Neutral Citation Number: [2004] EWCA Civ 966
Case No: B2/2003/2084 CCRTF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HH Judge Ibbotson
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20th July 2004
Before :

LORD JUSTICE BROOKE
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE CLARKE
and
LORD JUSTICE LAWS
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Between :

	JEFFREY SHANE WATKINS	Claimant/
Appellant	
	- and –
		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT
and others	Defendants/
Respondents	

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Flo Krause (instructed by a. s. law) for the Appellant
Wendy Outhwaite (instructed by the Treasury Solicitor) for the Respondents

Hearing date : 5th May 2004
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Judgment
Lord Justice Brooke : 
1.	This is an appeal by the claimant Jeffrey Shane Watkins against an order of Judge Ibbotson sitting in the Leeds County Court on 15th July 2003 whereby he directed that judgment be entered for the defendants in this action.  The claimant was at the material times a serving prisoner, and the judge found that three prison officers had acted in bad faith when dealing with his legally privileged correspondence.  However, he was not satisfied that Mr Watkins had suffered any loss or damage such as constituted an essential ingredient of the tort of misfeasance in public office, and because he held that this tort was not actionable per se he dismissed his claim.
2.	Rule 37A of the Prison Rules 1964 was the rule in force for much of the time with which this action is concerned.  It was then superseded by Rule 39 of the Prison Rules 1999, which is in identical terms.  These two rules provide, so far as is material, that:
(1)	A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule.
(2)	Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosure shall be dealt with in accordance with the other provisions of these Rules.
(3)	Correspondence to which this rule applies may be opened, read or stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.
(4)	A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or its enclosure is to be read or stopped.
3.	The rule was introduced following the judgment of this court in R v Home Secretary ex p Leech (No 2) [1994] QB 198.  Steyn LJ said at p 210A that even in our unwritten constitution the right of every citizen to have unimpeded access to a court must rank as a constitutional right, and that a prisoner’s unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts formed an inseparable part of his right of access to the courts themselves.  It was for this reason that the court held that section 47(1) of the Prisons Act 1952 did not authorise the making of any rule which created an impediment to the free flow of communications between a solicitor and a client about contemplated legal proceedings.  Steyn LJ said that this, too, was a rule of fundamental importance.
4.	In order to give effect to the new rule HM Prison Service included in  Standing Order 5 a direction that an envelope carrying correspondence between an inmate and his/her legal advisor should be marked with a reference to that provision.  The Standing Order explained the effect of the new rule.  It was supplemented by a Home Office instruction to prison governors, issued on 21st December 1995 (113/1995) which also explained the effect of the new rule and warned governors that any breach of it was likely to lead to legal challenge.  Governors were told to ensure that sufficient safeguards were in place to avoid the possibility of such correspondence being opened inadvertently.  All staff who handled correspondence were to be informed of the terms of these procedures.
5.	Mr Watkins is a serving life prisoner.  His complaints in this action straddle a period between 1st May 1998 and 5th December 2000.  For the first part of this period he was detained at Wakefield Prison.  In September 1999 he was moved to Frankland Prison.  Throughout the period he was engaged in a variety of legal proceedings, actual or contemplated, which necessitated correspondence with various legal advisors, courts and other bodies.  He made frequent complaints to the effect that this correspondence, both outgoing and incoming, was being treated by prison officers in a manner that conflicted with the requirement of Rule 37A (or Rule 39, as the case might be).  His attempts to pursue the matter both through the formal prison complaints systems and the Prisons Ombudsman failed to provide satisfaction, and he was eventually granted legal aid to bring an action for damages in the courts.  By his particulars of claim Mr Watkins claimed damages for misfeasance in public office against the Home Office and 14 named prison officers.
6.	The judge found that most of these officers had committed a breach of the rule, but he acquitted them of bad faith.  At Wakefield some misunderstandings had arisen from the fact that although the prison governor notified both prisoners and prison staff on 21st September 1998 about the effect of the rule, he overlooked the fact that the letters a court sent to a prisoner bore the name of the court on the envelope but contained no reference to Standing Order 5.  The judge was, moreover, satisfied that some of the officers had opened the relevant letters accidentally; in other cases he ascribed the breach of the rule to inadequate training as opposed to bad faith.  He found three prison officers, however, guilty of bad faith in connection with their breach of the rule, and the question at the heart of this appeal is whether the tort of misfeasance in public office is actionable per se, or whether the judge was obliged to dismiss Mr Watkins’s claim in these three cases, too, because he could not prove he had suffered any loss sounding in damages.
7.	The history of the three incidents can be told quite briefly.  The first two incidents concerned Officers Ravenscroft and Rosevere in Wakefield Prison in September and October 1998.  The third concerned Officer Robinson at Frankland Prison in December 2000.
8.	The first adverse finding arose out of events in Wakefield Prison on 16th-17th September 1998.  On 16th September Mr Watkins asked the officer on duty for his mail and was told that unless he opened his letters in that officer’s presence he would not be allowed to have them.  He pointed out that he was entitled to take his legal mail unopened unless the governor had reasonable cause to suspect an illicit enclosure, but the officer refused to give them to him.  He told Mr Watkins he would be referring the letters to the principal officer in his wing.
9.	On 17th September, Officer Ravenscroft summoned Mr Watkins into the landing office and told him that there were two legal letters for him.  Each envelope was marked with a reference to Rule 37A, and each bore a franked strip containing details of the solicitor from whom the correspondence originated.  The officer then proceeded to pull legal paperwork out of the larger envelope, which had already been opened.  When Mr Watkins complained, the officer told him that the envelope was already open when he had entered the office.
