Kuddus v CC of Leicestershire [2001] UKHL 29

The claimant sued for misfeasance in public office after a police officer forged his signature on a witness statement. The House of Lords held that exemplary damages could be awarded, focusing on the outrageous nature of the official's conduct rather than pre-defined categories of tort.

Facts

The claimant, Mr Kuddus, reported a theft from his flat. An investigating police officer, PC Jones, visited the former tenant suspected of the theft. Shortly afterwards, PC Jones forged Mr Kuddus’s signature on a statement withdrawing his complaint of theft. As a result, the police investigation was terminated without Mr Kuddus’s knowledge or consent. When Mr Kuddus discovered this, he brought an action against the Chief Constable of Leicestershire, who was vicariously liable for the officer’s actions. The claim was for the tort of misfeasance in public office.

Issues

The central legal issue before the House of Lords was whether exemplary (or punitive) damages could be awarded for the tort of misfeasance in public office. This required a definitive interpretation of the principles set out by Lord Devlin in Rookes v Barnard [1964] AC 1129. The key question was whether exemplary damages were restricted to the specific causes of action for which such awards had been made prior to 1964 (the ’cause of action’ test), or whether they were available for any tort where the defendant’s conduct fell within one of Lord Devlin’s two categories, in particular, ‘oppressive, arbitrary or unconstitutional action by the servants of the government’.

Judgment

The House of Lords, by a 4-1 majority, allowed the appeal, holding that exemplary damages could be awarded for misfeasance in public office provided the requisite outrageous conduct was established. The majority rejected a rigid ’cause of action’ test in favour of a ‘conduct-based’ approach.

Lord Nicholls of Birkenhead

Lord Nicholls criticised the ’cause of action’ test as illogical and arbitrary. He highlighted the anomaly that would exist if exemplary damages were available for torts like false imprisonment or malicious prosecution but not for misfeasance in public office, which often involves similar or worse conduct. He stated:

The ’cause of action’ test is an arbitrary, and hence an unsatisfactory, one. It is a lottery. Whether exemplary damages are awardable depends upon the accident of the particular form of the cause of action on which the plaintiff is able to rely.

Lord Hutton

Lord Hutton provided a detailed review of the case law following Rookes v Barnard. He concluded that the underlying rationale for exemplary damages was to punish and deter outrageous conduct, not to adhere to a list of historical torts. He reasoned:

Therefore I consider that, looking at the two categories as a whole, the rationale which underlies them is that exemplary damages are a punitive response by the civil law to outrageous conduct by the defendant which is deserving of condemnation by the court. I further consider that a cause of action test is inconsistent with this rationale because it is not logical to make the availability of a punitive award dependent on the precise cause of action which a plaintiff is able to plead.

Lord Scott of Foscote

Lord Scott agreed that the focus should be on Lord Devlin’s categories of conduct rather than specific torts. He clarified the position on the availability of such damages:

I would hold that if a cause of action, whatever it may be, is one that does fall within either of Lord Devlin’s two categories, exemplary damages may be awarded. This is, in my opinion, a principled approach to the interpretation and application of Lord Devlin’s speech. It is not an extension of the circumstances in which exemplary damages may be awarded. It simply clarifies the circumstances defined in Rookes v Barnard.

Lord Mackay of Clashfern (dissenting)

Lord Mackay delivered a dissenting opinion, arguing for a strict and literal interpretation of Lord Devlin’s speech in Rookes v Barnard. He believed that Lord Devlin had intended to halt any further development of exemplary damages and restrict them to the exact causes of action for which they had been awarded before 1964. He stated:

As I have said I do not feel able to accept this interpretation of Lord Devlin’s speech as it appears to me to contradict his express words.

Implications

The decision in Kuddus is of major significance as it definitively moved the law on exemplary damages away from a restrictive ’cause of action’ test to a more principled ‘conduct-based’ test. It confirms that the availability of exemplary damages depends not on the label of the tort, but on whether the defendant’s behaviour falls within one of Lord Devlin’s categories, particularly ‘oppressive, arbitrary or unconstitutional action’. This has broadened the scope for claimants to seek punitive damages against public authorities for serious abuse of power, reinforcing the role of the civil law in vindicating citizens’ rights and deterring misconduct by state officials.

Verdict: The appeal was allowed. The order of the Court of Appeal was set aside and the claimant was granted leave to amend his particulars of claim to include a claim for exemplary damages.

Source: Kuddus v CC of Leicestershire [2001] UKHL 29