¹ This was the view expressed in the Justice Report, Administration under Law (1971), p. 12.Google Scholar The point is illustrated by cases such as R. v. Metropolitan Borough Council, ex parte Hook [1976] 1 W.L.R. 1052Google Scholar, in which no compensation was provided for the loss sustained before an invalid revocation of a licence had been quashed. Cf. the working paper, “Damages in Administrative Law,” of the New Zealand Public and Administrative Law Reform Committee (1978); this considers that “the primary remedy for an unlawful administrative action is that the aggrieved person is granted the opportunity to obtain a lawful administrative action is that the aggrieved person is granted the opportunity to obtain a lawful administrative action” (para. 5). Such a view is based on the likely damages for a wrongful refusal of a necessary consent or licence (see para. 12) and does not take account of the loss suffered when a licence is wrongfully revoked, as in the Hook case. The problems of causation involved in these two situations are considered in the second part of the article.

² The Rules of the Supreme Court (Amendment No. 3) 1977 (S.I. 1977 No. 1955), new Ord. 53, r. 7. This does not extend the existing liability to pay damages.

³ Takaro Properties Ltd. v. Rowling [1976] 2 N.Z.L.R. 657, 672Google Scholar (per Beattie J.). This approach was upheld by the Court of Appeal; [1978] 2 N.Z.L.R. 314, 338–340.

⁴ An administrative scheme similar to that provided for criminal injuries might be considered more attractive by public authorities but, in principle, it seems desirable that compensation for unlawful acts by the administration should be available as of right and not ex gratia, if it is to be paid at all.

⁵ See Ganz, G., “Compensation for Negligent Administrative Action” [1973]Google ScholarPublic Law 84, 94–97.

⁶ The Law Commission considered that any recommendation for such an expansion would be outside its terms of reference; see its “Working Paper No. 40,” paras. 145–148 and its “Report on Remedies in Administrative Law” (Law Com. No. 73) (Cmnd. 6407), para. 9.

⁷ The authorities include: Ashby v. White (1704) 14 St.Tr. 695; Drewe v. Colton (1787) 1 East 563 note; Williams v. Lewis (1797) Peake Add.Cas. 157; Cullen v. Morris (1819) 2 Stark. 577; Tozer v. Child (1857) 7 E. & B. 377 (all these cases concerned refusals of votes); Beaurain v. Scott (1813) 3 Camp. 388 (wrongful excommunication); Whitelegg v. Richards (1823) 2 B. & C. 45 (order to release a debtor without jurisdiction); and Henly v. Mayor of Lyme (1828) 5 Bing. 91 (dictum). See also Comyns' Digest, tit. “Action on the Case for Misfeasance (Al)”; Bradley, A. W., “Liability for Malicious Refusal of Licence” (1964) 22 C.L.J. 4Google Scholar; Gould, B. C., “Damages as a Remedy in Administrative Law” (1972) 5 N.Z.U.L.R. 105, 112;Google ScholarHaughey, E. J., “The Liability of Administrative Authorities,”Google Scholar Occasional Paper No. 9, Legal Research Foundation, Auckland (1975); Hogg, P. W., Liability of the Crown (Sydney 1977), p. 81Google Scholar; Wade, H. W. R., Administrative Law 4th ed. (Oxford 1977), p. 636.Google Scholar

⁸ [1908] 1 K.B. 170 (refusal of a building permit).

⁹ [1963] 1 W.L.R. 834 (refusal of a cinema licence).

¹⁰ This difficulty was encountered in Polley v. Fordham [1904] 2 K.B. 345Google Scholar and O'Connor v. Isaacs [1965] 2 Q.B. 288Google Scholar, which will be discussed in the second part of this article.

¹¹ [1956] A.C. 736.

¹² Smith v. Pywell, The Times, 29 April 1959.Google Scholar This decision might not withstand the changed meaning of malice considered below. As to the possibility of an action for fraud, see Hall, J. S., Smith v. East Elloe R.D.C. and Legal Liability in Respect of Fraud (1957)Google Scholar 21 Conv.(n.s.) 455.

