Marin and Coye v Attorney General

• Jurisdiction: Caribbean States
• Judge: The Rt Hon Mr Justice Michael de la Bastide,The Hon Mr Justice Adrian Saunders,The Hon Mme Justice Désirée Bernard,The Hon Mr Justice Jacob Wit,The Hon Mr Justice Winston Anderson,de la Bastide,Saunders,Honourable Madam Justice Bernard,The Honourable Mr Justice Jacob Wit,The Honourable Mr Justice Winston Anderson
• Judgment Date: 27 June 2001
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal CV 5 of 2010; BZ Civil Appeal 25 of 2009
• Date: 27 June 2001

Caribbean Court of Justice

de la Bastide, P. CCJ; Saunders, J. CCJ; Bernard, J. CCJ; Wit, J. CCJ; Anderson, J.CCJ

CCJ Appeal CV 5 of 2010; BZ Civil Appeal 25 of 2009

Marin and Coye

and

Attorney General

Appearances:

Ms Magali Marin Young attorney-at-law for the 1st appellant and Dr Elson Kaseke, attorney-at-law for the 2nd appellant

Ms Lois Michelle Young SC and Mr. Nigel Ovid Hawke for the respondent

Tort - Misfeasance in public office — Whether the State could sue a public officer for misfeasance in public office.

JOINT JUDGMENT of The Rt Hon Mr Justice Michael de la Bastide and The Hon Mr Justice Adrian Saunders and JUDGMENTS of The Hon Mme Justice Désirée Bernard, The Hon Mr Justice Jacob Wit and The Hon Mr Justice Winston AndersonDelivered on the 27 th day of June 2011

Joint dissenting Judgment of de la Bastide PCCJ and Saunders JCCJ

Introduction

1 The Attorney General of Belize filed this claim against two former Ministers of government alleging that, during their respective terms of ministerial office, they arranged the transfer of 56 parcels of State land to a company beneficially owned and/or controlled by one of them. It is further alleged that the consideration paid by the purchasing company was almost $1 million below market value and that this transaction was undertaken deliberately, without lawful authority and in bad faith. The claim is premised on a single cause of action, namely, the common law tort of misfeasance in public office (at times referred to by us in this opinion simply as “misfeasance”).

2 Chief Justice Conteh entertained misgivings about the viability of misfeasance as a cause of action at the instance of the State. At a case management conference he invited counsel to make submissions on the issue. After hearing the submissions he ruled that the tort did not avail the Attorney General. He dismissed the action. The Attorney General appealed.

3 The decision of the Chief Justice was reversed by the Court of Appeal. That court held that the former Ministers could be held liable in misfeasance for loss of public property and that the Attorney General, as the guardian of public rights, was the person entitled to institute proceedings. The Court of Appeal based its decision on a line of Indian cases 1 and also on the case of Gouriet v Union of Post Office Workers2. The former Ministers have appealed the Court of Appeal's decision to this Court. The central question for us is this: Assuming to be true all the allegations made by the Attorney General, does the tort of misfeasance encompass actions by the Attorney General, acting on behalf of the State, against its own officers, or former officers as in this case?

4 The former Ministers do not deny the capacity of the State or the competence of the Attorney General to sue in tort, generally speaking. But they maintain that tortious

misfeasance at the instance of the central government is a creature unknown to the common law. For the reasons that follow we agree with this view. It is also our opinion that as a matter of policy this Court should not now extend the tort to accommodate actions by the State. We therefore dissent from the decision of the majority on these issues. We are also not persuaded that the Indian cases cited by the Court of Appeal provide a proper basis for the view taken by that court. In each of those cases entitlement to relief was premised on Article 32 of the Indian Constitution which gives redress for constitutional violations and in any event, none of those Indian cases was instituted by the State. 3 The case of Gouriet is similarly irrelevant to the question posed by this case. Gouriet was a case that had to do with public law. Here we are not concerned with principles of constitutional or public law. We are concerned with tort law. The question for decision has to do with the nature and scope of the tort of misfeasance and with the appropriate manner in which the State must protect its interests when it suffers loss in the manner here alleged.

