(back to preceding text)

    19.  The plaintiff in Garrett v Attorney-General [1997] 2 NZLR 332 claimed damages for financial loss and damage to her reputation caused by the alleged failure of the police to investigate her complaint that she had been raped by a police constable in a police station. By the time the case reached the New Zealand Court of Appeal Clarke J had already given his first instance judgment in Three Rivers to which I refer in paragraph 21 below, and the court relied on his analysis. Giving the judgment of the court, Blanchard J, at p 349, expressed agreement with Clarke J

"that it is insufficient to show foreseeability of damage caused by a knowing breach of duty by a public officer. The plaintiff, in our view, must prove that the official had an actual appreciation of the consequences for the plaintiff, or people in the general position of the plaintiff, of the disregard of duty, or that the official was recklessly indifferent to the consequences and can thus be taken to have been content for them to happen as they would".

He went on to observe (p 351) that the common law had long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. A differently constituted Court of Appeal followed this decision in Rawlinson v Rice [1997] 2 NZLR 651. In neither case did the decision turn on whether the plaintiff had suffered material damage. But it can scarcely be thought that the court regarded appreciation of the likelihood of damage as a necessary ingredient of the cause of action but did not so regard its occurrence.

    20.  The Supreme Court of Canada reviewed the ingredients of misfeasance in public office in. Odhavji Estate v Woodhouse [2003] 3 SCR 263. Iacobucci J gave the judgment of a unanimous court and in para 32 held:

"To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law."

The court went on to hold (para 41) that while grief or emotional distress were insufficient injury to support a claim, visible and provable illness or recognisable physical or psychopathological harm were not.

    21.  I come finally to Three Rivers (No 3). There was, as already observed, no debate in that case whether, if the other ingredients of misfeasance in public office were established, the plaintiffs had suffered loss. In his judgment at first instance, Clarke J nonetheless reviewed the ingredients of the tort in a comprehensive manner, summarising his conclusions: [1996] 3 All ER 558, 632-633. His final conclusion was:

"(6)  Where a plaintiff establishes (i) that the defendant intended to injure the plaintiff or a person in a class of which the plaintiff is a member (limb one) or that the defendant knew that he had no power to do what he did and that the plaintiff or a person in a class of which the plaintiff is a member would probably suffer loss or damage (limb two) and (ii) that the plaintiff has suffered loss as a result, the plaintiff has a sufficient right or interest to maintain an action for misfeasance in public office at common law. The plaintiff must of course also show that the defendant was a public officer or entity and that his loss was caused by the wrongful act."

I do not understand the Court of Appeal to have taken a different view on this question: see [2003] 2 AC 1, 57-59, 157-166. Both Hirst and Robert Walker LJJ in their joint opinion and Auld LJ in his dissent considered with care the causation of the plaintiffs' loss: see pp 59-61, 166-169.

    22.  In the House, Lord Steyn (at p 191) defined the two different forms of liability for misfeasance in public office. The first is targeted malice by a public officer, conduct specifically intended to injure a person or persons. The second is where a public officer acts, knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. In Lord Millett's opinion (p 235) these are merely different ways in which the necessary element of intention is established. The state of mind to be proved against the defendant differs somewhat in the two cases. Common to both forms, however, is the requirement of proving that the misfeasance in question has caused damage and that the public officer was at least reckless whether such damage would be caused or not: pp 194-196, 221-222, 225-227, 231, 236-237.

    23.  These authorities present a remarkably consistent body of law on the point now at issue. The proving of special damage has either been expressly recognised as an essential ingredient, or it has been assumed. None of these cases (and no authority, judicial or academic, cited to the House) lends support to the proposition that the tort of misfeasance in public office is actionable per se. Ashby v White, as I have suggested, is not reliable authority for that proposition. I would be very reluctant to disturb a rule which has been understood to represent the law for over 300 years, and which has been adopted elsewhere, unless there were compelling grounds for doing so.

