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Session 2005 - 06
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Judgments - Watkins (Respondent) v. Home Office (Appellants) and others


SESSION 2005-06

[2006] UKHL 17

on appeal from: [2004] EWCA Civ 966





for judgment IN THE CAUSE


Watkins (Respondent)


Home Office (Appellants) and others



Appellate Committee


Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Carswell





Philip Sales

Wendy Outhwaite

(Instructed by Treasury Solicitor)


Rabinder Singh QC

Flo Krause

(Instructed by A S Law)



Hearing dates:

13 and 14 February 2006








Watkins (Respondent) v. Home Office (Appellants) and others

[2006] UKHL 17


My Lords,

    1.  Is the tort of misfeasance in public office actionable without proof of financial loss or physical or mental injury and, if so, in what circumstances? Those are the questions which the House must resolve in this appeal by the Home Office, which is the first defendant in these proceedings. There were originally fourteen other defendants in the action, but none is party to this appeal.

    2.  Mr Watkins was at all material times a convicted prisoner serving a sentence of life imprisonment, first in Wakefield and then in Frankland Prison. He was engaged in a number of legal proceedings, actual and contemplated. This gave rise to correspondence with legal advisers, courts and other bodies.

    3.  During the relevant period (1 May 1998 to 5 December 2000) the confidentiality of the respondent's legal correspondence was protected, at first by Rule 37A of the Prison Rules 1964 (SI 1964/388) which became (without textual alteration) Rule 39 of the Prison Rules 1999 (SI 1999/728). This rule included the following provisions:

    "Correspondence with legal advisers and courts

    (1)  A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule.

    (2)  Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosures shall be dealt with in accordance with the other provision of these Rules.

    (3)  Correspondence to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.

    (4)  A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped.

    (5)  A prisoner shall on request be provided with any writing materials necessary for the purposes of paragraph (1).

    (6)  In this rule, 'court' includes the European Commission of Human Rights, the European Court of Human Rights and the European Court of Justice; and 'illicit enclosure' includes any article possession of which has not been authorised in accordance with the other provisions of these Rules and any correspondence to or from a person other than the prisoner concerned, his legal adviser or a court."

A Home Office instruction (113/1995, 21 December 1995) to prison governors required them to protect such correspondence against inadvertent or deliberate opening by, in particular, the training of staff handling prisoners' mail. A Standing Order provided for envelopes containing legal correspondence to be marked as such.

    4.  The respondent complained that staff at both prisons had breached the Prison Rules by opening and reading mail when they were not entitled to do so. He issued these proceedings against the Home Office and fourteen named prison officers claiming damages for misfeasance in public office. His Honour Judge Ibbotson, sitting in the Wakefield County Court, found that a number of officers had wrongly interfered with the respondent's correspondence. But he found that most of them had done so without bad faith, held by the House in Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 to be an essential ingredient of the tort, and so the claim against those officers failed.

    5.  In the case of three officers, however, the judge found bad faith to be established. One, Mr Ravenscroft at Wakefield, removed and inspected the contents of letters marked as legal correspondence, dismissing the respondent's protest with contempt, indifferent whether he was acting lawfully or not. A second officer, Mr Rosevere, also at Wakefield, denied (in bad faith) that the rule applied to incoming mail. A third officer, Mr Robinson, at Frankland, opened two letters addressed to the respondent marked 'Durham County Court' to see if they related to an action which the respondent had brought against him in that court. Thus in these three instances the bad faith ingredient was established. But the judge dismissed the respondent's claims against these officers also, on the ground that misfeasance in public office was not a tort actionable per se, and the respondent had failed to prove any financial loss or physical or mental injury of any kind. Indeed the judge formed the impression that "in many ways [the respondent] appears to thrive on these conflicts".

    6.  The respondent appealed against the dismissal of his claims against the three officers, contending that the tort of misfeasance in public office was a tort actionable per se, and so capable of being established without proof of damage, or alternatively capable of being established by proof of anxiety and distress falling short of physical or mental injury. The Court of Appeal (Brooke, Clarke and Laws LJJ) unanimously allowed the respondent's appeal, but on somewhat different grounds of their own devising: [2004] EWCA Civ 966; [2005] QB 883. They held that if there is a right which may be identified as a constitutional right, then there may be a cause of action in misfeasance in public office for infringement of that right without proof of damage. There had here been interference by the three officers with the respondent's constitutional right to have unimpeded access to the courts and to legal advice. Therefore the respondent was entitled to nominal damages of £5 against each of the three officers, and the claims should be remitted to the County Court for consideration whether exemplary damages should be awarded against the three officers and, if so, assessment of the sums to be awarded. The Court of Appeal gave the appellant leave to appeal to the House on condition that it paid the respondent's costs in the House irrespective of the outcome.

