Watkins v Secretary of State for the Home Department and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Clarke,Lord Justice Laws |
| Judgment Date | 20 July 2004 |
| Neutral Citation | [2004] EWCA Civ 966,[2004] EWCA Civ 1136 |
| Docket Number | Case No: B2/2003/2084 CCRTF,B2/2003/2084 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2004 |
[2004] EWCA Civ 1136
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE IBBOTSON)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Brooke
(Vice President of The Court of Appeal, Civil Division)
Lord Justice Clarke
Lord Justice Laws
B2/2003/2084
MS FLO KRAUSE (instructed by A S LAW) appeared on behalf of the Appellant
MS WENDY OUTHWAITE (instructed by Treasury Solicitor) appeared on behalf of the Respondents
(Approved by the Court)
Tuesday, 20 July 2004
LORD JUSICE BROOKE: This is a matter in which I was sitting with Clarke LJ and Laws LJ on 5 May 2004.
For the reasons set out in the judgment in the court, copies of which have been made available to the parties, this appeal is allowed.
There is a consent order which has been lodged with us. Judgment is entered for the appellant against Officer Ravenscroft, Officer Rosevere and Officer Robinson; the said officers are each to pay the appellant the sum of £5 by way of nominal damages; the case be remitted to His Honour Judge Ibbotson as soon as reasonably practicable, or another judge of the Leeds County Court if Judge Ibbotson is unavailable, for determination of the said officers' liability to pay the appellant exemplary damages and if so determine in the appellant's favour the amount of such damages to be decided; the parties be at liberty to lodge additional evidence in the court below going to the question of exemplary damages; the order for costs in respect of the hearing below be varied to "no order for costs, save for the assessment of the claimant's costs in pursuance of Community Legal Services (Costs) Regulations"; the respondents to pay the appellant's costs of the appeal, such costs to be assessed if not agreed. I have translated into CPR-speak a number of the elements of the draft order.
The court has received submissions from the parties on the question whether we should give leave to appeal to the House of Lords. We consider that it is appropriate to give leave to appeal to the House of Lords, conditional on the order for costs from the Court of Appeal being left undisturbed and the respondents paying the costs of both parties in the House of Lords.
We have excused the parties' attendance today but, broadly speaking, the matters which influenced our decision were first that the court was addressed by junior counsel on both sides, and then had to do a good deal of research in order to go back to the principles underpinning the tort of misfeasance in public office in relation to the issue whether there is a cause of action without proof of special damage in a case involving the breach of what is now-a-days known as a "constitutional right". The respondents are entitled, in our view, to be heard on that matter in the House of Lords.
Secondly, the respondents wish to address the House of Lords on the historical origins of the principles set out by Holt CJ in Ashby v White and they wish to address the House of Lords on the effect of the seven different reports of his decision in that important case.
Thirdly, because the case may have wider ramifications they wish to have the House of Lords consider it. In our view it is appropriate for this case to go to the House of Lords for those reasons, but on the condition which we have imposed. If the respondents wish to have less onerous conditions then they must of course petition the House of Lords in the ordinary way.
[2004] EWCA Civ 966
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HH Judge Ibbotson
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division)
Lord Justice Clarke and
Lord Justice Laws
Case No: B2/2003/2084 CCRTF
Flo Krause (instructed by a. s. law) for the Appellant
Wendy Outhwaite (instructed by the Treasury Solicitor) for the Respondents
This is an appeal by the claimant Jeffrey Shane Watkins against an order of Judge Ibbotson sitting in the Leeds County Court on 15 th July 2003 whereby he directed that judgment be entered for the defendants in this action. The claimant was at the material times a serving prisoner, and the judge found that three prison officers had acted in bad faith when dealing with his legally privileged correspondence. However, he was not satisfied that Mr Watkins had suffered any loss or damage such as constituted an essential ingredient of the tort of misfeasance in public office, and because he held that this tort was not actionable per se he dismissed his claim.
Rule 37A of the Prison Rules 1964 was the rule in force for much of the time with which this action is concerned. It was then superseded by Rule 39 of the Prison Rules 1999, which is in identical terms. These two rules provide, so far as is material, that:
(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 enclosure shall be dealt with in accordance with the other provisions of these Rules.
(3) Correspondence to which this rule applies may be opened, read or 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 its enclosure is to be read or stopped.
The rule was introduced following the judgment of this court in R v Home Secretary ex p Leech (No 2) [1994] QB 198. Steyn LJ said at p 210A that even in our unwritten constitution the right of every citizen to have unimpeded access to a court must rank as a constitutional right, and that a prisoner's unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts formed an inseparable part of his right of access to the courts themselves. It was for this reason that the court held that section 47(1) of the Prisons Act 1952 did not authorise the making of any rule which created an impediment to the free flow of communications between a solicitor and a client about contemplated legal proceedings. Steyn LJ said that this, too, was a rule of fundamental importance.
In order to give effect to the new rule HM Prison Service included in Standing Order 5 a direction that an envelope carrying correspondence between an inmate and his/her legal advisor should be marked with a reference to that provision. The Standing Order explained the effect of the new rule. It was supplemented by a Home Office instruction to prison governors, issued on 21 st December 1995 (113/1995) which also explained the effect of the new rule and warned governors that any breach of it was likely to lead to legal challenge. Governors were told to ensure that sufficient safeguards were in place to avoid the possibility of such correspondence being opened inadvertently. All staff who handled correspondence were to be informed of the terms of these procedures.
Mr Watkins is a serving life prisoner. His complaints in this action straddle a period between 1 st May 1998 and 5 th December 2000. For the first part of this period he was detained at Wakefield Prison. In September 1999 he was moved to Frankland Prison. Throughout the period he was engaged in a variety of legal proceedings, actual or contemplated, which necessitated correspondence with various legal advisors, courts and other bodies. He made frequent complaints to the effect that this correspondence, both outgoing and incoming, was being treated by prison officers in a manner that conflicted with the requirement of Rule 37A (or Rule 39, as the case might be). His attempts to pursue the matter both through the formal prison complaints systems and the Prisons Ombudsman failed to provide satisfaction, and he was eventually granted legal aid to bring an action for damages in the courts. By his particulars of claim Mr Watkins claimed damages for misfeasance in public office against the Home Office and 14 named prison officers.
The judge found that most of these officers had committed a breach of the rule, but he acquitted them of bad faith. At Wakefield some misunderstandings had arisen from the fact that although the prison governor notified both prisoners and prison staff on 21 st September 1998 about the effect of the rule, he overlooked the fact that the letters a court sent to a prisoner bore the name of the court on the envelope but contained no reference to Standing Order 5. The judge was, moreover, satisfied that some of the officers had opened the relevant letters accidentally; in other cases he ascribed the breach of the rule to inadequate training as opposed to bad faith. He found three prison officers, however, guilty of bad faith in connection with their breach of the rule,...
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