10.	The officer then inspected the contents of this envelope before he handed the envelope and the legal papers over to Mr Watkins.  He then picked up the smaller envelope, opened it, and inspected the envelope’s contents before handing the letter and envelope over.  When Mr Watkins protested about the breach of Rule 37A, the officer laughed and said “So report me to John Major”.  The following day Mr Watkins made a formal complaint about the matter.  This led to the promulgation of the notice to staff drawing attention to the effect of Rule 37A to which I have referred in para 6 above.
11.	The judge found that when Officer Ravenscroft opened the letters he did so not caring whether he was acting unlawfully.  He had accepted that he was aware of Rule 37A, and the judge formed the view that it was more likely than not that when he opened the letters he did not care whether he was breaking that rule.
12.	Mr Watkins did not assert that he had suffered any specific injury or loss or damage as a result of this incident.  He made a general complaint about such matters as having his private affairs made common knowledge, and being unable to communicate fully with his legal advisers, but although he said that the chances of success of his various legal challenges might have been jeopardised, the judge said that there was no evidence that any such jeopardy in fact occurred.  Mr Watkins also made a general allegation of injury to his sense of pride and dignity.  The judge said that although an answer like that given by Officer Ravenscroft might do little for Mr Watkins’s self-esteem, it did not, in his view, amount to such injury, loss or damage as was a necessary ingredient of the tort of misfeasance in public office.
13.	The second incident occurred just over two weeks later.  By this time prison officers at Wakefield had seen the notice reminding them of the effect of Rule 37A to which I have referred in paras 6 and 10 above.
14.	On 5th October 1998 Mr Watkins noticed that his name was on the landing board for mail.  When he asked for his mail, he was told that there was a Rule 37A letter for him, but the officer on duty refused to hand it over to him unless he was willing to open it in his presence. Later that day Officer Rosevere called Mr Watkins into the landing office as he was passing it and told him there was a letter for him.  He then proceeded to rip it open.  When Mr Watkins asked him why he was doing this, Officer Rosevere told him that the new notice only applied to outgoing mail.  Mr Watkins made a formal complaint ten days later.
15.	The judge found that Officer Rosevere opened a letter addressed to Mr Watkins fully marked Rule 37A, that in doing so he acted in breach of the rule, and that he chose to do so.  He said he acted in bad faith in that he knew he was acting unlawfully or was reckless as to whether his conduct was unlawful as regards Mr Watkins.  However, he made the same finding that there was no resulting damage in the form of financial loss or physical or mental injury, so that Mr Watkins’s claim failed in this regard.
16.	The third incident occurred in December 2000 at Frankland Prison.  Mr Watkins was pursuing county court proceedings at that time against one of the officers at the prison, Officer Robinson.  On 5th December 2000 this officer opened two letters marked “Durham County Court” which were addressed to Mr Watkins without his knowledge or consent and without due cause.  He then handed them to Mr Watkins already opened.  The judge found that when Mr Robinson opened his letters he did so to see if they related to Mr Watkins’s case against him, and that this was sufficient to establish the requisite degree of bad faith that constitutes the first element of the tort of misfeasance in public office.  Again, he did not find that Mr Watkins had suffered any resulting injury, loss or damage such as was necessary to constitute the second ingredient of the tort.
17.	The judge ended his judgment in these terms:
“161.	As a result of the various findings I have made, all 15 defendants are entitled to judgment against the claimant.  The issue of damages does not arise, but I will add the following observation: even if liability had been established against any of the defendants, I would not have awarded aggravated damages.  Having listened to the evidence and seen the claimant in the witness box, I would have found that he was not particularly embarrassed or humiliated.  He seemed to me to be a man of some intelligence who has acquired some knowledge of the legal process and, without in any way trivialising his complaints or minimising the effect on him, I think it could be said that in many ways he appears to thrive on these conflicts.
162.	As regards exemplary damages, I might well, in the event of liability having been established against any defendant, have been prepared to award exemplary damages if the appropriate level of compensatory damages was so modest as to represent less than the defendants ought to pay for unlawful conduct of this nature.  I decline to indicate the level of exemplary damage because it would depend on the circumstances of the individual case.  In my view, the first defendant could not as a matter of law be vicariously liable for exemplary damages awarded against one of its individual employees.”
18.	The question at the heart of this appeal is whether proof of damage is a necessary ingredient of the tort of misfeasance in public office.  The editors of Clerk & Lindsell on Torts (18th Edition, 2000) ended their analysis of this part of the law (at paras 1.46 to 1.48) with the statement that this “emergent tort” was perhaps one example where it remained to be decided whether or not the tort was actionable per se.  The point did not have to be decided by the House of Lords in Three Rivers District Council v Bank of England (No 3) (now reported at [2003] 2 AC 1, but already decided when the 18th edition of Clerk & Lindsell went to press), but it is to the speeches of Lord Hobhouse of Woodborough and Lord Steyn in that case that I must first turn.
19.	Lord Hobhouse explained at p 229 how the tort of misfeasance in public office operated in an area left unoccupied because of the limits imposed on the scope of two other classes of tort that involve persons holding public office.
20.	One of these is concerned with the invasion of some legally protected right of the plaintiff, such as trespass to the person (or to property) and conversion.  If the plaintiff’s person or some possessory or propriety right of his is invaded, Lord Hobhouse commented:
“Such conduct on the part of the defendant is actionable as such and the belief of the defendant as to the legality of what he did is irrelevant.  It is no defence for the defendant to say that he believed that he had statutory or other legal authority if he did not.  The legal justification must actually exist otherwise he is liable in tort: Northern Territory v Mengel, 69 ALJR 527, 547.”
