Misfeasance in Public Office

Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) (H of L TLR 23 March)

The claimants were depositors who had lost their money when the Bank of Credit and Commerce International SA collapsed. Their claim against the Bank of England for misfeasance in public office in failing properly to supervise BCCI or close it down could not be said to have no real prospect of success and should not be struck out as an abuse of the process of the court. Conduct amounting to misfeasance in public office was not to be inferred lightly. That was true as a general proposition, whatever might be the task or status of the impugned public officer. But it would be to risk pre-judging the case to attempt to evaluate the action’s prospects of success by considering, before hearing evidence, whether the depositors’ case against the Bank as regulator was inherently implausible or scarcely credible. The most important principle of all was that which required each case to be dealt with justly. It would be right for the claim to be struck out only if it had no real prospect of succeeding at trial. One should not be influenced in the application of that test by the length or expense of the litigation that was in prospect. Justice should be even-handed, whether the case be simple or whether it be complex.