Trespass Alone did not Amount to Misfeasance in Public Office without “Bad Faith”

In Eustace v The Lord Mayoor, Aldermen and Burgesses of Drogheda Borough Council,¹ the plaintiffs sought damages for trespass, nuisance and misfeasance in public office against the defendant council. It was alleged that the council had given permission to a developer to construct a slip road and sewer connection on the plaintiffs’ land. This was done not only without the plaintiffs’ consent but in the face of repeated correspondence from them complaining about the trespass and unequivocally informing the council of the plaintiffs’ title to the land in question. The council now admitted the trespass but denied the claim for misfeasance in public office.

Ní Raifeartaigh J. summarised the appropriate principles to be applied in this type of case. She said:

• A collective entity which is a public body…may be vicariously liable for the misfeasance of the one or more individual officers or employees, but it is necessary to establish in the first instance that at least one individual employee committed the tort of misfeasance;

• A key ingredient of the tort is that the individual officer or employee knew that he or she was acting unlawfully or acted with subjective recklessness as to the lawfulness of his or her actions, which [means] that he or she acted with knowledge of the risk that he or she might be acting unlawfully but proceeded to act anyway;

• A high degree of negligence, even gross negligence, which is judged by an objective standard, is not the same as subjective recklessness…;

• The court should bear in mind that the overall inquiry is as to whether the officer acted with bad faith, although…bad faith is defined more particularly by the requirement of knowledge of, or subjective recklessness as to, the lawfulness of the action in question and that the phrase “bad faith” may not bear any additional substantive content over and above this element of subjective recklessness;

• There should be clear evidence before the court from which an inference of subjective recklessness is drawn;

• The court should not reach the conclusion that the tort has been proved or embark on the issue of vicarious liability unless there is clear evidence that at least one individual acted in the particular manner alleged with the requisite subjective recklessness.

She found that the tort was not made out here. Although the council’s conduct as a collective entity was “deeply disrespectful” of the plaintiffs’ property rights and “bewilderingly incompetent”, the evidence did not clearly demonstrate that there was at least one particular public officer who had both the requisite level of council authority to (purport to) authorise the developer to enter upon the land and the knowledge that the plaintiffs’ claimed to own the land.

While she did not accept the council’s argument that this was a simple situation of honest mistake, she did think that certain factors identified by the council here (e.g. that it had maintained the land) were relevant to whether the plaintiffs had proved bad faith. These factors tended to rebut the suggestion of bad faith and engaged the real possibility that other factors may have been in play, such as incompetence or systemic failure.

However, she was also satisfied that the evidence established that the council’s conduct was grossly negligent and that should be taken into consideration when awarding damages for the admitted trespass.