|Judgments - Kuddus (AP) v. Chief Constable of Leicestershire Constabulary
33. The genius of the common law is its capacity to develop and it appears strange that the law on this particular topic should be frozen by reference to decisions that had been taken prior to and including Rookes v Barnard. This has led Professor W. V. H. Rogers to comment in the 15th edition of Winfield and Jolowicz on Tort, at p 746, that this decision "commits the law to an irrational position in which the result depends not on principle but upon the accidents of litigation ".
34. If one takes the view that exemplary damages are an anomaly in the law which has been introduced by authority which should be allowed to stand but that it should not be extended beyond the limits to which it has already been introduced then a freeze of this kind would be a logical consequence of that position although the very existence of the anomaly is itself illogical. Put another way, if one has accepted that damage has been done to the rationality of the law by the introduction of an anomaly which cannot be removed but which should not be enlarged, the consequence that the extent to which the anomaly persists is determined by the extent to which it has prevailed prior to the decision to limit it is a perfectly natural and reasonable result. In my opinion therefore criticism of AB v South West Water Services Ltd  QB 507 on the basis that it is illogical is not well founded. However it remains to consider whether the decision is justified by the reasons on which it was based.
35. This consideration requires the House to examine the principles on which Rookes v Barnard  AC 1129 in so far as it dealt with exemplary damages is based. Since neither party in this appeal was prepared to challenge Rookes v Barnard nor to examine the basis in principle for allowing exemplary damages at all the House is put in the position of having to approach the important question of whether exemplary damages should be available for the tort of misfeasance in public office without the benefit of a full examination of the principles by reference to which that decision should be taken. However the Law Commission in its Report on Aggravated, Exemplary and Restitutionary Damages (1997) (Law Com No 247) after a very full and thorough consultation, has reached the view that exemplary damages should continue to be part of the law of England and Wales although on a more extended basis than it is at present. By written answer of 9 November 1999 (HC Debates), 9 November 1999, col 502 the Government has stated that it does not propose to take forward the draft legislation giving effect to this recommendation of the Law Commission having regard to the balance of opinion disclosed at consultation; the answer further stated: "It may be that some further judicial development of the law in this area might help clarify the issues." We were informed that originally the defendant in the present appeal had indicated an intention to raise this issue but on mature consideration had decided not to do so and that preliminary preparations by the plaintiff to meet such an argument had accordingly been departed from for this reason. Both parties to this appeal start from the premise of acceptance of Lord Devlin's speech in Rookes v Barnard  AC 1129 as setting out the law on this subject which the House should follow in deciding this particular case.
36. Much water has flowed under the bridge since Rookes v Barnard was decided. Many statutory duties have been created and the Human Rights Act 1998 has been enacted which give rise to claims of damages the principles of which may well affect the propriety of and the necessity for a power to award exemplary damages to continue to be recognised in the law of England. However in the absence of fuller argument on this point and the fact that the Law Commission after a full consultation has recommended that the power to award exemplary damages should not be removed from the law of England I am content to decide this appeal in the light of the arguments that have been presented. Rookes v Barnard is an authority decided in this House. While under the Practice Statement of 1966 (Practice Statement (Judicial Precedent)  1 WLR 1234) the House could now for good reason decline to follow it, since neither party was prepared to advance reasons for declining to follow it, in my opinion, the duty of the House is to follow it in deciding the present appeal.
37. It is perhaps worthwhile adding that in his Principles of the Law of Damages (1962) referred to by Lord Devlin in his speech in Rookes v Barnard  AC 1129, 1221 Professor Street, after summarising the arguments against and for exemplary damages concludes, at p 36:
"It is believed that in the present state of knowledge, one cannot say whether exemplary damages are desirable. That study of the law in action which would show how efficiently they contribute to the attainment of the several purposes examined above remains to be done. And the practical usefulness of exemplary damages is the basic question, and one to which no amount of theorising can provide an answer."
So far as I understand the Law Commission's report it proceeded on views derived from a very full and careful consultation but it may be that the study which Professor Street desiderated remains to be done.