21.	Lord Hobhouse’s second class contained those cases where the plaintiff complains that he suffered loss in consequence of some act of the defendant which the defendant mistakenly believed was authorised by law.  In those cases the defendant’s honest belief provides him with an answer to the plaintiff's claim notwithstanding any actual illegality.  Illegality without more does not give a cause of action.  Lord Hobhouse said (at p 229):
“There is no principle in English law that an official is the guarantor of the legality of everything he does, but he is liable if he injures another by an act which is itself tortious if not justified and he is unable to justify it however honestly he may have acted.”
22.	When turning to the ground occupied by the tort of misfeasance in public office Lord Hobhouse observed that it did not, and did not need to apply, where the defendant had invaded a legally protected right of the plaintiff.  He said:
“It applies to the holder of public office who does not honestly believe that what he is doing is lawful …  Similarly, it covers the situation where the plaintiff has suffered some financial or economic loss and therefore raises the question what relationship between the plaintiff’s loss and the defendant’s bad faith is required …”
23.	After analysing the different ingredients of the tort, including its mental element, Lord Hobhouse said (at p 231):
“The tort is historically an action on the case.  It is not generally actionable by any member of the public.  The plaintiff must have suffered special damage in the sense of loss or injury which is specific to him and which is not being suffered in common with the public in general …  The plaintiff has to be complaining of some loss or damage to him which completes the special connection between him and the official’s act.”  
24.	Lord Steyn, for his part, in the section of his speech which is headed “the matrix of the tort” (at pp 190 – 191), explained how the law of tort denies a remedy to depositors who suffer losses as a result of a bank’s breach of its statutory duties, or as a result of negligent licensing or supervision by a regulatory authority, or the failure of such an authority to withdraw a licence.  In such contexts judicial review is regarded as an adequate remedy.  In Calverley v Chief Constable of Merseyside Police [1989] AC 1228, 1238F the availability of the tort of misfeasance in public office was said to be one of the reasons that justified the non-actionability of a claim in negligence for an act of maladministration.  Lord Steyn also observed that it was established that an ultra vires act would not per se give rise to liability in tort (X (Minors) v Bedfordshire County Council [1995] 2 AC 633), and that there was no overarching principle in English law for liability in tort for “unlawful, intentional and positive acts” (Lonrho v Shell Petroleum Co Ltd (No 2) [1982] AC 173, 187G).  He cited Winfield and Jolowicz on Tort, 15th Edition (1998) p 55 when he said that the tort of misfeasance in public office was an exception to
“the general rule that, if conduct is presumptively unlawful, a good motive will not exonerate the defendant, and that, if conduct is lawful apart from motive, a bad motive will not make him liable.”
25.	When he came on to consider issues of damage or redress, Lord Steyn made it clear that he was concerned in that case with claims for recovery of consequential losses.  After considering the rival submissions, he concluded that in both forms of the tort the intent required must be directed at the harm complained of, or at least harm of the type suffered by the plaintiffs:
“This results in the rule that a plaintiff must establish not only that the defendant acted in the knowledge that the act was beyond his powers but also in the knowledge that his act would probably injure the plaintiff or a person of a class of which the plaintiff was a member.”
26.	During this passage of his speech Lord Steyn showed himself aware that recklessness about the consequences of an act, in the sense of not caring whether the consequences happened or not, was sufficient in law.
27.	Three Rivers was a case in which the plaintiff’s claim was concerned only with the recovery of financial losses that flowed from the misfeasance complained of.  Indeed, Lord Neill QC’s primary submission to the Court of Appeal was that the tort constituted an action on the case on proof of special damage (see [2003] 2 AC 1, 29 per Hirst LJ).  The courts were therefore not concerned in that case with the question whether in any circumstances there might be a complete cause of action in the absence of proof of special damage.
28.	Lord Neill was following earlier statements about the ingredients of the tort when he made this submission.  I need quote only two of them.  In Henley v Lyme Corporation (1828) 2 Bing 91, Best CJ said at p 107:
“Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer.  The instances of this are so numerous.”
And in the Australian case of Farrington v Thomson [1959] VR 286, in which the plaintiff’s claim related to the closure of his hotel by police officers, Smith J said:
“Proof of damage is of course necessary in addition.  In my view therefore the rule should be taken to go this far at least, that if a public officer does an act which to his knowledge amounts to an abuse of office, and he thereby causes damage to another person, an action in tort for misfeasance in public office will lie against him at the suit of that person.”
29.	This cannot, however, provide a complete answer because there is a line of old cases which relate to claims brought by those who have been deprived of their right to vote at an election by some misfeasance by a public officer.  The best known of these cases is Ashby v White (1703) 1 Sm LC (13th Edn) 253, in which Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant.  Holt CJ, whose judgment was upheld by the House of Lords, said at pp 273-4:
“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal ..
And I am of the opinion that this action on the case is a proper action.  My brother Powell indeed thinks that an action on the case is not maintainable, because there is no hurt or damage to the plaintiff, but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights.”
30.	In the last three hundred years the courts have sometimes had to stop and consider the principles according to which they decide whether a cause of action in tort lies without proof of special damage.  Although the general rule was that an action in trespass or conversion lay without proof of damage, and that proof of damage was a prerequisite for an action on the case, like so much in the common law this general rule was not inviolable.
