Kuddus v Chief Constable of Leicestershire Constabulary
|LORD SLYNN OF HADLEY,LORD MACKAY OF CLASHFERN,LORD NICHOLLS OF BIRKENHEAD,LORD HUTTON,LORD SCOTT OF FOSCOTE
|07 June 2001
| UKHL 29
|07 June 2001
|House of Lords
 UKHL 29
Lord Slynn of Hadley
Lord Mackay of Clashfern
Lord Nicholls of Birkenhead
Lord Scott of Foscote
HOUSE OF LORDS
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.
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.
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.
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.
Inc , 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 categoryï¿½I say this with particular reference to the facts of this caseï¿½to 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 serviceï¿½
"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.
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 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."
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).
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.
In , 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 and was that the claim must be "in respect of a cause of action for which prior to 1964 such an award had been made".
Stuart-Smith LJ accepted, at p 519, that this last limitation was not to be found in the speech of Lord Devlin in but was to be deduced from the majority of speeches in . Having said, at p 523, that the question whether exemplary damages for nuisance were available prior to 1964 depended on a proper view of , 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.
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".
Having referred to passages in the speeches in 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 . This may involve a misreading of their Lordships' speeches in , 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.
I share the Master of the Rolls' view that it is not easy to be sure whether the House in 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.
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...
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Table of cases
...DLR (4th) 577,  SCJ No 73 ......................................................... 204 Kuddus v Chief Constable of Leicestershire,  UKHL 29,  3 All ER 193 ..........................................320, 325, 335 Kuz v CIBC Trust Corp,  AJ No 1532 (QB) .....................