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Session 2000-01
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Judgments - Kuddus (AP) v. Chief Constable of Leicestershire Constabulary


Lord Slynn of Hadley Lord Mackay of Clashfern Lord Nicholls of Birkenhead Lord Hutton Lord Scott of Foscote








ON 7 JUNE 2001

[2001] UKHL 29


My Lords,

    1. It seems to me that in this case the issues of law which have been raised could have been more satisfactorily dealt with after the facts had been found. Your Lordships, however, have to deal with the case on the basis that the recorder and the majority of the Court of Appeal (Auld LJ dissenting) in this case struck out a claim for exemplary damages on the basis that it disclosed no cause of action.

    2. The relevant pleaded facts are short. The appellant plaintiff told a police constable that he had come back to his flat where a friend had been staying to find that a lot of property was missing. The officer said that the matter would be investigated but some two months later he forged the plaintiff's signature on a written statement withdrawing the complaint of theft. Accordingly the police investigation ceased.

    3. The defendant Chief Constable admits the forgery and that the officer's conduct amounts to misfeasance in a public office. He successfully contended, however, that exemplary damages are not recoverable for the tort of misfeasance by a public officer so that that part of the claim should be struck out. He accepts that there is a viable claim for aggravated damages for such misfeasance.

    4. The parties agree that an award of exemplary damages may be made in appropriate cases in English law even though, being punitive in nature, such an award is inconsistent with the principle that damages are intended to be compensatory. As the law now stands that agreement in my view is well founded.

    5. In Rookes v Barnard [1964] AC 1129, 1223 Lord Devlin, with whom on this point other members of the House agreed, having considered early cases concluded:

    "These authorities clearly justify the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power."

    Having reviewed further cases he said, at pp 1225-1226:

    "These authorities convince me of two things. First, that your Lordships could not, without a complete disregard of precedent, and indeed of statute, now arrive at a determination that refused altogether to recognise the exemplary principle. Secondly, that there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal. I propose to state what these two categories are; and I propose also to state three general considerations which, in my opinion, should always be borne in mind when awards of exemplary damages are being made. I am well aware that what I am about to say will, if accepted, impose limits not hitherto expressed on such awards and that there is powerful though not compelling, authority for allowing them a wider range. I shall not, therefore, conclude what I have to say on the general principles of law without returning to the authorities and making it clear to what extent I have rejected the guidance they may be said to afford.

    "The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category—I say this with particular reference to the facts of this case—to oppressive action by private corporations or individuals. Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he might, perhaps, be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. . .

    "Cases in the second category are those in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff."

    Lord Devlin also referred, at p 1227, to a third category in which exemplary damages are expressly authorised by statute which it is not necessary to consider in the present case.

    6. It is equally accepted by the parties that exemplary damages are not precluded by the fact that aggravated damages may be awarded though it is clear that before the decision of the House in Rookes v Barnard [1964] AC 1129 the distinction between the two was not fully appreciated. In that case Lord Devlin, at p 1228, drew attention to the difference of purpose of compensatory damages and punitive or exemplary damages:

    "In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum."

    7. Lord Devlin stressed that a judge should not allow a case for exemplary damages to be left to the jury unless he is satisfied that it can be brought within the categories he had specified and that a plaintiff can only recover exemplary damages if he is "the victim of the punishable behaviour" p 1227. The means of the parties are material in the assessment of exemplary damages. "Everything which aggravates or mitigates the defendant's conduct is relevant" (p 1228).

    8. It seems to me that there is nothing in Lord Devlin's analysis which requires that in addition to a claim falling within one of the two categories it should also constitute a cause of action which had before 1964 been accepted as grounding a claim for exemplary damages.

    9. In AB v South West Water Services Ltd [1993] QB 507, the court was concerned with claims for public nuisance and breach of statutory duty. Exemplary damages were claimed on the basis that servants or agents of the defendants as employees of a statutory body had acted in an arrogant and high-handed way and had deliberately misled their customers. It was contended that exemplary damages did not lie for nuisance and that the allegations in the case did not fall within either of Lord Devlin's "categories". But in addition it was said, at p 517, that the combined effect of Rookes v Barnard [1964] AC 1129 and Broome v Cassell & Co Ltd [1972] AC 1027 was that the claim must be "in respect of a cause of action for which prior to 1964 such an award had been made".

