England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 February 2000

LORD JUSTICE AULD: The sole issue on this appeal is whether, as a matter of law, exemplary damages may be awarded in an action for the tort of misfeasance in public office. The claimant appeals an order of Mr. Recorder Waine in the Leicester County Court on 26th November 1998 striking out, as showing no reasonable cause of action, his claim for such damages against the defendant for the misfeasance of one of his officers. In so ruling, the Recorder considered himself bound by this Court's decision in AB v. South West Water Services Limited [1993] QB 507 that the effect of the House of Lords' ruling in Rookes v. Barnard [1964] AC 1129, HL, as interpreted by it in Broome v. Cassell & Co. Ltd. [1972] AC 1027, is that in the first two of three categories of case in which exemplary damages are available they are only recoverable in respect of those causes of action for which such damages had been awarded before Rookes v. Barnard. He held that misfeasance in public office, though satisfying the categories test, did not satisfy the cause of action test.

The issue may be divided into three sub-issues: first, is there a cause of action test? second, if there is, does it apply to the tort of misfeasance in public office? and third, if so, has such a claim resulted in an award of exemplary damages before 1964?

Exemplary damages are distinguishable from basic and aggravated damages in that their only function is to punish the tortfeasor. Aggravated damages, which are not always readily distinguishable from exemplary damages, may both compensate and have a punitive effect. Indeed so also may basic damages where the purely compensatory award is high. The distinctions between each of the three forms of damage are not always clear. It is only in recent years that the courts have directed juries with precision as to the differences and required them to identify each species of damages separately where it forms part of an overall award.

The tort of misfeasance in its modern form may take one of two forms. First it may be administrative action or omission with intent to damage a person, and which causes such damage. Or, second, it may be dishonest - in the sense of a knowingly or recklessly unlawful administrative act or omission with intent to cause, or foresight of, such damage, and which causes it; per the majority in Three Rivers District Council v. Bank of England [2000] 2 WLR 15, CA.

The claimant's allegation which, for this purpose, the Court must assume to be true, is that a police officer for whom the respondent is responsible has committed the tort of misfeasance in public office by forging the withdrawal of a complaint of theft. Although the claimant's ultimate entitlement to exemplary damages would only be capable of determination after a full trial on the merits, the issue of principle, its availability at all for the tort of misfeasance in public office, is not facts-sensitive and does not, in my view, offend any possible Osman v. UK (1998) 5 BHRC 293, ECt HR, implications for summary disposal of civil litigation.

The categories test - Rookes v. Barnard and Broome v. Cassell

Lord Devlin, in Rookes v. Barnard [1964] AC 1129, with the apparent agreement of all the other Law Lords (Reid, Evershed, Hodson and Pearce), whilst recognising the anomalous role of exemplary damages as a civil law remedy, regarded it as firmly entrenched in our law and as serving a valuable purpose in appropriate cases in vindicating it. I say that Lord Devlin had the "apparent" agreement of all the other Law Lords because Lord Reid, later in Broome v. Cassell, disavowed having agreed with his reliance on vindication of the law as a justification for retention of the remedy; he characterised it as a "side issue" and as unnecessary to Lord Devlin's reasoning. However, Lord Devlin and all their Lordships were clearly of the view that its availability should not be extended beyond three categories of case. I emphasise the word "categories". They are: first, oppressive, arbitrary or unconstitutional action by servants of the government; second, wrongful conduct which has been calculated by the defendant to make a profit for himself which may well exceed the compensation payable to the claimant; and third, where such an award is expressly authorised by statute. He also set out three considerations of a restrictive nature to be borne in mind when such awards were being considered. However, he did not further qualify the use of the remedy, in particular in the case of the first two categories, so as to restrict it to causes or forms of action where such damages had been previously awarded.

We are only concerned with the first category, which I shall call abuse of public office. After referring to three old authorities concerning variously trespass, assault and false imprisonment,^[1] Lord Devlin said, at 1223:

" These authorities clearly justify the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power."

And after further reference to old and more recent authorities he returned, at 1226, to the matter of principle with these words:

"... there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal."

In Broome v. Cassell the majority of a seven member Appellate Committee, appear to have accepted, obiter, Lord Devlin's reasons of principle for retaining exemplary damages, including those in relation to the first category; see e.g. per Lord Hailsham at 1077A-B, with whom Lord Kilbrandon agreed. And Lord Wilberforce, citing Holt CJ in Ashby v. White (1703) 2 Ld. Raym. 938, at 956 - commonly regarded as the foundation of the tort of misfeasance in public office - said, at 1120C-D:

"There is not perhaps much difficulty about category 1: it is well based on the cases and on a principle stated in 1703 - 'if public officers will infringe men's rights, they ought to pay greater damages than other men to deter and hinder others from the like offences'. ... Excessive and insolent use of power is certainly something against which citizens require as much protection today: a wide interpretation of 'government' which I understand your Lordships to endorse would correspond with Holt CJ.'s 'public officer' and would partly correspond with modern needs. ..."

Only Lord Reid, at 1086F-1087C, in explaining the decision in Rookes v. Barnard, used words of precedent rather than principle, but, it is important to note that, in doing so, he spoke of "classes of case" rather than "causes" or "forms" of action:

"We thought we had to recognise that it had become an established custom in certain classes of case to permit awards of damages which could not be justified as compensatory, and that that must remain the law. But we thought and I still think it well within the province of this House to say that that undesirable anomaly should not be permitted in any class of case where its use was not covered by authority. ...

Critics appear to have thought that ...[Lord Devlin] was inventing something new. That was not my understanding. We were confronted with an undesirable anomaly. We could not abolish it. We had to choose between confining it strictly to classes of cases where it was firmly established, although it produced an illogical result, or permitting it to be extended so as to produce a logical result. In my view it is better in such cases to be content with an illogical result than to allow any extension.

It will be seen that I do not agree with Lord Devlin's view that in certain classes of case exemplary damages serve a useful purpose in vindicating the strength of the law. That view did not form an essential step in his argument. Concurrence with the speech of a colleague does not mean acceptance of every word which he has said. ... I did not regard disagreement on this side issue as preventing me from giving my concurrence."

The cause of action test - Broome v. Cassell and AB v. South West Water Services Limited

Is there a 'cause of action' test? The somewhat slender basis for it is to be found in the House's clear unwillingness in Broome v. Cassell, a case of deceit, to widen Lord Devlin's first category of abuse of public office so as to include other types of claim outside that category. There was no suggestion in argument of a cause of action test as later introduced in AB; the issue was simply whether Lord Devlin's categories should be widened or added to (see at 1035E-1036DF, 1046D-G and 1048C-F). And, in the main, their Lordships expressed themselves in terms limiting the remedy to Lord Devlin's categories or "classes" of case, not to particular causes or forms of action within those categories. However, this Court in AB interpreted such expressions as justification for the introduction of the latter additional test. Whilst keeping in mind the respondent's case that this Court is bound by its ruling in AB, I feel bound to record my respectful view that the passages from the speeches in Broome v. Cassell on which the Court relied in AB neither require nor justify such an interpretation.

The nearest to a suggestion of a cause of action test were the following words of Lord Hailsham at 1076D-F when commenting on an observation of Widgery LJ in Mafo v. Adams [1970] 1 QB 548, at 558G-H, a case of alleged deceit by a private person, a cause of action on its facts clearly outside Lord Devlin's first category, though possibly in certain circumstances a candidate for the second:

"... I can see no reason for thinking that Lord Devlin intended to extend the category to deceit, and counsel on both sides before us were constrained to say that, though it may be paradoxical, they were unable to find a single case where either exemplary or aggravated damages had been awarded for deceit, despite the fact that contumelious, outrageous, oppressive, or dishonest conduct on the part of the defendant is almost inherently associated with it. ..."

Lord Wilberforce, in a passage commenting on Lord Devlin's analysis referred, at 1114A-B, to:

"the range of torts for which punitive damages may be given (trespass to person or property, false imprisonment and defamation being the commonest) ...",

words which Stuart-Smith LJ in AB, at 520C, said "suggest[ed] that he would confine the award to certain specific torts".

Viscount Dilhorne said, at 1107 F-G:

" One criticism that can be made of Lord Devlin's speech is that while recognising that a refusal altogether to recognise the exemplary principle was not possible, he nevertheless restricted the power to award such damages so that they ceased to be obtainable in cases where prior to Rookes v. Barnard they might have been given."

