The question for the House of Lords in this appeal by the Home Office was whether the tort of misfeasance in a public office is actionable without proof of financial loss or physical or mental injury, and if so, in what circumstances.
The respondent (W) was a convicted prisoner serving a life sentence and engaged in a number of legal proceedings, giving rise to the need for correspondence with legal advisors and the courts. The confidentiality of a prisoner’s legal correspondence is protected by Rule 39 of the Prison Rules 1999 which provides that such correspondence may only be opened if the governor has cause to believe that it contains an illicit (unauthorised) enclosure, other than correspondence between a prisoner and his legal advisor or the courts, its contents endanger prison security, the safety of others or are of a criminal nature.
W complained that staff at the prison had breached the rules by opening and reading the mail when they were not entitled to do so. He issued proceedings against 14 prison officers claiming damages for misfeasance in a public office. At the County Court the judge found that this had occurred but in most cases the officer had not done so in bad faith, which was an essential element of the tort. In the case of 3 officers, the judge found bad faith to be established. However, he dismissed the claim nevertheless because misfeasance in public office was not actionable in and of itself and W had failed to prove any actual financial loss or physical or mental injury of any kind.
W appealed to the Court of Appeal which unanimously upheld his appeal. It held that if the right infringed was a constitutional right then there may be a cause of action for infringement of that right, without proof of damage. The 3 officers had interfered with W’s constitutional right to have unimpeded access to the courts and to legal advice. W was entitled to nominal damages against the officers and the case was remitted back to the County Court to decide whether exemplary damages should be awarded. However, the Home Office was given leave to appeal to the House of Lords.
In the leading speech, Lord Bingham made an analysis of the history of the tort and found that the need for proof of damage was a consistent theme that ran through previous cases. It was an intentional tort whose distinguishing elements included unlawful conduct in a public office, awareness that the conduct was unlawful and likely to injure the plaintiff, the tortious conduct causing the legal cause of his or her injuries, and the injuries suffered being of a nature that is compensable in tort law. Visible and provable illness or recognisable physical or psychopathological would be sufficient harm. There was a consistent body of law which held that special damage was an essential element of the tort. Three Rivers District Council and Others v Governor and the Company of the bank of England. (No3)  applied. His Lordship could not find support anywhere for the view that the tort of misfeasance was actionable without proof of damage. He was reluctant to disturb a rule which had represented the law for over 300 years unless there were compelling grounds for doing so. He cited 5 reasons for allowing the appeal;
(i) basic or constitutional rights were incapable of precise definition and awarding damages in cases based on such rights, other than in clear cases, would be too uncertain.
(ii) the Law Commission was conducting research into the relationship between private and public law remedies and the impact of the Human Rights Act 1998. It was undesirable to introduce by judicial decision and without consultation, a solution which the Law Commission may show to be unsatisfactory.
(iii) W was not left without a remedy. The officers’ actions were susceptible to disciplinary action, and failure to impose sanction for it could be challenged by judicial review (Lord Rodger dissented on this point, stating that the availability or not of an alternative remedy was not a decisive factor in deciding whether W had a claim for damages.)
(iv) Parliament by enacting the Human Rights Act 1998 intended that infringements of human and constitutional rights would be protected by that Act, and parallel remedies were unnecessary.
(v) Exemplary damages were intended to mark the court’s disapproval of proven misfeasance and to deter repetition. Such awards should not be encouraged as an instrument of punishment in cases where was no material damage for which to compensate.