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Tort case Note:

Watkins v Secretary of State for the Home

Department [2004] EWCA Civ 966

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The Facts

Rule 37A1 of the Prison Rules 1964 provide for freedom of correspondence with

legal advisors and courts. Correspondence may only be intercepted, opened and read

where the governor has reasonable cause to believe there is an ‘illicit enclosure’ and

reasonably believes the enclosure will endanger prison security, safety of others or is

‘otherwise of a criminal nature’. Where such correspondence is opened within the

provisions of Paragraphs 2 and 3 of the Rules, the prisoner shall be given the opportunity

to be present and informed if the letter or enclosure is to be read or stopped. In order to

give effect to the rule, HM Prison Service included in Standing Order 5 a direction

advising any correspondence between a prisoner and their legal advisor should be marked

with a reference to Rule 39. Further a Home Office instruction to governors 2 clarified the

rule and made clear that any breach would likely lead to legal challenge and safeguards

should be put in place to avoid possibility of infringement.

The claimant, Mr. Watkins, was serving a life sentence in prison. Between 1st May

1998 and 5th December 2000 he was engaged in a bevy of legal proceedings requiring

correspondence with legal advisors, courts and other bodies. He made frequent

complaints alleging his outgoing and incoming mail were being treated in a manor

inconsistent with Rule 37/39A. He attempted to obtain redress for infringements through

the formal prison complaints system and the Prison Ombudsman. However, he was not

satisfied with their actions and eventually brought his grievances to court bringing an
1
and Rule 39 of the Prison Rules 1999, both identical in terms
2
(113/1995)
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action in tort for misfeasance in public office against the Home Office and 14 prison

officers.

At first instance the trial judge found most of the officers had breached the

provisions of the rule, but acquitted them of bad faith. Finding most had inadvertently

opened letters due to court correspondence having no reference to Standing Order 5. The

judge was also satisfied that some officers opened the letters accidentally and others due

to inadequate training absolving them of bad faith. He did find three officers guilty of bad

faith but did not find Watkins had suffered any loss or special damage. Injury to pride,

dignity and self esteem as Watkins alleged, was not sufficient. There was no evidence any

impairment occurred to his legal challenges due to the infringements. As special damage

is a necessary element in misfeasance in public office in the trial judges reading of the

past jurisprudence, the claim as such was dismissed. Watkins was granted leave to the

Court of Appeal. Lord Justice Brooke summarises the point of law, “[t]he question at the

heart of this appeal is whether proof of damage is a necessary ingredient of the tort of

misfeasance in public office”3 or is it actionable per se.

The Decision

LJ Brooke in the leading judgment noted the point did not have to be decided in

the Three Rivers (no3)4 case but in that case he observed Lord Hobbonhouse, “[t]he

plaintiff must have suffered special damage in the sense of loss or injury which is specific
3
Paragraph 18 of the judgment
4
[2003] 2 AC 1
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to him and not being suffered in common with the public in general”. Lord Neil QC’s

submission that Henley v Lyme Corporation5 and the Australian case Farrington v

Thompson6 gave LJ Brooke further evidence of past case law unequivocally stating

special damage is necessary to ground the tort. But there was an old line of cases which

held misfeasance in public office was actionable per se but these were not in conflict with

the newer case law, LJ Brooke distinguished them; they would only apply in the

infringement of constitutional rights.

Ashby v White7 was the key authority for the contention. Here Mr. Ashby who had

been fraudulently and maliciously deprived of his vote by a constable brought an action

of misfeasance in public office and won despite being no proof of special damage. His

vote would have not changed the outcome of the election. LJ Brooke cited the speech of

Holt CJ - if a plaintiff has a right, he must of necessity have a means of enforcing that

right.8 The very matter at the heart of this appeal was also in contention in Ashby as

Powell J maintained in Ashby (similar to the trial judge here) that the tort is not actionable

“because there is no hurt or damage to the plaintiff.9” Holt CJ reasoned that just because

the infringement does not cost the party ‘one farthing’ there is damage “where a man is []

hindered of his rights”. The survey of case law in Constantine v Imperial Hotels Ltd10

further propped up the argument, especially important is Story J’s speech in Embrey v

