MISFEASANCE Vs MALFEASANCE, NONFEASANCE

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Misfeasance, Nonfeasance and Malfeasance are types of failure to discharge public obligations existing by common law, custom or statute. 

Definition and relevant rules of law

When a contract creates a duty that does not exist at common law, there are three things the parties can do wrong:

a/ Nonfeasance is the failure to act where action is required — willfully or in neglect.
b/ Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
c/ Malfeasance is the willful and intentional action that injures a party.

For example, if a company hires a catering company to provide drinks and food for a retirement party, and the catering company fails to show up, it is considered nonfeasance. If the catering company shows up but provides only the drinks (but not the food, which was also paid for), it is considered misfeasance. If the catering company accepts a bribe from the client's competitor to undercook the meat, thereby giving those present food poisoning, it is considered malfeasance.

The rule of law laid down is that an action in contract (ex contractu) will lie for any of the three. However, an action in tort (ex delicto) will lie only in misfeasance or malfeasance. The doctrine was formerly applied to certain callings carried on publicly.

Now, the terms misfeasance and nonfeasance are most often used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, by negligence in discharge of the duty but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes.

This rule is fully established in the case of failure to repair public highways, but in other cases, the courts are astute to find evidence of carelessness in the discharge of public duties and on that basis to award damages to individuals who have suffered.

Misfeasance is also used with reference to the conduct of directors and officers of joint-stock companies. The word is sometimes used as equivalent to malpractice by a medical practitioner. 

R. v Dytham 1979 (467 3 WLR) Court of Appeal

Police & law enforcement Constable witnessing an assault failed to preserve the peace or protect the victim or arrest assailants was convicted of wilful neglect.  So upheld at appeal: Omitting to take steps to protect the person of the man or to arrest his assailants or otherwise bring them to justice constitutes the crime of failing to carry out a duty of his office.

R. v Bowden 1995 Court of Appeal (98 1 WLR)

Regarding local authority employees - the common law offence of misconduct in public office applies generally to every person who is appointed to discharge a public duty and who receives compensation in whatever form – salary, wage, expenses and the like.

MISFEASANCE

Misfeasance in public office is a cause of action in the civil courts of England and Wales and certain Commonwealth countries. It is an action against the holder of a public office, alleging in essence that the office-holder has misused or abused their power. The tort can be traced back to 1703 when Chief Justice Sir John Holt decided that a landowner could sue a police constable who deprived him of his right to vote (Ashby v White). The tort was revived in 1985 when it was used so that French turkey producers could sue the Ministry of Agriculture over a dispute that harmed their sales.

Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.

In theory, misfeasance is distinct from nonfeasance. Nonfeasance is a failure to act that results in harm to another party. Misfeasance, by contrast, is some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.

In most cases, the essentials to bring an action of misfeasance in public office are that the office-holder acted illegally, knew they were doing so, and knew or should reasonably have known that third parties would suffer loss as a result. 


MALFEASANCE

Under English law, misconduct (or misfeasance) in public office is an offence at common law which dates back to the 13th century.

The offence carries a maximum penalty of life imprisonment. It is confined to those who are public office holders, and is committed when the office holder acts (or neglects to act) in a way that constitutes a breach of the duties of that office.

The Crown Prosecution Service guidelines on this offence say that the elements of the offence are when:

1. A public officer acting as such.
2. Wilfully neglects to perform ones duty and/or wilfully misconducts oneself.
3. To such a degree as to amount to an abuse of the public's trust in the office holder.
Without reasonable excuse or justification.

The similarly named malfeasance (or misfeasance) in public office is a tort. In the House of Lords judgement on the BCCI malfeasance case it was held that this had 3 essential elements:

1. The defendant must be a public officer
2. The defendant must have been exercising his power as a public officer
3. The defendant is either exercising targeted malice or exceeding his powers

"Misconduct in public office" is often but inaccurately rendered as "misconduct in a public office", which has a different meaning. 

AN EXAMPLE OF MISFEASANCE, MALFEASANCE & NONFEASANCE

Wealden District Council had secured a part award of costs in relation to their attempts to deprive poor old Nelson of his right to a toilet and washing facilities while at work. Talk about victimization! The only man in England not to be allowed to defecate and urinate in some kind of comfort while at work.

That was the level of confidence Wealden's officers thought they held sway through the  courts, that they could get any order, even one that the court had no power to make. David Phillips was the enforcement officer that was out to get Mr Kruschandl and he attended before Dame Butler-Sloss with a bevy of officers sitting back in the courtroom. He was aided and abetted by Vic Scarpa and his apprentice hatchet lady, Christine Nuttall. They of course had other legal advice paid for by the rate payer.

It did not stop there for that is impossible in an organization as corrupt in their practices as Wealden. Trevor Abbott and Trevor Scott are known to have been in the background, especially when they got caught out, with Daniel Goodwin coming to the rescue with the following Consent Order which he signed on behalf of his Council, the idea being, presumably, to quiet-ten things down so that they could deal the final blow after they had pulled the teeth from Nelson's claim as to institutionalized discrimination and/or negligence.

The point here is that when more than one person is involved in at attempt to coerce a court to break the law, it becomes a conspiracy to pervert the course of justice. We think we have demonstrated here that there was obviously more than one officer in the mix. It gets worse of course, because in order to use public money to pursue Mr Kruschandl at this level of expense to the tax payer, the officers first had to secure approval from the members of this Council. In this case it would have been the Area Plans South sub-committee- and it was Roy Martin who presided as chairman when David Phillips advised the gathering, an unlawful assembly as it now seems, that he and his co--conspirators were "looking to enforce."

You can read this for yourself in the transcript - and if you are in law enforcement in England, or policy making in any one of England's Governments, Conservative, Labour, Liberal or UKIP, you can request a copy of the recording to satisfy yourself as to the accuracy of the Transcript dated the 25th of July 1998. There is no limitation in statute for the prosecution of a crime of this magnitude. It is surely in the public interest to make an example of those involved.

LINKS & REFERENCE

https://en.wikipedia.org/wiki/Malfeasance_in_office
https://en.wikipedia.org/wiki/Misfeasance_in_public_office

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