Kuddus v Chief Constable of Leicestershire

The House of Lords allowed an appeal against the striking-out of a claim for exemplary damages in an action for misfeasance in public office. The court held that whether exemplary damages may be awarded depends on the factual category of the defendant's conduct identified in Rookes v Barnard (oppressive or arbitrary conduct by public servants, or conduct calculated to make a profit) rather than upon a rigid requirement that the cause of action must have attracted exemplary damages prior to 1964. The Court therefore rejected the strict "pre-1964 cause of action" test as a necessary limitation on exemplary damages and allowed the claim to proceed for trial. The House did not decide the unresolved question of vicarious liability for exemplary damages in this appeal.

Background and facts:

The claimant reported a theft to a police constable. Some two months later the constable forged the claimant's signature on a statement purporting to withdraw the complaint, and the police investigation ceased. The Chief Constable admitted the forgery and that the constable's conduct amounted to misfeasance in public office. The claimant sought damages including aggravated and exemplary damages.

Procedural posture:

• The Recorder in Leicester County Court struck out the claim for exemplary damages (26 November 1998).
• The Court of Appeal, by a majority, dismissed the claimant's appeal (10 February 2000); Auld LJ dissented.
• The claimant obtained leave and appealed to the House of Lords, which delivered judgment on 7 June 2001.

Nature of the claim and issues:

• Nature of claim: tort of misfeasance in public office seeking aggravated and exemplary damages.
• Main issues framed: whether exemplary (punitive) damages are available for misfeasance in public office; whether the "cause of action" test (that exemplary damages can only be awarded for torts which, pre-1964, had given rise to exemplary awards) remains a valid limitation; and ancillary questions about vicarious liability for exemplary damages (raised but not finally decided).

Court’s reasoning and disposition:

The House reviewed Rookes v Barnard [1964] AC 1129 and Broome v Cassell & Co Ltd [1972] AC 1027. A majority held that exemplary damages continue to be part of English law in appropriate cases and that the availability of exemplary damages should be governed by the factual categories articulated in Rookes (notably oppressive or arbitrary conduct by public servants), rather than by an additional rigid pre-1964 cause-of-action requirement. The Court concluded that AB v South West Water Services Ltd [1993] QB 507, which had applied such a pre-1964 cause-of-action test, was wrongly decided in that respect. On the facts as pleaded and for the purposes of the strike-out application, the case was accepted as falling within Lord Devlin's first category and therefore the strike-out of exemplary damages was reversed. The House expressly left open the detailed questions about vicarious liability for exemplary damages and the appropriate measure of exemplary damages in vicarious-liability cases for determination at trial or further proceedings.

Appeal allowed. The House held that exemplary damages may be awarded in respect of the tort of misfeasance in public office where the pleaded facts fall within Lord Devlin's recognised category (for example oppressive or arbitrary conduct by public servants), and that the court should not be constrained by a rigid pre-1964 "cause of action" test. Questions about vicarious liability for exemplary damages and the correct measure were left open for later determination.

Leicester County Court (Recorder Waine) — struck out the claim for exemplary damages (26 November 1998). Court of Appeal — appeal dismissed by majority (10 February 2000), Auld LJ dissenting; leave granted to appeal to the House of Lords. House of Lords — appeal allowed [2001] UKHL 29 (7 June 2001).