Claim of misfeasance in public office brought against Town Council fails but trespass claim succeeds

In Eustace v. The Lord Mayor, Aldermen and Burgesses of Drogheda Borough Council [2019] IEHC 455 the plaintiffs sought damages for trespass, nuisance and misfeasance in public office arising from permission granted to a construction company to install a slip road and sewer connection on the plaintiffs' land (which was later the subject matter of a compulsory purchase order by Drogheda Council). The trespass element of the claim was admitted by the Council meaning the Court was called on to assess damages for the trespass and to decide whether the Council was liable for the tort of misfeasance in public office. 

Background
The dispute related to land situated in Drogheda town centre where construction began in 2001. The plaintiffs repeatedly and strongly asserted that they were in possession of good title to the land and that Council engineers were unlawfully trespassing. Through their solicitors they complained about the trespass and correspondence was submitted containing the title deeds showing the plaintiffs' ownership of the land. Even when faced with title deeds the Council's acceptance of the title was grudging and gradual (a defence of honest mistake was held to be unsupported by the evidence).

Misfeasance in Public Office
Ní Raifeartaigh J. examined the necessary ingredients needed to ground a claim for misfeasance in public office including the requirement that the defendant knew that they were acting unlawfully or acted with subjective recklessness. Overall the Court was not satisfied that the tort was proven. While the conduct of the Council was deeply disrespectful of the plaintiffs' property there was insufficient evidence that a public officer knew that authority was given to the construction company to enter the lands and that the plaintiffs had good title to the lands. Since one or more individuals could not be shown to have committed the tort of misfeasance in public office that aspect of the plaintiffs' claim was rejected.

The plaintiffs were awarded compensatory damages for the 9 year trespass of €65,000 and aggravated damages of €12,000 due to the nature of how the Council dealt with the plaintiffs. 

Comment
This case illustrates how difficult it is to prove the tort of misfeasance in public office. A plaintiff needs to prove the subjective state of mind of an official, however if an official is called as a witness, he is confined to examination-in-chief and cannot be cross-examined. For that reason a defendant is highly unlikely to call such a witness, for obvious tactical reasons. Furthermore, it is difficult to establish bad faith without cross-examining a witness if the documents lend themselves to several possible interpretations. The Court in this case noted that possible explanations alternative to bad faith included a lack of resources, incompetence or systemic failures within the public body in question. A lack of communication between the various teams within Drogheda Council resulted in a situation where it was difficult to hold the organisation as a whole accountable for the treatment of the plaintiffs.

For more information on this topic please contact Ciaran Joyce, Knowledge Lawyer or any member of A&L Goodbody's Litigation and Dispute Resolution team.

Date published: 3 July 2019