¹³ The Times, 3, 4 and 5 July 1957.Google Scholar The plaintiff's allegation of “misfeasance” is the only cause of action referred to in the report for which damages could have been awarded, but there is no discussion of the authorities. In Farrington v. Thomson [1959]Google Scholar V.R. 286 it was definitely considered to be a case of misfeasance; see Gould, op. cit., p. 115. The tort of misfeasance does not, however, depend upon this decision which is justly considered to be “shadowy” by Professor Wade, op. cit., p. 638 and Richardson, J., in Takaro Properties Ltd. v. Rowling [1978] 2 N.Z.L.R. 314, 340.Google Scholar

¹⁴ Farrington v. Thomson [1959]Google Scholar V.R. 286; Campbell v. Ramsay (1967)Google Scholar 87 W.N. (Pt. 2) (N.S.W.) 153; Tampion v. Anderson [1973]Google Scholar V.R. 715; cf. Poke v. Eastburn [1964]Google Scholar Tas.S.R. 98.

¹⁵ McGillivray v. Kimber, 1916) 26 D.L.R. 164Google Scholar; Roncarelli v. Duplessis (1959) 16 D.L.R. (2d) 689Google Scholar; and Hlookoff v. City of Vancouver (1968) 67 D.L.R. (2d) 119.Google Scholar

¹⁶ Takaro Properties Ltd. v. Rowling [1976] 2 N.Z.L.R. 657Google Scholar and [1978] 2 N.Z.L.R. 314.

¹⁷ Henly v. Mayor of Lyme (1828) 5 Bing. 91, 107, per Best C.J.

¹⁸ Gould also doubts whether “compensation” is an essential element of the definition; op. cit., p. 117. See also R. v. Whitaker [1914] 3 K.B. 1283, 1296:Google Scholar “A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public,” per Lawrence J.

¹⁹ (1828) 5 Bing. 91, 107.

²⁰ Gould, op. cit., p. 117; Wade, op. cit., p. 639.

²¹ (1704) 14 St.Tr. 695. The defendant had been charged with malice and subsequent voting cases treat the decision as requiring malice despite the fact that it was not referred to by Holt C.J.; see Cullen v. Morris (1819) 2 Stark. 577, 587.

²² [1963] 1 W.L.R. 834.

²³ [1959] V.R. 286.

²⁴ (1959) 16 D.L.R. (2d) 689.

²⁵ [1963] 1 W.L.R. 834, 840.

²⁶ (1959) 16 D.L.R. (2d) 689.

²⁷ Ibid., p. 706. Wade would place this case in the first category because of the presence of malice, op. cit., p. 637, but it is clearly an example of usurpation and not abuse of power. Although liability was based on Article 1053 of the Quebec Civil Code, the Premier's act was a wrong in accordance with the principles of English public law which applied in Quebec; see Sheppard, C.-A., “Roncarelli v. Duplessis: Art. 1053 C.C. Revolutionised” (1959–60)Google Scholar 6 McGill L.J. 75, 92. This decision was distinguished in Hlookoff v. City of Vancouver (1968)Google Scholar 67 D.L.R. (2d.) 119, in which it was found as a fact that a Mayor had not usurped the authority of a Licence Inspector.

²⁸ See Fridman, G. H. L., “Malice in the Law of Torts” (1964) 21 M.L.R. 484.Google Scholar

²⁹ (1823) 2 B.&C. 45.

³⁰ Farrington v. Thomson [1959]Google Scholar V.R. 286 and Roncarelli v. Duplessis (1959) 16 D.L.R. (2d) 689.Google Scholar

³¹ [1959] V.R. 286.

³² (1959) 16 D.L.R. (2d) 689.

³³ [1959] V.R. 286, 293.

³⁴ Apart from the dictum in Henly v. Mayor of Lyme (1828) 5 Bing. 91, 107, already referred to, all the cases considered by Smith J. required malice.

³⁵ The Times, 3, 4 and 5 July 1957.Google Scholar See Wade, op. cit., p. 639 and Gould op cit p. 115.