5
(1828) 2 Bing 91
6
[1959] VR 286
7
(1703) 1 Sm LC (13th Edn) 253
8
Paragraph 29 of the judgment
9
ibid
10
[1944] 1 KB 693
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Owen11 where he stated that is obvious among “very elements of the common law that,

wherever there is a wrong, there is a remedy” and if no damage is established the party is

entitled to nominal damages. LJ Brooke distinguished Neville v London “Express”

Newspaper Ltd12 where a bare majority held that an action for damages for maintenance

would not lie in absence of proof of special damage, arguing the majority decided the

principle in Ashby had no application in the tort of maintenance; not an over-ruling of

Holt CJ’s speech in Ashby; Constantine distinguished. LJ Brooke reasoned that the

common law is jealous to protect proprietary rights or rights protected by tort of trespass

to the person, in those cases the cause of action arises if the right is infringed without

needing to prove special damage or even a mental element. The damages awarded in such

cases can be nominal and as stated by Lord Halsbury LC in The Mediana13 nominal

damages are a way of entitling the claimant to a verdict, attesting that their legal rights

have been infringed. The fulcrum on this line of reasoning is that the old distinction (due

to the way writs were issued) between actions for trespass and actions on the case “no

longer rule us from the grave14” Borderline cases such as Neville cannot be readily placed

in such categories and show the deficiency of attempting to do so (a split decision).

Ratio decidendi in light of this reasoning his lordship held “Ashby v White …

represent[s] good law today … if there is a right which may be identified as a

constitutional right, then there may be a cause of action for infringement of that right

11
6 Ex 353
12
[1919] AC 368
13
[1900] AC 113
14
para 47
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without proof of special damage, provided that there is something more than the mere

infringement”15 The mental element of the tort was found to be the same as Three Rivers

and the “infringer must be someone who holds public office”. Importantly his lordship

did not see Ashby as an infringement of a franchise (a property right). If he had done so

his reasoning above would have failed for the long held principle in the common law that

infringement of property rights are actionable per se.

Ex parte Witham16 and ex parte Leech No 217 were both essential in finding the

right in Rule 39 is a constitutional right. Laws J in ex parte Witham after an analysis of

the past jurisprudence, found that a citizens right to access the courts “has been described

as a constitutional right”18 and in ex parte Leech Steyn LJ held unimpeded access to the

courts must rank as a constitutional right and a prisoners right to unimpeded legal advise

forms an inseparable part of the right to access the courts. For freedom of correspondence

with legal advisors facilitates access to courts. This finding completed the new found test

since only constitutional rights are actionable without proof of special damage.

LJ Brooke held Mr. Watkins was unquestionably entitled to a judgment of

nominal damages as in Mediana. The question of exemplary damages was also

considered. The trial judge had found one of officers did not care if he was breaking Rule

37A and opened one court letter in order to further his own case against Mr Watkins,

emanating a very high degree of bad faith. Counsel for the plaintiff argued that this

15
Paragraph 48 of the judgment
16
R v Lord Chancellor ex p Witham [1998] QB 575
17
R v Home Secretary ex p Leech No 2 [1994] QB 198
18
Paragraph 51 of the judgment
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conduct was sufficiently outrageous to justify an award for exemplary damages and

without such an award Mr Watkins would have to watch his constitutional rights being

maliciously infringed without any effective redress. His lordship refused to see

Thompson19 as imposing a minimum of £5,000 compensation for exemplary damages to

be awarded, unlike the trial judge. A judge sitting without a jury should be able to make a

lower award of exemplary damages if he considers an officer’s conduct ‘sufficiently

outrageous’ to justify such an award. Although if any exemplary damages were to be

awarded it was for the trial judge, not the appellate court due to the trial level court

having a better understanding of the testimony submitted.

Held

LJ Laws speech is most helpful in summing up the case. There are two types of

misfeasance in public office:

1) those where a claimant has suffered a quantifiable loss due to the public

officer’s wrongful and malicious act which inflicts an economic or

material injury. In such instances no proof of violation of a free-standing

right needs to be shown. Three Rivers applies.

2) Those cases where the right infringed with by a public officer is one that

the law protects without any proof of loss. Ashby v White applies.

19
Thompson v Commissioner of Police of the Metropolis [1998] QB 498
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The appeal was permitted, an award for £5 nominal damages awarded and the question of

exemplary damages remitted to the trial judge.