    10. Stuart-Smith LJ accepted, at p 519, that this last limitation was not to be found in the speech of Lord Devlin in Rookes v Barnard [1964] AC 1129 but was to be deduced from the majority of speeches in Broome v Cassell & Co Ltd [1972] AC 1027. Having said, at p 523, that the question whether exemplary damages for nuisance were available prior to 1964 depended on a proper view of Bell v Midland Railway Co (1861) 10 CB(NS) 287, he held that exemplary damages could not be awarded for damage flowing from public nuisance, such a claim not having been recognised for such purpose before 1964. He also rejected the contention that the defendants' servants or agents were exercising executive power derived from government, central or local. The claim did not fall accordingly within either of Lord Devlin's two categories.

    11. Sir Thomas Bingham MR accepted, at p 529, that:

    "According to the traditional classification of the law of tort, such misuse of power [ie that referred to in Lord Devlin's first category] could give rise to any one of a number of courses of action, which Lord Devlin was not at pains to identify".

    12. Having referred to passages in the speeches in Broome v Cassell & Co Ltd [1972] AC 1027 dealing with the question of whether the claim had to be founded on a cause of action recognised as grounding a claim for exemplary damages before 1964, the Master of the Rolls said, at p 530:

    "I cannot pretend to find the answer at all clear, but I incline to think that a majority of the House regarded an award of exemplary damages as permissible only where (a) a course fell within one or other of Lord Devlin's categories and (b) was founded on a tort for which exemplary damages had been awarded before Rookes v Barnard [1964] AC 1129. This may involve a misreading of their Lordships' speeches in Broome v. Cassell & Co Ltd [1972] AC 1027, but I think it is the basis upon which the Court of Appeal should, until corrected, proceed."

    That was also the approach of the majority in the Court of Appeal in the present case.

    13. I share the Master of the Rolls' view that it is not easy to be sure whether the House in Broome v Cassell & Co Ltd [1972] AC 1027 ruled that the "pre-1964 test" had to be satisfied but that is the core of the question on this appeal so that it is necessary to look carefully at what was said.

    14. Lord Hailsham of St Marylebone LC, with whom Lord Kilbrandon agreed, thought, at p 1076, that Lord Devlin was not intending to add to the list of torts for which exemplary damages was available though he considered, at p 1068, that the law before 1964 was not settled: "In point of fact, it was nothing of the kind." "Speaking for myself, and whatever view I formed of the categories, I would find it impossible to return to the chaos which is euphemistically referred to by Phillimore LJ [1971] 2 QB 345, 399, as 'the law as it was before Rookes v Barnard'" (p 1070). Moreover it is to be noted that in considering the first of Lord Devlin's categories Lord Hailsham said, at pp 1077-1078, that he would be surprised if the list included only servants of the Government in the strict sense of the word. It could cover the police and local and other officials exercising search or arrest without a warrant:

    "and it may be that in the future it will be held to include other abuses of power without warrant by persons purporting to exercise legal authority . . . I am not prepared to say without further consideration that a private individual misusing legal powers of private prosecution or arrest . . . might not at some future date be assimilated into the first category." (Emphasis added.)

    15. He also thought, at p 1078, that the second category should be broadly construed and, at p 1080 "even though in the absence of authority I am of the opinion that exemplary damages cannot be awarded in an action for deceit, I cannot claim that the matter has been finally determined."

    16. It seems to me, therefore, that Lord Hailsham was prepared in some respects to be more flexible than a rigid adherence to the "pre 1964" test suggests.

    17. Lord Reid stressed, at p 1085, that Lord Devlin was not laying down "rules" but stating "principles". He added, at p 1086:

    "But we thought and I still think it well within the province of this House to say that that undesirable anomaly [punitive damages] should not be permitted in any class of case where its use was not covered by authority."

