No sooner have we bidden farewell to surcharge then another case appears, Westminster City Council v Porter and Another, as Westminster City Council seeks to pursue the debt of£26million, and in the process establishes a basis for the personal accountability of councillors which has all but resurrected surcharge.
Westminster City Council chose a belt and braces approach for their debt collection action, arguing Dame Shirley was liable to the council both under the outgoing surcharge legislation, Audit Commission Act 1988, and in breach of trust, because she was a trustee of the council's assets.
This was not an attempt to recover the same debt twice, as both surcharge and breach of trust actions were based on the same loss to the council. The reason for the breach of trust action was the time it had taken for Dame Shirley to exhaust all her rights of appeal in the UK courts.
The Court of Appeal decided that an officer could be liable in misfeasance for actions, even if they were not in discharge of any statutory function. The same could apply to executive members.
The advent of executive government focuses responsibility for particular decisions on individual elected mayors, councillors and officers.
This latest case re-affirms the personal accountability of both councillors and officers for any abuse of power.
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