31.	There is a useful survey of some of the old caselaw in Birkett J’s judgment in Constantine v Imperial Hotels Ltd [1944] 1 KB 693, in which he held that an action by a traveller against an innkeeper for wrongfully refusing to receive and lodge him was an action for the violation of a right at common law, so that the action, although sounding in case, could be sustained without proof of special damage.
32.	After citing the extracts from Holt CJ’s judgment in Ashby v White, Birkett J continued (at pp 705-706):
“In Embrey v Owen, 6 Ex 353, Parke B said (at p 368):
‘It was very ably argued before us by the learned counsel for the plaintiffs that the plaintiffs had a right to the full flow of the water in its natural course and abundance, as an incident to their property in the land through which it flowed; and that any abstraction of the water, however inconsiderable, by another riparian proprietor, and though productive of no actual damage, would be actionable, because it was an injury to a right and, if continued, would be the foundation of a claim of adverse right in that proprietor.  We by no means dispute the truth of this proposition, with respect to every description of right.  Actual perceptible damage is not indispensable as the foundation of an action; it is sufficient to show the violation of a right, in which case the law will presume damage; injuria sine damno is actionable, as was laid down in the case of Ashby v White by Lord Holt, and in many subsequent cases, which are all referred to, and the truth of the proposition powerfully enforced in a very able judgment of the late Story J in Webb v Portland Manufacturing Co (1838) 3 Sumner Rep 189.’  
In the case cited, Story J said: 
‘But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie, even in the case of a wrong or violation of a right, unless it is followed by some perceptible damage which can be established as a matter of fact; in other words, that injuria sine damno is not actionable.  On the contrary, from my earliest reading, I have considered it laid up among the very elements of the common law that, wherever there is a wrong, there is a remedy to redress  it; that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages.’”
33.	In Quartz Hill Consolidated Mining Company v Eyre (1883) LR 11 QBD 674 this court considered whether an action lay without proof of special damage for maliciously presenting a winding up petition.  In his judgment Bowen LJ referred at p 689 to the judgment of Holt CJ in Savile v Roberts 1 Ld Raym 374, 378 in which he held that proof of damage to a man’s fame, or damage to his person or property, was necessary to support an action for malicious prosecution.  At p 691 Bowen LJ said that notwithstanding this rule, there were legal proceedings which necessarily involved damage, such as indictments involving scandal to reputation or possible loss of liberty, or the presentation of a bankruptcy petition against a trader, and in such cases an action lay without proof of special damage once malice was proved.  He went on to say (at pp 692-3):
“In the present instance we have to consider whether a petition to wind up a company falls upon the one side of the line or the other – whether, as the Master of the Rolls has said, it is more like an action which does not necessarily involve damage, and therefore will not, however maliciously and wrongfully brought, justify an action for malicious prosecution, or whether it is more like a bankruptcy petition.  I do not see how a petition to wind up a company can be presented and advertised in the newspapers without striking a blow at its credit.  I suppose that most of the lawyers of the present day have seen a great increase of three kinds of abuses, all of which are indulged in for the purpose of extorting the payment of some debt, which ought to be the subject of some civil redress.  There is the abuse of the police courts when their process is used to extort money; there is the abuse of the bankruptcy law; and there is the abuse of the provisions in the Companies Act 1862, for winding up companies.  In all these three forms of abuse the aim is to wreck credit, and I should be sorry to think that since they all involve a blow at the credit of those against whom they are instituted, the law did not afterwards place in the hands of the injured and aggrieved persons who have been wrongfully assailed, a means of righting themselves and recouping themselves, as far as can be, for the mischief done to them.  I therefore answer the two first questions – whether this action will lie, and whether it will lie without further proof of special damage – in the following manner: I think that the action will lie, for the reason that special damage is involved in the very institution of the proceedings (which ex hypothesi are unjust and without reasonable or probable cause) for the purpose of winding up a going company.”
34.	In Fitzgerald v Firbank [1897] 2 Ch 96 the question arose whether the owner of a right of fishing has a cause of action without proof of special damage against someone who polluted the river in which the right was exercised.  Lindley LJ said at p 101 that a right of fishing was of such a nature that a person who enjoyed it had such possessory rights that he could bring an action for trespass at common law for the infringement of those rights.  Rigby LJ, after referring to the judgment of the Court of Exchequer Chamber in Holford v Bailey 13 QB 426, 446, said at p 104:
“There was another point about several fishery which we do not need to deal with, because the decision of the Queen’s Bench was overruled in that respect.  But the important point was whether the grantee could sue in trespass, and in the Court of Exchequer Chamber it was held that he might.  The Court of Exchequer Chamber said that it was not necessary for them to decide the question whether the count might not be a count in case, but that they saw no reason to doubt that the Queen’s Bench were right on that point.  But that does not mean that the plaintiff can only sue in trespass.  I cannot doubt, on the construction of the grant, the right of the plaintiffs by virtue of that grant to sue for a wrongful act which operates as a disturbance of the rights granted by the deed.  The argument was pushed with the greatest courage to this extent – that a wrongdoer, unless he tried to do the very thing that the grantees were authorised to do, might destroy the whole subject-matter of the grant and be liable to no action.  I never met with any case which gave the slightest colour to such a doctrine.  I hold that the grantees of the incorporeal hereditament have a right of action against any person who disturbs them either by trespass or by nuisance, or in any other substantial manner.”