    24.  The feature on which the Court of Appeal fastened was the breach in this case of the respondent's constitutional right to protection of the confidentiality of his legal correspondence. That was seen as providing an analogy with the breach of the plaintiff's constitutional right to vote in Ashby v White. The respondent relied on the authority of the Court of Appeal (per Steyn LJ) that the right of access to a court, closely linked with the right to obtain confidential legal advice, is a constitutional right (R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198, 210). In a number of cases rights of this kind have been described as "constitutional", "basic" or "fundamental": see, for instance, R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 130-131; R(Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, para 12; R v Lord Chancellor, Ex p Witham [1998] QB 575, 581, 585, 586. In all these cases the importance of the right was directly relevant to the lawfulness of what had been done to interfere with its enjoyment.

    25.  In the present context the unlawfulness of what was done to interfere with the respondent's enjoyment of his right to confidential legal correspondence is clear. I see scant warrant for importing this jurisprudence into the definition of the tort of misfeasance in public office. We would now, of course, regard the right to vote as basic, fundamental or constitutional. None of these expressions was used by Holt CJ in Ashby v White, and scarcely could have been given the very small number of adult citizens by whom the right was enjoyed at the time. There is thus an element of anachronism in relying on Ashby v White (itself a highly politicised decision) to support a proposition it would scarcely (despite the right to vote being "a thing of the highest importance, and so great a privilege") have been thought to support at the time. It is, I think, entirely novel to treat the character of the right invaded as determinative, in the present context, of whether material damage need be proved.

    26.  Novelty is not in itself a fatal objection, and the respondent contends that the importance of the right in question requires or justifies the modification of a rule, if there be such, that material damage must be proved to establish a cause of action. I do not, however, think that the House should take or endorse this novel step, for a number of reasons. The first is that it would open the door to argument whether other rights less obviously fundamental, basic or constitutional than the right to vote and the right to preserve the confidentiality of legal correspondence, were sufficiently close to or analogous with those rights to be treated, for damage purposes, in the same way. Since, in the absence of a codified constitution, these terms are incapable of precise definition, the outcome of such argument in other than clear cases would necessarily be uncertain. My second reason, already touched on, is the undesirability of introducing by judicial decision, without consultation, a solution which the consultation and research conducted by the Law Commission may show to be an unsatisfactory solution to what is in truth a small part of a wider problem. Thirdly, the lack of a remedy in tort for someone in the position of the respondent, who has suffered a legal wrong but no material damage, does not leave him without a legal remedy. Prison officers who breach the rules (even in the absence of bad faith), and the governors of both prisons, would be amenable to judicial review. Errant officers would be susceptible to disciplinary sanctions, and failure to initiate such proceedings could also, on appropriate evidence, be challenged by judicial review. The officers might well be indictable for the common law offence of misconduct in public office: see Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868, [2005] QB 73. Breach of a fundamental human or constitutional right would also, in all probability, found a claim under section 7 of the Human Rights Act 1998, as it would in this case where the violation occurred after the Act came into force. I have myself questioned, albeit in a lone dissent, whether development of the law of tort should be stunted, leaving very important problems to be swept up by the European Convention (D v East Berkshire Community Health NHS Trust, [2005] UKHL 23, [2005] 2 AC 373, para 50), but the observation was made in a case where, in my opinion, the application of familiar principles supported recognition of a remedy in tort, not a case like the present where the application of settled principle points strongly against one. A fourth reason for not adopting the rule for which the respondent contends is to be found in enactment of the 1998 Act: it may reasonably be inferred that Parliament intended infringements of the core human (and constitutional) rights protected by the Act to be remedied under it and not by development of parallel remedies. It is true, as the respondent pointed out, that section 11 of the 1998 Act contains a safeguard for existing rights, and monetary compensation awarded at Strasbourg tends, in comparison with domestic levels of award, to be ungenerous. But there is, as I have concluded, no existing right to damages where misfeasance in public office has caused no material damage to the victim, and if the evidence showed an egregious and deliberate abuse of power by a public officer one would expect the Strasbourg court to award compensation for non-pecuniary loss even though its practice is not to award exemplary damages: BB v United Kingdom (2004) 39 EHRR 635, para 36. It is, however, a fifth reason for resisting the respondent's argument that what he seeks, for himself and others in a like position in similar actions, is not an award of damages to compensate the claimant but an award to punish the defendant. Such, after all, is the function of exemplary damages. That exemplary damages may be awarded where a compensatory award is insufficient to mark the court's disapproval of proven misfeasance in public office, and deter repetition, is, as already noted, accepted. But the policy of the law is not in general to encourage the award of exemplary damages, and I would not for my part develop the law of tort to make it an instrument of punishment in cases where there is no material damage for which to compensate.