38. In the forefront of the defendant's argument is the proposition that the power to award exemplary damages in tort depends upon the tort upon which the action is based and that, while a number of torts carry with them the power in the court to award exemplary damages in cases falling within these torts, for example false imprisonment, assault and battery, trespass to land or goods there are others, for example, negligence, public nuisance, and deceit which do not. On a reading of Lord Devlin's speech in Rookes v Barnard which was concerned not to set out a code but to state the principles upon which in the light of the previous authorities the power to award exemplary damages should be based I find no trace of the idea that the precise form of the cause of action should determine the matter, although that position had been clearly put in argument. Rather what Lord Devlin was indicating were situations in fact which would justify the court having power to award exemplary damages rather than determining this matter by reference to the cause of action. There is no mention whatever in Lord Devlin's speech of a cause of action test and surely when he was setting out principles if that was part of the essential qualification for the existence of the power he would have mentioned it. Indeed one of the difficulties of applying the pre-1964 decisions is to provide rational grounds for distinguishing between torts in which the power was and was not available.
39. When Lord Devlin came to apply his general principles to the facts of Rookes v Barnard itself he made no mention whatever of the tort of intimidation as qualifying or disqualifying for the exercise of the power for exemplary damages. Counsel for the defendant argued persuasively that Mr. Gardiner, (counsel for the defendants) in Rookes v Barnard had in effect conceded that intimidation was a qualifying tort but even if one accepts this argument if the nature of the tort is a crucial factor in determining whether or not exemplary damages could be awarded I would certainly have expected Lord Devlin to have mentioned it as part of his application of the principle even if up till then it could have been implicitly regarded as an essential prerequisite. As Lord Diplock said in Broome v Cassell & Co Ltd  AC 1027, 1123-1124:
40. In my opinion this is the essential character of Lord Devlin's approach in Rookes v Barnard  AC 1129. If the cause of action is a vital prerequisite then Lord Devlin's approach would surely have been in two stages: first to determine even if doing so by reference to the concession of counsel whether intimidation was a tort which carried with it the power to award exemplary damages and then to consider whether within that framework the facts of the instant case justified the exercise of the power. If that were the correct structure of the law as Lord Devlin envisaged it I cannot think that he would not have adopted that analysis.
41. A great deal of time and effort was devoted in the argument to the analysis of the speeches in Broome v Cassell & Co Ltd  AC 1027. It is an interesting feature of these that Lord Reid indicated a difference of opinion from Lord Devlin's speech in Rookes v Barnard  AC 1129 although he had in that case itself concurred with it. Lord Devlin took the view that the existence of the power to award exemplary damages is a factor in promoting respect for and the effectiveness of the law, a point of view strongly echoed by Lord Wilberforce in Broome v Cassell & Co Ltd (which Professor Street's study (Principles of the Law of Damages, p 36) would elucidate.
42. Although Lord Reid in Broome v Cassell & Co Ltd indicated that in his opinion this was not a sufficiently important part of Lord Devlin's reasoning in Rookes v Barnard  AC 1129 to require him to dissociate himself from it I consider that it could have a considerable effect on the degree to which one would wish to confine an anomaly within the law. A pointless anomaly even if accepted ought to be more closely confined than an anomaly which could have beneficial effects. We cannot know the extent to which the other members of the House who participated in Rookes v Barnard shared Lord Devlin's view on this point rather than that of Lord Reid but I do not think we can proceed on the assumption that they were with Lord Reid on this rather than with Lord Devlin. In any event I regard Lord Devlin's speech as indicating the sort of confinement of the anomaly which he considered right, namely the need for the power to be exercised only in the categories of factual situation which he had expressed. On this point all their Lordships who sat in Rookes v Barnard were agreed.
43. The difficulty of adequate reason for distinguishing between torts in respect of which the power to award exemplary damages should exist and those in which it should not is exemplified by Lord Hailsham's treatment in Broome v Cassell & Co Ltd  AC 1027 of the tort of deceit. The reliance on history and the relationship of the tort of deceit to a breach of contract while leading Lord Hailsham to his then opinion does not seem powerfully persuasive and Lord Hailsham appears to have recognised that in the somewhat tentative nature of his conclusion.