The tort of misfeasance in public office

5 The law of Belize, inherited as it is from English law, does not have a holistic unified law of obligations as exists in civil law States. What obtains is a law of torts comprising a series of discrete torts linked more by marriage than by blood 4. To be entitled to relief in tort a claimant must be able to fit his allegations of wrongdoing under the head of a recognizable tort. Each separate tort has its own peculiar characteristics in terms of the conduct which it targets and the interests it protects. Each tort requires its own exposition 5. A court may not give relief in tort unless it first satisfies itself that the particular tort has been established. In so satisfying itself a court may be called upon to examine the historical origins of the tort, its rationale, the fundamental interests it protects, its ingredients, its legal parameters, the relationship between the alleged wrongdoer and the victim, the existence or absence of alternative means open to the injured party to obtain adequate redress and the dictates of public policy. When, for the

first time, a question arises for decision such as the one raised here, a consideration of these factors is sometimes critical to providing the right answer.

6 Misfeasance has evolved over the centuries. In particular, two critical features of the tort have undergone evolution. The first deals with the state of mind of the defendant and the second, the question whether there should necessarily exist some specific relationship between the wrongdoer and the victim. As to the former, i.e. the mental element, in some of the earlier cases, it had previously been held that what was required for commission of the tort was malice in the sense of spite or ill-will on the part of the defendant towards the claimant. See for example, Ashby v White6 and the Canadian case of Roncarelli v Duplessis7.

7 As to the relational aspect, in the older cases the tort was also premised on the invasion of some antecedent right of the claimant or the breach by the defendant of some duty owed to the claimant or to a class of persons of which the claimant was a member. There had to be shown “a direct and proximate relationship between the plaintiff and the public officer responsible for the acts or omissions complained of” 8.

8 More recent cases have seen a tendency towards a relaxation of each of these features of the tort. In Brayser v Maclean9 for example, the Privy Council specifically rejected the contention that the claimant had to show that the defendant was actuated by malice. 10 In the decision of the House of Lords in Three Rivers District Council v. Bank of England [No.3]11 (referred to throughout this opinion as “ Three Rivers”) it was generally agreed that the defendant's state of mind may take one of two forms. The defendant may deliberately set out to injure the claimant, or a class of persons of which the claimant forms part, or it must be established that the defendant is aware that he had no power to

engage in the impugned conduct and that he was also aware that the probable consequence of his behaviour was injury of the type complained of. In each case, there is an element of dishonesty or bad faith on the part of the defendant.

9 The House of Lords in Three Rivers also upheld the decision of Clarke J at first instance that the tort did not require a breach of some antecedent right or duty 12. Clarke J had held that if a public officer was guilty of an abuse of power, in circumstances in which the officer knew that what he was doing was unlawful and also that a class of persons would probably suffer damage, any member of that class could claim in misfeasance once it could be established that the abuse of power was an effective cause of loss suffered. 13

10 The desirability of the trend towards a relaxation of these elements of misfeasance has been the subject of some academic discussion 14. But this case does not require us to comment on this trend. It is sufficient to note that the overwhelming consensus throughout the entire Commonwealth, as we shall shortly see, is that the tort protects the peculiar interests of a private entity or a member of a class. The notion that the House of Lords in Three Rivers, by a side wind, radically altered the common law so as to confer on the State a right of action for misfeasance is a startling one. Three Rivers was a case where thousands of depositors in the Bank of Credit and Commerce International SA (“BCCI”) were claiming in misfeasance against the Bank of England for financial losses they incurred when BCCI had to be liquidated. The depositors alleged that officials at the Bank of England were liable to them in misfeasance for failing properly to regulate BCCI. The principal issues argued, and hence the judgments rendered, focused on the mental element of the tort; whether misfeasance required “an antecedent legal right or interest” or an element of “proximity” as between alleged wrongdoer and victim; and the appropriate test for holding consequential losses to be recoverable. These issues were ventilated in the context of the enormity of the class in question, the relational distance

between the Bank of England officials and the depositors and the fact that some of the claimants were merely potential depositors at the time of the occurrence of the lapses attributed to the Bank of England. Three Rivers was not remotely concerned with actions in misfeasance by the State. Such a possibility was never even discussed. On the contrary, in their respective opinions all the judges proceeded on the firm premise that the tort protected the interests of members of the public. Lord Steyn, for example, noted that the basis for the tort lies “in the defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to...