    27.  For these reasons, and those given by my noble and learned friends Lord Hope of Craighead, Lord Rodger of Earlsferry and Lord Carswell, I would accordingly rule that the tort of misfeasance in public office is never actionable without proof of material damage as I have defined it. I would accordingly allow the appeal, set aside the Court of Appeal's order save as to costs and restore the order of the judge. The appellant must, conformably with the condition imposed below, pay the respondent's costs of this appeal to the House.

My Lords,

    28.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Carswell. I agree with them, and I too would allow the appeal and make the order which Lord Bingham proposes.

    29.  I would add just a few words to the references that have been made by Lord Rodger and Lord Carswell to the way equivalent proceedings would be treated in Scotland. Although the point is by no means determinative of the issue in this appeal, it is nevertheless of some interest. It is the normal practice for rules regulating the conduct of public officers in Scotland to be the same, or at least substantially the same, as those by which the conduct of comparable public officers in England and Wales are regulated. Prison Rules are no exception. The Prisons and Young Offenders Institutions (Scotland) Rules (SI 1994/1931) contain rules protecting the confidentiality of a prisoner's correspondence with his legal adviser which are closely modelled on the Prison Rules 1964, as amended by the Prison Rules (Amendment) (No 2) Rules. It would be a matter for regret if the remedies for a breach of these and other rules regulating the conduct of public officers were not the same on either side of the border.

    30.  The question whether a breach of duty is actionable without proof of material damage has long been settled in Scotland. In Black v North British Railway Co, 1908 SC 444, the widow and children of man who had been killed while travelling as a passenger on one of their trains claimed damages against the railway company. A court of seven judges was asked to lay down the principles on which on which damages should be assessed under the head of solatium. For the pursuers it was contended that they should be found entitled to enhanced damages if they were able to show that the accident was caused by gross negligence. This argument was rejected. Lord President Dunedin said at pp 453-454 that he found no authority for any distinction between damages and exemplary damages in the law of Scotland.

    31.  The Lord President might have added that an award of exemplary damages was also contrary to principle. The function of the law of delict in Scotland is to ensure that if loss is caused by another person's wrongful act the loss will be compensated. The wrongful act of a public officer gives rise to an obligation in delict. The obligation arising from his wrongful act is to make reparation for loss, injury or damage suffered. Reparation is achieved either by restoring to the other party what he has lost or, where that cannot be done, by giving the like value, or that which is nearest, to make up the damage: Stair, Institutions of the Law of Scotland (1693), 1, 9, 4. The loss suffered is the basis for the assessment of damages. It is not the function of the law of delict to exact anything more, and certainly not anything by way of punishment. If no loss has been suffered, the wrongful act will not give rise to any liability.

    32.  The present state of the authorities in England and Wales, as Lord Bingham has so clearly demonstrated, is that the tort of misfeasance in public office is actionable only where the claimant has suffered loss or damage which was caused by the tortuous conduct of the public officer. Its function is to compensate the claimant, not to punish the public officer. Section 8(4) of the Human Rights Act 1998 provides that in determining the amount of an award of damages for a breach a Convention right the court must take into account the principles which the Strasbourg Court applies under article 41 of the Convention. Those principles do not extend to awarding exemplary damages. This is as good an indication as any as to what the policy of the law should now be. I agree that we should refrain from developing the tort so that exemplary damages may be exacted in cases where a compensatory award cannot be made because the claimant has not suffered any material damage as a result of the tortuous act of the public officer.