44. I have not found the dicta in Broome v Cassell & Co Ltd particularly easy to construe but I believe that in so far as they appear to suggest that Lord Devlin did not mean to extend the law to particular torts which had not already been covered by pre 1964 authority that can be accepted as their effect on the basis that Lord Devlin's approach was not concerned with particular torts but rather with factual situations which might exist across a range of torts. In my opinion there is no basis in Rookes v Barnard  AC 1129 for the view that the power to award exemplary damages exists only in torts which had been decided to have that character prior to 1964. A fair reading of the dicta in Broome v Cassell & Co Ltd  AC 1027 do not effectively insert such a basis into the law and accordingly I am of opinion that AB v South West Water Services Ltd  QB 507 was wrongly decided.
45. It follows from what I have said that I consider that the question whether the tort of misfeasance in public office carries the power to award exemplary damages should be answered by saying that the mere fact that the tort sued upon is that of misfeasance in public office does not determine the issue. The issue is determined by whether the factual situation is covered by either of Lord Devlin's formulations. In the present case it is accepted that the factual situation does come within Lord Devlin's first category and although on the facts so far as pleaded I regard this as extremely doubtful, for the purposes of this appeal I would be prepared to accept it and accordingly I am of the opinion that the appeal should be allowed and that the claim for exemplary damages should proceed without in any way restricting the judge in his consideration of this issue.
46. I add some further considerations in respect of legislation such as the discrimination legislation and the data protection legislation. Exemplary damages would be available only if the legislation expressly authorises exemplary damages in relation to any particular breach. So far as the 1998 Act is concerned it was submitted on behalf of the defendant that this legislation reduces any need that may have been thought to exist previously for a deterrent factor in damages but for my part until these matters have been more developed I would reach no conclusion upon the point. In so far as a conclusion can be reached upon it at the present time I feel the work of the Law Commission (Report on Aggravated, Exemplary and Restitutionary Damages (1997) (Law Com No 247)) is the best indication that the impact on the desirability of retaining the power to award exemplary damages in appropriate cases may not be great.
47. Finally I have found the consideration of the measure of exemplary damages in vicarious liability cases somewhat perplexing. The present is a case of exemplary damages against the Chief Constable of Leicestershire Constabulary. It seems to me that while the defendant's means may be important in considering an award of exemplary damages against the defendant personally where the case is one of vicarious liability I find it somewhat difficult to accept that the relevant means are those of the defendant rather than those of the wrongdoer but since the point has not been argued I express no concluded view upon it. The Law Commission note in their Report, at paragraph 4.102, that there is no reported English case which goes beyond mere assumption, and specifically considers the question whether, and if so how, the doctrine should apply. However the decision in Broome v Cassell & Co Ltd  AC 1027, 1029, holding (4) that the lowest sum for which any defendant could be liable where more than one defendant was sued is the proper figure requires to be taken into consideration.
48. I would allow the appeal on the basis that the claim should not have been struck out, but leaving open the issues with regard to exemplary damages which have not been argued in this appeal for determination as the case proceeds.
LORD NICHOLLS OF BIRKENHEAD
49. On this appeal your Lordships' House is being asked to decide whether exemplary damages may be awarded against a defendant who commits the tort of misfeasance in public office. The leading case on exemplary damages was decided by your Lordships' House in 1964: Rookes v Barnard  AC 1129. At that time the law was in a state of considerable disarray. Lord Devlin's treatment of this difficult subject received the approval of all members of the House. But in one respect, crucial for the purposes of this appeal, Lord Devlin's observations are not altogether clear.
