Pelling v Johnson

An intentional touching without lawful justification may constitute the tort of assault even where the force used is slight. Misfeasance in public office requires bad faith, including targeted malice or subjective recklessness as to the absence of power or the likely consequences. An official who honestly attempts to perform his duties, although misconceived, does not satisfy that requirement. Aggravated damages require features such as high-handed, insulting or malicious conduct. Exemplary damages require oppressive or arbitrary conduct warranting exceptional punishment.

The claimant, acting as a McKenzie friend in family proceedings, brought claims against an Assistant Tipstaff arising from incidents in a court corridor involving the claimant and a child subject to residence and contact proceedings. He alleged assault, breach of Articles 3 and 8 of the Convention, and misfeasance in public office. The defendant denied using unlawful force and maintained that his conduct was directed towards implementing or protecting the perceived effect of the judge’s directions concerning the child.

The court considered two separate incidents: an earlier occasion when the defendant took hold of the claimant while he was speaking to the child, and a later occasion when the defendant intervened after the claimant had left court. The issues included whether the contact was justified, whether the defendant acted in bad faith or with subjective recklessness, whether Convention rights had been infringed, and the appropriate damages.

1. Assault. The claimant established that the defendant intentionally took hold of him while he was speaking to the child. No lawful justification was advanced for that contact in the circumstances found. The force was not substantial, but the contact was sufficient to establish assault.
2. Misfeasance in public office. The court applied the principles explained in Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220. Liability requires a public officer exercising public power and the necessary bad faith. This may consist of targeted malice, or acting with knowledge that the act is outside the officer’s powers and will probably injure the claimant. Subjective recklessness as to illegality or consequences may suffice. The defendant honestly believed that the claimant should not be speaking to the child and was making an honest, though misconceived, attempt to perform his duties. Bad faith was therefore absent.
3. The formulation in R Cruikshank Ltd v Chief Constable of Kent County Constabulary [2002] EWCA Civ 1840 was considered as a summary of the relevant bad-faith principle.
4. Convention claims. The defendant’s conduct did not breach Article 8. The claimant’s contention that the earlier events engaged Article 3 did not justify his intervention. The later intervention was legitimate in the circumstances because the defendant believed that the claimant might remove the child before the changed court order had been communicated.
5. Damages. £50 was appropriate compensation for the minor assault. Aggravated damages were unnecessary because the defendant was not high-handed, insulting, malicious or autocratic. Exemplary damages were unwarranted because the conduct was neither oppressive nor arbitrary.

Judgment was therefore entered for the claimant for £50 in respect of assault only.