LORD RODGER OF EARLSFERRY

My Lords,

    33.  Although convicted of crimes and deprived of their liberty, prisoners have the right to send and receive letters and to make and receive telephone calls. Many of the communications to relatives and friends are social or deal with purely personal matters, but prisoners may also wish to contact the courts or their legal advisers in relation to legal problems, real or perceived. Whatever the nature of the communications, there is a risk that some prisoners may abuse the system to breach the security of their prison. The prison authorities can therefore take measures to counteract that risk by opening, reading and, if necessary, censoring or blocking correspondence. The Secretary of State's authority for taking these measures is to be found in the Prison Rules made under section 47(1) of the Prison Act 1952. Obviously, the rights of prisoners to communicate with the courts and to consult their legal advisers in confidence are particularly important. Devising a system which respects those rights while maintaining the security of the prisons has not proved altogether easy, as can be seen from the cases that have come before the courts over the last twenty-five years.

    34.  In Raymond v Honey [1983] 1 AC 1, in the purported exercise of his powers under the Prison Rules, a prison governor intercepted a letter containing documents which a prisoner had addressed to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court. This House decided that the governor was in contempt of court in stopping the documents. Lord Wilberforce held that there was nothing in the Prison Act 1952 which conferred power to make regulations which would deny, or interfere with, the right of a prisoner to have unimpeded access to a court. The rule-making provision in section 42(1) was, he said, "quite insufficient to authorise hindrance or interference with so basic a right." That basic right was also given effect in the context of articles 6 and 8 of the European Convention on Human Rights. Long before the Human Rights Act 1998, the scope of a prisoner's right to correspond with his lawyer and the permissible restrictions on that right were progressively clarified by the European Court in cases involving the United Kingdom: Silver v United Kingdom (1983) 5 EHRR 347 and Campbell v United Kingdom (1992) 15 EHRR 137. At about the same time Mr Mark Leech was active in getting the courts to clarify the position in both Scotland (Leech v Secretary of State for Scotland 1992 SC 89) and England (R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198).

    35.  Most of the cases went in favour of the prisoners. The Home Office and the Scottish Office responded by amending the rules to meet the various decisions of the courts. This appeal concerns rule 37A of the Prison Rules 1968, as amended to take account of the decision of the Court of Appeal in R v Secretary of State for the Home Department, Ex p Leech, and rule 39 of the Prison Rules 1999, which is in identical terms. Taken as a whole, the cases revolutionised the way that prisoners' correspondence with solicitors and courts had to be handled. The changes in rule 37A reflected this, but the message seems to have taken some time to filter down to the frontline prison officers. In a careful judgment in these proceedings brought by the respondent, Mr Watkins, HHJ Ibbetson found that there had been many breaches of the rules for handling his correspondence with solicitors. But, for the most part, the judge concluded that the breaches had occurred because the officers concerned simply did not understand the system which they were supposed to be operating. The position was different in the three cases which form the subject-matter of the Home Secretary's appeal.

    36.  Mr Watkins was a prisoner in Wakefield Prison in 1998. In September one of the prisoner officers, a Mr Ravenscroft, opened two letters to him from his solicitors, even though the officer had no good reason to do so in terms of Rule 37A. He did not care whether he was breaking the rule or not. When the respondent protested, Mr Ravenscroft replied "So report me to John Major." A notice was then issued to staff, reminding them about the terms of rule 37A. About two weeks later, the respondent received another letter from a solicitor. The officer on duty refused to hand the letter over to him unless he was willing to open it in his presence. Later that day, another prison officer, Mr Rosevere, ripped open the letter and, when challenged, said that the notice only applied to outgoing mail. In fact, Mr Rosevere either knew that he was acting unlawfully or was reckless whether his conduct was unlawful.

    37.  By December 2000 rule 39 had replaced rule 37A and Mr Watkins was in Frankland Prison. He had raised legal proceedings against one of the officers, a Mr Robinson. On 5 December, without Mr Watkins' knowledge or consent and without any sufficient reason to do so, Mr Robinson opened two letters addressed to Mr Watkins from Durham County Court in order to see whether they related to the proceedings against him. He then handed the letters which he had opened to Mr Watkins.

    38.  The judge found that Mr Watkins was not particularly embarrassed or humiliated by any of these incidents. Rather, in the judge's view, it could be said that in many ways he appeared to thrive on the conflicts.

