Kuddus v CC of Leicestershire [2001] UKHL 29

A police officer forged the plaintiff's signature on a statement withdrawing a theft complaint. The plaintiff sued the Chief Constable for misfeasance in public office, seeking exemplary damages. The House of Lords held that exemplary damages were not limited to causes of action recognised before 1964, removing the cause of action test.

Facts

The appellant plaintiff reported a theft at his home to a police constable serving with the Leicestershire Constabulary. The officer assured the plaintiff that the matter would be investigated. However, approximately two months later, the officer forged the plaintiff’s signature on a written statement purporting to be a withdrawal of the theft complaint. As a result, the police investigation ceased. The plaintiff did not discover the forgery until several months later.

The defendant Chief Constable admitted that the forgery occurred and that the constable’s conduct amounted to the tort of misfeasance in public office. The plaintiff claimed exemplary damages in addition to aggravated damages. The defendant successfully applied to strike out the claim for exemplary damages on the basis that such damages were not recoverable for the tort of misfeasance in public office.

Issues

Primary Issue

Whether exemplary damages can be awarded for the tort of misfeasance in public office.

Subsidiary Issue

Whether, following Rookes v Barnard [1964] AC 1129 and Broome v Cassell & Co Ltd [1972] AC 1027, a claim for exemplary damages must satisfy a ’cause of action test’ requiring that exemplary damages had been awarded for that particular tort prior to 1964.

Judgment

The House of Lords unanimously allowed the appeal, holding that the claim for exemplary damages should not have been struck out.

Lord Slynn of Hadley examined Lord Devlin’s speech in Rookes v Barnard and found nothing requiring that a claim must also constitute a cause of action recognised before 1964 as grounding exemplary damages. He stated that courts should not be required to undertake a trawl of authorities to determine whether pre-1964 awards might have included exemplary damages for misfeasance.

Lord Mackay of Clashfern held that Lord Devlin’s approach in Rookes v Barnard was based on factual categories rather than specific causes of action. He stated:

“There is no mention whatever in Lord Devlin’s speech of a cause of action test and surely when he was setting out principles if that was part of the essential qualification for the existence of the power he would have mentioned it.”

Lord Nicholls of Birkenhead agreed that the House should depart from Broome v Cassell & Co Ltd insofar as it confirmed the ’cause of action’ condition. He noted:

“the essence of the conduct constituting the court’s discretionary jurisdiction to award exemplary damages is conduct which was an outrageous disregard of the plaintiff’s rights.”

Lord Hutton analysed the speeches in Broome v Cassell and concluded that the House in Rookes v Barnard had adopted the categories test rather than the cause of action test. Lord Diplock had stated:

“There were two different processes of reasoning by which it would have been possible to reach this conclusion of law. One, which was not adopted by this House, was to hold that the particular tort of intimidation was one in which the common law did not permit of exemplary damages. The other, which was adopted by this House, was to state the categories of cases in which alone exemplary damages might be awarded at common law and to determine whether the facts in Rookes v. Barnard brought it within one of these categories.”

Lord Scott of Foscote, whilst expressing reservations about exemplary damages generally, agreed that the appeal should be allowed. He noted concerns about vicarious liability for exemplary damages but left that point for determination at a later stage.

Implications

This decision removed the ’cause of action test’ which had required plaintiffs to establish that exemplary damages had been awarded for their particular tort before 1964. The House of Lords held that AB v South West Water Services Ltd [1993] QB 507 was wrongly decided on this point.

Following this decision, exemplary damages may be awarded for any tort where the factual circumstances fall within Lord Devlin’s two categories: (1) oppressive, arbitrary or unconstitutional action by servants of the government, or (2) conduct calculated to make a profit exceeding likely compensation. The nature of the tort itself is not determinative.

The decision represents a significant clarification of the law on exemplary damages, removing an arbitrary and irrational restriction that depended on the accidents of litigation history rather than principle. The case confirms that misfeasance in public office may attract exemplary damages where the circumstances warrant such an award.

Verdict: Appeal allowed. The claim for exemplary damages should not have been struck out. The Court of Appeal decision in AB v South West Water Services Ltd was held to be wrongly decided insofar as it imposed a cause of action test for exemplary damages.

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