Old laws continue unexpectedly to appear.

While some are past their 'use by date', others are being rediscovered with increasing success in the courts.The curious renaissance of the administrative tort of misfeasance in public office is one of the latest to reach the courts, attracting extensive judicial consideration.

The essence of the tort is the lack of good faith by public officials.After lying dormant for many years - it can be traced back to the case of Ashby v White (1703) 1 Smith's Leading Cases (13th ed.) 253 - during the past two decades the tort has come back into circulation, although its scope and elements were unclear.That is, until the House of Lords' judgment in Three Rivers DC v Governor and Company of the Bank of England [2000] 2 WLR 1220.

Its scope was refined in a further judgment last month (Times Law Reports, 23 March 2001) when the application of the tort to the facts of the case were considered.

The claimant has been granted leave to pursue the bank in malfeasance - the first time the bank will ever have faced action in the courts.The claimant's current action is for damages brought by depositors with failed bank BCCI against the Bank of England, on the grounds that the latter had failed adequately to supervise BCCI's UK operations, either by wrongly granting or wrongly failing to revoke its licence.The action cannot lie in negligence because, as a regulatory body, the bank has statutory exemption under the Banking Act 1987.Christopher Grierson, a partner at City firm Lovells, acts for the liquidators of BCCI and says: 'The tort is useful where a claimant wants to sue a public body which has certain statutory immunity (like the Bank of England) and you need to assert more than negligence'.There is a high test to satisfy the requirements of the tort, which is aimed at the dishonest abuse of public office.

It requires an unlawful act or omission during the exercise of a power by a public officer, which is either a targeted act of malice intended to cause harm, or an intentional untargeted act of malice which in fact harms the claimant.

The latter is alleged in this case.Mr Grierson says: 'I believe that the reason why the courts have confirmed the existence of the tort in recent years is because they have recognised there should be a civil remedy - a civil right of action for the abuse by public bodies of their powers.'The House of Lords has recognised the need to clarify the ingredients of the tort so that it is defined in such a way that it is capable of being used in the right factual situation.' He adds that the courts have demonstrated that it is a living tort that needs to be preserved.Jeremy Winter, a partner at London firm Baker & Mckenzie, confirms that misfeasance is not easy to establish.

There must be a dishonest and wrongful abuse of the powers given to a public officer.He says: 'But the tort may come in handy in situations where the public body has statutory exemption from ordinary damages claims.

Someone will have been doing their research and seen this as a possible way round the statutory exemption.

Old torts rarely die, they just become dormant.

Then they come back into the public eye as a result of being used successfully in a well-reported case.'Peter Keith-Lucas, local government partner at Wragge & Co in Birmingham says: 'The tort has stood the test of time because there's no end to human ingenuity.

Circumstances change but people still misbehave, including those in public office.

The great advantage of having this common law is that it's flexible, and the general principles will stand.

There will continue to be a need for a civil remedy in those rare cases where people suffer harm as a result of culpable misbehaviour by someone in public office.'He adds that no-one knows the parameters of misfeasance but regulation is not really possible.

'Legislation will not allow flexibility,' he says.By coincidence, this authoritative interpretation of the elements of the tort arrived at the same time as the Human Rights Act 1998, and whether the interpretation has erred on the side of the interests of administration - or the rights of the individual - remains to be seen.As recklessness on the part of the public official is sufficient state of mind to satisfy that element of the tort, it is likely to become a more attractive remedy to potential claimants in the future.Property lawyers regularly come across liability for chancel repairs while wading through abstracts of title.

Under the Chancel Repairs Act 1932, a claim can be made by the parochial church council against an impropriator for the costs of keeping the chancel of the church in proper repair.

A couple were held to be liable for repairs to the tune of nearly £100,000 last month in PCC of the Parishes of Aston Cantlow and Wilmcote with Billesley v Andrew and Gail Wallbank (Times Law Reports, 29 March 2001).The defendants could not get around the existence of the Act and, further, their argument that such liability would be contrary to the European Convention on Human Rights was not accepted.Although in 1985 the Law Commission described chancel liability as 'anachronistic and capricious', nothing has been done to extinguish the liability.

John Thorneycroft, a partner at Manby & Steward in Wolverhampton, says: 'There should be some way of having a register where a purchaser can find out whether there is still a liability for chancel repairs.'Like chancel repairs, the common law of blasphemy has its origins in ecclesiastical law.

Christianity was held in Taylor's case (1676) to be 'parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law'.

Over time, the nature of blasphemy changed and the element of 'vilification, ridicule or irreverence' was taken as part of the law of blasphemy.In 1977 Denis Lemon, the edit or of Gay News, was convicted of blasphemous libel at the Old Bailey after a private prosecution brought by clean-up campaigner Mary Whitehouse was taken over by the Crown.

The magazine had printed a poem containing a homosexual fantasy about Christ.More recently, the courts ruled out a private prosecution of Salman Rushdie for his novel The Satanic Verses.

because the law protects only the Christian faith.Malcolm Fowler, chairman of the Law Society's criminal law committee, says there is a powerful case to abolish the law.

He says: 'To retain it you would have to have regard to the religious convictions of all the population.

You would have to extend it to all types of speech and behaviour touching on religious issues.

Offences governing incitement to racial hatred, and public disorder, provide adequate protection.'As a profession, we should be saying that this is the way forward rather than harking back to ancient, less flexible laws.'Mr Fowler adds: 'It's incompatible with an individual's human rights and this is a very important aspect for the argument to dispose of the law of blasphemy.'These examples illustrate that there is a case for reform of some ancient, anachronistic laws.

Others, such as the tort of misfeasance, provide hope to claimants who find no cause of action within the rigid framework of statute.