Rookes v Barnard
50. Exemplary damages are a controversial topic, and have been so for many years. Over-simplified, the matter may be summarised thus. Awards of damages are primarily intended to compensate for loss, whether pecuniary or non-pecuniary. Non-pecuniary loss includes mental distress arising from the circumstances in which the tort was committed, such as justified feelings of outrage at the defendant's conduct. Damages awarded for this type of loss are sometimes called aggravated damages, as the defendant's conduct aggravates the injury done. Sometimes damages may also be measured by reference, not to the plaintiff's loss, but to the profit obtained by the defendant from his wrongdoing: see the discussion in Attorney General v Blake  1 AC 268, 278-280.
51. Exemplary damages or punitive damages, the terms are synonymous, stand apart from awards of compensatory damages. They are additional to an award which is intended to compensate a plaintiff fully for the loss he has suffered, both pecuniary and non-pecuniary. They are intended to punish and deter.
52. Punishment is a function par excellence of the criminal law, rather than the civil law. But in Rookes v Barnard  AC 1129 the House recognised that there are circumstances where, generally speaking, the conduct is not criminal and an award of exemplary damages would serve a useful purpose in vindicating the strength of the law. This purpose would afford 'a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal': see per Lord Devlin, at p 1226. Lord Devlin identified two sets of circumstances ('categories of case') where this was so: oppressive, arbitrary or unconstitutional acts of government servants, and wrongful conduct calculated to yield a benefit in excess of the compensation likely to be payable to the plaintiff. A further, self-evident category, on which nothing turns, comprises cases where exemplary damages are expressly authorised by statute.
53. Lord Devlin's categorisation is open to two different interpretations. One interpretation is that the sets of circumstances identified by him were thenceforth to constitute the sole criteria for determining whether a court might in its discretion make an award of exemplary damages in respect of tortious conduct. In future, whatever the nature of the claim, whatever the particular tort involved, if the facts fell within one of his two categories the court had power to award exemplary damages.
54. The other interpretation attributes a more limited effect to Lord Devlin's categorisation. According to this second interpretation, Lord Devlin did not seek to rationalise the whole law of exemplary damages. His aim was less ambitious. He sought to do no more than identify the factual circumstances in which alone exemplary damages might be awarded. He set out two categories of factual prerequisites one or other of which must always exist before the court has jurisdiction to award exemplary damages. When imposing these limits on the availability of exemplary damages Lord Devlin did not intend thereby to widen the availability of exemplary damages. He did not intend that exemplary damages should be available in future as a remedy for torts which, under the established law, did not attract this remedy. There are several such torts. Deceit and negligence are two instances. Lord Devlin intended to leave this area of the existing law untouched.
55. Thus, on this second interpretation, two prerequisites have to be satisfied before exemplary damages may be awarded. First, the facts must fall within one of Lord Devlin's two categories. This is the so-called 'categories' condition. Secondly, and standing quite apart from Lord Devlin's categories condition, the cause of action relied upon must not be one in which, under the established law, exemplary damages are unavailable. The latter condition, the so-called 'cause of action' condition, has attracted much criticism. Rightly so, because it represents in practice an arbitrary and irrational restriction on the availability of exemplary damages.
56. Perhaps not surprisingly, in Mafo v Adams  1 QB 548, a case concerning the tort of deceit, Widgery LJ, at pp 558-559, preferred the first of the two interpretations of Lord Devlin's speech. The circumstances in which exemplary damages might be obtained had been drastically reduced by Rookes v Barnard, but the effect of Lord Devlin's formulation was to remove the existing limits on the range of wrongs for which exemplary damages might be granted.Broome v Cassell & Co Ltd
57. In Broome v Cassell & Co Ltd  AC 1027 your Lordships' House decided otherwise. The House rejected this interpretation of Lord Devlin's speech. Differing views were expressed on the desirability of exemplary damages. But those of their Lordships who addressed this point spoke with one voice in declaring the current state of the law. When doing so, they openly recognised its lack of principle. Lord Hailsham of St Marylebone LC, at p 1076, expressly disagreed with Widgery LJ's observations in Mafo v Adams. He stated that by listing the categories Lord Devlin was not intending to add to the number of torts for which exemplary damages can be awarded. Lord Diplock was similarly unambiguous and forthright, at p 1131:
The principle that, following Rookes v Barnard, exemplary damages may be awarded for some torts but not for others was also explicit in Lord Wilberforce's speech when he referred, at p 1114, to the 'range of torts for which punitive damages may be given (trespass to person or property, false imprisonment and defamation being the commonest) '.