Critique

Much reliance was placed on Ashby in their Lordships judgment. There can be no

doubt that if a constitutional right is infringed by a public officer, with the requisite bad

faith; an action in tort for misfeasance in public office can be brought. Indeed the case is

the very genesis of the tort and as such a constitutional violation is its most prototypical

cause of action, although there might be concern that a franchise is a property right (as his

Lordship himself addressed) what is key is the court found it was in the nature20 of a

property right, not a property right in and of itself. Badly decided cases are still law and

it is submitted Ashby is such a case. Bitter competition between the Courts and the House

of Commons in the early 18th century21 was the political climate the decision was reached

in. In absence of competition it is doubtful if the Lords would have reversed the Court of

Appeal decision. Nonetheless, it represents good law today despite its dubious

jurisprudential pinning and political motivation.

LJ Brooke’s and CJ Holt’s (especially) analysis is outstanding; indeed it is

somewhat strange to imagine a legal right without a remedy. In a moral code moral rights

exist without remedies but a legal right which is unenforceable will soon lose all

authority. Our constitutional rights have to be protected jealously by the common law for

20
Strayer, "The Canadian Constitution and the Courts" 3rd Edition, 1988 cited in the Canadian case
Paraplegic Assoc. v. Elections Canada et all T.D 15/38 Nov 17 1988
21

See for example Counsel for the respondents argument in Paraplegic Assoc. v. Elections Canada et all and
generally David Hayton, The House of Commons 1690-1715 (Cambridge University Press 2002) p679
0521280 Page 9 of 15

without remedies the rights we all enjoy, will loose their authority. However, the

teleological reasoning in determining what a constitutional right is exhibits uncertainty, as

is inherent in such reasoning. Let us imagine for a moment we have a codified

constitution with five strict rules. The reasoning in exp. Leech22, that some rights are

necessarily constitutional because they facilitate the enjoyment of other constitutional

rights would mean that there existed other constitutional rights than the five detailed in

the document - parasitic constitutional rights if you will. In our constitution where no

such document exists there is a danger of serious uncertainty on what determines a ‘true’

constitutional right let alone its wealth of parasitic counterparts. Future litigation will

undoubtedly boil down to counsel for the claimant searching the ancient cases for

authority that the right infringed is a constitutional right if not, emancipate the legal right

to a constitutional one via the parasitic method. This is not a satisfactory state of affairs

because many of the ancient cases in constitutional affairs are clouded by political

tension, as mentioned Ashby is the very example of this. More so one commentator has

pointed out Europe’s tendency to “turn all rights into constitutional rights.”23 The

accuracy of reporting of ancient cases is also of concern. It is respectfully submitted that

constitutional rights for the purposes of misfeasance in public office mean, post 2 nd

October 2000 exclusively those rights protected by the ECHR and prior those of a

‘fundamental’ nature in the common law.24 In The absence of such criteria the tort will

dangerously explore the outmost bounds of its jurisprudence.

22

R v Home Secretary ex p Leech (No 2) [1994] QB 198 Para 3 of the material judgment
23

J.A Weir, Human Rights and Damages, Washburn Law Journal, Vol 40 413-446 at p446
24

It is beyond the scope of this critique to determine what ‘fundamental’ means but it encompasses those
rights which are essential common to the cores of the worlds democratic constitutions. Its intention is to
stop frivolous suits and temper judicial discretion and encourage certainty in this emerging area of the tort.
0521280 Page 10 of 15

Damages

Exemplary damages are to be awarded due to oppressive, arbitrary or

unconstitutional actions Rookes25. Watkins facts fit snugly into Lord Devlin’s first

category. LJ Brooke relied on counsel for the claimant’s contention that without an

exemplary damages award of £500, constitutional rights would continue to be infringed

safe in the knowledge that only nominal and compensatory damages can be awarded.

This is similar to arguments of ‘buying the tort26’, that is where the tortfeasor commits

intentional torts safe in the knowledge any action against them would have been ‘worth

it’. It is mostly prevalent in defamation actions. However it is equally true here, although

there is no pecuniary profit to be made (although it could be argued Officer Robinson in

opening Court correspondence pertaining to a case between him and Watkins had an

element of profit motive due to opportunity cost savings) there is non-pecuniary profit in

the form of ‘superiority’ or ‘dominance’ over Watkins. Aggravated damages would just as

sufficiently deter such actions but these are only to be awarded where there is humiliating

or embarrassing circumstances;27 put another way contingent on the claimant’s mindset.