³⁶ (1916) 26 D.L.R. 164. Another example of liability without knowledge appears to be Brayser v. Maclean (1875) L.R. 6 P.C. 398, but in that case the misfeasance led to false imprisonment and it might also be regarded as an example of breach of statutory duty; see Wade, op. cit., p. 635.

³⁷ Per Idington J. at p. 170; per Duff J. at p. 180; and per Anglin J. at p. 184.

³⁸ The Marshalsea Case, 10 Co.Rep. 68b; Jones V. Gurdon (1842) 2 Q.B. 600; Clark v. Woods (1848) 2 Ex. 395; Foster v. Dodd (1867) L.R. 3 Q.B. 67.

³⁹ This was certainly the view of Idington J. who found it “hard to understand how, unless moved by improper motives, any one in such a position [as the respondents] looking at this part of the statute (of which a copy was given to every pilot, and of which every commissioner presumably knew something) could have conceived it his right or duty to dismiss a man unheard”; (1916) 26 D.L.R. 164, 169.

⁴⁰ This development was also advanced by Denning, L.J. in Abbott v. Sullivan [1952] 1 K.B. 189Google Scholar, when he said, without any consideration of McGillivray v. Kimber, that: “if the members of a tribunal take it upon themselves to punish a man for real or supposed wrong-doing, when they know, or have the means of knowing, they have no jurisdiction in that behalf, then they are liable to him for any damages so caused even though they were not actuated by malice ” (p. 201).

⁴¹ [1969] 2 A.C. 147.

⁴² (1916) 26 D.L.R. 164.

⁴³ Ashby v. White (1704) 14 St.Tr. 695; Drewe v. Colton (1787) 1 East 563 note; Williams v. Lewis (1797) Peake Add.Cas. 157; Cullen v. Morris (1819) 2 Stark. 577; Tozer v. Child (1857) 7 E. & B. 377.

⁴⁴ Per Idington J. (1916) 26 D.L.R. 164, 171–172.

⁴⁵ Campbell v. Ramsay (1967)Google Scholar 87 W.N. (Pt. 2) (N.S.W.) 153; Takaro Properties Ltd. v. Rowling [1976]Google Scholar 2 N.Z.L.R. 657.

⁴⁶ [1976] 2 N.Z.L.R. 657, 672; the Court of Appeal was equally reluctant, [1978] 2 N.Z.L.R. 314.

⁴⁷ [1921] 1 A.C. 631, 695–696.

⁴⁸ (1916) 26D.L.R. 164.

⁴⁹ [1975] A.C. 295.

⁵⁰ No precise requirements for such an undertaking were laid down but Lord Diplock was not convinced that even a strong prima facie case that the statutory instrument is ultra vires would be enough; [1975] A.C. 295, 367.

⁵¹ There has, however, been a refusal to recognise any duty of care in the making of delegated legislation so as to give rise to the possibility of an action for negligence; see Wellbridge Holdings Ltd. v. Metropolitan Corporation of Greater Winnipeg (1970) 22 D.L.R. (3d) 470Google Scholar and Berryland Canning Co. Ltd. v. The Queen (1974) 44 D.L.R. (3d) 568.Google Scholar These cases might be regarded as falling within the principle already discussed of no liability for a bona fide exercise of discretion.

⁵² This would seem to be the position in the Hoffman-La Roche case, in which it was alleged that the invalidity of the order stemmed from the nature of the hearing rather than from the absence of any hearing at all.

⁵³ This liability is based on the obligation of the Communities “in accordance with the general principles common to the laws of the Member States, [to] make good any damage caused by its institutions or by its servants in the performance of their duties”; (Art. 215 of the EEC Treaty). See, for example, Zuckerfabrik Schoppenstedt v. Council [1971]Google Scholar E.C.R. 975.

⁵⁴ Bayerische HNL Vermehrungsbetriebe GmbH & Co. KG v. Council and Commission [1978]Google Scholar E.C.R. 1209, 1224. See also Akehurst, M., “Decisions of the Court of Justice of the European Communities 1975–1976” (1975–76)Google Scholar B.Y.B.I.L. 397; Hartley, T., “Damages for Invalid Regulations” (1978) 3 E.L.Rev. 300Google Scholar; and Toth, A. G., Legal Protection of Individuals in the European Communities (Amsterdam 1978), Vol. 2, p. 142.Google Scholar

⁵⁵ Hartley, op. cit., p. 303.

