Watkins v Secretary of State for the Home Department and Others
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE,LORD CARSWELL |
| Judgment Date | 29 March 2006 |
| Neutral Citation | [2006] UKHL 17 |
| Court | House of Lords |
| Date | 29 March 2006 |
and others
[2006] UKHL 17
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Carswell
HOUSE OF LORDS
Appellants:
Philip Sales
Wendy Outhwaite
(Instructed by Treasury Solicitor)
Respondent:
Rabinder Singh QC
Flo Krause
(Instructed by A S Law)
My Lords,
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.
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.
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.
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.
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".
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
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
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.
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.
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...
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