Karagozlu v Commissioner of the Metropolis [2006] EWCA Civ 1691

This case concerns the tort of misfeasance in public office and whether the loss of liberty by a prisoner under sentence constitutes the requisite ‘damage’ as required by the decision of the House of Lords in Watkins v the Home Office 2006.  The appellant K was sentenced to nine and a half years imprisonment for VAT fraud and conspiracy to pervert the course of justice.   After a period on remand he was eventually given category D status and moved to an open prison.  Shortly after his arrival and acting on information received from the police, K was moved from the open prison to a closed one, catering for category B prisoners.  K complained to the prison.  He was told that his life and his family’s lives were in danger.  K was not aware of any threat nor had the police discussed this with him.  He believed that he was being victimised.  Upon his move to the closed prison he was re-categorised as a category C prisoner.   K was given written reasons for his move which conflicted and contradicted the original reasons given for the move.  K complained to the Prison and Probation Ombudsman about his transfer and commenced judicial review proceedings against the Home Office.  K was returned to the open prison and re-categorised as a category D prisoner and he withdrew his claim.  The Ombudsman concluded that as the claim had been withdrawn and K had been returned to an open prison its investigations were concluded.

K issued the current proceedings seeking damages, including exemplary and aggravated damages, against the Commissioner of the Metropolis (C) and the Home Office (H).  The proceedings made claims in misfeasance against C and negligence against the H.  K alleged he had been transferred to a closed prison on the basis of information provided by the police to the prison service, known to be false, and that this information was passed maliciously with the intention of causing him damage.  Both claims were struck out by the district judge.  The claim against H was struck out because it was necessary to allege actionable damage, which K had failed to do and because exemplary damages were not recoverable in the absence of damage which could form the basis of a claim for compensatory damages.  The judge further held that H did not owe K a duty of care.   As to misfeasance, although a claim was actionable per se if the claimant could show that the defendant had interfered with a constitutional right, there was no such interference in this case because a prisoner had no right whether constitutional or otherwise, to be detained in a prison of a particular category.  In any event, K had not alleged material damage and had failed to plead his case of bad faith with sufficient particularity.  K appealed against the order to strike out his claim against C, but not against H.

The appeal raised two issues of principle.  The first was whether a person who lost his freedom as a result of misfeasance, suffered damage sufficient to entitle him to recover general damages. The second was whether if so, a prisoner moved from open to closed conditions was such a person.  Following the decision in Watkins, it was common ground that loss or damage was an essential ingredient in the tort of misfeasance.  The question for the court was what amounted to damage for this purpose.  The court considered the authorities.  Damages were intended to compensate the plaintiff for any injury or damage suffered.  This applied whether the case was one of falsely imprisonment or malicious prosecution, where loss of liberty was an issue.  Thompson & HSU v Commissioner of Police for the Metropolis.  A person imprisoned and who lost his liberty, had suffered damage sufficient to support the tort of malicious prosecution and entitle him to general damages.  C, relying on Watkins, argued that the damage suffered needed to be a recognised psychiatric illness, financial loss or a physical injury, and without proof of such damage the tort of misfeasance was never actionable.  It submitted that loss of liberty did not fall into this specific category of damage.  The court of appeal disagreed.  It held that loss of liberty was akin or analogous to physical injury and was a form of material or special damage sufficient to support a claim for misfeasance in public office if the other ingredients of the tort were made out.

The next question for the court to answer was whether on the facts of this case, K was entitled to general damages for a further restriction on his liberty caused by a removal from an open to a closed prison.  It was settled law that a prisoner could not sue the Home Office for damages for false imprisonment or for breaches of Prison Rules.   R v Deputy Governor of Parkhurst ex parte Hague 1992.  However this case was not considering the tort of misfeasance but was focusing on allegations of breaches of duty and false imprisonment in circumstances where no allegations of bad faith had been made.  The court in Hague gave some thought to the situation where the tortfeasors were not acting with the authority of the governor and concluded that a prison officer acting in bad faith by deliberately subjecting a prisoner to a restraint which he knew he had no authority to impose, might render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in a public office.  The court of appeal also considered K‘s Particulars of Injury and whether this constituted the requisite type of damage.  K alleged the conditions in the closed prison were worse and that he had been deprived of enjoying the benefits and privileges available to prisoners at open prisons.  He had also been prevented from moving around openly and associating with other prisoners.  His movements were more restricted and he was kept locked in his cell for the majority of the time. The court was satisfied that the Particulars did allege the relevant damage and was of a kind referred to in Watkins as material or special damage.

Appeal allowed.

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