Ok here is a scenario for you.
AGAI action. 1st deciding officers findings based on evidence gathered during investigation. Soldier guilty and awarded an act of severe displeasure and "blameworthy" removal from post.
Soldier contests 1st DO findings. 2nd DO at Brigade level dismisses the case completely claiming he had reviewed the same evidence and in his written report makes some libelous comments aimed at the witness without any supporting evidence to make such comments.
Witnesses have view of 2nd DO report and are obviously distressed at being accused of being underhand and deceitful to the point the 2nd DO names them yet no action is taken against them for lying during a service discipline process.
Witnesses are told they cannot redress the slurs on their characters despite evidence proving they had not been underhand or deceitful.
Evidence then come to light that the 2nd DO had not viewed the evidence as he had claimed and facts contained within the same evidence show it was the soldier under the AGAI action who was in fact underhand and deceitful and had lied during his statement and further more with his written representation to the 1st DO findings.
In other words and for what ever reason the evidence shows the 2nd DO covered it up.
What I am getting at?
Has the 2nd DO by ignoring the facts of the evidence and without a shred of supporting evidence against the witnesses, abused his position?
What can the Witnesses both serving and non serving do about it?
But that's not really the point is it? There is a system, certainly for the serving witnesses, for ******* your seniors off at the high port if they've really dropped a bollock. Which is Service Complaints. Which, wrongly or wrongly, tend to (even if perfectly justified - which isn't actually the same as upheld) mark one up as a moaning minny, lacking balls or esprit de corps or, in the worst case, being right when your senior was being an utter cretin.
If you, for whatever reason, feel that a service complaint or, for the non-serving, a letter to your MP requesting they ask the MoD to investigate, is inappropriate, I'm not sure that personally suing the 2nd DO - which is what would be necessary under the Misfeasance tort, is going to give you any additional advantage.
I concur that it is a feasible COA, much like throwing your weapon at the enemy (before you have run out of ammo) is. If your case is a dodgy as a 9mm Browning, then give it a try
As in my initial reply - you don't need to simply prove error, or even abuse. You must prove "with malice".
Now, if it was the NAAFI, I'd suggest you paid a tart to get him pissed and encourage (or, if he's a cheap night out, drag) him back to "her place". Where you would promptly beat him to death with the shovel you would then use to bury him under the patio. Having dropped the local SIB Sgt's red lid (he won't notice it's gone until he gets posted) under the body. But it's not. So I won't.
Agree a SC will be the first port of call, that is not disputed. After all, any judge would require a alleged victim had used every avenue possible. Even if the Redress system is as much use as a 9mm Browning against a T55 However, if malice can be proved then whatever the case, it would still prove a bumpy ride for the individual concerned.
In a worst case scenario there's nothing to stop anyone issuing a court summons; indeed SC's only came about after a Brigadier found the boot on the other foot when one was served upon him in his Garrison HQ in the 90's.
He resigned when the Army board upheld the redress & settled out of court.