    39.  The three officers - and indeed a considerable number of other officers besides - opened the respondent's correspondence with his lawyers in breach of rule 37A or rule 39 of the relevant Prison Rules. It is settled, however, that the Rules are not intended to create private rights in favour of prisoners and that their breach does not of itself give a prisoner a right to claim damages in private law: R v Deputy Governor of Parkhurst Prison Ex p Hague [1992] 1 AC 58. The proceedings which Mr Watkins raised against the Home Office and the individual officers therefore took the form of an action for misfeasance in public office. But in order to establish liability for misfeasance, the claimant must show that the officer was at least recklessly indifferent to the illegality of his act: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, 193C-D per Lord Steyn. Here the judge held that, except in the case of the three officers just mentioned, Mr Watkins had failed to establish this ingredient of his claims. The judge therefore dismissed the claims against all the other officers.

    40.  In his particulars of claim the respondent specified a number of ways in which he said that he had suffered injury as a result of the officers' acts, among them a claim that his sense of pride and dignity was severely injured. The judge did not find that he had established any of these heads of injury. Therefore, despite concluding that the three officers had acted in a malicious or reckless way, the judge dismissed the respondent's claims on the ground that the tort of misfeasance was not actionable per se and the respondent had not suffered any loss or damage as a result of what the officers had done. Mr Watkins appealed against this aspect of the judge's decision.

    41.  The Court of Appeal identified the question at the heart of the appeal as being whether proof of damage is a necessary ingredient of the tort of misfeasance in public office. The court proceeded to answer that question by saying that a claimant's right of action was complete even without proof of special damage where a defendant infringed a right which could be identified as a constitutional right of the claimant. Holding that the officers had infringed the respondent's constitutional right of access to the courts, the Court of Appeal allowed his appeal, awarded him £5 by way of general damages and remitted the case to the judge to determine whether an award of exemplary damages should be made and, if so, for what amount.

    42.  The issue in the appeal to this House by the Home Office is whether the Court of Appeal was correct to hold that a claimant could succeed without proof of special damage where the defendant's misfeasance in public office interfered with a "constitutional right" of the claimant.

    43.  The somewhat disjointed history of the tort which is now known as misfeasance in public office has been traced in the literature and in several judgments. It would serve no useful purpose for me to add to what my noble and learned friend, Lord Bingham of Cornhill, has said about it in his speech. But his survey shows that the plaintiff has always had to prove that he suffered material damage as a result of the defendant's misfeasance. Take, for instance, Henly v Lyme Corporation (1828) 2 Bing 91. The defendants held the famous cob at Lyme under letters patent from Charles I, which obliged them to maintain the sea walls. The plaintiff sued them for failing to perform their duty. He obtained a verdict on two counts. One was to the effect that, with the intention of injuring, prejudicing and aggrieving the plaintiff, and in order to deprive him of the use and benefit of certain lands and cottages, the defendants had allowed the sea defences to fall into a ruinous state with the result that his lands and cottages were flooded and he was "greatly injured and damnified." The defendants sought to have the judgment on the two counts arrested, chiefly on the ground that, since the defendants' obligation to repair the walls had been imposed by the letters patent from Charles I, the Crown alone could take advantage of a breach of the conditions of the grant. That argument might well have had some force if the plaintiff had not suffered any damage as a result of the defendants' failure, but Best CJ held, at p 107, that it was "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." He went on to hold, at p 108, that, if by any act of negligence or any act of abuse in his office by a public officer, "any individual sustains an injury, that individual is entitled to redress in a civil action." It is the fact that he suffers injury from the abuse which gives the particular individual a right, which others would not have, to seek redress.

    44.  The decision of this House in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 shows that the position remains the same today. In that case the issue was whether recklessness on the part of a defendant would be sufficient to establish liability for misfeasance in public office. The House held that it was. Counsel for the respondent in the present case emphasised that in Three Rivers the House had not been concerned with whether the plaintiffs needed to allege that they had suffered loss as a result of the defendant's misfeasance - there were allegations in plenty to that effect. That is, of course, true but it does not take him very far if the claimant's alleged loss forms a material element in the tort as formulated by the House.