     But Lord Devlin:

    "set out two categories of cases which in our opinion comprised all or virtually all the reported cases in which it was clear that the court had approved of an award of a larger sum of damages than could be justified as compensatory. . . We were confronted with an undesirable anomaly. We could not abolish it. We had to choose between confining it strictly to classes of cases where it was firmly established, although that produced an illogical result, or permitting it to be extended so as to produce a logical result. In my view it is better in such cases to be content with an illogical result than to allow any extension". (pp 1086-1087).

    18. Lord Reid also thought, at p 1088, that the first "category" should be read as extending to all those who by common law or statute are exercising functions of a governmental character. He said, however, that: "I would, logic or no logic, refuse to extend the right to inflict exemplary damages to any class of case which is not already clearly covered by authority. On that basis I support this category". (emphasis added).

    19. Lord Wilberforce, at p 1119, did not consider that Lord Devlin had intended to limit punitive damages in defamation actions to cases where a profit motive was shown. As to the first category he said, at p 1120:

    "There is not perhaps much difficulty about category 1: it is well based on the cases and on a principle stated in 1703—'if public officers will infringe men's rights, they ought to pay greater damages than other men to deter and hinder others from the like offences': Ashby v White (1703) 2 Ld Raym 938, 956 per Holt CJ. Excessive and insolent use of power is certainly something against which citizens require as much protection today: a wide interpretation of 'government' which I understand your Lordships to endorse would correspond with Holt CJ's 'public officers' and would partly correspond with modern needs. There would remain, even on the most liberal interpretation, a number of difficulties and inconsistencies as pointed out by Taylor J. in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118.

    On all other points not expressly dealt with, Lord Wilberforce agreed with Lord Hailsham.

    20. Lord Diplock agreed, at p 1131:

    "that Rookes v Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded; such as negligence and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages."

He said, however, at pp 1123-1124:

    "It was necessary as a matter of decision of the cross-appeal for this House to determine whether the facts in Rookes v Barnard brought it within a category of cases in which exemplary damages were recoverable at common law. This House determined that they did not and ordered a new trial.

    "There were two different processes of reasoning by which it would have been possible to reach this conclusion of law. One, which was not adopted by this House, was to hold that the particular tort of intimidation was one in which the common law did not permit of exemplary damages. The other, which was adopted by this House, was to state the categories of cases in which alone exemplary damages might be awarded at common law and to determine whether the facts in Rookes v Barnard brought it within one of these categories."

    and, at p 1128:

    "Lord Devlin's analysis of previous decisions disclosed three kinds of cases in which the courts had recognised the right of a jury to award damages by way of punishment of the defendant in excess of what was sufficient to compensate the plaintiff for all the harm occasioned to him. The categorisation was new. Its purpose has, I think, been misunderstood. No one suggests that judges, when approving awards of exemplary damages in particular cases in the past consciously differentiated between one kind of case in which exemplary damages could be awarded and another. They dealt with them all as falling within a single nebulous class of cases in which the defendant's conduct was such as to merit punishment. The purpose of Lord Devlin's division of them into three categories was in order to distinguish between factual situations in which there was some special reason still relevant in modern social conditions for retaining the power to award exemplary damages, and factual situations in which no such special reason still survived.

    "With this end in view Lord Devlin extracted from the single nebulous class which appeared to be all that had been consciously recognised as justifying an award of exemplary damages at common law, two categories of cases in which this House decided that there were special reasons why the power to award exemplary damages should be retained. These two (apart from cases where exemplary damages are authorised by statute) are generally referred to as 'the categories'. But there is also to be found in the previous cases a third category, consisting of the remainder of the single nebulous class in which this House decided that the anomalous practice of awarding exemplary damages in civil proceedings ought to be discontinued."