Common ground

    7.  It was common ground that the issue now before the House had not been an issue for decision by the House in Three Rivers (No 3), since it was clear in that case that the Bank of England's conduct, if tortious at all, was alleged to be causative of financial loss. Thus while no criticism was directed to the definition of the tort given by the House in Three Rivers (No 3), it did not resolve the present appeal. There was no challenge to the judge's findings of bad faith against the three officers, nor to his finding that their conduct had caused the respondent no financial loss or physical or mental injury, which in argument was helpfully described as "material damage", an expression understood to include recognised psychiatric illness but not distress, injured feelings, indignation or annoyance. The respondent wished to be free in any later hearing to contend that he had suffered emotions of the latter kind. It was common ground, in the light of the decision of the House in Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 AC 122, that exemplary damages could in principle be awarded where misfeasance in public office was established. But the appellant challenged the proposition, accepted by the Court of Appeal and supported by the respondent, that exemplary damages could be awarded even where no material damage was shown because, as it contended, proof of such damage was a necessary condition of establishing the tort.

Policy considerations

    8.  There is great force in the respondent's submission that if a public officer knowingly and deliberately acts in breach of his lawful duty he should be amenable to civil action at the suit of anyone who suffers at his hands. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity.

    9.  On the other hand, it is correctly said that the primary role of the law of tort is to provide monetary compensation for those who have suffered material damage rather than to vindicate the rights of those who have not. If public officers behave with outrageous disregard for their legal duties, but without causing material damage, there are other and more appropriate ways of bringing them to book. It is said to be unnecessary and untimely to develop this tort beyond the bounds hitherto recognised. I touch further on some of these considerations below.

    10.  I am attracted by each of these competing policy approaches. But I note that in October 2004 the Law Commission published a Discussion Paper on "Monetary Remedies in Public Law" in which various important themes bearing on the interrelation of public law and private law remedies and the impact of the Human Rights Act 1998 were canvassed. At a seminar held in November 2004 it was suggested (as recorded on the Law Commission website) that focus on monetary remedies was often too narrow, that money was often not what the wronged citizen wanted, that other forms of redress might be more appropriate and that new liabilities for public bodies to pay compensation were unlikely to find favour. The continuing work of the Law Commission in this area strengthens the opinion to which I would anyway have inclined, that the House should endeavour to establish whether or not, in this and other jurisdictions where the tort has been recognised, it has or has not been understood as actionable per se, and that the House should apply the law as thus understood.

Misfeasance in public office

    11.  In Davis v Bromley Corporation [1908] 1 KB 170 the Court of Appeal held, in effect, that a cause of action for misfeasance in public office did not exist. It is unsurprising that English lawyers lost sight of this tort, and reference (for example) to the 14th edition of Clerk & Lindsell on Torts (1975) reveals no mention of it. But in Dunlop v Woollahra Municipal Council [1982] AC 158, 172 the Privy Council described this tort as "well-established", and a little research shows this description to be correct.

    12.  In Three Rivers,above, pp 189-190, Lord Steyn traced the cause of action back to Turner v Sterling (1671) 2 Vent 25. In that case the plaintiff complained that his election as one of two custodians of London Bridge, a remunerated office, was thwarted by the malicious and unlawful action of the Lord Mayor. It was an action upon the case. There was a question whether the action would lie. Wylde J (p 26) held that it would: "Where an officer does any thing against the duty of his place and office, and a damage thereby accrues to the party, an action lies". Archer J (p 26) agreed: "for the particular damage an action lies". Tyrrel J (p 27) also agreed: "this action is for damages for being prevented of having the office". He addressed the arguments that "every action upon the case supposes damnum & injuriam", and that since there had been no election it could not be known whether the plaintiff would have been elected, by pointing out that it would be determined whether he would have been elected and "an action of the case lies for a possibility of damage". Vaughan CJ dissented, on the ground that no damage appeared. Thus all the judges held damage to be an essential ingredient of the cause of action, as would normally (not always) be so of an action on the case; they differed only on whether damage was or could on the facts be sufficiently shown.

    13.  The Court of Appeal placed great reliance on Ashby v White (1703) 1 Sm LC (13th ed, 1929) 253. The plaintiff in that case was a burgess of the borough of Aylesbury who complained that the wrongful conduct of the returning officer had denied him his entitlement to vote. In the Court of King's Bench a majority of the judges rejected his claim on a number of grounds, among them that he had suffered no damage and the matter was one for Parliament, not the courts. But Holt CJ dissented. He described the plaintiff's right as "a personal right" (p 270) but also (p 276) as "a matter of property" and regarded the plaintiff as entitled to the benefit of a franchise vested in the corporation (p 271). The respondent relies in particular on the Chief Justice's acceptance (p 273) of the right to vote as "a thing of the highest importance" and on his ruling (p 273):

    "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal".