The trial judge found no such evidence. Since Watkins did not truly feel humiliated there

is only the option of exemplary damages left open which hinges on the defendant’s state

of mind. It might be argued that it is not logical to award exemplary damages in the

25

Rookes v Barnard [1964] AC 1129 per Lord Devlin p1225-1226

26

Phrase taken from Kip Esquire, A Stitch in Haste On Punitive Damages and "Buying the Tort"
http://kipesquire.powerblogs.com/posts/1133383352.shtml basically the English concept of “one cannot
profit from tortuous behaviour”
27

Thompson v Commissioner of Police of the Metropolis [1998] QB 498

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absence of aggravated damages but the Court of Appeal28 has already held while such

awards may be ‘perverse’ there is nothing in Thompson to suggest exemplary damages

are contingent on any other damages being awarded. Furthermore, the £5,000 floor

imposed by Thompson is not set in stone; the Master of the Rolls said awards were

‘unlikely’ to be less than £5,000. He attached a probability, not concrete certainty.

Lord Diplock’s speech in Wright v British Railways Board29 quoted in Thompson

as to the nature of quantification of types of damages “is not a rule of law nor is it a rule

of practice. It sets no binding precedent; it can be varied as circumstances change or

experience shows that it does not assist in the achievement of even-handed justice.” 30

Justice is this case demands a lower award of exemplary damages be awarded, a man

should not be punished for having ‘thick skin’ for withstanding infringements of his

rights. The boundaries in Thompson were also set when juries where awarding vast sums

in tort suits against the police (public funds were pressured), Thompson intended to

curtail the inflationary expanse of damages not construct floors to it. The Law

Commission report31 on damages also states a jury should never award punitive damages,

judges should. The direction in Thompson was to juries who tend to get confused with

the overlapping ideas of aggravated and exemplary damages and the ‘muddled

jurisprudential amalgam32’ it causes. Lord Woolf MR’s statement of £5,000 as a floor

must be seen in this context - as providing clarity for juries. A judge sitting on his own
28

In Chief Constable of West Midlands Police v Isaac B2/2000/3189 Judgment, July 24, 2001
29

[1983] 2 AC 773
30

ibid p784-785
31

Law Commission Report No. 257

32

Commissioner of Police v Gerald FC 398/5812/2 Court of Appeal, June 10, 1998. cited in Edwin Buckett
“Civil Actions Against The Police” J.P.I. Law 2002, 3, 241-245, at 241
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needs no such direction as LJ Brooke argues. It is submitted the trial judge should be free

to award exemplary damages without the House of Lords reversing him for infringement

of the Thompson brackets.

The HRA Impact

LJ Brooke made clear the case was decided without assessment to the impact the HRA on

any compensation claim. Only one of the infringements post dated the coming into force

of the Act but it is still pertinent question. Clearly infringement of Rule 37/39A is a

breach of an Article 8 Convention right. The HRA provides in s8 for damages to be

awarded for breach of Convention rights in domestic law, however subsection four

severely limits their scope by referring the courts to the awards made by the ECtHR

under Article 41 of the Convention. Unlike Article 13 of the Convention which provides

for an “effective remedy” Article 41 provides for “just satisfaction”, as one commentator

has put it the UK derogation from Article 13 tempers judicial temptation to fashion new

remedies.33 In Watkins the award of exemplary damages below £5,000 could be construed

as a ‘new’ remedy so could not be justified on HRA grounds. Article 41 jurisprudence

from Strasbourg is restrictive in awarding non pecuniary damages. A survey of the case

law between 1991-199534 shows non-pecuniary damages were sought in 24 cases but only

awarded in 10. In all other cases the Court held the finding of a violation constituted

sufficient redress. Especially important is the ECtHR’s judgment in Silver35 concerning

33

Rosalind English, Remedies under the Incorporated ECHR, available online:

http://www.onecrownofficerow.com/events/250998/notes/1remedies.htm
34

Mowbray, "The European Court of Human Rights Approach to Just Satisfaction" (1997) Public Law 647
35
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infringement of prisoner’s correspondence. It held that while the prisoners may have

experienced some “annoyance and sense of frustration”36 it was not of an ‘intensity’ to

justify an award for even general damages. The finding against the UK was sufficient. If

the ECtHR does not award basic damages or special damages in such circumstances it is

highly unlikely that it would do so in Mr. Watkins case where the trial judge found he

suffered no damage whatsoever and his character contumelious. S4 HRA damages needs

to take these cases into account.