    21. My Lords, Lord Hailsham and Lord Kilbrandon appeared to attach importance to the existence of the pre-1964 cause of action test. It is arguable that Lord Reid and Lord Wilberforce took the same view. I am not, however, satisfied that it was their intention. Lord Reid lays much emphasis on "principles" and "categories" and "class of case" rather than on specific or precise causes of action. It seems to me, despite his general agreement with Lord Hailsham that Lord Wilberforce contemplated a wide interpretation of both "government" and the excessive use of executive power. Accordingly although I well understand the approach of the Court of Appeal in AB v South West Water Services Ltd [1993] QB 507. I do not consider that the House is bound by a clear or unequivocal decision in Broome v Cassell & Co Ltd [1972] AC 1027 to hold that the power to award exemplary damages is limited to cases where it can be shown that the cause of action had been recognised before 1964 as justifying an award of exemplary damages. It is certainly not bound by anything said by Lord Devlin in what is after all the basic statement of the law.

    22. I do not consider that in principle it should be so limited. In any event, like Auld LJ, I do not think that courts should be required to undertake a trawl of the authorities in order to decipher whether awards of damages for misfeasance pre-1964 might have included an award for exemplary damages. Such a task would be all the more difficult given the fact, as indicated above, that the distinction between exemplary and aggravated damages was not until Rookes v Barnard [1964] AC 1129 clearly articulated. To adopt such a rigid rule seems to me to limit the future development of the law even within the restrictive categories adopted by Lord Devlin in a way which is contrary to the normal practice of the courts as referred to by Lord Evershed in Rookes v Barnard, at p 1185, and by Lord Diplock in Broome v. Cassell & Co Ltd [1972] AC 1027, 1127. Such a restrictive approach also justifies the comments in Winfield and Jolowicz on Tort, 15th ed, (1998) p 746 in relation to the pre-1964 test:

    "In other words, that decision [Rookes v Barnard] was not a 'new start' for the law under two rationalised categories but a further restriction upon then existing authority. Whatever one's views on exemplary damages this is an unfortunate state of affairs because it commits the law to an irrational position in which the result depends not on principle but upon the accidents of litigation (or even of law reporting) before 1964, at a time, moreover, when the distinction between exemplary and aggravated damages was by no means so clearly drawn as it is now."

    23. It is also to be borne in mind that the Law Commission in its Report on Aggravated, Exemplary and Restitutionary Damages (1997) (Law Com No 247), para 5.49 recommended that the availability of punitive damages be extended for most torts, which would entail the rejection of "the rationally indefensible position which the common law reached" in deciding claims on the basis of the existence or absence of pre-1964 precedents.

    24. I do not think that the Government's view (HC Debates), 9 November 1999, col 502 that it was right to defer a decision on further legislation on this issue coupled with the comment "It may be that some further judicial development of the law in this area might help clarify the issues" should inspire your Lordships to the view that the whole matter should be reopened and the Law Commission's Report revisited. It is no more than a comment that issues might become clearer as decisions on particular facts emerge.

    25. For my part I do not consider that it would be right in this case to consider reopening the whole question as to whether exemplary damages should be available at all. The House clearly refused in Rookes v Barnard [1964] AC 1129 and Broome v Cassell & Co Ltd [1972] AC 1027 to abolish the rule that exemplary damages are in some cases available and in Broome v Cassell & Co Ltd the House refused to reopen the basic decision in Rookes v Barnard.

    26. There are obviously strong views as to whether exemplary damages should or should not ever be awarded. It has not been contended in this case that your Lordships should hold that in principle they can never be awarded. In my view therefore the starting point is that the two decisions of the House already accept that exemplary damages may be awarded in some cases. The task of the House in the present appeal is to say whether it is arguable that they can, and if the facts are established should, be awarded in the present case for the tort of misfeasance in public office. In Lord Devlin's speech in Rookes v Barnard [1964] AC 1129 it seems to me that it is the features of the behaviour rather than the cause of action which must be looked at in order to decide whether the facts fall into the first category. In Broome v Cassell & Co Ltd [1972] AC 1027 Lord Diplock was also recognising that the task of the judge was to decide whether the facts brought the case into one of the categories.