    14.  It is not entirely easy to evaluate this authority, since Holt CJ revised his judgment before the case went to the House of Lords (p 283), where his dissent was upheld by a large majority of lay peers (p 278), on grounds which he is said to have drafted. Professor Sir John Baker QC, in An Introduction to English Legal History 4th ed, (2002), pp 431-432, interprets the claim as one for the disturbance of miscellaneous rights which would otherwise go unprotected and observes that the pleadings "show an affinity to more conventional nuisance and disturbance actions", although the right to vote was not strictly a property right. The late Professor Fleming (The Law of Torts, 9th ed, (1998), p 22) describes the claim as one in quasi-trespass, for direct infringement of an incorporeal property right, having all the attributes of trespass. The analogy with trespass may perhaps explain why material damage was not held to be a necessary ingredient of the tort, since trespass is of course the paradigm case of a tort actionable per se.

    15.  Whitelegg v Richards (1823) 2 B&C 45 concerned a debtor, imprisoned to coerce him to pay his debt to the plaintiff, whom the defendant, a court clerk, ordered to be released, "wrongfully and maliciously intending to injure the plaintiff". Abbott CJ (at p 52) recorded:

    "On the argument before us, some authorities were quoted to shew, that an action upon the case may be maintained against an officer of a Court for a falsity or misconduct in his office, whereby a party sustains a special damage; and that, in this case, a damage was plainly shewn by the loss of the means of enforcing payment from the debtor, as in actions against sheriffs or gaolers for an escape. It is not necessary to repeat the authorities quoted. The general principle was not contraverted".

It seems clear that damage was regarded as the gist of the action. In Henly v Lyme Corporation (1828) 2 Bing 91 the plaintiff owned property close to the sea which had been swamped by the tide because the corporation, who had been granted land by the Crown subject to a condition that it maintain the sea-defences, had "wrongfully and unjustly intending to injure, prejudice, and aggrieve the plaintiff" permitted these defences to become "ruinous, prostrate, fallen down, washed down, out of repair, and in great decay" for want of necessary maintenance. In his judgment at p 107, Best CJ said:

    "Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous, that it would be a waste of time to refer to them".

The Chief Justice went on to give a series of examples all of which plainly involved material damage. One of these examples related to a man to whom a clergyman refused to administer the sacrament, who was described as "thereby prejudiced in his civil rights" because, under the Corporation Act 1661 and the Test Act 1673, receiving the sacrament within a specified period was a condition of eligibility for membership of a town corporation and of holding civil and military offices. The case was one in which (p 108) the corporation had neglected its duty and the plaintiff was clearly entitled to be compensated for the financial loss he had suffered.

    16.  In Rogers v Rajendro Dutt (1860) 13 Moo PC 209 the plaintiff's claim finally failed because, as the Privy Council held, the conduct complained of had not been wrongful. But the exposition of Dr Lushington, giving the judgment of the Board, was clear. At p 236 he said:

    "For if the act which he [the defendant] did was in itself wrongful, as against the Plaintiffs, and produced damage to them, they must have the same remedy by action against the doer, whether the act was his own, spontaneous and unauthorized, or whether it were done by the order of the superior power".

The plaintiff had, at trial, proved damages of Rs 6624.

    17.  Brasyer v Maclean (1875) LR 6 PC 398 was an appeal to the Privy Council from New South Wales. It arose from a false return made by a sheriff which led to the arrest of the plaintiff and his attachment for 24 hours. The Board differed from the Supreme Court, which had nonsuited the plaintiff because no malice had been shown. But the Board regarded it (p 404) as "impossible to say that no damage was sustained by the Plaintiff in consequence of that arrest", held (p 406) that the sheriff was guilty of a misfeasance and held (p 406) that the damage resulting from the misfeasance was "sufficient damage to enable the Plaintiff to maintain an action against the sheriff for that misfeasance".

    18.  In Farrington v Thomson and Bridgland [1959] VR 286, 293, Smith J, sitting in the Supreme Court of Victoria, ruled:

    ". . . Proof of damage is, of course, necessary in addition. In my view, therefore, the rule should be taken to go this far at least, that if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person".

This decision was cited with approval, and the need for damage was affirmed, by the Full Court of Victoria in Tampion v Anderson [1973] VR 715, 720. The High Court of Australia had occasion to consider the ingredients of this tort in Northern Territory v Mengel (1995) 69 ALJR 527, and plainly considered the suffering of damage by the plaintiff to be one of them: see pp 540, 546, 554.