal hearings).
• But those are rare cases. For the most part, if the Strasbourg Court would award damages for the breach of a right, it will already be a tort in English law, in which case Human Rights Act damages make no difference (unless the offending conduct is required by primary legislation, in which case Human Rights Act damages will not be available).
• And the amounts awarded are less than the costs of any legal proceeding.
• Are Human Rights Act damages just a token gesture?

5. Can a public authority be liable in negligence for carelessly misinterpreting a statute?

• If they have acted on the basis of their misinterpretation, they have acted unlawfully. But that is not necessarily a tort even if it was careless.
• What more would it take? (hint- the authority would have to owe a duty to the claimant to take care in the interpretation of the statute).

6. Does an action of a public authority have to be ultra vires, before it can be a tort? Is a driver or a surgeon working for a public authority acting ultra vires, if he or she drives carelessly or operates carelessly?

• Are drivers or surgeons exercising legal powers, in virtue of the driving or the surgery?
• What is a legal power, and when does a public authority act outside it?

7. In R v Minister of Agriculture, ex p Padfield [1968] AC 997 (see 2.3), the House of Lords held that the Minister had used his statutory power for an improper purpose. Could the applicants for judicial review have succeeded in a claim for the tort of misfeasance in public office?

• Think about what it would take, according to the House of Lords in Three Rivers District Council v Bank of England [2003] 2 AC 1.
• The dissatisfied farmers would have to show not only that the minister acted unreasonably, but that he either deliberately set out to abuse his power to hurt them, or that he was reckless as to whether he was acting outside his powers and as to whether doing so would hurt them. He would have to have acted in bad faith.
• Did the minister in Padfield act in bad faith?

8. The claimants in Three Rivers District Council v Bank of England [2003] 2 AC 1 thought that they had lost their money because the regulator, the Bank of England, had not shut down the Bank of Credit and Commerce International when it should have. Why couldn’t they just claim that the Bank of England had been negligent?

• The Bank of England had a statutory power and duty to regulate financial institutions. Did it owe a duty of care to investors who might lose their money if the Bank did not carry out its public law duty carefully?
• Compare Caparo v Dickman [1990] 2 AC 605 on the liability of private auditors, and East Suffolk Rivers, Stovin v Wise, and Gorringe on whether public authorities are liabile in negligence for failure to use their public law powers (or to carry out their public law duties) in a way that would have helped the claimant.

Additional question:

A police officer lies in testimony at my trial, to try to get me convicted when he knows I’m innocent. Do I have a right of action against him or the police authority?

• It sounds like misfeasance in a public office. But should the police officer be protected by immunity as a witness in a legal proceeding?
• If the police officer is liable, he was deliberately acting outside the scope of his authority. So can the police authority argue that it should not be held vicariously liable for his misconduct? See 14.5.