Watkins (Respondent) v. Home Office (Appellants) and others

Misfeasance in public office is never actionable without proof that the official misconduct caused material damage. Material damage includes financial loss and physical or recognised psychiatric injury. It excludes distress, injured feelings, indignation and annoyance.

Infringement of a constitutional, basic or fundamental right does not create an exception. The importance of the right may determine whether official interference was lawful, but it does not remove an essential ingredient of the tort. Exemplary damages may be awarded after misfeasance has been established, but they cannot establish liability where no compensable damage was suffered.

A prisoner alleged that prison officers had opened or read correspondence from solicitors and a court contrary to Rules 37A and 39 of the Prison Rules. The County Court found that three officers had acted in bad faith but dismissed the claims because the prisoner had suffered no financial loss, physical injury or recognised psychiatric injury.

The Court of Appeal unanimously allowed the appeal: [2004] EWCA Civ 966; [2005] QB 883. It held that misfeasance interfering with the constitutional right of access to courts and confidential legal advice could be actionable without proof of damage. It awarded nominal damages and remitted the question of exemplary damages.

The Home Office appealed on whether misfeasance in public office could be actionable without material damage, particularly where a constitutional right had been infringed.

1. Appeal allowed unanimously. Lord Bingham delivered the leading speech. Lord Hope, Lord Rodger and Lord Carswell agreed with his reasons and conclusion. Lord Walker reached the same conclusion with reluctance. The Court of Appeal's order was set aside, except as to costs, and the County Court's order dismissing the claims was restored.

2. Per Lord Bingham, the authorities formed a remarkably consistent body of law. Misfeasance in public office is an action on the case for which damage is an essential ingredient. The claimant must prove that the unlawful exercise of public power caused financial loss, physical injury or recognised psychiatric injury. Distress, injured feelings, indignation and annoyance do not constitute material damage for this purpose.

3. Lord Rodger regarded the requirement of loss as essential to defining the connection between the claimant and the official's act. Although Three Rivers had not directly decided whether damage was required, its formulation of the tort proceeded on the basis that material injury and the defendant's relevant state of mind concerning that injury were essential.

4. Per Lord Bingham and Lord Rodger, infringement of a constitutional right creates no exception. Ashby v White concerned interference with a franchise or property right and did not support a general tortious remedy for every infringement of a constitutional right. The expressions “constitutional”, “basic” and “fundamental” assist statutory interpretation, but they are insufficiently precise to define rights whose infringement makes misfeasance actionable without damage.

5. A breach of the Prison Rules did not itself confer a private right to damages. Other remedies could include judicial review, disciplinary or criminal proceedings and, where applicable, proceedings under the Human Rights Act 1998. The availability of those remedies was not decisive, but weighed against creating a parallel common-law remedy.

6. Exemplary damages may in principle be awarded where misfeasance has already been established. They cannot supply the absence of material damage or convert an incomplete tort into an actionable claim. The compensatory function of tort did not justify developing misfeasance principally as an instrument of punishment.

1. House of Lords: The Home Office's appeal was allowed unanimously. The Court of Appeal's order was set aside, except as to costs, and the County Court's dismissal of the claims was restored: [2006] UKHL 17.

2. Court of Appeal: The prisoner's appeal was allowed unanimously. The court awarded nominal damages of £5 against each of three officers and remitted the claims for consideration of exemplary damages: [2004] EWCA Civ 966; [2005] QB 883.

3. Wakefield County Court: His Honour Judge Ibbotson found bad faith against three officers but dismissed the claims because misfeasance was not actionable per se and no material damage had been proved.