⁵⁶ This was made clear by the European Court in the Bayerische HNL case: “This restrictive view is explained by the consideration that the legislative authority, even where the validity of its measures is subject to judicial review, cannot always be hindered in making its decisions by the prospect of applications for damages whenever it has occasion to adopt legislative measures in the public interest which may adversely affect the interests of individuals”; [1978] E.C.R. 1209, 1224.

⁵⁷ The restricted application of the measure in the Hoffman-La Roche case would probably satisfy the European Court's criterion of a “serious” infringement.

⁵⁸ (1976) 69 D.L.R. (3d) 114; on intimidation see Clerk & Lindsell on Torts, 14th ed., by Armitage, and Dias, (London, 1975), p. 414.Google Scholar

⁵⁹ This harassment stemmed from an action that the plaintiff had brought claiming that the Act establishing the Board was invalid.

⁶⁰ (1976) 57 D.L.R. (3d) 7 (Q.B.); (1977) 79 D.L.R. (3d) 203 (C.A.); and (1978) 88 D.L.R. (3d) 609 (S.C.).

⁶¹ (1976) 57 D.L.R. (3d) 7, 130.

⁶² (1978) 88 D.L.R. (3d) 609, 642. The Court of Appeal had held that the delegated legislation was valid, but the Supreme Court considered that it contravened the British North America Act 1867.

⁶³ (1978) 88 D.L.R. (3d) 609, 642.

⁶⁴ In the Central Canada Potash case, Disbery, J.Google Scholar had found that the Minister had not known that he was acting unlawfully and his good faith and integrity were not doubted.

⁶⁵ [1904] 2K.B. 345, 348.

⁶⁶ Beaurain v. Scott (1813) 3 Camp. 388; McGillivray v. Kimber (1916) 26 D.L.R. 164Google Scholar; Roncarelli v. Duplessis (1959) 16 D.L.R. (2d) 689.Google Scholar

⁶⁷ McGillivray v. Kimber (1916) 26 D.L.R. 164.Google Scholar

⁶⁸ Farrington v. Thomson [1959]Google Scholar V.R. 286; Roncarelli v. Duplessis (1959) 16 D.L.R. (2d) 689.Google Scholar

⁶⁹ Roncarelli v. Duplessis (1959) 16 D.L.R. (2d) 689.Google Scholar

⁷⁰ Ashby v. While (1704) 14 St.Tr. 695.

⁷¹ The non-renewal of a licence may lead to a greater loss than an initial refusal, but the same question of causation applies. This part of the article owes much to Professor Bradley's, A. W. note, “Liability for Malicious Refusal of Licence” (1964) 22 C.L.J. 4.Google Scholar

⁷² The Privy Council seems to have considered this possibility in David v. Abdul Cader [1963] 1 W.L.R. 834, 840.Google Scholar See also Evans v. L.C.C. (1960) 12 P. & C.R. 172, 175.Google Scholar

⁷³ [1963] 1 W.L.R. 834, 839.

⁷⁴ (1967) 87 W.N. (Pt. 2) (N.S.W.) 153, 156.

⁷⁵ [1976] 2 N.Z.L.R. 657, 662, this point was not considered by the Court of Appeal.

⁷⁶ (1770) 3 Wils.K.B. 121.

⁷⁷ [1908] 1 K.B. 170. If there are conditions still to be met by the applicant then. of course, his loss would rightly be regarded as too remote; for example, Davis v. Black (1841) 1 Q.B. 900, in which there was an alleged breach of statutory duty.

⁷⁸ (1704) 14 St.Tr. 695.

⁷⁹ Laverock v. Woods of Colchester Ltd. [1967] 1 Q.B. 278.Google Scholar

⁸⁰ The damages awarded could either be the cost of preparing the application or the putative loss sustained as a result of not having a licence for the period between the wrongful and then justifiable refusal.

⁸¹ Op. cit., para. 12.