    27. So on the present appeal the question is whether the exemplary damages claimed are on the basis of facts which if established fall within the first category. For the purpose of the strike-out application, it is accepted that they do so fall. The claim is not excluded because it is not shown that a case on the basis of misfeasance in a public office had been decided before 1964. I would therefore allow the appeal. The claim for exemplary damages should not have been struck out on the basis argued before the House. The question whether in principle the Chief Constable can be vicariously liable has not been argued and I do not think it right to discuss or to rule on it in this case.


My Lords,

    28. The pleaded facts in this case are that on 14 June 1996 the appellant plaintiff discovered that a theft had taken place at his home in Leicester. On the same day the plaintiff reported the theft to a police constable serving with the Leicestershire Constabulary and for whose actions in the course of his police functions the respondent defendant was responsible.

    29. In reporting the theft the plaintiff made a written statement explaining that when he left the flat at 11 a m on 14 June 1996 there remained an acquaintance of his who had stayed the night in the flat as the plaintiff's guest. On leaving his flat the plaintiff locked the front door behind him. When the plaintiff returned at 1245 p m he found the front door open and damaged and a large number of items of property missing. The plaintiff suspected that the property had been stolen by his guest and so informed the police constable. He gave the constable details of the property that had been taken from the flat. The plaintiff to the knowledge of the police constable was willing to co-operate with any police investigations and the constable assured the plaintiff that the offence would be investigated. In fact unknown to the plaintiff and without his consent on or about 18 August 1996 the police constable forged the plaintiff's signature on a written statement prepared by the constable which purported to be a withdrawal by the plaintiff of his complaint of theft. As a result of the forged withdrawal statement the police investigation into the complaint of theft ceased and the plaintiff did not discover the fact of the forged statement until on or about 5 December 1996.

    30. The facts I have narrated are the basis of the plaintiff's case that the police constable's conduct amounts to the tort or misfeasance in public office. The defendant admits the fact of the forgery and that the constable's conduct as pleaded amounts to the tort of misfeasance in public office. The plaintiff raised an action in Leicester County Court and in the course of proceedings there the defendant applied for an order that "the plaintiff's claim for exemplary damages as pleaded … be struck out". The grounds of this application were that this part of the plaintiff's claim disclosed no cause of action as exemplary damages are not recoverable for the tort of misfeasance. Mr Recorder Waine on 26 November 1998 acceded to the application and struck out the plaintiff's claim for exemplary damages for misfeasance in public office. The claim for aggravated damages was struck out by mistake and the defendant agrees that the action must proceed so far as claiming damages including aggravated damages but excluding exemplary damages. The plaintiff appealed to the Court of Appeal and on 10 February 2000 the Court of Appeal by a majority (Beldam LJ and Sir Christopher Staughton, Auld LJ dissenting) dismissed the appeal and granted the plaintiff leave to appeal to your Lordships' House.

    31. Neither party in this appeal was prepared to argue that exemplary damages should no longer form part of the law of England nor on the other hand that the principles enunciated by Lord Devlin in Rookes v Barnard [1964] AC 1129 should be extended. Both parties were content to proceed on the basis that the decisions of this House in Rookes v Barnard and Broome v Cassell & Co Ltd [1972] AC 1027 should be followed.

    32. In Rookes v Barnard [1964] AC 1129 Lord Devlin, in a part of his speech adopted by the other members of the appellate committee, held that for the court to have a discretion to award exemplary damages in tort, either the facts of the case must fall within one or other of two broad factual categories, or the award of exemplary damages in the circumstances of the case must be expressly authorised by statute. The two factual categories are:

    1. Oppressive, arbitrary or unconstitutional actions by servants of the Government,


    2. Conduct (by the defendant) calculated to make a profit for himself which may well exceed the compensation payable to the plaintive.

It is accepted by the defendant that the pleaded and agreed facts fall within Lord Devlin's first category. At first sight it seems remarkable that the defendant can accept this as the position and at the same time accept that the House should follow the decision in Rookes v Barnard and yet that this appeal should be dismissed. The justification for this position lies in the decision of the Court of Appeal in AB v South West Water Services Ltd. [1993] QB 507 which laid down that before an award of exemplary damages can be made by any court or tribunal the tort must be one in respect of which an award was made prior to 1964, the date of the decision in Rookes v Barnard.