35.	The speech of Viscount Haldane in Jones v Jones [1916] 2 AC 481, an appeal concerned with the viability of an action of slander without proof of special damage (subject to four well-known exceptions), is noteworthy for his description (at pp 489-490) of the different historical origins of the actions for libel and slander.  Libel was regarded by the Court of Star Chamber not merely as a crime punishable as such, but also as a wrong carrying the penalty of general damages, and this remedy was carried forward by the common law courts after Star Chamber was abolished by the Long Parliament.  Slander, on the other hand, was never punished in the civil courts as a crime.  The old local courts used to take cognisance of it as giving rise to claims for compensation, and when those courts decayed, the entire jurisdiction in cases of defamation appeared to have passed at first to the Courts of the Church rather than the Courts of the King.  Following the Reformation, the Courts of the King assumed concurrent jurisdiction in claims arising out of spoken defamation.  Viscount Haldane observed (at p 490):
“As might have been expected of civil courts, whose concern had been primarily with material rights and not with discipline as such, the new jurisdiction in claims based on slander appears to have been directed to the ascertainment of actual damage suffered and to a remedy limited to such damage.  This explains the restricted character of the development of the remedy and the tendency to confine its scope by the assertion that actual damage was the gist of the action.”
36.	A little earlier (at p 489) Viscount Haldane said that one of the consequences of the different evolution of the action for slander was that the scope of the remedy was in an unusual degree confined by the exactness of precedent, and he did not think that the House of Lords were free to regard the question at issue as one in which a clear principle might be freely extended.  The House was unanimous in its decision on this appeal, Lord Sumner commenting pragmatically (at p 499):
“My Lords, it has often been said that the right to sue for words spoken, when no damage can be proved, ought not to be extended.  As Martin B observes in Allsop v Allsop (1860) 29 LJ (Ex) 315, 317, ‘The law is jealous of actions for mere words, and the rules limiting these actions ought to be adhered to here’.  I am sure that no one who has had even a short experience of the business of an ordinary civil assize would question the wisdom of this caution.  If a change of the law is desired, it is from the Legislature, as it was in 1891, that relief must be sought.”
37.	In Neville v London “Express” Newspaper Ltd [1919] AC 368 the House of Lords decided by a 3-2 majority that an action for damages for maintenance will not lie in the absence of proof of special damage.  It is not necessary for present purposes to dwell very long on the reasoning of the majority (Lord Finlay LC, Lord Shaw of Dunfermline and Lord Phillimore) because they were heavily influenced by features of the historical origin of the tort of maintenance which are of no relevance in the present context.  Lord Finlay, however, adopted a different approach to the dicta of Holt CJ in Ashby v White (see para 29 above) in relation to that tort to that adopted by the minority of the House (Viscount Haldane and Lord Atkinson).  He said (at pp 379-380):
“The action for maintenance is, in my opinion, one which can be sustained only if special damage had been occasioned to the plaintiff by the maintenance.  The maintenance may be punishable as an offence, but to give a right of action the commission of the offence must have caused damage to the plaintiff.  Of course, if a right has been infringed, as in Ashby v White (1 SM LC, 12 Ed, 266, 288) where a man was deprived of his right to vote, no proof of damage is necessary.  As Lord Holt expressed it ‘an injury imports a damage, when a man is thereby hindered of his right’.  The same rule applies if an assault, even the most trifling, is committed, though it occasions no damage whatever, or if trespass is committed to the plaintiff’s land or goods. But the action for maintenance at common law is not, in my opinion, an action for the invasion of a right; it is an action in respect of an offence which causes damage to the plaintiff.”
38.	Viscount Haldane, for his part, approached this issue along the following lines.  He said (at p 392):
“My Lords, as Lord Holt showed in Ashby v White, 2 Ld Raym 938, 955, every violation of a right imports damage in contemplation of law.  This principle applied whether the right arises out of a contract, as in Marzetti v Williams, (1830) 1 B & Ad 415, or out of a tort, as in Embrey v Owen, (1851) 6 Ex 353.  The damage may be substantial, but may also amount to what is merely nominal.  As Maule J said in Beaumont v Greathead, (1846) 2 CB 494, 499, ‘Nominal damages are a mere peg on which to hang costs. …  Nominal damages, in fact, mean a sum of money that may be spoken of, but that has no existence in point of quantity.’  As Parke B observed in Embrey v Owen (at p 368), ‘Actual perceptible damage is not indispensable as the foundation of an action; it is sufficient to shew the violation of a right, in which case the law will presume damage’.  He went on to point out that the principle did not apply to the case with which he was dealing, because the right was to the flow of a stream, a right only to the flow subject to its reasonable enjoyment and possible slight diminution by higher riparian owners.  The right there was only a qualified one.  But where the right is, as it often is, an absolute right the doctrine laid down by Lord Holt in Ashby v White applies, and every infringement of such an absolute right gives a claim to nominal damages, even though all actual loss or injury is disproved.”
Viscount Haldane went on to say that he thought that the right to protection against maintenance was an absolute one, although on the facts of that case only nominal damages should have been awarded for the violation of that right.
39.	Lord Atkinson was of a similar opinion at pp 405-6.  He thought that the authorities showed that every subject had a legal right not to be harried in courts of justice by actions brought by officious intermeddlers who had no legitimate interest in their subject-matter, and that in the present case the plaintiff was entitled to nominal damages by the defendant’s invasion of that right.  Lord Shaw of Dunfermline disagreed with that view (at p 421) without going further than the reasons given by Lord Finlay LC and Lord Phillimore.  Lord Phillimore, for his part, considered (at p 433) that the plaintiff had been unable to prove “that he sustained any private injury, such as the law recognises as some invasion of his rights as a citizen by reason of the unlawful act of the defendant company” and (at p 434) that the law gave no encouragement to actions where the damages must always be nominal.
