Judge rejects £1m+ misfeasance in public office claim

Tunbridge Wells Borough Council has defeated a claim for misfeasance in public office brought in the High Court by the owners of a local joinery business.

Thomas and Maureen Escott had claimed losses quantified at £1,082,000, unquantified business losses and exemplary damages in a dispute over noise emanating from their joinery works at Sandhurst.

Holgate J was asked to rule on whether the case was time barred by the Limitation Act 1980 and if not whether the Escotts could claim damages.

The dispute began in 1998 when nearby residents complained about noise.

Council officers took enforcement action and imposed noise limits. In 2003 the planning committee was advised there was no continuing breach of planning control as the complaints had ceased, but the site would be periodically monitored.

After this the Escotts sought to have the enforcement notice withdrawn on the grounds that it had ceased to serve any legitimate purpose.

The planning committee withdrew the notice in 2009, which officers said would be “the most expedient and proportionate response and to demonstrate some goodwill to the claimants in an attempt to resolve a longstanding matter of concern to them”, the judge noted.

Mr Escott as a litigant-in-person argued that the enforcement notice should never have been issued because it set a noise limit below that of the council’s own background noise readings.

The judge said the limitation period began on 16 April 2009 and the council withdrew the notice on 18 May that year leaving almost the entire case time barred.

Mr Escott argued the claim should not be time barred because he could not bring a claim until the council withdrew the enforcement notice.

But the judge said that had misfeasance happened there would have been no need for the action complained of to be legally quashed before a claim could be made.

He said: “There is no legal requirement that that action be quashed, or revoked by the authority, before the claimant may bring a claim for damages based upon misfeasance.

“The claimants' argument would, if accepted, stand the tort of misfeasance on its head. In a case where a public authority has in fact acted maliciously it could prevent or inhibit the bringing of a claim in damages for misfeasance by refusing to withdraw or revoke the conduct or action complained of. The only way of avoiding that absurd outcome would be for a claimant to obtain a quashing order in proceedings for judicial review.”

He also rejected the proposition that a continuing tort meant the case should not be time barred and concluded there was therefore no need to rule on the claim for compensation.

The council declined to comment.

Mark Smulian