Watkins v Home Office & Ors

The House held that the tort of misfeasance in public office requires proof of material damage and is not actionable per se. The court applied established authorities, in particular Three Rivers (No 3), and concluded that historic and comparative authorities consistently treat material damage as an essential ingredient of the cause of action. Prison Rules (Rule 37A/Rule 39) protecting confidential legal correspondence were breached by three officers in bad faith, but that breach, without material damage as defined by the court, did not give rise to a private law claim in misfeasance actionable without proof of loss. The House therefore restored the county court judge's order and allowed the Home Office's appeal.

The claimant, a convicted prisoner, brought an action for misfeasance in public office arising out of prison officers opening and reading correspondence marked as legal correspondence in breach of Rule 37A of the Prison Rules 1964 (later Rule 39 of the Prison Rules 1999). At first instance His Honour Judge Ibbotson found a number of unlawful interferences, and in respect of three officers he found bad faith. The judge dismissed the claims because he held misfeasance was not actionable per se and the claimant had proved no material damage. The Court of Appeal allowed the claimant's appeal, holding that where a constitutional right (here, unimpeded access to the courts and confidential legal advice) is infringed the tort may be actionable without proof of damage, awarding nominal damages and remitting the question of exemplary damages.

The House of Lords entertained an appeal by the Home Office. The principal issue was whether proof of material damage is an essential element of misfeasance in public office or whether the tort can be actionable per se, in particular where a constitutional right is infringed.

• Nature of the claim: an action in tort for misfeasance in public office seeking compensatory (and potentially exemplary) damages for unlawful opening and reading of legal correspondence.
• Issues framed: (i) whether misfeasance in public office is actionable without proof of material damage; (ii) whether infringement of a so-called "constitutional right" (eg access to the courts/confidential legal correspondence) can make the tort actionable per se; (iii) whether exemplary damages can be awarded where no material damage is proved.
• Court’s reasoning: the House surveyed historical and comparative authorities (including Ashby v White, Three Rivers (No 3), and authorities from other common law jurisdictions) and concluded that material damage has long been an essential ingredient of the tort. The Court rejected the Court of Appeal’s novel approach of making infringement of a "constitutional right" create an action without proof of material damage, observing problems of definition, incompatibility with existing authority, overlap with remedies under the Human Rights Act 1998 and other public law and disciplinary remedies, and policy objections to extending tort liability as a punitive tool. The House accepted that exemplary damages are in principle available where misfeasance causing material damage is proved, but held that the tort is not actionable at common law in the absence of material damage.

Appeal allowed. The House concluded that misfeasance in public office requires proof of material damage and is not actionable per se; the Court of Appeal's decision to award nominal damages for breach of a "constitutional right" without proof of material damage was set aside and the county court judge's dismissal of the claimant's claims (for lack of material damage) was restored. The Home Office's appeal was therefore allowed and the Court of Appeal order was set aside save as to costs.

County Court (Wakefield) — His Honour Judge Ibbotson (findings of unlawful opening and bad faith against three officers but dismissal for lack of actionable damage); Court of Appeal [2004] EWCA Civ 966; appeal to House of Lords [2006] UKHL 17.