40.	The difference of judicial opinion which lay at the heart of this decision was whether a plaintiff in a maintenance action possessed a recognisable legal right for which the law would award him compensation in the event of its violation without proof of damage.  It was not a decision disapproving what Holt CJ said in Ashby v White (in which he was upheld by the House of Lords), but rather a majority decision to the effect that the principle in Ashby v White had no application in the tort of maintenance.
41.	Nicholas v Ely Beet Sugar Factory Ltd [1936] 1 Ch 346 was another case concerned with river pollution.  Clauson J had dismissed the action on the grounds that the plaintiff, who was the owner of a several fishery, could not prove that he had suffered any damage.  This court, reversing him, held that disturbance of a several fishery was an invasion of a legal right, and in such a case the injury to the legal right carried with it the right to damages.
42.	The leading judgment was given by Lord Wright MR.  After explaining that the nature of the plaintiff’s rights was that he had an incorporeal hereditament in the fishery and that he also had property in the fish that are found in the fishery, Lord Wright commented on Lindley LJ’s judgment in Fitzgerald v Firbank (see para 34 above) to this effect:
“… That therefore defines the right, and it also defines the cause of action which follows from an infringement of that right.  It is not, I think, material to decide whether the proper description of that cause of action is trespass, or trespass on the case or nuisance, forms of action which are now abolished.  If it were described as ‘nuisance’ the word ‘nuisance’ would be used in that connection as meaning a private nuisance, one which involved an interference with a private right, so that, as I shall explain in a moment, an action would lie for that interference.”
43.	After referring to textbook authority, Lord Wright continued at pp 349-350:
“Harrop v Hirst (1868) LR 4 Ex 43, to which Sir Frederick [Pollock] refers, is an authority again for the proposition that if you have an infringement of a legal right there is a right of action without actual damage being proved.  The claim was for diverting water, and it was held that an action for diverting water is maintainable without proof of any actual personal damage, inasmuch as the act of the defendant might, if repeated often enough without interruption, furnish evidence in derogation of the plaintiff’s legal rights.  Although that is a reason which is emphasised in that case, and for which there is good authority and good ground, the ability to maintain such an action without proof of actual loss depends on a much wider principle, that is, the principle that where you have an interference with a legal right the law presumes damage.”
Holt CJ’s judgment in Ashby v White (see para 29 above) was the leading authority cited by Lord Wright in support of this principle.
44.	What all these cases tell us is that, as Lord Hobhouse said in the Three Rivers case, the common law has always shown itself jealous to protect possessory or proprietary rights or the rights protected by the tort of trespass to the person.  In those cases a cause of action arises if the right is infringed, without any need to prove special damage or some mental element on the infringer’s part, such as malicious intent or awareness of the infringement, coupled with recklessness as to its consequences.  The rationale behind an award of nominal damages in these cases was explained by Lord Halsbury LC in The Mediana [1900] AC 113,116 in these terms:
“‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed.”
45.	There are also cases which do not fall within such a tidy category, but which owe their origin to the way a particular tort developed long ago in our legal history.  A good example is defamation by the written word, where a claimant may recover nominal damages for the infringement of his right to a fair reputation (a right not protected by the law of trespass to the person) without any need to prove special damage.  The difficulties of categorisation in borderline cases is illustrated by the 3-2 division over the tort of maintenance in the House of Lords in Neville v London “Express” Newspaper Ltd (see paras 37-40 above).
46.	That case is notable because both Lord Finlay LC (for the majority) and Viscount Haldane (for the minority) reached their differing conclusions by applying the test suggested by Holt CJ in Ashby v White.  Their difference lay in the fact that the former did not consider that the tort of maintenance involved the infringement or invasion of a claimant’s right (see para 37 above), whereas the latter considered that there existed a “right to protection against maintenance” which the law should recognise, while Lord Atkinson, supporting him, identified the right in question as “a legal right not to be harried in courts of justice by actions brought by officious intermeddlers” (see paras 38 and 39 above).
47.	At all events, it is obvious that the old distinction between actions for trespass and actions on the case does not provide a clearcut solution in every case: those old causes of action no longer rule us from the grave.
48.	Ashby v White and the other election cases still represent good law today.  These cases show that if there is a right which may be identified as a constitutional right, then there may be a cause of action for an infringement of that right without proof of special damage, provided that there is something more than the mere infringement.  The task of defining the nature of the requisite mental element was undertaken by the House of Lords in the Three Rivers case.  And the infringer must be someone who holds public office.  I do not consider that one can safely explain Ashby v White as a case involving the infringement of a franchise (being a property right), even if English law has shied away from the path suggested by Story J, that great nineteenth century US judge, in Webb v Portland Manufacturing Co (see para 32 above).
49.	If this is the correct analysis of Ashby v White, then there are some rights recognised by English law which in constitutional significance are every much as important in our liberal democracy as the right to vote.
50.	In R v Lord Chancellor ex p Witham [1998] QB 575, a case concerned with access to the courts, Laws J identified the qualities of the rights in question in these terms (at pp 581B-E):
“The common law does not generally speak in the language of constitutional rights, for the good reason that in the absence of any sovereign text, a written constitution which is logically and legally prior to the power of legislature, executive and judiciary alike, there is on the face of it no hierarchy of rights such that any one of them is more entrenched by the law than any other.  And if the concept of a constitutional right is to have any meaning, it must surely sound in the protection which the law affords to it.  Where a written constitution guarantees a right, there is no conceptual difficulty.  The state authorities must give way to it, save to the extent that the constitution allows them to deny it.  There may of course be other difficulties, such as whether on the constitution’s true interpretation the right claimed exists at all.  Even a superficial acquaintance with the jurisprudence of the Supreme Court of the United States shows that such problems may be acute.  But they are not in the same category as the question: do we have constitutional rights at all?
