How far can ministers be taken to task?

A look at the possible liability of ministers for wrongful acts

By Achilleas Demetriades

My effort today relates to examining the obscure point of possible liability under tort of government ministers.

This is not the vicarious liability that the government would assume for its officers or employees, but the personal liability that each minister could have under tort.

It is, I think, important to shed some light on this point since it may affect a minister’s thinking process as to acts to be undertaken in relation to the exercise of their duties while in public office.

I am afraid I have not been able to find any cases on point in Cyprus, even though some reference in the caselaw has been made. A historical explanation for lack of legal thinking on the point may be found in the fact that legal authorities in England and Greece (where Cypriot lawyers traditionally look towards for guidance), I am told do not allow for such liability.

In both systems I understand that ministers are appointed from the ranks of Members of Parliament. Therefore, the immunity that is normally granted to such persons follows them in their duties as ministers. In Cyprus, because of the presidential system, ministers are not appointed from the House of Representatives (in fact, there is a prohibition for that) and therefore do not enjoy the immunity that these members have.

The starting point could be Article 172 of the Constitution which provides that “The Republic shall be liable for any wrongful act or omission causing damage committed in the exercise or purported exercise of the duties of officers or authorities in the Republic”.

Despite the above, I still think there is sοme room for personal liability of ministers which needs to be explored further.

The classic scenario for such liability would be the misfeasance in public office, but other torts may also be relevant. This is a common law tort and is defined in England as misfeasance in public office.

If a person suffers loss or damage as a result of administrative action known to be unlawful by those persons taking it, and those persons knew or were recklessly indifferent that the claimant would suffer loss, this is a tortious wrong. Proceedings may be taken either against a public body or against an individual official.”

So, let us now turn to the prospects of liability. There is a myriad of issues that one can bring up e.g., decisions in relation to development of land or planning zones, granting of passports, failure to comply with EU provisions, management of Covid-19, the list is long. Let us though assume a simple example: a minister has defamed a person in the course of exercising public duties. I would have thought that there is such liability for these defamatory statements, and one may even go further and claim liability under tort for negligence or even more generally for breach of statutory duty.

In fact, on the general level the Cyprus Constitution, in addition to Article 172 above has Article 146 (6) which specifically allows for any person aggrieved by an administrative decision declared void by the Administrative Court to have a cause of action against the government for the recovery of damages. To my mind the basis of this could be the vicarious liability that the government has for its ministers.

What though I am looking for is the personal liability of the minister, if any, which the government should really not undertake to cover.  This could perhaps be the case when the minister has intentionally taken a step, calculated at injuring the plaintiff.

I think the best expression for the above is the misfeasance in public office already defined. In such a case there is no requirement to establish a duty of care and a minister, being a public officer, would fall within this definition.

On the other hand, the plaintiff is required to show that the minister is abusing its power or position by carrying out this wrongful act. One could perhaps attribute the rationale behind this tort in that the legal system of our society is based on the rule of law and that public authority should be exercised for the public good and not for improper purposes.

In England this is expressed in common law and I think our common law tradition still allows for its application to the Republic as well.

The following are ingredients of the tort as set out by the caselaw in England which need to be satisfied:

• The tortfeasor is a minister, namely, a public officer.
• The relevant act or failure to act involves the exercise of power as a minister;
• The above was carried out in bad faith;
• The act or failure to act did cause harm to the plaintiff;
• The said harm could have been foreseen by the minister, as a probable consequence of the act or omission.

The five points above need to be applied to the facts of the case but assuming the defamation by the minister was done during the exercise of the public duty assigned, was in bad faith and caused foreseeable harm to the plaintiff, then the tort has been committed and personal liability for the minister could well be established.

Obviously, this is a very simple analysis of a novel point. It is perhaps worth looking into acts or omissions of a minister under the light of tortuous liability in an effort to scrutinise same. After all it is the fear of liability that makes players in our system watch out, so as to ensure that they act properly.

 

 

Achilleas Demetriades, Advocate, is Partner at Lellos P Demetriades Law Office LLC