KUDDUS V CHIEF CONSTABLE OF LEICESTERSHIRE [2000] EWCA Civ 39
FACTS:-
The Claimant alleged that a police officer for whom the Defendant was responsible had committed the tort of misfeasance in public office by forging the withdrawal of a complaint of theft.
A claim was made for exemplary damages. The judge at first instance struck out that claim, holding that misfeasance in public office was not a tort falling within the causes of action envisaged by the House of Lords in Rookes v Barnard [1964] AC 1129 as eligible for exemplary damages.
JUDGMENT:-
Lord Justice Auld said that the sole issue in the appeal was whether, as a matter of law, exemplary damages might be awarded in an action for the tort of misfeasance in public office. There were three sub – issues:-
Exemplary damages were distinguishable from basic and aggravated damages in that their only function was to punish the tortfeasor. Aggravated damages might both compensate and have a punitive effect. Basic damages might also have a punitive effect if they were high. The distinctions between each of the three forms of damage were not always clear.
Lord Devlin in the case of Rookes v Barnard [1964] AC 1129 had laid out three categories for an award of exemplary damages.
The cause of action test
In the case of Broome v Cassell [1972] AC 1027 (which involved deceit) the House of Lords was unwilling to widen Lord Devlin’s first category so as to include other claims outside that category. Lord Devlin had referred to the torts of trespass to the person or property, false imprisonment and defamation. On that basis it had been submitted that any award of exemplary damage had to pass the cause of action test, that is to say it could not be awarded for torts outside those referred to by Lord Devlin in Rookes v Barnard.
The cause of action test first emerged as a clear proposition in AB v South West Water Service Ltd [1993] QB 533 where the claim was for damages, including exemplary damages, for nuisance, negligence and breach of statutory duty against a water board by a number of its customers in respect of injuries suffered from drinking contaminated water. The Court of Appeal held that a) the House of Lords in Broome v Cassell had restricted the availability of exemplary damages to those torts in respect of which such damages had been awarded before 1964 and b) that the tort in this case did not come within Lord Devlin’s first category of case because it did not amount to an exercise of executive or governmental function, or within the second because the water board had not sought profit by supplying polluted water.
So an award of exemplary damages had to come within Lord Devlin’s three categories and pass the cause of action test, that was to say that it had to be a tort in respect of which such an award was made prior to 1964 (the time of the judgment in Rookes v Barnard).
On this basis the tort of misfeasance in public office would not qualify for an exemplary damages award, since there was no report of such a tort prior to 1964.
Auld LJ said that Lord Devlin in Rookes v Barnard had intended to draw the boundaries by reference to the three categories of case that he identified, not by reference to particular causes of action within those categories. There was no logic to making a division.
The old cases were not a reliable source for determining whether a particular cause of action satisfied the test. Furthermore there was a long standing confusion in terminology as to the different types of damages. Finally it would be very difficult to utilize cases from the 18th century and first half of the 19th century and apply them to modern torts.
In relation to the decision in AB the Court of Appeal was entitled not to follow this decision, due to the weight of objections to the decision. Consequently there was a reasonable cause of action in the present case.
Auld LJ said that if he was wrong in declining to acknowledge the general correctness of the cause of action test, he would hold himself free to regard it as at least arguable that the test was subject to exceptions where the cause of action was clearly within the first of Lord Devlin’s categories. Those exceptions would include intimidation by a public officer, misfeasance in public office and malicious prosecution.
Sir Christopher Staughton disagreed. He said that the decision in the AB case was very clear as was the decision in Broome v Cassell. Misfeasance in public office did not come within the causes of actions pre 1964 and that was the end of this appeal. He would dismiss the appeal.
Lord Justice Beldam agreed with Sir Christopher Staughton and referred to the case of Rookes v Barnard. All the members of the appellate committee agreed that exemplary damages should be restricted to the categories of case referred to by Lord Devlin. In Broome v Cassell the House of Lords confirmed that view. He would not regard misfeasance in public office as a tort for which exemplary damages had been awarded prior to 1964. The decision in the Court of Appeal in the case of AB could not be said to manifestly inconsistent with the reasoning of the House of Lords in Rooks v Barnard.
FACTS:-
The Claimant alleged that a police officer for whom the Defendant was responsible had committed the tort of misfeasance in public office by forging the withdrawal of a complaint of theft.
