Kuddus (AP) v. Chief Constable of Leicestershire Constabulary

Facts

Kuddus reported a crime to the Leicestershire police. A police officer forged his signature on a statement withdrawing the complaint, so that the investigation was dropped. Kuddus sued the Chief Constable, who was vicariously liable for the officer, for misfeasance in public office, and claimed exemplary damages. The claim for exemplary damages was challenged on the ground that no award of exemplary damages had been made for the tort before 1964.

History

The courts below held that exemplary damages could not be awarded for misfeasance in public office, applying the rule that they were available only for torts for which they had been awarded before 1964. Kuddus appealed to the House of Lords.

Issue

Whether exemplary damages may be awarded for a tort only if such damages had been awarded for that cause of action before the decision in Rookes v Barnard [1964] AC 1129, or whether they may be awarded for any tort where the defendant's conduct falls within one of the categories identified in that case.

Held

Appeal allowed. The cause of action test was wrong, so exemplary damages could in principle be awarded for misfeasance in public office, being a case of oppressive, arbitrary or unconstitutional conduct by a servant of the government.

Ratio

• The categories of case in which exemplary damages may be awarded are defined by the nature of the defendant's conduct, namely oppressive, arbitrary or unconstitutional action by servants of the government, conduct calculated to make a profit exceeding compensation, and cases authorised by statute, and not by whether such damages had been awarded for the cause of action before 1964.
• Where the conduct falls within a category, exemplary damages are available for any tort, subject to the court's discretion and the requirement that compensatory damages be insufficient to punish and deter.

The judgments

Key reasoning

• The limitation on exemplary damages in Rookes was directed to the type of defendant conduct, and nothing in the reasoning of Lord Devlin required that a cause of action have a pre-1964 award.
• The cause of action test led to arbitrary results, allowing exemplary damages for some torts and denying them for others involving equally outrageous conduct.
• Misfeasance in public office is a case of an abuse of power by a public officer, which falls squarely within the category of oppressive, arbitrary or unconstitutional action by servants of the government.

Where it fits in the module

On the FHS topic of punitive damages, Kuddus fixes the position under Rookes v Barnard [1964] AC 1129 and clarifies that the three categories are tied to conduct and not to causes of action. It rejected the approach in AB v South West Water Services Ltd [1993] QB 507, which had applied the cause of action test. It contrasts with the Law Commission proposals for reform and with the debate over whether exemplary damages belong in the civil law at all. The tutorial question is whether the Rookes categories are defensible, particularly given the availability of aggravated damages and the possibility of profit stripping remedies.

Criticisms

• Punishment is an aim of the criminal law, and awarding exemplary damages in a civil claim confuses compensation with penal sanction, without the safeguards of criminal procedure.
• The categories are arbitrary, so that exemplary damages are available against government officers and profit-making wrongdoers but not against others whose conduct is equally outrageous.
• The claimant receives a windfall in excess of his loss, whereas a fine would benefit the public.
• Exemplary damages against a Chief Constable for the act of an officer fall on public funds, and so are borne by the taxpayer and not the wrongdoer, which undermines the aim of deterrence.