Lord Diplock, in a passage that Stuart-Smith LJ considered in AB, at 1130H-1131A, put the cause of action test "beyond doubt", said:

" ... I would express my agreement with the view that Rookes v. Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded; such as negligence and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages."

However, it should be noted that Lord Diplock, like Lords Hailsham and Wilberforce in the passages quoted, was clearly focusing on the lack of availability of the remedy to particular torts not normally within Lord Devlin's first category and certainly not within it on the facts of the case before the House.

Lord Reid, in explaining his understanding of the rationale of the decision in Rookes v. Barnard, spoke, in the passages I have already quoted, of retaining the availability of exemplary damages as "established custom in certain classes of case" and of confining it to "classes of cases where it was firmly established". Stuart-Smith LJ, in AB, at 521A, while acknowledging some uncertainty as to whether Lord Reid's references in those passages to "classes of cases" were to specific torts or to Lord Devlin's first two categories, was "inclined to think" it was the former.

As Mr. David Harris, QC, for the claimant/appellant, observed, none of these passages suggests that it was intended to be of general application so as further to restrict the forms of action within each category - or "class of case" as Lord Reid put it - to those where there had been an award before 1964. The general treatment by their Lordships, in particular Lords Wilberforce and Diplock, of the rationale of the decision in Rookes v. Barnard make that plain. Lord Wilberforce said, at 1123G-1124A:

" ... It was necessary ... for this House to determine whether the facts in Rookes v. Barnard brought it within a category of cases in which exemplary damages were recoverable at common law. The House determined that they did not and ordered a new trial.

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." [my emphases]

And Lord Diplock said, at 1128C-E:

" Lord Devlin's analysis of previous decisions disclosed three kinds of cases in which the courts had recognised the right of a jury to award damages by way of punishment of the defendant in excess of what was sufficient to compensate the plaintiff for all the harm occasioned to him. The categorisation was new. Its purpose has, I think, been misunderstood. No one suggests that judges, when approving awards of exemplary damages in particular cases in the past consciously differentiated between one kind of case in which exemplary damages could be awarded and another. They dealt with them all as falling within a single nebulous class of cases in which the defendant's conduct was such as to merit punishment. The purpose of Lord Devlin's division of them into three categories was in order to distinguish between factual situations in which there was some special reason still relevant in modern social conditions for retaining the power to award exemplary damages, and factual situations in which no such special reason still survived." [my emphases]

There is a difference between widening or adding to the first of Lord Devlin's permitted "categories" or "classes" or "kinds" of case so as to allow an award of exemplary damages for deceit, whether or not there was precedent for it before 1964, and making such an award in some other cause of action clearly within one of the categories, whether or not it had been done before.

The cause of action test first emerged as a clear proposition of law in AB, where the claim was for damages, including exemplary damages, for nuisance, negligence and breach of statutory duty against a water board by a number of its customers in respect of injuries suffered from drinking contaminated water. Wright J refused to strike out the claim at first instance, holding that there was an arguable claim in nuisance and declining to apply a cause of action test so as to require him to strike out the claim for exemplary damages. As to the latter, his reasoning closely followed that of Lords Wilberforce and Diplock in the last two passages quoted:

"[t]he principle that lies behind Lord Devlin's categorisation is that entitlement to an award of exemplary damages is governed by the quality of the defendant's conduct and not by a process of labelling the cause of action involved."

There were two main issues before the Court of Appeal: first, whether exemplary damages were available in respect of any of those causes of action since none of them had attracted such an award before 1964; and second, whether the water board's commercial, albeit statutory, function as a water supplier excluded it from Lord Devlin's first category and whether, on the facts alleged it could be brought within the second category.

Sir Thomas Bingham MR and Stuart-Smith LJ, with whom Simon Brown LJ agreed, held: first, that the majority of the seven Law Lords in Broome v. Cassell had interpreted Rookes v. Barnard as restricting the availability of exemplary damages to those torts in respect of which such damages had been awarded before 1964, which was not the case in respect of any of the three causes of action relied on; second, that the water board's commercial activity of supplying water was not, in any event, within Lord Devlin's first category since it did not amount to an exercise of executive or governmental function, or within the second, because the board had not sought profit by supplying polluted water.

Sir Thomas Bingham MR, with clear unease, held that, unless and until their Lordships reconsider the point, a claimant for exemplary damages within the first category must satisfy both the categories and cause of action tests. He said, at 529.. and 530G-H:

" In his speech Lord Devlin was not, as I understand him, concerned to identify certain causes of action which could and others which could not properly ground claims for exemplary damages. His focus was not on causes of action at all. Rather, his concern was to identify those elements which had been present in claims which had led to awards of exemplary damages in the past and which served to justify retention of the principle. Statute apart, he identified two such elements giving rise to two categories of case ....

Lord Devlin's speech in Rookes v. Barnard was the subject of detailed exegesis by an enlarged Appellate Committee of the House of Lords in Broome v. Cassell & Co. It appears to me that Lord Hailsham ..., in his speech, held or at least assumed that it was not enough for a claim in tort to fall within one or other of Lord Devlin's categories unless it was also founded on a cause of action recognised as grounding a claim for exemplary damages before Rookes v. Barnard ...

I cannot pretend to find the answer at all clear, but I incline to think that a majority of the House regarded an award of exemplary damages as permissible only where (a) a case fell within one or other of Lord Devlin's categories and (b) was founded on a tort for which exemplary damages had been awarded before Rookes v, Barnard ... this may involve a misreading of their Lordships' speeches in Broome v. Cassell ..., but I think it is the basis upon which the Court of Appeal should, until corrected, proceed."

Stuart-Smith LJ expressed the same view, deriving it, not from the speech of Lord Devlin in Rookes v. Barnard, but from the passages that I have set out from those of Lords Hailsham, Diplock, Wilberforce and Lord Kilbrandon (who agreed with Lord Hailsham), "and perhaps also Lord Reid", in Broome v. Cassell. He added that he could see nothing in the speeches of the other members of the House (Lords Morris and Viscount Dilhorne) which showed a contrary view. And, after dismissing as obiter later judicial observations, some in this Court, accepting the availability of exemplary awards in discrimination cases (but in which the contrary had not been argued), concluded at 523B:

" ... there is no binding authority of this court which compels us to disregard the dicta of the House of Lords In Broome v. Cassell ... And accordingly I would hold that before an award of exemplary damages can be made by any court or tribunal the tort must be one in respect of which such an award was made prior to 1964."

The appellant's case

Mr. Harris, whilst stating that this Court appeared to be bound by AB as to the existence of a cause of action test, put forward arguments and authorities suggesting that it is incorrect in principle and unworkable in practice. However, as he considered that this Court was limited in the effect it could give to such arguments, he focused on two main submissions: first, that the tort of misfeasance in public office should be regarded as an exception to the cause of action test; and second, and in the alternative, that it is arguable on a close analysis of some early cases that it satisfies the test.

As to the first of those submissions, he argued that the reasoning in Broome v. Cassell as interpreted in AB does not lay down an absolute rule so as to exclude the availability of exemplary damages in those cases which are at the heart of Lord Devlin's first category, such as misfeasance in public office or also, for example, intimidation or malicious prosecution. He submitted that such claims, in particular, misfeasance, should be treated as exceptions. He pointed out that neither Broome v. Cassell nor AB was concerned with that tort or anything like it and that neither the House of Lords nor the Court of Appeal can have intended to exclude it from the ambit of exemplary damages since:

first, by its very nature, it necessarily comes within Lord Devlin's first category, involving as it does oppressive and/or arbitrary and/or unconstitutional action by government or its emanations;

second, it is comparable to other torts involving abuse of power such as trespass, assault and false imprisonment in which historically exemplary damages may be awarded, citing Wilkes v. Wood (1763) Lofft 1 - trespass; Huckle v. Money (1763) W Wils. 205 - trespass, assault and false imprisonment; and Benson v. Frederick (1766) 3 Burr. 145 - assault;

third, had there been life in the tort in the century before 1964 and had the issue been raised, it would have been resolved for those reasons in favour of the claimant; and

fourth, there are already some exceptions, notably intimidation and malicious prosecution.

Mr. Harris submitted that their Lordships in Broome v. Cassell would not have intended a cause of action test to apply to the tort of misfeasance in public office if they had foreseen the formulation of the test in AB. He added that neither the House in that case nor the Court in AB had to consider, and was not addressed on, the effect of the test on that tort central to Lord Devlin's first category. Had they considered the issue, he submitted, they would have concluded that the courts have power in appropriate cases to award exemplary damages in respect of such a cause of action.

As to other exceptions, he mentioned first the tort of intimidation, observing that exemplary damages do not appear to have been awarded in any of the pre-1964 intimidation cases cited in the speeches in Rookes v. Barnard, and referred us to the observation of the Law Commission in paragraph 3.64 of its Consultation Paper No. 132 of 1993 on "Aggravated, Exemplary and Restitutionary Damages" that:

"[i]t is implicit in Lord Devlin's speech in Rookes v. Barnard that exemplary damages may be awarded in respect of the tort of intimidation, although not surprisingly there appears to be no case prior to that decision in which such an award was made."

Secondly, he referred to the tort of malicious prosecution, submitting that the better view of such old authorities as there are, is that it had not been the subject of an award of exemplary damages before 1964, but that, since then, there are a number of examples of its award in such cases, some of which have been upheld by this Court. Accordingly, he submitted, that even if the Court of Appeal's interpretation in AB of Broome v. Cassell is correct, it is not of universal application.

Mr. Harris also submitted that since the AB decision the House of Lords and the Divisional Court have recognised the availability of exemplary damages for misfeasance in public office. He referred us to Racz v. Home Office [1994] 1 AC 45, HL, where one of the issues before the Appellate Committee was whether the Home Office could be vicariously liable for acts of prison officers that amounted to misfeasance in public office. Counsel for the plaintiff (Mr. Harris), in explaining to the Committee the reason for the inclusion of that cause of action with others in the claim, argued that exemplary damages might be awarded for the tort of misfeasance in public office, and cited Rookes v. Barnard, Broome v. Cassell and AB. In his submissions to us, Mr. Harris acknowledged that the Appellate Committee in Racz did not have to consider that part of his argument in any detail. However, he relied on the fact that Lord Jauncey, with whom all the other members of the Committee agreed, clearly contemplated, when dealing with a second issue as to mode of trial, that exemplary damages can in an appropriate case be awarded for misfeasance in public office. Lord Jauncey said, at 55F-G:

" ... the Court of Appeal were dealing with the question of mode of trial upon the basis that the claim in respect of misfeasance in public office would not proceed. However, the facts relevant to that claim are likely to be identical to those which will be considered under the remaining heads of claim and the issue of exemplary damages also falls to be considered under those heads of claim." [my emphasis]

Those observations, he submitted, were made in the knowledge of what had been said by this Court in AB and amount either to an implicit overruling of its cause of action test or an implicit ruling that misfeasance in public office is an exception to it.

Mr. Harris also relied on some words of Hobhouse LJ, giving the judgment of the Divisional Court in R v. Secretary of State for Transport, ex p. Factortame (No. 5)[1997] Eu LR 475, at 532B, as further authoritative judicial acceptance of the availability of exemplary damages for the tort of misfeasance in public office. Mr. Simon Freeland, for the defendant/respondent, also relied on this authority and I shall deal with it in the context of his submissions.

The respondent's case

Mr Freeland argued that AB established as a binding precedent on this Court a general and absolute rule that exemplary damages are only available where the cause or form of action satisfies both the categories test and the cause of action test. He submitted that AB was correctly decided and admitted of no exceptions. Whilst he accepted that misfeasance in public office falls within the first of Lord Devlin's categories, he submitted that it failed the cause of action test because it had not attracted an award of exemplary damages before 1964 and that the claim was thus doomed to fail.

As to the validity of the AB test, he submitted that, though anomalous, it is justified by the fact that the retention in English law of a right to exemplary damages is itself anomalous. He argued that Lord Devlin in Rookes v. Barnard, as explained in Broome v. Cassell, intended not only to restrict the categories of cases in which exemplary damages could be awarded, but also the causes of action within those categories. He relied upon the observations in Lords Hailsham's and Reid's speeches in the latter case, at 1076D-F and 1086F-1087B respectively that the claimant there had been "unable to find a single case where ... exemplary damages had been awarded for deceit" and that the rationale of Rookes v. Barnard was to confine exemplary damages strictly to "classes of cases where it was firmly established". As to Mr. Harris's reliance on cases of exemplary awards in other causes of action which could also have been the subject of misfeasance claims, he said that in none of those cases had there been a claim for misfeasance, and that the fact that there could have been did not invalidate or meet the AB cause of action test.

He submitted that the test was accepted without question by the Divisional Court in ex p. Factortame Ltd (No. 5). There, Hobhouse LJ giving the judgment of the Court, said, at 530 D-E, after referring to AB:

"We are bound by the decision ... as a statement of the English law. It is a decision of the Court of Appeal arrived at after a full consideration of all the relevant authorities. It cannot be said that it was arrived at per incuriam. There is therefore a cause of action test. Exemplary damages can only be awarded for torts for which they would have been awarded before 1964."

However, in a later passage at 532B, on which Mr Harris relied, he accepted that exemplary damages were available in an appropriate case for misfeasance in public office, seemingly because of its antiquity (criticised by the Law Commission in its final report, Law Com No. 247, at para. 4.54, n. 119 as a mis-application of the cause of action test).

Mr. Freeland invited the Court to reject Mr. Harris's argument that there may be exceptions to the AB cause of action test and that misfeasance in public office is one of them. He submitted that the Court's formulation of the test and the rationale of Lord Devlin's close curtailment of such awards because of their anomalous nature did not permit it. He maintained that the torts of intimidation and malicious prosecution are not exceptions. As to the former, he pointed out that there is still no reported award of exemplary damages for such a cause of action. As to the latter, he relied upon an assertion of the Law Commission in its final report (Law Com No. 247 of 15th December 1997, "Aggravated, Exemplary and Restitutionary Damages"), at paragraph 4.24, that it satisfied the test.

On the question whether exemplary damages have been awarded before 1964 for misfeasance in public office, Mr. Freeland agreed that the old cases are not a reliable source for determining whether there have been such awards. However, he submitted that there is a persuasive burden upon a claimant today to show that there was an "inferential element of exemplary damages" in at least one earlier global award of damages. He said that "upon a proper analysis" there is no report of a pre 1964 misfeasance case in which the courts have "specifically" considered its availability or made such an award. He then undertook a detailed analysis of the old cases, starting in the late 17th century with Turner v. Sterling (1671) 2 Vent 24 (86 ER 287), with a view to demonstrating the absence of any specific award of exemplary damages and to inviting the Court to conclude that the amounts awarded in each case are likely to have been purely compensatory. He also prayed in aid the absence of any claim for such damages in Bourgoin SA v. Ministry of Agriculture, Fisheries & Food [1986] 1 QB 714, CA, and Three Rivers.

Is there a cause of action test?

(i) Principle

If correct, the AB cause of action test excludes the award of exemplary damages in a cause of action which lies at the heart of Lord Devlin's first category, abuse of public office, simply because there may be no report of such an award before 1964. If, as Lord Devlin considered, it is an important function of the retention of exemplary damages to vindicate the law in such cases, it is hard to think of a private law cause of action more directed to that end. As I have noted, Lord Wilberforce, in Broome v. Cassell, turned to Holt CJ's words in Ashby v. White for an historical and current validation of Lord Devlin's first category. How strange it would be to exclude it now from the very category to which it gave life for want of a law report specifically identifying an exemplary element in an award of damages in such a case.

Lord Devlin's rationale for retention of the first category and the acceptance of it by the majority in Broome v. Cassell must be considered alongside the renaissance of the tort of misfeasance in public office after over a century of sleep. It must also be considered alongside the current momentum for more effective protection of the citizen against abuse of public power, a momentum that will increase with the advent of the European Convention of Human Rights into our law. The Law Commission recognised the continuing value of exemplary damages in this context. In its consultation paper it stated, in paragraph 3.41, that its retention "has allowed exemplary damages to continue to play an important role in the protection of civil liberties". However, it considered, in paragraphs 6.5 and 8.4, that its present condition, "particularly in the light of the 'cause of action' test" introduced in AB, is "unsatisfactory and unprincipled". In its final report recommending the retention of exemplary damages, the Law Commission, in paragraphs 5.2 and 5.3, called for the removal of the AB cause of action test, which it regarded as dictating the availability of the remedy "by what are arguably the accidents of precedent, rather than sound principle".

That sentiment was echoed by W.V.H. Rogers, the editor of the 15th edition of Winfield and Jolowicz on Tort (1998), at page 746, in commenting on AB:

"... that decision was not a 'new start' for the law under two rationalised categories but a further restriction upon then existing authority. Whatever one's view on exemplary damages this is an unfortunate state of affairs because it commits the law to an irrational position in which the result depends not on principle but upon the accidents of litigation (or even of law reporting) before 1964, at a time, moreover, when the distinction between exemplary and aggravated damages was by no means so clearly drawn as it is now."

In my view, and with respect to the Court in AB, there is force in those criticisms and in Mr. Harris's submission that the cause of action requirement is unprincipled. I say that, without seeking to go behind the reasoning of the House of Lords in Broome v. Cassell that Lord Devlin in Rookes v. Barnard had regarded exemplary damages as an anomaly and, for that reason, had not intended to extend its application. But, it seems to me that he sought to draw the boundaries by reference to the three categories of case that he identified, not by reference to particular causes of action within those categories. Indeed, it is evident from his reasoning that, in doing so, he regarded the then jurisprudence with regard to exemplary damages as confused and fraught with anomalies. In my view, AB's addition to the categorisation test of the cause of action test was not dictated by precedent; if anything, it was contrary to precedent in that it re-introduced some of the old confusion and anomalies that Lord Devlin had sought to eradicate.

Nor can the decision be justified as a means of restricting the anomaly of retaining a punitive element in civil litigation. The way to deal with anomalies of that sort is by legislation, not by introducing to it jurisprudential discriminatory sub-anomalies. As it is, we are left with two arbitrary groups of torts spread between Lord Devlin's first two categories, one in respect of which exemplary damages are available and the other, by application of the cause of action test, in which it is said, they are not. The former includes trespass to land and goods, assault, false imprisonment, private nuisance, defamation, tortious interference with business and breach of copyright. The latter includes malicious prosecution (probably), misfeasance in public office, conversion, public nuisance, negligence and other personal injury cases, deceit, patent infringement, unlawful discrimination on grounds of sex, race or disability, wrongs consisting of breaches of European Union law, breach of contract and procuring such a breach, and secondary picketing.^[2] One has only to make pairs between the two groups to see the illogicality of the division. For example, as one commentator^[3] has asked:

"Why should exemplary damages be available for trespass to goods but not for their conversion; for libel but not for malicious prosecution; for abuse by the police of their power to arrest but not for refusing to return confiscated property or malicious process tort?"

In some cases oppressive, arbitrary or unconstitutional conduct which would amount to misfeasance in public office may also amount to other nominate torts, for example, assault or false imprisonment. See Weldon v. Home Office [1992] 1 AC 58, HL, per Lords Bridge and Ackner at 164D-E and 166E-F. As Mr. Harris noted in argument, it would be illogical if exemplary damages could be awarded for assault, where the nature of the defendant's conduct brings that conduct within Lord Devlin's first category, but not for the tort of misfeasance which is at the heart of it.

I do not believe that the House of Lords in Rookes v. Barnard, an intimidation case where the House found other reasons for rejecting the claim, or in Broome v. Cassell, a libel case, can have intended that a tort like misfeasance in public office should be subject to the sort of speculative audit of reported cases which the AB cause of action test is now said to require. Nor do I believe that the Court in AB, if it had been concerned with a claim which, on its facts, came within one or other of Lord Devlin's first two categories, would have expressed the test in such broad terms or have countenanced such an exercise. It was a claim of nuisance, on the alleged facts of which the Court did not need to coin the cause of action test to reject the claim for exemplary damages. Certainly, the Court did not have to consider the difficulties of principle and the practical implications of such a test for the ancient and modern civil wrong of misfeasance.

(ii) Practicality

Further, there are at least three practical reasons for the absence of a clear report of an award of exemplary damages in a misfeasance in public office award before 1964 and for the futility of a rule requiring a search for one over nearly three centuries of law reports. Similar considerations may apply to another nominate torts apparently not satisfying the AB cause of action test.

First, as Mr. Freeland conceded in argument, the old cases are not a reliable source for determining whether a particular cause of action satisfies the test. There are a number of reasons for this. It is only recently that judges have begun clearly to identify in their directions to juries, where appropriate, the distinction between compensatory and punitive elements in awards, in particular the distinction, still somewhat blurred, between aggravated and exemplary damages. It is only since Broome v. Cassell that the Rules of the Supreme Court, in Order 18, rule 8(3), have required a claim for exemplary damages to be specifically pleaded, together with the facts relied on. And it is only since Thompson v. Commissioner of the Metropolitan Police [1998] QB 498, CA, in which this Court said that judges should direct juries to identify separately the basic, aggravated and exemplary components of their award, that they have been required to do so. Even in recent (pre-Thompson) years, when judges did direct juries as to the different forms of damages, they, juries, commonly did not identify what, if any, sums in their total award were referable to each form of damages. See e.g. Gerald v. Commissioner of the Metropolitan Police June 10, 1998, CA. Moreover, it is only recently that the Court of Appeal has been given the right to substitute its own award for that of the jury; see the Court and Legal Services Act 1998, sections 8 and Thompson. The result of all this is that in pre 1964 reported cases, for example malicious prosecution, where, for want of a reported award of a sum expressly attributed to exemplary damages it may be suggested that exemplary damages are not available, some very high awards could be explicable as containing an exemplary element.

Second, there is the long-standing confusion in terminology as to different types of damages, to which Lord Hailsham referred in Broome v. Cassell, at 1072B-C:

"My own view is that in no English case and perhaps even in no statute, where the word 'exemplary' or 'punitive' or 'aggravated' occurs before 1964 can one be absolutely sure that there is no element of confusion between the two elements in damages. It was not until Lord Devlin's speech in Rookes v. Barnard that the expressions 'aggravated', on the one hand, and 'punitive' or 'exemplary' on the other, acquired separate and mutually exclusive meanings as terms of art in English law."

See also per Viscount Dilhorne at 1111A and Lord Diplock at 11128D-E. And, as Lord Woolf, giving the judgment of the Court in Thompson indicated, at 516H-517A, there is still a potential overlap between aggravated and exemplary damages in that the former can contain a penal element even though their primary purpose is compensatory.

Third, the seed bed of what is now known as the tort of misfeasance in public office lay in a series of actions on the case for election abuses in the 18th century, the most commonly cited starting point for the tort being the celebrated case of Ashby v. White in 1703. It is unsatisfactory, to say the least, to pin legal entitlement to exemplary damages in modern nominate torts, particularly misfeasance in its present wide form, to what are thought to be their counterparts in early and still developing actions on the case. There are also the vagaries of law reporting in the 18th and first half of the 19th centuries No doubt most of such cases were jury awards made on assize and were often not reported at all nor the subject of appeal. There must also be a considerable question mark over the adequacy and precision of reports of early cases, both as to the judges' directions to juries and in their rulings, if any, on the make-up of damages subsequently awarded. Moreover, in many of the early reports, including Ashby v. White itself, the issue was not as to the quantum of the damages, but as to the claimant's entitlement to them.

For those three reasons alone, if there is such potential for uncertainty in the make-up of jury awards until the last year or so of the 20th century, how can courts today - seeking to apply the AB cause of action test - conclude with confidence that single awards recorded in reported cases in the early 18th and into the 19th century did or did not contain an element of purely punitive damages?

This uncertainty - or chance - is particularly unfortunate for the tort of misfeasance in public office in that it is only since Rookes v. Barnard that it has enjoyed a renaissance as a civil remedy and weapon against executive abuse. It will no doubt receive further impetus with the advent to our law of Human Rights. Although the origin of the tort is mainly to be found in a series of election cases in the 18th century and early part of the 19th century, there was then a gap of over 100 years when it fell into such disuse that, as one commentator^[4] has said, "its existence was almost completely forgotten". In 1907, in Davis v. Bromley Corporation 1 KB 170, the Court of Appeal (Vaughan Williams LJ, Sir Gorell Barnes P. and Bigham J) appear not to have recognised its existence. Apart from some indirect pointers in 1875^[5] and 1956,^[6] as the same commentator has mentioned, it was not until 1963 that the Judicial Committee of the Privy Council, in David v. Abdul Kader [1963] 1 WLR 854 brought the tort back to the notice of the English courts. At that time the leading text-books either did not mention it or described it as a "doubtful" or "emergent" tort. Since then the tort has sprung to life again and has become the subject of close analysis in the law reports in this country and in the Commonwealth. See, for example Bourgoin, Northern Territory v. Mengel [1995] 69 ALJR 527, Garrett v. A-F [1997] 2 NZLR 332 and Three Rivers. As that burgeoning jurisprudence demonstrates, the boundaries of the tort are still unclear. The point of this short historical summary is that is underlines the illogicality and impracticality of fixing the availability of exemplary damages for a still developing tort by a mechanistic test of reference to reported awards, or the lack of them, during a period for much of which the tort was little used.

Conclusion on the validity of the AB cause of action test

I recognise that the decision of one constitution of this Court as to the meaning of a decision of the House of Lords is normally binding on another constitution of the Court. However, as my use of the word "normally" indicates, the rule is not absolute. In Young v. Bristol Aeroplane Co. Ltd. [1944] 1 KB 729, CA, Lord Greene MR, in summarising, at 729-730, his view of the law, said that there were only three exceptions to the rule that the Court of Appeal is bound to follow its previous decisions, namely:

"(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."

Viscount Simon expressly agreed with that statement in his speech in the House of Lords [1946] AC 163, at 169, in support of the Court of Appeal's decision.

Although the House of Lords, in Davis v. Johnson [1979] AC 264, affirmed the general rule and added that the Court of Appeal had no power to introduce further exceptions, there are a number of instances in which the Court has recognised the existence or the possibility of existence of other exceptions; see Cross & Harris, "Precedent in English Law", 4th ed., 1991, at 152-154, and, in particular, R v. Secretary of State, ex p. Al-Mehdawi [1990] 1 AC 876, CA, per Taylor LJ at 881H-884A, and Langley v. North West Water Authority [1991] 1 WLR 697, CA. In the latter case, Lord Donaldson MR, with whom Woolf and Mann LJJ agreed, said at 710E-H:

"As this court pointed out in Williams v. Fawcett [1986] QB 604, at 615-617, the rule of stare decisis laid down in Young v. Bristol Aeroplane Co. Ltd. ... and Morelle v. Wakeling [1955] 2 QB 379 permits of exceptions, although they will be rare. In Williams v. Fawcett the exceptional circumstance was that more than one decision of this court was manifestly wrong and there was no realistic possibility of an appeal to the House of Lords to correct it. ... Any departure from previous decisions of this court is in principle undesirable and should only be considered if the previous decision is manifestly wrong. Even then it will be necessary to take account of whether the decision purports to be one of general application and whether there is any other way of remedying the error, for example by encouraging an appeal to the House of Lords."

As to the second of Lord Greene's exceptions, inconsistency of the previous decision with a decision of the House of Lords, whilst he did not expressly confine it to conflict with a subsequent decision of their Lordships, there are other passages in his judgment which suggest that he probably intended that; see 722 and 725. That certainly seem to have been his approach in Williams v. Glasbrook [1947] 2 All ER 884, CA, in which, at 885B, he said that it was "inadmissible" for counsel to argue that in an earlier decision the Court had misinterpreted a previous decision of the House of Lords. However, as Cross & Harris have observed, op cit 147, there are earlier and later dicta of high authority both for and against extending the exception to conflict with previous decision of the House of Lords. An example of the former is Holden & Co. v. Crown Prosecution Service [1990] 2 QB 261, CA, in which the Court's previous inconsistent decision resulted from a misinterpretation of an earlier House of Lords decision. Lord Lane CJ, giving the judgment of the Court held that it was free to decide the law as it believed it to be. He said, at 272A-C:

" Ordinarily the rule in Young v. Bristol Aeroplane Co. Ltd. ... applies only to the subsequent decisions of the House of Lords which are inconsistent with the previous decisions of the Court of Appeal.

What is the position when the court is of the opinion that a decision of the Court of Appeal is inconsistent with the previous decisions of the House of Lords, which had been cited to that court and wrongly distinguished? This is described by Lord Wright in Noble v. Southern Railway Co. [1940] AC 583, 598, as a problem of some difficulty. He inclined to the view that our duty is to follow the law as we believe it to have been laid down in the previous decision of the House of Lords."

Although the Court of Appeal in Gupta v. Corner [1991] 1 QB 629 did not follow Holden, regarding Lord Lane's reasoning as obiter insofar as it related to civil proceedings, it did not question the flexibility of his approach to Lord Greene's second exception.

As to Lord Greene's third exception - where the previous inconsistent decision was made per incuriam - he said in Young, at 729, that it could occur in respect of decisions given in ignorance of a statute or statutory rule or, he added obiter, of "a previous decision of its own or of a court of co-ordinate jurisdiction ... or of the House of Lords which covers the point ...." However, as he also indicated in the same passage, referring particularly to disregard of a statutory provision:

"Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts."

The House of Lords in Davis v. Johnson did not attempt to prescribe the limits of error which may make a decision per incuriam. And Lord Evershed MR said much the same in giving the judgment of the Court in Morelle v. Wakeling [1955] 2 QB 379, CA, observing at 406 that Lord Greene's definition of "per incuriam" was not necessarily exhaustive, though instances outside it such as "manifest slip or error" would be rare. Although that decision was overruled in Attorney General v. Parsons [1956] AC 421, it was without criticism of that general proposition. Lord Lane's dictum in Holden, drawing on no less authority than Lord Wright, is an instance of the Court holding itself free to disregard its earlier misinterpretation of a House of Lords decision. Williams v. Fawcett, referred to by Lord Donaldson MR in Langley v. North West Water Authority, was another instance. So also was Rickards v. Rickards [1990] Fam 194, in which the Court regarded its previous decision as per incuriam because it had misunderstood a decision of the House of Lords. In this respect the second and third of Lord Greene's exceptions may overlap.

Such modest flexibility, and the need for it, is understandable when it is remembered that the rule in Young v. Bristol Aeroplane Co. Ltd. is one of judicial practice rather than a rigid rule of law, notwithstanding Lord Diplock's "re-affirmation" of it in Davis v. Johnson, at 328D. As Lord Salmon observed in the same case, at 344A-B, "in the nature of things ... the point could never come before [the House] for decision or form part of its ratio decidendi". It is the Court of Appeal's own rule for the orderly development and application of its jurisprudence It is thus a mistake to treat it as a rigid rule of law, tightly circumscribing the Court of Appeal's ability to prevent it from correcting what it regards as its own manifest errors, especially where, as in this instance, its earlier resultant rulings prove to be unworkable. Equally, it seems to me that in those rare cases where the Court is satisfied that there has been such an error it would be illogical to make its power of correction dependent on the absence of possibility or likelihood of an appeal to the House of Lords.

In the light of those authorities, and after anxious consideration, my view is that this Court should not regard itself as bound by AB so as to apply a cause of action test in addition to a categories test, certainly where, as here, the facts on which the claim is based are firmly within the first of Lord Devlin's categories. The tort of misfeasance in public office did not fall for consideration in either Broome v. Cassell or AB, and the Court of Appeal in the latter case did not have full argument or citation of authorities on the implications for that tort of the rule that it formulated. The following objections to the test in principle and in practice are so great that, in my view, the Court is entitled not to follow it, regardless of the possibility of an appeal to the House of Lords:

1) Lord Devlin's scheme of retaining and restricting the use of exemplary damages, and in removing the then confusing and anomalous jurisprudence as to its availability, was to confine it by reference to categories of cases rather than to nominate torts;

2) the AB cause of action test defeats that scheme and re-introduces the former confusion and anomalies as to the availability of the remedy between nominate torts;

3) the House in Broome v. Cassell did not have to consider or determine the availability of exemplary damages to a cause of action which was clearly within the first of the categories;

4) in any event, the remarks of the majority in Broome v. Cassell, read individually and as a whole, were loyal to Lord Devlin's scheme of restricting the remedy by reference to "categories", or "classes" or "kinds" of case, and neither dictate nor justify the introduction in AB of the cause of action test;

5) AB was a case which, on the claimed facts, came within neither of Lord Devlin's first two categories; the formulation of a cause of action test was not necessary to the Court's decision; if the Court had answered its second, categories, question first, that formulation would arguably have been obiter;

6) the wider implications of the decision, in particular its effect on causes of action clearly within one or other Lord Devlin's first two categories did not fall for consideration in AB; nor did the lack of principle and practicality in re-opening the inquiry into the existence and effect of old authorities; and

7) Sir Thomas Bingham MR was clearly uneasy about his and Stuart-Smith LJ's construction of their Lordships' speeches in Broome v. Cassell.

Accordingly, I would allow the claimant's appeal on this issue and hold that his pleaded case discloses a reasonable cause of action.

Exceptions to the AB cause of action test

If I am wrong in declining to acknowledge the general correctness of the AB cause of action, I would hold myself free to regard it as at least arguable that is subject to exceptions where the cause of action, as here, is clearly within the first of Lord Devlin's categories. There are, as Mr. Harris has submitted, some precedent and some practice in support of such an approach.

First, although there is no reported example of an award before 1964 of exemplary damages for the tort of intimidation, no doubt, because it is a "relatively modern judicial creation" (per Lord Evershed at 1184-5), the Law Commission in its final report, at paragraph 3.64, accepted that it may, in an appropriate case, attract such an award. Although the availability of exemplary damages for it and other nominate torts was canvassed in argument in Rookes v. Barnard (at 1159-60, 1162 and 11640), Lord Devlin preferred to deal with the matter in the three broad categories that he identified rather than tie the outcome to the differing and often, anomalous, historical treatment in this respect of individual causes of action. Intimidation was the very tort in issue in that case, and, as Mr. Harvey McGregor, QC, observed, at paragraph 444 of the 16th edition of his book, Lord Devlin clearly thought that exemplary damages could have been awarded if the facts had fallen into one of his three categories. Lord Wilberforce made plain in the passage that I have cited from his speech in Broome v. Cassell, at 1123H-1124A, that was also his understanding. In my view, it is inconceivable that the Court of Appeal in AB would have intended its cause of action test to apply to intimidation by a public officer, or, for the same reason, to misfeasance in public office, if it had had to consider either question.

The second probable exception is malicious prosecution. There is clear pre 1964 authority for the award of exemplary damages for false imprisonment but not, as Mr. McGregor points out, at paragraph 1869 of his book, for malicious prosecution. Though he and the Law Commission, at paragraph 3.60 of its consultation paper,^[7] observe that the high awards of damages in Chambers v. Robinson (1726) 2 Str. 691 and Leigh v. Pope (1779) 2 Wm Bl 1327 make them possible examples, the former was well before the concept of exemplary damages had appeared in English law. And the latter contains no clear ruling that the award was exemplary or any indication that it was more than compensatory, as Lord Devlin observed in Rookes v. Barnard at 1223. Moreover, Lord Hailsham, in Broome v. Cassell, at 1078 B-C, seems to have considered the tort, though not established as one for which exemplary damages was available, as one which might ... at some future date be assimilated into the first category". Whether within the rule, or an exception to it, it is interesting to note that there are a number of post 1964 instances, including this Court's judgment in Thompson, of awards of exemplary damages for malicious prosecution, in which the availability of the remedy has not been challenged and the courts have seemingly not considered it necessary to subject the claim to the AB cause of action test.

I have considered whether there is any support for exceptions to the cause of action test, more particularly for one in respect of misfeasance in public office, in the passages from Lord Jauncey's speech in Racz and from Hobhouse LJ's judgment in the Divisional Court in Factortame (No. 5) on which Mr. Harris relied. I do not consider that either of them help his argument. In neither was the present issue of law canvassed. Lord Jauncey's reference to the misfeasance claim was passing, and his speech, with which the other Law Lords agreed, cannot be regarded as implicitly overruling AB or as establishing misfeasance as an exception. And Hobhouse LJ's seemingly contradictory assertions that AB established a cause of action test and that the antiquity of the tort of misfeasance satisfied that test - both in the context of the question whether exemplary damages were available for a breach of Community law - similarly do not assist on the question.

If I am wrong on the first issue, I would hold that the claimant succeeds on his appeal on this issue.

Does misfeasance in public office satisfy the AB cause of action test?

Mr. Harris's second and alternative submission was that, in any event, there are early examples of judges' recognition of, and of juries' awards reflecting, punitive damages in early actions on the case from which the modern tort of misfeasance in public office has developed. He invited the Court to consider a number of 18th and 19th century reported cases and referred, in particular, to the following observation of Holt CJ in Ashby w. White (1703), at 957, submitting that it was a clear statement of principle that he regarded exemplary damages as available for such a type of public wrong:

"To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation."

He also referred to a number of other very old reported cases, which today might be classified as claims of misfeasance, as illustrations of awards which, when looked at in today's values, suggested, he submitted, a substantial element of exemplary damages, namely: Turner v. Sterling (1671) 2 Vent 24; 86 ER 287; Harman v. Tappenden (1801) 1 East 666; 102 ER 214; Milward v. Serjeant (1786) 104 ER 523n; Luders 248; and Cullen v. Morris (1819) 2 Stark 557; 171 ER 741, commenting on the unreported case of Grew v. Milward.

Mr. Freeland also subjected those authorities to very close analysis, inviting the Court variously to distinguish them as other than misfeasance cases or to interpret them and the amounts awarded as illustrations of no more than compensatory damages or, at best for the claimant, as inconclusive as to an award of exemplary damages.

This is an exercise in interpretation on which this Court could embark and, no doubt, form a view. However, for the reasons of principle and practicality that I have given in ruling on the first two issues, I do not regard it as a respectable jurisprudential exercise, and decline to undertake it. Trawling through law reports over two or three centuries and attempting by a process of often difficult interpretation to identify, cause of action by cause of action, whether it has been the subject of an award of exemplary damages would, as I have already said, re-create the plethora of confusion and anomaly from which Lord Devlin's rationalisation of the law in Rookes v. Barnard was designed to free us. Such an exercise, so devoid of principle and so dependent on the accident of often ancient and ill-reported precedent unrelated to modern needs, would demean the law and those who work with it. Thus, if I had found against the claimant on the first two issues, I would have had great difficulty, given the state of the authorities and their age, in justifying a finding for him by this means.

For the reasons I have given I would allow the appeal and quash the order striking out the claim as disclosing no reasonable cause of action.

SIR CHRISTOPHER STAUGHTON:

The first and principal argument for Mr Kuddus was, in the words of Mr David Harris Q.C. on his behalf, that A.B. v South West Water Services Ltd (1993) QB 507 was wrong. Seeing that it was a decision of the Court of Appeal, stating what Sir Thomas Bingham M.R described as

the basis upon which the Court of Appeal should, until corrected, proceed (p.530),

it seems to me that Mr Harris has a hard road to hoe. In that case Stuart-Smith L.J. said (at p.523) -

Accordingly I would hold that before an award of exemplary damages can be made by any court or tribunal the tort must be one in respect of which such an award was made prior to 1964.

Simon Brown L.J. agreed. And Sir Thomas Bingham M.R. said, immediately before the passage quoted above,

I incline to think that a majority of the House [in Broome v Cassell & Co. Ltd.] regarded an award of exemplary damages as permissible only where (a) a case fell within one or other of Lord Devlin's categories and (b) was founded on a tort for which exemplary damages had been awarded before Rookes v Barnard (1964) AC 1129.

The A.B. case was followed by this court in R v Secretary of State for Transport ex parte Factortame (1997) EuLR 475, 530.

The secondary argument for Mr Kuddus was that exemplary damages had indeed been awarded for misfeasance in public office before 1964. We were referred to some singularly antique cases, starting with Ashby v White (1703) 2 Ld Raym.938. None of them provided clear evidence of an award of exemplary damages in such a case. But in any event I do not think that we are required to look at cases of two or three hundred years ago for this purpose. The quirks of law reporters and the lack of systematic development in the law at that time may make them at best an unreliable guide.

The test is, in my judgment, to be derived from the speech of Lord Reid in Broome v Cassell & Co. Ltd., (1972) AC 1027 at p.1086, where he said (referring to Rookes v Barnard (1964) AC 1129) –

We thought we had to recognise that it had become an established custom in certain classes of case to permit awards of damages which could not be justified as compensatory, and that that must remain the law. But we thought and I still think it well within the province of this House to say that that undesirable anomaly should not be permitted in any class of case where its use was not covered by authority…….. We had to choose between confining it strictly to classes of cases where it was firmly established, although that produced an illogical result, or permitting it to be extended so as to produce a logical result. In my view it is better in such cases to be content with an illogical result than to allow any extension.

It cannot be said that in 1964, or for that matter at any earlier time, it had become "an established custom", or "firmly established", that exemplary damages can be awarded for misfeasance in public office. And that, in my judgment, is the end of this appeal.

If, however, we are free to allow such an award in the present case, there are arguments both for and against taking that course. Seeing that one of the main categories laid down by Lord Devlin in Rookes v Barnard at p.1226 was cases of oppressive, arbitrary or unconstitutional action by the servants of the Government, it is odd that it does not apply to the tort of misfeasance in public office, which is likely to be based on that kind of behaviour in many cases. And a report of the Law Commission in 1997 has recommended that the cause of action test be abolished: Aggravated, Exemplary and Restitutionary Damages, Law Com. No. 247, para 5.44

The Law Commission's report was presumably directed at Parliament rather than the judiciary, and Parliament has not as yet been minded to act upon it. Against the Law Commission view is the fact that exemplary damages are, by definition, a bonus to the plaintiff when he has already been fully compensated for the injury which he has suffered, in contrast to other punitive sums which are received by the State. In many if not most cases, and possibly in this one, they come out of the pocket of the wrongdoer's employer rather than from the wrongdoer himself. I can see no powerful argument why Mr Kuddus should receive, in addition to full compensation for his loss, a substantial sum from the police authority budget. Nor do I think that such an award is likely to act as a deterrent in the future to any policeman who would otherwise act as the errant constable in the present case is said to have done. Indeed the motive which has prompted juries to award exemplary damages when a public servant is involved may well not be deterrence at all, but a desire to show the world that the courts can punish a public authority if its employees have done wrong.

The distaste which the House of Lords has shown for exemplary damages may have as much or more to commend it as the views of the Law Commission. But that is not for us to decide. I would dismiss this appeal. As Sir Thomas Bingham said or implied, it would then be for the House of Lords to correct our decision if minded to do so. In my view it is not in the public interest that judges at first instance and in the Court of Appeal should have to decide, no doubt after lengthy argument, which of two conflicting decisions of this Court they will follow. There is a higher Court which can do that much more effectively.

LORD JUSTICE BELDAM:

The issue presented to the court in this case is whether as a matter of law exemplary damages can be awarded against a defendant held liable to a claimant in the tort of misfeasance in public office. The court's decision must be based on the facts averred in the amended particulars of claim which are assumed to be true. The respondent admits that on its face the extraordinary misconduct of PC Cavendish is capable of amounting to the wrong of misfeasance in public office. The appellant does not allege that the actions of PC Cavendish were maliciously carried out for the express purpose of harming him or for some other indirect or underlying purpose of which he was the victim. Such an averment is not necessary to constitute a finding that the police constable was guilty of misfeasance. The respondent's contention, upheld by the judge below, is that exemplary or punitive damages are not recoverable having regard to the principles laid down by the House of Lords in Rookes -v- Barnard [1964] AC 1129, Broome -v- Cassell & Co. [1972] AC 1027 and by this court in AB -v- South West Water Services Ltd. [1993] 2 WLR 507.

The appellant contends that misfeasance in public office is exactly the kind of case in which exemplary damages were intended to be retained under the principles laid down in Rookes -v- Barnard and Broome -v- Cassell & Co. The "cause of action" test introduced by this court in AB -v- South West Water Services Ltd. was a qualification of those principles based on a misunderstanding of the House of Lords decisions. This court should decline to follow AB -v- South West Water Services Ltd.

Is the claim within the first category of oppressive arbitrary or unconstitutional action by servants of the government as laid down by Lord Devlin in the case of Rookes -v- Barnard (supra)?

In his speech, with which all the other members of the House agreed, Lord Devlin explained the nature of exemplary damages and of the objections which had been voiced to the confusion between the civil and criminal functions of the law. He considered the role played by malevolence or spite in the manner of committing a wrong in aggravating damages awarded to compensate a claimant for the injury done to him. This he said was a proper departure from the compensatory principle but in many of the reported cases it was impossible to distinguish the principles underlying large awards of damages. But from these cases Lord Devlin identified two categories of case in which the exemplary principle had been recognised. The first category was the type of case where an award of exemplary damages served a valuable purpose in restraining arbitrary and outrageous use of executive power. One of the typical cases he reviewed was Huckle -v- Money (1763) 2 WILS 205, a case in which at page 206-207 Lord Camden said:

"The small injury done to the plaintiff, or the inconsiderableness of his station and rank in life, did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at the trial; they saw a magistrate over all the King's subjects, exercising arbitrary powers, violating Magna Charta, and attempting to destroy the liberty of the kingdom, by insisting upon the legality of this general warrant before them; they heard the King's Counsel, and saw the solicitor of the Treasury endeavouring to support and maintain the legality of the warrant in a tyrannical and severe manner. These are the ideas which struck the jury on the trial; and I think they have done right in giving exemplary damages."

Lord Devlin said that it was in this type of case that an award of exemplary damages could still perform a legitimate purpose in restraining the arbitrary and outrageous use of executive power. It afforded a practical justification for:

"... admitting into the civil law a principle which ought logically to belong to the criminal."

Lord Devlin added an important consideration. A plaintiff could not recover exemplary damages unless he was the victim of the punishable behaviour. He thought it would be absurd if a plaintiff who was unaffected by some oppressive conduct obtained a windfall.

All the members of the appellate committee agreed that exemplary damages should be restricted to the categories of cases referred to by Lord Devlin.

Lord Devlin's categories were re-considered by the House of Lords in Broome -v- Cassell & Co. (supra), a case of libel. In that case Lord Hailsham posed the question: did Rookes -v- Barnard extend exemplary damages to fresh torts? It had been argued that Lord Devlin had spoken "per incuriam" but Lord Hailsham rejected this argument. He said:

"I do not think that he was under the impression either that he had completely rationalised the law of exemplary damages, nor by listing the "categories" was he intending, I would think, to add to the number of torts for which exemplary damages can be awarded. Thus I disagree with the dictum of Widgery LJ in Mafo -v- Adams [1970] 1 QB 548, 558 (which, for this purpose, can be treated as an action for deceit) when he said:

"As I understand Lord Devlin's speech, the circumstances in which exemplary damages may be obtained have been drastically reduced, but the range of offences in respect of which they may be granted has been increased, and I see no reason since Rookes -v- Barnard [1964] AC 1129 why, when considering a claim for exemplary damages, one should regard the nature of the tort as excluding the claim."

This would be a perfectly logical inference if Lord Devlin imagined that he was substituting a completely rational code by enumerating the categories and stating the considerations. It is true, of course, that actions for deceit could well come within the purview of the second category. But I can see no reason for thinking that Lord Devlin intended to extend the category to deceit, and counsel on both sides before us were constrained to say that, though it may be paradoxical, they were unable to find a single case where either exemplary or aggravated damages had been awarded for deceit, despite the fact that contumelious, outrageous, oppressive or dishonest conduct on the part of the defendant is almost inherently associated with it."

Lord Hailsham's disagreement with Lord Widgery's opinion that there was no reason to regard the nature of the tort as excluding a claim to exemplary damages and his acceptance that the tort of deceit was not included in Lord Devlin's first category lead me to conclude that Lord Hailsham considered that the categories of case were confined to torts for which exemplary damages had already been awarded.

Lord Wilberforce agreed with Lord Hailsham, referring to the range of torts for which punitive damages may be given (trespass to person or property, false imprisonment and defamation being the commonest).

Lord Diplock agreed with the view that Rookes -v- Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded, such as negligence and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages. Lord Reid, too, appeared to support the suggestion that the award of exemplary damages was limited to existing causes of action.

I think it significant that although Lord Devlin's first category included cases in which there had been outrageous or oppressive use of executive power, Lord Hailsham accepted that the category did not embrace the tort of deceit which frequently would involve outrageous and oppressive conduct.

In AB -v- South West Water Services this court analysed the speeches in Broome -v- Cassell & Co.. Lord Justice Stuart Smith considered that the effect of the speeches was to confine the award of exemplary damages to those torts where authority had previously recognised that exemplary damages should be awarded. At page 523 he said:

"Accordingly in my judgment there is no binding authority of this court which compels us to disregard the dicta of the House of Lords in Broome -v- Cassell & Co. [1972] AC 1027 to which I have referred. And accordingly I would hold that before an award of exemplary damages can be made by any court or tribunal the tort must be one in respect of which such an award was made prior to 1964."

Lord Justice Simon Brown agreed with Lord Justice Stuart Smith and Lord Bingham, then Sir Thomas Bingham MR, also agreed. He said at page 529:

"In his speech Lord Devlin was not, as I understand him, concerned to identify certain causes of action which could and others which could not properly ground claims for exemplary damages. His focus was not on causes of action at all. Rather, his concern was to identify those elements which had been present in claims which had led to awards of exemplary damages in the past and which served to justify retention of the principle. Statute apart, he identified two such elements giving rise to two categories or classes of case ...

Lord Devlin's speech in Rookes -v- Barnard was the subject of detailed exegesis by an enlarged Appellate Committee of the House of Lords in Broome -v- Cassell & Co. It appears to me that Lord Hailsham of St. Marylebone, LC, in his speech held or at least assumed that it was not enough for a claim in tort to fall within one or other of Lord Devlin's categories unless it was also founded on a cause of action recognised as grounding a claim for exemplary damages before Rookes -v- Barnard [1964] AC 1129 "

At page 530 he said:

"I cannot pretend to find the answer at all clear, but I incline to think that a majority of the House regarded an award of exemplary damages as permissible only where (a) a case fell within one or other of Lord Devlin's categories and (b) was founded on a tort for which exemplary damages had been awarded before Rookes -v- Barnard [1964] AC 1129. This may involve a misreading of their Lordships' speeches in Broome -v- Cassell & Co. [1972] AC 1027 but I think it is the basis upon which the Court of Appeal should, until corrected, proceed."

In Bourgoin SA -v- Ministry of Agriculture [1986] 1 QB 716 at page 740 Lord Justice Mann, then Mann J., said that the tort of misfeasance in public office consists:

"... of an act performed by a public officer with actual knowledge that it is performed without power and is so performed with the known consequence that it would injure the plaintiffs."

After referring to the judgments in Dunlop -v- Woollahra Municipal Council [1982] AC 158, he continued:

"There is no sensible distinction between the case where an officer performs an act which he has no power to perform with the object of injuring A (which the defendant accepts is actionable at the instance of A) and the case where an officer performs an act which he knows he has no power to perform with the object of conferring a benefit on B but which has the foreseeable and actual consequence of injury to A (which the defendant denies is actionable at the instance of A). In my judgment each case is actionable at the instance of A."

In the Court of Appeal in the same case Lord Oliver, then Lord Justice Oliver, after quoting this passage from Mr Justice Mann's judgment said at page 777:

"... If an act is done deliberately and with knowledge of its consequences, I do not think the actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them. In my judgment, the judge was right in his conclusion also on this point."

On this basis I do not think it can be said that the tort itself is one which would necessarily import the characteristic of Lord Devlin's first category of cases. I am not persuaded that the 18th century cases which have been referred to so often were examples of this tort rather than of trespass to the person or to goods.

In Brasyer -v- MacClean [1875] 6 LRPC 398, in giving the judgment of the Board, Sir Barnes Peacock said at page 406:

"It appears, therefore, to their Lordships that the sheriff in this case was guilty of a misfeasance in the exercise of the powers which were intrusted to him by law and in the discharge of his duty as a public ministerial officer, and that in respect of that misfeasance he is liable to an action for the damage which resulted from that act, notwithstanding it was not proved against him that he was actuated by malicious motives. The mere fact of the misfeasance and the damage resulting from it by reason of the attachment issuing upon the return as conclusive evidence against the Plaintiff was sufficient damage to enable the Plaintiff to maintain an action against the sheriff for that misfeasance, and to recover the damage which he has sustained in consequence of it."

Obviously the tort of misfeasance in public office no less than the tort of deceit may often include outrageous, oppressive or arbitrary conduct on the part of the defendant but it is not a necessary ingredient in the tort. Equally conduct which amounts to misfeasance in public office may well amount to or include the tort of trespass to the person or to goods or to malicious prosecution for which exemplary damages were awarded prior to 1964. But if that is so, the plaintiff can base his claim on those causes of action and it will more readily be seen that he can be regarded as the victim of the defendant's conduct.

Accordingly I would not regard misfeasance in public office as a tort for which exemplary damages have been awarded prior to 1964.

The appellant contended that the decision in AB -v- South West Water ought not to be followed because it conflicts with the decision in Rookes -v- Barnard. It should be regarded as given per incuriam. Having regard to the close analysis given by the court to the speeches in Broome -v- Cassell & Co., I find great difficulty with the proposition that the decision was given by oversight, a concept described by Sir Raymond Evershed MR in Morelle Ltd. -v- Wakeling [1955] 2 QB 379 at page 406:

"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene MR, of the rarest occurrence."

The appellant urged us to follow the earlier decision of the House of Lords in Rookes -v- Barnard.

In Lyus -v- Stepney Borough Council [1941] 1 KB 134, this court considered that it should follow an earlier decision of the House of Lords in Great Central Railway Company -v- Hewlitt [1916] 2 AC 511 rather than Morris -v- The Sheffield Corporation [1917] 2 KB 866 if it was not properly distinguishable and was in conflict with the reasoning of the House of Lords in the former case. Lord Wright expressed the same opinion in Noble -v- Southern Railway Co. [1940] AC 583 at page 598. He said:

"What a court should do when faced with a decision of the Court of Appeal manifestly inconsistent with the decisions of this House is a problem of some difficulty in the doctrine of precedent. I incline to think it should apply the law laid down by this House and refuse to follow the erroneous decision. But I cannot blame the Court of Appeal for leaving it to this House to point out that the decision ... was at the time inconsistent ..."

So in Fitzsimmons -v- Ford Motor Co. Ltd. [1946] 1 AER 429, the court declined to follow two decisions of its own which were inconsistent with a previous decision of the House of Lords. However in Williams -v- Glasbrook Bros. Ltd. [1947] 2 AER 884, the court decided to follow its own earlier decision which was said to be inconsistent with an earlier decision of the House of Lords. At page 884 Lord Greene said:

"In my opinion, even assuming that it were the fact that this court did misunderstand the decision of the House of Lords in Jones' case, that does not justify us in refusing to follow Wilds' case today. If in Wilds' case this court thought the House of Lords in Jones' case decided something that it did not, nobody but the House of Lords can put that mistake right. There is all the difference in the world between such a case as that and the matters to which we referred in our judgment in Young -v- Bristol Aeroplane Co. Ltd. [1944] KB 718 as, for instance, where a subsequent case in the House of Lords is found either expressly or by implication in effect to overrule an earlier decision of the Court of Appeal. No doubt, if Jones' case had been subsequent to Wilds' case, it would have been open to counsel for the employers to argue that Jones' case impliedly overruled Wilds' case and we should have had to decide whether he was right or wrong ... In the circumstances, however, it is inadmissible for him to argue before us now that in an earlier decision this court misinterpreted a previous decision of the House of Lords.

I do not think the decision in this court in AB -v- South West Water Services can be said to be "manifestly inconsistent" with the reasoning of the House of Lords in Rookes -v- Barnard and Broome -v- Cassell & Co. I am not persuaded that the court "misunderstood" the speeches in the latter case but, even if I were, I consider that consistently with Lord Greene's judgment in Williams -v- Glasbrook Bros. Ltd. this court should follow its decision in AB -v- South West Water Services.

It is difficult to over-emphasise the importance to litigants in our system of law of the rule that the court is bound by its earlier decisions saving the exceptional circumstances referred to. Accordingly I would dismiss this appeal.

Order: Appeal dismissed S18 Legal Aid Board (10 weeks). Detailed assessment of Legal Aid for Appellant's costs; leave to appeal to the House of Lords granted. Order does not form part of approved judgment.

Note 1   Wilkes v. Wood (1763) Lofft. 1; Huckle v. Money (1763) 2 Wils. KB 205 and Benson v. Frederick (1766) 3 Burr. 1845    [Back]

Note 2   See Law Commission Report on "Aggravated, Exemplary and Restitutionary Damages" (Law Com No. 247, December 1997), paras 4.24 and 4.25; and Gregory Pipe, "Exemplary Damages After Camelford". (1994) 57 MLR 91, at 100-101    [Back]

Note 3   Pipe, op cit    [Back]

Note 4   Lisa Busch, "Misfeasance In Public Office" (1998)    [Back]

Note 5   Brasyer v. Maclean (1875) LR 6 PC 398    [Back]

Note 6   Smith v. East Elloe Rural District Council [1956] AC 736, HL    [Back]

Note 7   The Law Commission, in its final report, at paragraph 4.24 includes malicious prosecution among those wrongs satisfying the cause of action test, but cites no authority for it other than its earlier more tentative suggestion in paragraph 3.60 of its consultation paper     [Back]