In the unwritten legal order of the British state, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose views in main legislation specifically confers the power to abrogate.  General words will not suffice.  And any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it.  I shall explain in due course what I mean by a requirement of specific provision, a concept more elusive than it seems.”
51.	After analysing the caselaw, Laws J concluded (at p 585F-G):
“It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen’s right of access to the courts.  It has been described as a constitutional right, though the cases do not explain what that means.  In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.”
52.	I have only to refer back to what Steyn LJ said in R v Home Secretary ex p Leech (No 2) (see para 3 above) in order to be able to conclude that the right of Mr Watkins which these three prison officers infringed was a right of this level of importance, so that when they maliciously infringed that right his cause of action in misfeasance in public office was complete even without proof of special damage.  The judge’s conclusion on this issue was therefore wrong, and Mr Watkins was entitled to judgment for nominal damages (at least) against each of those defendants.
53.	Was he entitled to more?  To answer this question, one must go back to the findings the judge made at the end of his judgment (see para 17 above), remembering that he had the great advantage, denied to this court, of seeing those three prison officers give evidence.  Ms Krause did not challenge the judge’s refusal to award aggravated damages.  However, she submitted that we should go back to what the judge said about an award of exemplary damages, and that if we found that a cause of action had been established, we should be willing to make such an award ourselves, alternatively we should remit the matter to the judge to enable him to make the award.
54.	Ms Outhwaite, who appeared for the defendants, accepted that exemplary damages may be awarded in respect of misfeasance in public office (Kuddus v Chief Constable of Leicester Constabulary [2001] UKHL 29; [2002] 2 AC 122).  In that case Lord Scott of Foscote expressed the provisional view that vicarious punishment, via an award of exemplary damages, was contrary to principle and should be rejected, and Ms Krause prudently did not press for an award against the Home Office on this appeal.
55.	She submitted, however, that there was no reason why an appropriate award of exemplary damages should not be made against each of the three prison officers.  The judge found that Officer Ravenscroft did not care whether he was breaking Rule 37A or not when he opened and inspected the envelope’s contents, and laughed at Mr Watkins when he protested (see paras 10 and 11 above).  He found that Officer Rosevere knew he was acting unlawfully, or was reckless as to whether his conduct was unlawful, when he ripped open Mr Watkins’s Rule 37A letter (see para 14 above).  And he found that when Officer Robinson opened Mr Watkins’s letters from the court, he did so to see if they related to Mr Watkins’s case against him, and that in so doing he evinced the degree of bad faith needed to constitute the first element of the tort (see para 16 above).  There was no appeal against any of these findings, and Ms Krause argued that the officers’ deliberate or reckless infringement of Mr Watkins’s constitutional right (of which they were aware, although they might not have described it in those terms) represented conduct sufficiently outrageous to justify an award of exemplary damages.  The judge himself said that he might well have been prepared to make such an award if the appropriate level of compensatory damages was so modest as to represent less than the defendants ought to pay for unlawful conduct of this nature.
56.	In Thompson v Commissioner of Police of the Metropolis [1998] QB 498 this court was concerned to give guidance as to the appropriate level of a jury award in cases of malicious prosecution or false imprisonment, for which jury trial is still the normal mode of trial (see Supreme Court Act 1981 s 69(1)(b) and County Courts Act 1984 s 66(3)(b)).  In that context Lord Woolf MR said (at p 517C) that where exemplary damages were appropriate they were unlikely to be less than £5,000: otherwise the case was probably not one which justified an award of exemplary damages at all.
57.	I see no reason why that dictum should prevent a judge, sitting without a jury, from making a much lower award of exemplary damages in a case of the present type against an individual prison officer (following an inquiry into that officer’s means) if he considers that the officer’s conduct is sufficiently outrageous to justify an exemplary award.  Ms Krause referred us to some of the cases mentioned by Lord Devlin in his speech in Rookes v Barnard [1964] AC 1129, 1222-1225.  She did not tell us what the award of £300 exemplary damages in Huckle v Money (1763) 2 Wil’s KB 205 would be worth in to-day’s money, and I do not consider we can derive much assistance from that case.  But Lord Devlin mentioned without disapproval the award of £100 exemplary damages by this court in Owen and Smith (trading as Nuagin Car Service) v Reo Motors (Britain) Ltd (1934) 151 LT 274, although again we were not told what that award would represent today.
58.	Ms Krause suggested that an award of £500 exemplary damages against each defendant would be appropriate, together with a nominal award of general damages of £10 or £20.  She said that unless the courts were willing to mark their disapproval of such officers’ acts in this way, prisoners like Mr Watkins would have to stand by and watch their constitutional rights being maliciously infringed by prison officers without any effective redress at all (unless they could prove some kind of financial loss or other loss sounding in general damages).  She argued that judicial review was an inappropriate remedy in a case like this because the existence of the right was not in issue, and Rule 37A represented the prison authorities’ visible recognition of the right.  Mr Watkins had achieved nothing through making complaints through formal channels.  He had invoked the assistance of the Prison Ombudsman to no avail.  And he would not have been awarded legal aid if he had not exhausted all his other avenues of redress.
