Kuddus v Chief Constable of Leicestershire

By a majority, the Court of Appeal held that exemplary damages were unavailable for misfeasance in public office because the tort was not one for which such damages had been awarded before [1964] AC 1129. The court treated the earlier decision in AB v South West Water Services Ltd as binding and rejected the argument that the Court of Appeal could depart from it merely because its reasoning appeared mistaken or unworkable. The categories identified in Rookes v Barnard did not alone establish entitlement. A claimant also had to satisfy the historical cause-of-action requirement. The appeal was therefore dismissed.

The claimant appealed from an order of the Leicester County Court striking out his claim for exemplary damages. He alleged that a police officer had committed misfeasance in public office by forging the withdrawal of a theft complaint.

The recorder considered himself bound by AB v South West Water Services Ltd, which had held that exemplary damages were available only where the claim fell within one of Lord Devlin’s categories and the relevant tort had attracted such an award before [1964] AC 1129. The central issue was whether misfeasance in public office satisfied that cause-of-action requirement.

The appeal was dismissed by a majority, Lord Justice Beldam and Sir Christopher Staughton forming the majority. Lord Justice Auld dissented.

1. Categories and cause of action. The majority held that exemplary damages were confined by both the categories identified in Rookes v Barnard and the additional cause-of-action requirement recognised in AB v South West Water Services Ltd. It was insufficient that the alleged conduct fell within the category of oppressive, arbitrary or unconstitutional action by servants of the Government.
2. Misfeasance in public office. The tort was not itself necessarily confined to oppressive or arbitrary conduct. It could be established by misfeasance causing damage without malicious conduct, and historical cases involving similar conduct did not clearly establish pre-1964 awards of exemplary damages for this tort.
3. Binding precedent. The majority held that AB was not manifestly inconsistent with Rookes or Broome v Cassell & Co Ltd. Nor was it shown to have been given per incuriam. The Court of Appeal therefore remained bound by it under the principles in Young v Bristol Aeroplane Co Ltd and related authorities.
4. Historical authorities. The majority declined to undertake a detailed audit of seventeenth-, eighteenth- and nineteenth-century awards. The reports were too uncertain to establish reliably whether awards contained an exemplary element.
5. Disposition. The pleaded claim disclosed no recoverable claim for exemplary damages under the applicable law. The order striking out the claim was upheld and the appeal dismissed. Leave to appeal to the House of Lords was granted.

Lord Justice Auld would have allowed the appeal. He considered that AB had introduced an unprincipled and impractical restriction not required by Rookes or Broome.

• Leicester County Court: On 26 November 1998, Mr Recorder Waine struck out the claim for exemplary damages as disclosing no reasonable cause of action.
• Court of Appeal (Civil Division): The appeal was dismissed by a majority. Leave to appeal to the House of Lords was granted.