More fundamentally Rookes37 held that no exemplary/punitive damages may be

awarded unless the tort in litigation was one in which such damages were awarded prior

to 1964; the HRA came into force in the year 2000 any exemplary damages under it are

barred38 by Rookes. Some commentators have argued claims under the HRA are not

tortious in nature so Rookes does not apply, these arguments are confused39*. More

fundamentally a recent case40 assessing the impact of the HRA on English tort law held

Silver v UK judgment (Just Satisfaction) of March 24 1983, (1983) 5 EHRR 347, the case concerned
Article 50 which is now Article 41.
36

Silver v UK judgment (Just Satisfaction) Op. Cit para 9

37

Rookes v Barnard [1964] AC 1129

38

Although see Lord Lynn of Hadley’s speech in Kuddus (AP) v. Chief Constable of Leicestershire
Constabulary [2001] UKHL 29 where he analysis the ‘1964 test’ and concludes “It seems to me, therefore,
that Lord Hailsham was prepared in some respects to be more flexible than a rigid adherence to the "pre
1964" test suggests.”
39

McBride & Bagshaw, Tort Law, (2nd ed), p11 argue that only the breach of a statutory duty owed
to another will amount to a tort if the rules that determine what remedies will be available are defined by
the common law’s ‘tort remedy rules’ and not statute. This argument is mistaken on two grounds. Firstly
their previous argument (p8) against the classification of equitable civil wrongs as torts was analogised to
not equating murder to rape merely because they carry the same sentence. Yet here they are defining what a
tort is by the punishment (damages). Surely it is the same principle they objected to earlier.

Secondly their argument may be more accurate if they said statutory duties owed to others do not
amount to English torts unless they refer to English common law damages. Reference in s8(4) HRA to s41
of the ECHR is referring to tortious damages awarded by a foreign body, nonetheless they are still tortious
in nature just not domestic. This is not just mere academic interest, the pre-1964 test in Rookes only applies
to torts.
40
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that s9(3) of the HRA prohibits “any award of damages otherwise than by way of

compensation” expressly prohibiting the award for exemplary damages.41

In sum the situation under the HRA is not as beneficial as the situation under

misfeasance in public office, there being no awards for exemplary damages or even basic

ones for that matter.

R (on the application of KB) v Mental Health Review Tribunal [2003] 2 All ER 209
41

Para 60 of the judgment entitled “Exemplary damages”. Note: although the final award was £4,000 which
amounted to ‘just satisfaction’ this was due to the aggravating circumstances of the case. Not as a punitive
award but compensatory even though the sum is far more than £500 in Watkins.
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Bibliography

David Hayton, The House of Commons 1690-1715 (Cambridge University Press 2002)

J.A Weir, “Human Rights and Damages”, Washburn Law Journal, Vol 40 p413-446

Kip Esquire, “A Stitch in Haste On Punitive Damages and "Buying the Tort"”
http://kipesquire.powerblogs.com/posts/1133383352.shtml [accessed on 30/11/05]

Law Commission's Report No 257 "Damages for Personal Injury: Non-Pecuniary Loss"

Edwin Buckett “Civil Actions Against The Police” J.P.I. Law 2002, 3, 241-245

Simon Bowne, Civil Actions Against The Police: Aggravated And Exemplary Damages
In Actions Against The Police J.P.I. Law 2002, 4, 365-367

Rosalind English, “Remedies under the Incorporated ECHR”,

http://www.onecrownofficerow.com/events/250998/notes/1remedies.htm [accessed on
30/11/05]

Mowbray, "The European Court of Human Rights Approach to Just Satisfaction" (1997)
Public Law 647

McBride & Bagshaw, Tort Law, 2nd ed. (Pearson Education 2005)

Cox, Noel S., “Three Rivers District Council v The Bank of England: The Collapse of
BCCI and Misfeasance in Public Office” . http://ssrn.com/abstract=420027