⁸² (1704) 14 St.Tr. 695.

⁸³ See Rubinstein, A., Jurisdiction and Illegality (Oxford 1965), pp. 130–133.Google Scholar

⁸⁴ (1916) 26 D.L.R. 164.

⁸⁵ [1959] V.R. 286.

⁸⁶ The Times, 3, 4 and 5 July 1957.Google Scholar

⁸⁷ (1959) 16 D.L.R. (2d) 689.

⁸⁸ The Times, 3, 4 and 5 July 1957.Google Scholar

⁸⁹ (1916) 26 D.L.R. 164.

⁹⁰ Ibid. p. 175.

⁹¹ [1959] V.R. 286, 295–296.

⁹² (1959) 16 D.L.R. (2d) 689, 708.

⁹³ Rubinstein, op. cit., p. 132.

⁹⁴ [1916] 2 K.B. 504 (refusal of a licensing authority to allow the showing of a certain film).

⁹⁵ [1956] 2 Q.B. 288.

⁹⁶ [1956] A.C. 736, 769.

⁹⁷ Nevertheless, Rubinstein considers that the view expressed in these two cases is still likely to be followed by English courts; op. cit., pp. 132–133.

⁹⁸ [1956] 2 Q.B. 288, 367.

⁹⁹ Perhaps some principle akin to contributory negligence ought to apply here.

¹ (1976) 57 D.L.R. (3d) 7, relying on Smith v. East Elloe [1956]Google Scholar A.C. 736 and Hoffman-La-Roche v. Secretary of State [1975]Google Scholar A.C. 295. This realistic approach was also used by the Supreme Court to show that the tort of intimidation had not been committed; (1978) 88 D.L.R. (3d) 609, 640–642.

² Rubinstein, op. cit., p. 133.

³ [1975] A.C. 295.

⁴ American Cyanamid Co. v. Ethicon Ltd. [1975]Google Scholar A.C. 396.

⁵ This may be less where it is clearly beyond the authority's powers, but where some point of judgment is involved it may be difficult to show the error of judgment at the interlocutory stage. At the moment, however, there would be no liability to pay damages in the latter situation unless malice could also be established.

⁶ The law enforcement nature of the action was a very influential factor in the judgments of all their Lordships, apart from Lord Wilberforce who dissented.

⁷ Quaere, whether the refusal of certiorari or a declaration of invalidity by a court of first instance would have the same effect.

⁸ Hogg considers that the ordinary court would find the administration of compensation in such cases “too burdensome, too open-ended and too difficult,” and recommends that ad hoc tribunals be established after any legislative programme has been held invalid by the courts; op. cit., p. 84. This may be appropriate in certain cases, provided that it did not thereby undermine any right to damages.

⁹ This is a matter for the “good sense” of individual judges; see S.C.M. Ltd. v. W. J. Whitall [1971] 1 Q.B. 337.Google Scholar However, the decision in Tampion v. Anderson [1973]Google Scholar V.R. 715, might seem to suggest that an action for misfeasance could not be based on an abuse of power in relation to third parties. Such an action failed in that case against a Board of Inquiry into Scientology because it was said not to owe the plaintiff (a witness) any duty not to commit the particular abuse alleged, that is, by exceeding its terms of reference in the questioning of other witnesses. This novel requirement of a duty to the plaintiff not to abuse seems to arise out of a confusion of the two questions to be answered in any case of alleged misfeasance: “Was there an abuse of power which caused damage to the plaintiff?” and “If so, was the loss too remote?” An individual could clearly be affected by an abuse of power in relation to a third party but the loss may be held to be too remote. In such a case it may be said, by way of shorthand, that there is no “duty” but this could be misleading for other third-party cases.

¹⁰ (1916) 26 D.L.R. 164, 181.

¹¹ The Mediana [1900]Google Scholar A.C. 113, 118 per Lord Halsbury L.C.

¹² [1959] V.R. 286, 291.

¹³ [1964] A.C. 1129, 1226–1227.