58. Lord Reid's observations, not specifically addressed to this point, are less explicit. Lord Reid had been a party to the decision in Rookes v Barnard, but in Broome v Cassell & Co Ltd he disagreed with Lord Devlin's view that in certain classes of case exemplary damages serve a useful purpose in vindicating the strength of the law. Lord Reid's approach was wholly restrictive, confining exemplary damages to 'classes of cases' where its use was covered by authority. In Rookes v Barnard the House had been confronted with 'an undesirable anomaly'. Lord Reid continued, at 1087:
I can detect nothing in these observations to suggest that Lord Reid understood, or accepted, that in future exemplary damages would be available in torts such as deceit where under the established law exemplary damages were currently not available.
59. The view of the law expressed by Lords Hailsham, Wilberforce and Diplock has held sway ever since. It was faithfully applied by the Court of Appeal in AB v South West Water Services Ltd  QB 507 when deciding that exemplary damages are not available in claims, arising out of contamination of drinking water supplies, for public nuisance and negligence.Whither now?
60. Broome v Cassell & Co Ltd was decided in 1972. Since then the legal landscape has much changed. Needless to say, it is well within the province of this House to decide that the law relating to exemplary damages should now be understood in accordance with the first interpretation of Lord Devlin's speech in Rookes v Barnard: the interpretation preferred by Widgery LJ in Mafo v Adams  1 QB 548 but rejected by the House in Broome v Cassell & Co Ltd. That is one course open to the House. But, as also goes without saying, the House will not follow this course unless satisfied that, in the conditions of today, that is the direction the law should take. The House will wish to be satisfied on this score, because such a decision would represent a significant change in the law. It would mean departing from the law as enunciated in Broome v Cassell & Co Ltd. It would mean overturning the law as it has been understood and acted upon for some years. Such a change in the law would affect other torts as well as the newly-resurgent tort of misfeasance in public office. It would mean that in future, if the necessary factual circumstances are present, exemplary damages will be available across the board in every tort, including those torts where the absence of exemplary damages has long been established. This would revolutionise the law's approach to exemplary damages. It would mean that, far from being an undesirable anomaly whose use is to be restricted, exemplary damages are now regarded as a convenient tool which the law should seize and be able to use more widely.
61. Is this the direction in which the law should be moving? This question raises three separate issues. The first is whether the present state of the law on exemplary damages is satisfactory. In my view it is not. This view is shared by all your Lordships. The second issue is whether, nonetheless, this is a matter best left to Parliament. Again, I understand that all your Lordships are minded not to leave the law as it presently stands, including as it does a requirement that a claim must satisfy the cause of action condition before exemplary damages may be awarded. In its report, Aggravated, Exemplary and Restitutionary Damages (1997) (Law Com 247), the Law Commission looked to Parliament for the necessary reforms. The present state of the law 'cries aloud for parliamentary intervention': see para 5.3. But parliamentary intervention seems unlikely, at least for the foreseeable future. On 9 November 1999 (HC Debates), 9 November 1999, col 502, in a written answer to a question in the House of Commons, the government stated that, in the absence of a clear consensus on the way ahead, it had decided not to take forward the Law Commission's proposals for legislation on exemplary damages.The options
62. So the third issue which arises is what should now be the law relating to exemplary damages. The starting point must be to consider whether exemplary damages, regarded as an anomaly in 1964, ought still to have a place in the law at all.
63. The arguments for and against exemplary damages need no rehearsing. They are familiar enough, and they are set out clearly in the Law Commission's report. In the end, and in respectful agreement with the views expressed by Lord Wilberforce in Broome v Cassell  AC 1027, 1114, the feature which I find most striking is the extent to which the principle of exemplary damages continues to have vitality. The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant's conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiff's rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna.