Essay: Case note on Watkins v Secretary of State

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  • Subject area(s): Law
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  • Published on: 11th June 2012
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Case note on Watkins v Secretary of State for Home Department

The case of Watkins v Secretary of State for Home Department  was brought by a prisoner whose mail had been opened by prison officers which was in breach of the prison rules. Watkins claimed that the letters that he had received were legally privileged and, in the most part, marked as such and so to open them was to be in breach of the tort of misfeasance in public office. In particular, the claimant contended that the prison officers and the governor were in breach of the Prison Rules 1999, Rule 39 which superseded (and contained the same wording as) the Prison Rules 1964.

This section, in both sets of rules which the opening of the letters spanned, gives the legal right to a prisoner to correspond with either the court or a legal adviser in an unprejudiced fashion. The only situation in which it is allowable for the letter to be stopped or inspected is if the governor has reasonable grounds to believe that the letter contains illicit information which might endanger prison security or the safety of others, or in some other way be criminal. It was clear from the facts of the case that this exception did not apply in this case. Nevertheless at first instance the judge decided that it was a requirement of the tort of misfeasance in public office that a specific loss or damage needed to be shown by the claimant. This could not be shown so the claim was dismissed. The case was then appealed to the Court of Appeal

Held (ratio) - There are two types of case in which the tort of misfeasance in public office can be established. The first involves the situation where a claimant has suffered material or economic damage as a result of the wrongful and malicious act of a public officer. In this case, that the damage had been caused, would be inherent in the claim and it would not be necessary to show this separately. The second involves where the wrongful act interfered with a constitutional right - such as was held in this case, access to the courts - there is no need to prove special damage and the claimant is entitled to nominal damages. In this case the infringement was found and nominal damages awarded against three prison officers and a possible awarding of exemplary damages referred back to the lower court for a decision.

The main judgment in the Court of Appeal was given by Lord Justice Brooke. Lord Brooke states that the matter at the centre of this appeal is the question of whether damage needs to be proved in order to substantiate the tort of misfeasance in a public office. Turning first to the textbooks on Tort he found that because this area of law is 'emergent' it is not possible to say whether this particular tort is actionable in and of itself, without the proof of damage. For help in this matter Lord Brooke first turns to the decision of the House of Lords in Three Rivers District Council v Bank of England (No 3)  in which this matter was discussed, although not part of the decision in that case.

Lord Hobhouse, in Three Rivers, explains that the tort of misfeasance in public office occupies an area that is left untouched by two other torts that he mentions. The first of these covers the situation in which a person's legally protected right has been invaded (e.g. trespass to property). In this case the defendant's belief in the legality of his actions is not relevant. The second tort covers the situation where a loss has been suffered by a plaintiff as a result of the defendant's action, which they mistakenly believed to be authorised by law. If a person is unable to justify their action and causes damage by an act that is tortious then there is no reason why they should not be liable for that act. In discussing the tort of misfeasance in a public office, Lord Hobhouse states that where a person's rights have been infringed by another, an official shall be liable where he cannot show that he honestly believed his actions to be legal. It also covers the situation where the official causes economic or financial loss on the part of the plaintiff. Lord Hobhouse then emphasise the connection which has to be established between the special damage sustained by the plaintiff and the official in question. This damage may not be the kind that could potentially be actionable by any member of the public. Lord Brooke further draws on Lord Steyn's judgment from the same Three Rivers case. Here, Lord Steyn is concerned with the intent of the public officer, and states that it must be directed at the damage that is being complained of. In order to establish the tort, then, the plaintiff must show the public officer was acting beyond his powers and either knew or was reckless about whether it would cause damage to the plaintiff.

Lord Brooke looks, then, to more venerable case law for precedent that will help decide the present case. A line of cases that starts with Ashby v White  is quoted. Ashby v White concerned the right of a person to vote which had been infringed by a public officer. In this case the decision of Holt CJ was upheld by the House of Lords. Holt CJ states that every injury must cause damage even if it has no economic or financial consequence. Lord Brooke then argues that the courts have had occasion to review this idea in the subsequent case law. The principle of the general presumption that special damage needs to be shown in cases of trespass and conversion is then reviewed in this light.

The judgment of Lord Brooke then moves on to review the line of case law. He cites Constantine v Imperial Hotels Ltd  in which Birkett J held that a traveller who had been refused entry to a hotel had an action at common law without the need to prove special damage. In this judgment Birkett J refers to the decision of Parke B in Embrey v Owen  which relied on the case of Ashby v White. This case referred to the rights over a water course which had been affected, although negligibly, by a neighbour. In this case it was decided that there was no need for the plaintiff to show special damage.

A situation involving the malicious presentation of a winding up petition was at the centre of the case in Quartz Hill Consolidated Mining Company v Eyre . Bowen LJ decided in his judgment in this case that an action was possible where the malicious intent could be shown even if it was not possible to show special damage. In coming to this conclusion the judge emphasised that damage had been implicit in the very action against the plaintiff. It was impossible, he said, to publish information in the newspaper about winding up proceedings without damaging the reputation of a company. Bowen LJ, in particular, saw that this kind of behaviour was an abuse of the relevant provisions in the Companies Act 1862 as well as of the courts and the bankruptcy laws.

Lord Brooke then turns to the difference between libel and slander to further illustrate his argument. Jones v Jones  was about the law on slander and whether an case could be made without proof of special damage. In this case Viscount Haldane considers the history of the law on libel and slander and traces their development. Because of the way the courts were originally organised, libel was heard in the Court of Star Chamber, as a crime and also as a wrong that could be remedied by the application of damages. This approach has subsequently been taken forwards after the abolition of the Court of Star Chamber in favour of the common law courts. By contrast, slander had evolved from the start in the civil courts and as such was more interested in providing a remedy that was aimed at the actual damage caused - rather than using the criminal courts philosophy of punishment. Because of the particular nature of the precedent in the history of slander's development it was not possible for the judges to extend the law to allow this action to succeed.

Neville v London "Express" Newspaper Ltd  concerned an action for damages for maintenance. While Lord Brooke does not see the facts of this case as particularly relevant to the present question it is to three of the speeches, two in the minority that he turns. Firstly, though, Lord Finlay, in the majority, provides a different approach to that of the minority towards Holt CJ in Ashby v White. He finds that after the infringement of a right it is not necessary to show damage. Lord Finlay underlines that the situation is the same in the case of trespass even if there is no damage whatsoever. Lord Finlay, however, states that an action for maintenance does not fall into that class of rights. Viscount Haldane, in the minority, explains that in the violation of an absolute right it is enough that there has been a violation, and damages may only be nominal, but the law will presume that they exist. Lord Atkinson, also in the minority in Neville, agreed with these points of view.

Back in the present case, Lord Brooke claims that Neville v London "Express" Newspaper Ltd was not questioning the decision in Ashby v White, but was actually about whether the plaintiff in that case had an actual right in the first place. It was found in Neville that Ashby v White did not apply, not that it was not good law.

Continuing his examination of the line of cases, Lord Brooke next looks at Nicholas v Ely Beet Sugar Factory Ltd . In this case a fishery owner could not prove damage caused by pollution to the water. Lord Wright, in the leading judgment in this case, relied on the principle in Ashby v White again, stating that it is a wide principle in law that when a right is infringed, the law presumes damage so that a remedy can be obtained.

Drawing this line of cases that go back to Ashby v White together, Lord Brooke explains that they show how the law guards both proprietary and possessory rights and that, in this case, there is no need to show special damage. What remedy can, then, be provided by the law? To explain the principle of nominal damages, Lord Brooke draws on the judgment of Lord Halsbury LC in The Mediana . Nominal damages are awarded to show that a legal right has been infringed even though no great damage has been caused. Lord Brooke goes on to say that when a right can be recognised as constitutional, such as that in Ashby v White then these rights have a high level of importance in a liberal democracy. Lord Brooke then calls on Laws J in R v Lord Chancellor ex. p. Witham  to connect this type of constitutional right to that relevant to the facts in this case. In that case Laws J argued that the right to have access to the courts had effectively become a constitutional right under the common law.

Bringing this line of cases to bear on the matter in hand Lord Brooke concludes that the right that needs to be defended for Mr Watkins in this case is a right of sufficient importance that it was not necessary to show damage and therefore Lord Brooke overruled the decision of the lower court and recommended that nominal damages are awarded to the claimant, the amount of which should be decided by the lower court. Lord Brooke also maintained that there is no reason in principle why an award of exemplary damages might not be made against the prison officers themselves, although, in this matter, not against the Home Office.

Lord Clark agrees with the judgment of Lord Brooke, as does Lord Laws, who also adds some comments of his own. Lord Laws states that it is a misleading question to ask whether the tort in question is actionable in, and of itself. He believes that there are two categories of cases - one in which damage must be shown, and the other in which it is not necessary. In the first class of case, where a person has suffered material or economic injury as a result of the malicious, wrongful and intentional act of a public official, damage will be presumed by the law. Three Rivers is an example of this case. In the second category are cases in which the law protects a right without needing to prove that there has been a consequent loss. The case of Ashby v White is an example of this category. It is into this category that Lord Laws argues that the present facts fall. This means that there is no requirement for the claimant to show damage as his right of access to the courts has been infringed.

This case seems to leave members of the public in a stronger position with regard to the tort of misfeasance in public office. Prisoners are a particularly vulnerable group and, as Lord Brooke points out, a prisoner does not lose all his rights on entry to prison. This case provides fundamental protection to what is considered a constitutional right at common law - the right of access to the courts. In the absence of a written constitution in this country, the House of Lords has, in this case, reaffirmed the importance of the right of access to the courts. This is a right, their Lordships maintain in their judgments, that must be protected. These are, surely, important rights for citizens in a modern liberal democracy to have and if the courts does not protect them, then who will? As a result of this case, it is more easy for a person whose constitutional rights have been infringed to gain redress from the courts. Moreover, this decision emphasises that, in the tort of misfeasance in public office, in the circumstances described here, there is no need to show that material or economic damage has flowed from wrongdoing. Under this tort, the damage is either implied or, when a constitutional right has been infringed, there is no need to show damage at all.

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