UK: Damage Needed for Civil (or uncivil) Misconduct in Public Office

Last Updated: 3 May 2006
Article by Nicholas Dobson

Do you have to prove damage to win a civil action for misconduct in public office? That was what the House of Lords had to grapple with on 29 March 2006 in Watkins v Secretary of State for the Home Department and Others [2006] UKHL 17.

It's now clear that the tort of misconduct in public office has the following ingredients:

  1. The defendant must be a public officer
  2. There has been an exercise of power as a public officer
  3. The state of mind of the defendant i.e. there must be either conduct specifically intended to injure a person or person or a public officer has acted knowing that he has no power to do the act complained of and that the act will probably cause injury (see Lord Steyn in Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1).

In Watkins, the Respondent alleged that staff at both Wakefield and Frankland jails had breached the Prison Rules by opening and reading his mail when they were not entitled to do so. The County Court judge had found that three prison offers had acted in bad faith. However, the judge dismissed the claim since misfeasance in public office was not a tort 'actionable per se'. Ultimately (after the Court of Appeal had ruled in favour of the Respondent) the House of Lords agreed with the County Court and allowed the appeal of the Secretary of State.

Lord Bingham thought there was great force in the Respondent's submission that 'if a public officer knowingly and deliberately acts in breach of his lawful duty he should be amenable to civil action at the suit of anyone who suffers at his hands.' Also, there is 'an obvious public interest in bringing public servants guilty of outrageous conduct to book.' For those '. . .who act in such a way should not be free to do so with impunity.'

On the other hand, Lord Bingham noted that the primary role of the law of tort is to provide monetary compensation for those who have suffered material damage rather than to vindicate the rights of those who have not. He considered that there are 'other and more appropriate ways' of bringing to book officers who behave with outrageous disregard for their legal duties, but without causing material damage. Nevertheless, the Respondent argued that the importance of the right of access to a court, closely linked with the right to obtain confidential legal advice required or justified the modification of a rule that material damage must be proved to establish a cause of action.

Lord Bingham, however, did not think that the House of Lords should take that step for a number of reasons. These included:

  1. It would open the door to argument whether other rights less obviously fundamental, basic or constitutional than (amongst others) the right to preserve the confidentiality of legal correspondence were sufficiently close to or analogous with those rights to be treated in the same way for the purposes of damage.
  2. The undesirability of introducing by judicial decision and without consultation, a solution which the consultation and research conducted by the Law Commission may show to be an unsatisfactory solution to what Lord Bingham felt to be a small part of a wider problem.
  3. The lack of a remedy in tort for someone (like the Respondent) who has suffered a legal wrong but no material damage, does not leave him without legal remedy. Both prison officers and prison governors who breach the rules are amenable to judicial review as well as disciplinary sanctions. And failure to initiate such proceedings could also, on appropriate evidence, be challenged by judicial review. In addition, such officers might well be indictable for the common law offence of misconduct in public office.
  4. Breach of a fundamental human or constitutional right would also very probably found a claim under section 7 of the Human Rights Act 1998, as it would in this case where the violation occurred after the Act came into force. Section 7 enables victims of a public authority breach of section 6 of the 1998 Act (unlawful for public authority to act incompatibly with a Convention Right) to bring 1998 Act proceedings against the authority in the appropriate court or tribunal or rely on the Convention right(s) in any legal proceedings.
  5. Since what the Respondent was seeking was not a compensatory award of damages but instead to punish the Defendant, this was the function of exemplary damages. The policy of the law is not in general to encourage the award of exemplary damages.

Lord Rodger pointed out (amongst other things) that since exemplary damages form no part of the existing jurisprudence of the European Court of Human Rights, it would be wrong in principle for the House of Lords to develop the common law so as to create a situation where exemplary damages could be awarded when they would not be available in equivalent proceedings for breach of a relevant Convention right.

Lord Walker also 'with some reluctance' allowed the Secretary of State's appeal, although he had found it 'difficult and troubling'. As he pointed out:

'Each of these incidents was an immediate and intentional breach of the respondent's right to unimpeded access to the court, either directly or through his solicitors. In its impact on the respondent each incident was likely to be much the same as an actual assault which occasioned no lasting harm, such as a slap in the face. Whether or not the respondent suffered distress or depression as a result (and the judge commented that he appeared ‘to thrive on these conflicts’) it was an affront, and a deliberate affront, at which he was entitled to feel real indignation.'

However:

'. . .whereas even the most trifling and transient physical assault would undoubtedly have given the respondent a cause of action in private law for trespass to the person, sounding in damages (and if appropriate aggravated or exemplary damages), if the appellant Home Office is right the affronts which the respondent suffered give him no private law remedy. He would be left with the possibility of obtaining vindication of his rights by proceedings for judicial review (with no prospect of damages), by enforcement of the disciplinary code to which prison officers are subject, or by a criminal prosecution for misfeasance in public office. He cannot obtain relief by proceedings for the tort of misfeasance in public office, it is said, because he has suffered no damage which the law will recognise.'

Nevertheless, Lord Walker acknowledged the 'formidable objections' identified by his colleagues to the proposition that the tort of misfeasance in public office should be actionable without proof of special damage and summarised the main objections:

  1. The great weight of existing authority treats damage as an element of the tort.
  2. A rule that the targeted malice limb is actionable without proof of special damage would be unprincipled and difficult to apply.
  3. Seeking to keep the tort within sensible boundaries by limiting it to breach of constitutional rights would be 'controversial' in the absence of a written constitution.
  4. Since the Human Rights Act 1998 is now in force, there are claims available there under sections 6, 7 and 8 by reference to both Articles 6 and 8.

So, all in all, a cautious decision of the House which keeps traditional common law concepts firmly within their highfenced compound, particularly now that the Human Rights Act provides remedies for breach of Convention rights by public authorities. But as Mr. Speechley, the former leader of Lincolnshire County Council found (when his eighteen month prison sentence following conviction for the crime of misconduct in public office was upheld by the Court of Appeal in December 2004) public officers who abuse their office may not escape scot-free.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.