Exemplary Damages For Misfeance In Public Office

Kuddus v Chief Constable of Leicestershire Constabulary H of L TLR 13 June 2001

A police constable had forged the claimant’s signature to a statement purporting to withdraw a complaint about the theft from his home of goods worth some £6,000. The claimant brought proceedings against the chief constable based on his vicarious liability for oppressive, arbitrary or unconstitutional action by the police constable. The chief constable admitted the forgery and that it amounted to misfeasance in public office. He also accepted that the claimant had a viable claim for aggravated damages but contended that exemplary damages were not recoverable. Rookes v Barnard ([1964] AC 1129) had held that exemplary damages were available in three categories of case, one of them being oppressive, arbitrary or unconstitutional action by the servants of the government. There was nothing in that decision that required that a claim should also constitute a cause of action that had before 1964 been accepted as founding a claim for exemplary damages. The courts should not be required to undertake a trawl of the authorities to decipher whether awards of damages for misfeasance prior to 1964 might have included an award for exemplary damages. To adopt such a rigid rule limited the future development of the law in a way contrary to the normal practice of the courts. It was the features of the behaviour rather than the cause of action that had to be looked at to decide whether the facts fell into a category justifying exemplary damages. The fact that misfeasance in public office was not a tort for which exemplary damages had been awarded before 1964 did not preclude the claimant’s claim for exemplary damages.