¹⁴ [1972] A.C. 1027, 1127, where he referred to the statement of Lord Holt C.J. that “if public officers will infringe men's rights, they ought to pay greater damages than other men to deter and hinder others from the like offences” in Ashby v. White (1704) 14 St.Tr. 695.

¹⁵ [1964] A.C. 1129, 1226.

¹⁶ Ibid. The term “government servants” is to be widely interpreted so as to include the police and local and other officials; Broome v. Cassell & Co. [1972]Google Scholar A.C. 1027.

¹⁷ See, for example, Stone, Julius, “Double Count and Double Talk: The End of Exemplary Damages?” (1972) 46 A.L.J. 311.Google Scholar

¹⁸ [1959] V.R. 286.

¹⁹ (1959) 16 D.L.R. (2d) 689.

²⁰ 33,123–53 Canadian dollars.

²¹ (1976) 69 D.L.R. (3d) 114.

²² That was the loss assessed by Disbery J.; (1976) 57 D.L.R. (3d) 7.

²³ See Atiyah, P. S., Vicarious Liability in the Law of Torts (London 1967), pp. 391–397Google Scholar; Treitel, G. H., “Crown Proceedings; some recent developments” [1957]Google ScholarPublic Law 321.

²⁴ J., Disbery in the Central Canada Potash case certainly wondered what those limits might be; (1976) 57 D.L.R. (3d) 7, 137.Google Scholar See also Robertson v. Minister of Pensions [1949] 1 K.B. 227, 232.Google Scholar

²⁵ Crown Proceedings Act 1947, s. 2 (1), (3) and (6). See Atiyah, op. cit., p. 392; cf. Treitel, op. cit., pp. 333–334.

²⁶ Per L.C., Viscount Haldane, British Westinghouse Co. v. Underground Ry. [1912]Google Scholar A.C. 673, 689.

²⁷ There was, however, only a claim for “continuing damage” in David v. Abdul Coder [1963] 1 W.L.R. 834.Google Scholar

²⁸ As in Aldred v. Langmuir [1932]Google Scholar J.C. 22, where the requirement of a permit before public meetings could be held in a park was disregarded.

²⁹ James v. Woodhall Duckham Construction Company [1969] 1 W.L.R. 903.Google Scholar

³⁰ Clippens Oil Co. v. Edinburgh and District Water Trustees [1907]Google Scholar A.C. 291.

³¹ [1956] 2 Q.B. 288.

³² An exception may be the recent deliberate withholding of the full benefits of war pensions from ex-servicemen; see the Parliamentary Commissioner for Administration's Fourth Report for the Session 1977–78, H.C. 312 (1978).

³³ (1704) 14 St.Tr. 695.

³⁴ (1813) 3 Camp. 388.

³⁵ The principle was asserted by the House of Lords in Howell v. Falmouth Boat Construction Co. Ltd. [1951]Google Scholar A.C. 837, but an evasion was attempted by the Court of Appeal in Lever Finance Ltd. V. Westminster (City) L.B.C. [1971] 1 Q.B. 222Google Scholar; see Gould, op. cit., p. 120.

³⁶ Furthermore, the tort of misfeasance may not apply to the breach of every administrative rule. This seems implicit in the following statement by Lord Denning M.R.: “If the courts were to entertain actions by disgruntled prisoners, the governor's life would be made intolerable. The discipline of the prison would be undermined. The Prison Rules are regulatory directions only. Even if they are not observed, they do not give rise to a cause of action”; Becker v. Home Office [1972] 2 Q.B. 407, 418.Google Scholar

³⁷ This was recommended by the New Zealand Public and Administrative Law Reform Committee, op. cit., para. 13. These immunities may not, however, be an absolute bar to an action for misfeasance. Thus the Mental Health Act 1959 only protects acts purportedly done in pursuance of the Act where there is no bad faith; s. 141 (1).

³⁸ [1921] 1 A.C. 631.

³⁹ The New Zealand Committee wondered whether liability for even the administration in such cases might be undesirable because “there may be a tendency to timidity in decision-making”; op. cit., p. 15. This fear and the possible expense remain the major obstacles to any wider liability for unlawful administrative action.

⁴⁰ (1959) 16 D.L.R. (2d) 689.