A claim was made for exemplary damages. The judge at first instance struck out that claim, holding that misfeasance in public office was not a tort falling within the causes of action envisaged by the House of Lords in Rookes v Barnard [1964] AC 1129 as eligible for exemplary damages.
JUDGMENT:-
Lord Justice Auld said that the sole issue in the appeal was whether, as a matter of law, exemplary damages might be awarded in an action for the tort of misfeasance in public office. There were three sub – issues:-
- Was there a cause of action test?
- Did that test apply to the tort of misfeasance in public office?
- If so, had such a claim resulted in an award of exemplary damages before 1964?
Exemplary damages were distinguishable from basic and aggravated damages in that their only function was to punish the tortfeasor. Aggravated damages might both compensate and have a punitive effect. Basic damages might also have a punitive effect if they were high. The distinctions between each of the three forms of damage were not always clear.
Lord Devlin in the case of Rookes v Barnard [1964] AC 1129 had laid out three categories for an award of exemplary damages.
- Oppressive, arbitrary or unconstitutional action by the servants of the government – but Lord Devlin made it clear that such action did not extend to private individuals or corporations. A big man bullying a small man might make the case for aggravated damages, but that was not in his opinion punishable by damages.
- Where the Defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the Claimant.
- In addition, exemplary damages could be awarded under statute.
The cause of action test
In the case of Broome v Cassell [1972] AC 1027 (which involved deceit) the House of Lords was unwilling to widen Lord Devlin’s first category so as to include other claims outside that category. Lord Devlin had referred to the torts of trespass to the person or property, false imprisonment and defamation. On that basis it had been submitted that any award of exemplary damage had to pass the cause of action test, that is to say it could not be awarded for torts outside those referred to by Lord Devlin in Rookes v Barnard.
The cause of action test first emerged as a clear proposition in AB v South West Water Service Ltd [1993] QB 533 where the claim was for damages, including exemplary damages, for nuisance, negligence and breach of statutory duty against a water board by a number of its customers in respect of injuries suffered from drinking contaminated water. The Court of Appeal held that a) the House of Lords in Broome v Cassell had restricted the availability of exemplary damages to those torts in respect of which such damages had been awarded before 1964 and b) that the tort in this case did not come within Lord Devlin’s first category of case because it did not amount to an exercise of executive or governmental function, or within the second because the water board had not sought profit by supplying polluted water.
So an award of exemplary damages had to come within Lord Devlin’s three categories and pass the cause of action test, that was to say that it had to be a tort in respect of which such an award was made prior to 1964 (the time of the judgment in Rookes v Barnard).
On this basis the tort of misfeasance in public office would not qualify for an exemplary damages award, since there was no report of such a tort prior to 1964.
Auld LJ said that Lord Devlin in Rookes v Barnard had intended to draw the boundaries by reference to the three categories of case that he identified, not by reference to particular causes of action within those categories. There was no logic to making a division.
The old cases were not a reliable source for determining whether a particular cause of action satisfied the test. Furthermore there was a long standing confusion in terminology as to the different types of damages. Finally it would be very difficult to utilize cases from the 18th century and first half of the 19th century and apply them to modern torts.
In relation to the decision in AB the Court of Appeal was entitled not to follow this decision, due to the weight of objections to the decision. Consequently there was a reasonable cause of action in the present case.
Auld LJ said that if he was wrong in declining to acknowledge the general correctness of the cause of action test, he would hold himself free to regard it as at least arguable that the test was subject to exceptions where the cause of action was clearly within the first of Lord Devlin’s categories. Those exceptions would include intimidation by a public officer, misfeasance in public office and malicious prosecution.
Sir Christopher Staughton disagreed. He said that the decision in the AB case was very clear as was the decision in Broome v Cassell. Misfeasance in public office did not come within the causes of actions pre 1964 and that was the end of this appeal. He would dismiss the appeal.
Lord Justice Beldam agreed with Sir Christopher Staughton and referred to the case of Rookes v Barnard. All the members of the appellate committee agreed that exemplary damages should be restricted to the categories of case referred to by Lord Devlin. In Broome v Cassell the House of Lords confirmed that view. He would not regard misfeasance in public office as a tort for which exemplary damages had been awarded prior to 1964. The decision in the Court of Appeal in the case of AB could not be said to manifestly inconsistent with the reasoning of the House of Lords in Rooks v Barnard.