Kuddus (AP) v. Chief Constable of Leicestershire Constabulary

Exemplary damages in tort are not confined to causes of action for which such damages had been awarded before 1964. Their availability turns on the character of the defendant’s conduct, rather than the historical classification of the tort.

Subject to express statutory authorisation, a court may consider exemplary damages where the facts fall within either category identified in Rookes v Barnard: oppressive, arbitrary or unconstitutional action by servants of government, or wrongdoing calculated to produce a gain exceeding likely compensation. The remedy is exceptional and punitive. It is available only where compensatory damages, including aggravated damages, are inadequate to punish outrageous conduct, mark disapproval and deter repetition. Misfeasance in public office may therefore support such an award, but the particular abuse must satisfy the relevant threshold.

The appellant alleged that a police constable forged his signature on a statement withdrawing a theft complaint, causing the investigation to cease. The Chief Constable admitted the forgery and accepted that the pleaded conduct amounted to misfeasance in public office.

A recorder struck out the claim for exemplary damages because no pre-1964 authority had recognised such damages for that tort. The Court of Appeal dismissed the appeal by a majority, with Auld LJ dissenting. The central issue before the House was whether exemplary damages depended upon the cause of action having attracted that remedy before Rookes v Barnard [1964] AC 1129, or instead upon the factual character of the defendant’s conduct.

1. Disposition. All five Law Lords allowed the appeal. The claim for exemplary damages was restored and permitted to proceed to trial without restricting the trial judge’s assessment of whether the remedy was justified on the facts.

2. The pre-1964 cause of action condition. Lords Slynn of Hadley, Mackay of Clashfern, Nicholls of Birkenhead and Hutton held that exemplary damages are not restricted to torts for which such damages had been awarded before 1964. Lord Scott of Foscote agreed that this cause of action condition should be removed, although he favoured additional restrictions which the majority did not adopt.

   Lords Slynn, Mackay and Hutton reasoned that Lord Devlin’s analysis in Rookes v Barnard [1964] AC 1129 was directed to factual categories and the manner in which a tort was committed, not to the formal identity of the tort. Lord Nicholls stated that the House should depart from Broome v Cassell & Co Ltd [1972] AC 1027 so far as it confirmed the cause of action condition. The contrary ruling in AB v South West Water Services Ltd [1993] QB 507 was therefore displaced.

3. Applicable threshold. The decisive inquiry is whether the facts fall within one of the established categories: oppressive, arbitrary or unconstitutional action by servants of government; conduct calculated to produce a profit exceeding likely compensation; or conduct for which exemplary damages are expressly authorised by statute. Lords Nicholls and Hutton emphasised that the conduct must display an outrageous disregard of the claimant’s rights. Not every abuse of power constituting misfeasance in public office will qualify.

   Exemplary damages remain a remedy of last resort. They may be considered only where compensation, including aggravated damages, is inadequate to punish the conduct, mark the court’s disapproval and deter repetition.

4. Application. For the purposes of the strike-out application, the Chief Constable accepted that the pleaded facts fell within the first category. The claim could not therefore be struck out merely because no pre-1964 misfeasance case awarding exemplary damages had been identified. Whether the pleaded conduct was sufficiently outrageous remained for determination at trial.

5. Issues left open. The House did not determine whether the Chief Constable could be vicariously liable for exemplary damages. Lord Scott provisionally considered that punitive damages should not be imposed upon a defendant whose liability was purely vicarious and whose own conduct was not punishable. The other Law Lords expressly reserved that issue.

1. House of Lords: The appeal was allowed unanimously in [2001] UKHL 29. The strike-out of the claim for exemplary damages was reversed and the claim was permitted to proceed.
2. Court of Appeal: On 10 February 2000, Beldam LJ and Sir Christopher Staughton dismissed the claimant’s appeal. Auld LJ dissented. The Court of Appeal granted leave to appeal to the House of Lords.
3. Leicester County Court: On 26 November 1998, Mr Recorder Waine struck out the claim for exemplary damages on the ground that they were unavailable for misfeasance in public office. The claim for aggravated damages had also been struck out by mistake and was accepted as continuing.