Watkins v Secretary Of State For Home Department & Ors

Misfeasance in public office is not confined to cases involving provable financial or physical damage. It operates in two classes: claims for economic or material injury, where quantifiable loss is inherent, and claims involving interference with a legally protected right, where the infringement may complete the tort without actual loss. Access to the courts is a constitutional right. A prison officer’s malicious interference with a prisoner’s legal correspondence can therefore found the tort and attract nominal damages. Whether exemplary damages should be awarded remains for the trial judge, who must consider the officer’s conduct and means. An appellate court should remit that issue where the evidence is incomplete.

The claimant, a serving prisoner, brought proceedings against the Secretary of State and 14 prison officers for misfeasance in public office. He alleged that officers had opened or inspected correspondence with legal advisers and courts contrary to Prison Rules 1964 rule 37A and, later, Prison Rules 1999 rule 39.

Judge Ibbotson in the Leeds County Court found that three officers had acted in bad faith, but held that the claimant had proved no financial, physical or mental damage. Judgment was entered for all defendants on 15 July 2003. The central issue on appeal was whether proof of damage was an essential ingredient of the tort. The appeal also concerned nominal and exemplary damages.

The Court of Appeal unanimously allowed the appeal. The judge below had correctly found that Officers Ravenscroft, Rosevere and Robinson had acted in bad faith, but had erred in treating proof of special damage as essential in every claim for misfeasance in public office.

1. Nature of the tort. The court’s analysis of [2003] 2 AC 1 showed two distinct classes of case. Where the claimant suffers economic or material injury, loss is inherent in the claim and no separate free-standing right need be identified. Where the unlawful act interferes with a right protected without proof of loss, the interference itself may complete the tort.
2. Constitutional right. The common law treats access to the courts as a constitutional right. A prisoner’s unimpeded access to a solicitor for advice about contemplated civil proceedings forms part of that right, as recognised in R v Home Secretary ex p Leech (No 2) [1994] QB 198 and R v Lord Chancellor ex p Witham [1998] QB 575. The wrongful and malicious opening or inspection of the claimant’s legal correspondence therefore completed the tort without proof of special damage. The claimant was entitled to nominal damages.
3. Damages. The court accepted that exemplary damages may be awarded for misfeasance in public office, including against individual officers. The trial judge had to decide whether the conduct was sufficiently outrageous and had to take the officers’ means into account. This court could not determine the amount without evidence of means. The reference in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 to a minimum jury award in another class of case was not controlling.

A nominal award of £5 general damages was entered against each of the three officers. The issue of exemplary damages was remitted to Judge Ibbotson, or to a new judge who heard the necessary evidence. The refusal of aggravated damages was not challenged.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 966. Appeal allowed; nominal damages awarded against three officers and exemplary damages remitted.
• Leeds County Court — On 15 July 2003 Judge Ibbotson entered judgment for all defendants, despite finding bad faith by three officers, because he considered damage essential to the tort.