59.	Ms Outhwaite reminded us that exemplary damages were still a controversial topic (see Lord Nicholls in Kuddus at para 50): indeed, Lord Scott of Foscote suggested in Kuddus that in his opinion there was no longer any need for punitive damages in the civil law.  However, the remedy is still available, and the Law Commission in its powerfully argued report on Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 247 has recommended its retention.  Although one of the wrongs done to Mr Watkins post-dated the coming into force of the Human Rights Act 1998, the other two did not, and we are deciding this appeal in the absence of any argument to the effect that a claim for compensation for the breach of a Convention right would now provide prisoners like Mr Watkins with a satisfactory remedy.
60.	I do not see how this court can make an award of exemplary damages itself.  It is for the trial judge to determine whether an award should be made, and all that Judge Ibbotson has so far said is that he might well have been prepared to make an award.  There is no evidence before us as to the financial means of these officers, and a defendant’s capacity to pay an exemplary award is always a factor to be taken into account (see Rookes v Barnard [1964] AC 1129, 1228).
61.	In these circumstances I would allow this appeal, direct that a nominal award of £5 general damages be entered against these three defendants and remit the case to Judge Ibbotson to determine whether to make an exemplary award against any of them, and if so, how much that award should be.  Apart from saying that he need not feel constrained by what Lord Woolf MR said in Thompson about the minimum level of a jury award in a different class of case, I do not consider that it would be appropriate of us to add anything about the law on exemplary damages.  This is a case which falls into Lord Devlin’s first category (if it fits there at all, in relation to the conduct of any of these officers) and the ground rules for cases in that category are now well known.  If Judge Ibbotson is for any reason unavailable, any new judge would have to hear a modicum of evidence himself before he could make an award (if any).
62.	I have read the judgment of Laws LJ in draft, and I agree with what he says.
63.	One final word.  I am not impressed by “floodgates” arguments any more than the House of Lords was in R v Deputy Governor of Parkhurst Prison ex p Leech [1988] 1 AC 533 at pp 566-568.  It is now well established that a prisoner does not lose his right of access to a court when he goes through the prison gate.  If prison officers wrongfully infringe that right in a way that can be properly categorised as misfeasance in public office, I see no reason why the law should deny the prisoner an adequate remedy, even if that remedy may include an element of punishment for the prison officer in question, if he has no satisfactory remedy by any other route.  Indeed, I can see every reason why adequate redress should be available.
Lord Justice Clarke:
64.	I agree that this appeal should be allowed for the reasons given by Brooke and Laws LJJ.  I could not possibly match the learning in their judgments and I can see no useful purpose in adding any separate reasons of my own. 
Lord Justice Laws: 
65.	I gratefully adopt the account of the facts and the relevant learning set out in the judgment of Brooke LJ, which I have had the advantage of reading in draft.  I agree that this appeal should be allowed, and that the orders proposed by Brooke LJ should be made.  I agree also that it would not be appropriate for this court to say anything about the law on exemplary damages or the level at which such damages might be awarded, save to the effect (as Brooke LJ indicates at paragraph 61) that in considering, if it arises, how much to award by way of exemplary damages the judge need not feel constrained by what Lord Woolf MR, as he then was, said in Thompson [1998] QB 498 about the minimum amount that might be awarded by a jury in cases of malicious prosecution or false imprisonment.
66.	I add some observations of my own concerning the tort of misfeasance in public office only because I have come to think that to ask whether misfeasance is actionable per se or only on proof of damage is a misleading question.  The reason is as follows.  As it seems to me the tort may be established in two distinct types of case, and that damage must be shown in one but need not be in the other.  Now, it is clear that there must be some nexus between the unlawful act committed by the public officer, and the circumstances of the claimant; otherwise the claimant would have no standing to sue.  In what must this nexus consist?  In Three Rivers District Council [2003] 2 AC 1 Lord Steyn expressly endorsed as correct the following statement made by Clarke J, as he then was, at first instance in that case (193F):
“If an officer deliberately does an act which he knows is unlawful and will cause economic loss to the plaintiff, I can see no reason in principle why the plaintiff should identify a legal right which is being infringed or a particular duty owed to him, beyond the right not to be damaged or injured by a deliberate abuse of power by a public officer.”
I apprehend that their other Lordships agreed with this observation.
67.	Now I may explain the two kinds of case which I have in mind.  Where a claimant is exposed to economic or material injury by virtue of the public officer’s wrongful and malicious act, it will be inherent in his claim that he has suffered quantifiable loss; and he does not have to prove that in causing such loss the public officer has violated some free-standing right which the claimant enjoys.  That is one class of case.  But the claimant may be adversely affected in a different sense.  The wrongful act may have interfered with a right of a kind which the law protects without proof of any loss.  In that case, the public officer’s interference with the right will complete the tort and no actual damage needs to be shown.  This is the second class of case.  Its paradigm is the instance where the public officer’s unlawful conduct has interfered with a constitutional right.
68.	Three Rivers was an instance of the first class of case  (assuming, after the second hearing before their Lordships’ House, that the claimants succeed on the facts).  Ashby v White (1703) 1 Sm LC (13 Edn) 253 was an instance of the second class of case.  And for the reasons given by Brooke LJ this present case also falls into the second category.  Just as in Ashby, the public officers’ unlawful and malicious acts interfered with a constitutional right enjoyed by the claimant.  In Ashby it was the right to vote.  Here it is access to the Queen’s Courts.
69.	For these reasons, as well as those given by Brooke LJ, I would, as I have said, allow this appeal.