Kuddus (Claimant/Appellant) v Chief Constable of Leicestershire
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,SIR CHRISTOPHER STAUGHTON,LORD JUSTICE BELDAM |
| Judgment Date | 10 February 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0210-6 |
| Docket Number | Case No: CCRTI 99/0370//2 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2000 |
[2000] EWCA Civ J0210-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
Lord Justice Beldam
Lord Justice Auld and
Sir Christopher Staughton
Case No: CCRTI 99/0370//2
Mr D. Harris QC and Mr N. George (instructed by The Smith Partnership of Leicester) appeared on behalf of the Appellant.
Mr S. Freeland and Miss G. Kent (instructed by the County Solicitor, County Hall, Leicester) appeared on behalf of the Defendant.
Thursday, 10 February 2000
The sole issue on this appeal is whether, as a matter of law, exemplary damages may be awarded in an action for the tort of misfeasance in public office. The claimant appeals an order of Mr. Recorder Waine in the Leicester County Court on 26th November 1998 striking out, as showing no reasonable cause of action, his claim for such damages against the defendant for the misfeasance of one of his officers. In so ruling, the Recorder considered himself bound by this Court's decision in AB v. South West Water Services Limited [1993] QB 507.that the effect of the House of Lords' ruling in Rookes v. Barnard [1964] AC 1129, HL, as interpreted by it in Broome v. Cassell & Co. Ltd. [1972] AC 1027, is that in the first two of three categories of case in which exemplary damages are available they are only recoverable in respect of those causes of action for which such damages had been awarded before Rookes v. Barnard. He held that misfeasance in public office, though satisfying the categories test, did not satisfy the cause of action test.
The issue may be divided into three sub-issues: first, is there a cause of action test? second, if there is, does it apply to the tort of misfeasance in public office? and third, if so, has such a claim resulted in an award of exemplary damages before 1964?
Exemplary damages are distinguishable from basic and aggravated damages in that their only function is to punish the tortfeasor. Aggravated damages, which are not always readily distinguishable from exemplary damages, may both compensate and have a punitive effect. Indeed so also may basic damages where the purely compensatory award is high. The distinctions between each of the three forms of damage are not always clear. It is only in recent years that the courts have directed juries with precision as to the differences and required them to identify each species of damages separately where it forms part of an overall award.
The tort of misfeasance in its modern form may take one of two forms. First it may be administrative action or omission with intent to damage a person, and which causes such damage. Or, second, it may be dishonest �in the sense of a knowingly or recklessly unlawful administrative act or omission with intent to cause, or foresight of, such damage, and which causes it; per the majority in Three Rivers District Council v. Bank of England [2000] 2 WLR 15, CA.
The claimant's allegation which, for this purpose, the Court must assume to be true, is that a police officer for whom the respondent is responsible has committed the tort of misfeasance in public office by forging the withdrawal of a complaint of theft. Although the claimant's ultimate entitlement to exemplary damages would only be capable of determination after a full trial on the merits, the issue of principle, its availability at all for the tort of misfeasance in public office, is not facts-sensitive and does not, in my view, offend any possible Osman v. UK (1998) 5 BHRC 293, ECt HR, implications for summary disposal of civil litigation.
The categories test � Rookes v. Barnard and Broome v. Cassell
Lord Devlin, in Rookes v. Barnard [1964] AC 1129, with the apparent agreement of all the other Law Lords (Reid, Evershed, Hodson and Pearce), whilst recognising the anomalous role of exemplary damages as a civil law remedy, regarded it as firmly entrenched in our law and as serving a valuable purpose in appropriate cases in vindicating it. I say that Lord Devlin had the "apparent" agreement of all the other Law Lords because Lord Reid, later in Broome v. Cassell, disavowed having agreed with his reliance on vindication of the law as a justification for retention of the remedy; he characterised it as a "side issue" and as unnecessary to Lord Devlin's reasoning. However, Lord Devlin and all their Lordships were clearly of the view that its availability should not be extended beyond three categories of case. I emphasise the word "categories". They are: first, oppressive, arbitrary or unconstitutional action by servants of the government; second, wrongful conduct which has been calculated by the defendant to make a profit for himself which may well exceed the compensation payable to the claimant; and third, where such an award is expressly authorised by statute. He also set out three considerations of a restrictive nature to be borne in mind when such awards were being considered. However, he did not further qualify the use of the remedy, in particular in the case of the first two categories, so as to restrict it to causes or forms of action where such damages had been previously awarded.
We are only concerned with the first category, which I shall call abuse of public office. After referring to three old authorities concerning variously trespass, assault and false imprisonment, 1 Lord Devlin said, at 1223:
" 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."
And after further reference to old and more recent authorities he returned, at 1226, to the matter of principle with these words:
"� 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."
In Broome v. Cassell the majority of a seven member Appellate Committee, appear to have accepted, obiter, Lord Devlin's reasons of principle for retaining exemplary damages, including those in relation to the first category; see e.g. per Lord Hailsham at 1077A-B, with whom Lord Kilbrandon agreed. And Lord Wilberforce, citing Holt CJ in Ashby v. White (1703) 2 Ld. Raym. 938, at 956�commonly regarded as the foundation of the tort of misfeasance in public office �said, at 1120C-D:
"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'. � 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 officer' and would partly correspond with modern needs. �"
Only Lord Reid, at 1086F-1087C, in explaining the decision in Rookes v. Barnard, used words of precedent rather than principle, but, it is important to note that, in doing so, he spoke of "classes of case" rather than "causes" or "forms" of action:
"We thought we had to recognise that it had become an established custom in certain classes of case to permit awards of damages which could not be justified as compensatory, and that that must remain the law. But we thought and I still think it well within the province of this House to say that that undesirable anomaly should not be permitted in any class of case where its use was not covered by authority. �
Critics appear to have thought that �[Lord Devlin] was inventing something new. That was not my understanding. 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 it 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.
It will be seen that I do not agree with Lord Devlin's view that in certain classes of case exemplary damages serve a useful purpose in vindicating the strength of the law. That view did not form an essential step in his argument. Concurrence with the speech of a colleague does not mean acceptance of every word which he has said. � I did not regard disagreement on this side issue as preventing me from giving my concurrence."
The cause of action test � Broome v. Cassell and AB v. South West Water Services Limited
Is there a 'cause of action' test? The somewhat slender basis for it is to be found in the House's clear unwillingness in Broome v. Cassell, a case of deceit, to widen Lord Devlin's first category of abuse of public office so as to include other types of claim outside that category. There was no suggestion in argument of a cause of action test as later introduced in AB; the issue was simply whether Lord Devlin's categories should be widened or added to (see at 1035E-1036DF, 1046D-G and 1048C-F). And, in the main, their Lordships expressed themselves in terms limiting the remedy to Lord Devlin's categories or "classes" of case, not to particular causes or forms of action within those categories. However, this Court in AB interpreted...
To continue reading
Request your trial