Karagozlu v Commissioner of Police of the Metropolis

Misfeasance in public office requires proof of special or material damage. Interference with a constitutional right does not dispense with that requirement. Loss of liberty can constitute such damage, including a further restriction imposed on a prisoner already lawfully detained. General damages may be awarded for that loss. Distress, anxiety and inconvenience alone are insufficient. The claimant must still establish the remaining ingredients of the tort.

The appellant was serving a lengthy prison sentence and had been held in open Category D conditions at HMP Ford. Following information allegedly supplied maliciously and dishonestly by police officers, he was transferred to closed Category B conditions at HMP Winchester, losing privileges including anticipated day release.

District Judge Avent struck out his claims against the Commissioner and the Home Office. The appellant appealed only in respect of the Commissioner. The issues before the Court of Appeal were whether loss of liberty constituted actionable damage in misfeasance and whether a further restriction on a prisoner's liberty could qualify as such damage.

Appeal allowed. The court proceeded on the pleaded facts, including that false information had been supplied maliciously and had caused the transfer. Whether the other ingredients of misfeasance were ultimately proved remained for determination.

1. Requirement of damage. The House of Lords decision in Watkins v The Home Office [2006] UKHL 17 established that special or material damage is an essential ingredient of misfeasance. The earlier Court of Appeal approach, under which interference with a constitutional right could make the tort actionable without such damage, was no longer sustainable. Watkins did not decide whether loss of liberty was material damage.
2. Loss of liberty. Loss of liberty is at least akin or analogous to physical injury and can therefore constitute special or material damage. There was no principled basis for treating loss of liberty differently in misfeasance and malicious prosecution. General damages could be assessed by reference to the guidance in Thompson and Hsu v Commissioner of Police for the Metropolis [1998] QB 498.
3. Prisoners and residual liberty. The rule in R v Deputy Governor of Parkhurst Prison ex p Hague [1992] 1 AC 58, that a prisoner had no residual liberty vis-à-vis the governor, concerned authorised custody and claims not involving bad faith. It did not prevent a claim against an unauthorised person whose misfeasance caused an additional restraint. The authorities and principle supported recognition of the residue or balance of liberty permitted by the prison regime.
4. Pleading and damages. Distress, anxiety and inconvenience alone did not amount to material damage. The pleaded deterioration in conditions, loss of open-prison privileges, increased confinement, and loss of day release alleged damage special to the appellant and a significant loss of liberty. Those allegations were sufficient to prevent strike-out. An award of exemplary damages might also be appropriate, depending on the circumstances.

The order striking out the claim against the Commissioner was set aside. The claim was allowed to proceed.

• Court of Appeal (Civil Division) allowed the appeal against the order striking out the claim against the Commissioner.
• Central London County Court — District Judge Avent struck out the claims against both defendants on 24 September 2004. The appellant did not appeal the order concerning the Home Office.