The note should include a summary of the relevant

The instance ofWatkins v Secretary of State for Home Department[ 1 ] was brought by a captive whose mail had been opened by prison officers which was in breach of the prison regulations. Watkins claimed that the letters that he had received were lawfully privileged and, in the most portion, marked as such and so to open them was to be in breach of the civil wrong of misfeasance in public office. In peculiar, the claimant contended that the prison officers and the governor were in breach of the Prison Rules 1999, Rule 39 which superseded ( and contained the same diction as ) the Prison Rules 1964.

This subdivision, in both sets of regulations which the gap of the letters spanned, gives the legal right to a captive to match with either the tribunal or a legal advisor in an impartial manner. The lone state of affairs in which it is allowable for the missive to be stopped or inspected is if the governor has sensible evidences to believe that the missive contains illicit information which might jeopardize prison security or the safety of others, or in some other manner be condemnable. It was clear from the facts of the instance that this exclusion did non use in this instance. Nevertheless at first case the justice decided that it was a demand of the civil wrong of misfeasance in public office that a specific loss or harm needed to be shown by the claimant. This could non be shown so the claim was dismissed. The instance was so appealed to the Court of Appeal.Held ( ratio )– There are two types of instance in which the civil wrong of misfeasance in public office can be established.

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The first involves the state of affairs where a claimant has suffered stuff or economic harm as a consequence of the unlawful and malicious act of a public officer. In this instance, that the harm had been caused, would be built-in in the claim and it would non be necessary to demo this individually. The 2nd involves where the unlawful act interfered with a constitutional right – such as was held in this instance, entree to the tribunals – there is no demand to turn out particular harm and the claimant is entitled to nominal amendss. In this instance the violation was found and nominal amendss awarded against three prison officers and a possible awarding of model amendss referred back to the lower tribunal for a determination.

The chief judgement in the Court of Appeal was given by Lord Justice Brooke. Lord Brooke states that the affair at the Centre of this entreaty is the inquiry of whether harm demands to be proved in order to confirm the civil wrong of misfeasance in a public office. Turning foremost to the text editions on Tort he found that because this country of jurisprudence is ’emergent ‘ it is non possible to state whether this peculiar civil wrong is actionable in and of itself, without the cogent evidence of harm. For aid in this affair Lord Brooke foremost turns to the determination of the House of Lords inThree Rivers District Council v Bank of England ( No 3 )[ 2 ] in which this affair was discussed, although non portion of the determination in that instance.Lord Hobhouse, inThree Rivers, explains that the civil wrong of misfeasance in public office occupies an country that is left untasted by two other civil wrongs that he mentions. The first of these screens the state of affairs in which a individual ‘s lawfully protected right has been invaded ( e.g. trespass to belongings ) .

In this instance the suspect ‘s belief in the legality of his actions is non relevant. The 2nd civil wrong covers the state of affairs where a loss has been suffered by a complainant as a consequence of the suspect ‘s action, which they erroneously believed to be authorised by jurisprudence. If a individual is unable to warrant their action and causes harm by an act that is tortious so there is no ground why they should non be apt for that act. In discoursing the civil wrong of misfeasance in a public office, Lord Hobhouse states that where a individual ‘s rights have been infringed by another, an official shall be apt where he can non demo that he candidly believed his actions to be legal. It besides covers the state of affairs where the official causes economic or fiscal loss on the portion of the complainant. Lord Hobhouse so emphasise the connexion which has to be established between the particular harm sustained by the complainant and the functionary in inquiry. This harm may non be the sort that could potentially be actionable by any member of the populace.

Lord Brooke farther draws on Lord Steyn ‘s judgement from the sameThree Riversinstance. Here, Lord Steyn is concerned with the purpose of the public officer, and states that it must be directed at the harm that is being complained of. In order to set up the civil wrong, so, the complainant must demo the public officer was moving beyond his powers and either knew or was foolhardy about whether it would do harm to the complainant.Lord Brooke looks, so, to more venerable instance jurisprudence for case in point that will assist make up one’s mind the present instance. A line of instances that starts withAshby v White[ 3 ] is quoted.Ashby v Whiteconcerned the right of a individual to vote which had been infringed by a public officer. In this instance the determination of Holt CJ was upheld by the House of Lords. Holt CJ states that every hurt must do harm even if it has no economic or fiscal effect.

Lord Brooke so argues that the tribunals have had juncture to reexamine this thought in the subsequent instance jurisprudence. The rule of the general given that particular harm demands to be shown in instances of trespass and transition is so reviewed in this visible radiation.The judgement of Lord Brooke so moves on to reexamine the line of instance jurisprudence. He citesConstantine v Imperial Hotels Ltd[ 4 ] in which Birkett J held that a traveler who had been refused entry to a hotel had an action at common jurisprudence without the demand to turn out particular harm. In this judgement Birkett J refers to the determination of Parke B inEmbrey V Owen[ 5 ] which relied on the instance ofAshby v White. This instance referred to the rights over a H2O class which had been affected, although negligibly, by a neighbor.

In this instance it was decided that there was no demand for the complainant to demo particular harm.A state of affairs affecting the malicious presentation of a weaving up request was at the Centre of the instance inQuartz Hill Consolidated Mining Company v Eyre[ 6 ] . Bowen LJ decided in his judgement in this instance that an action was possible where the malicious purpose could be shown even if it was non possible to demo particular harm. In coming to this decision the justice emphasised that harm had been inexplicit in the very action against the complainant.

It was impossible, he said, to print information in the newspaper about weaving up proceedings without damaging the repute of a company. Bowen LJ, in peculiar, saw that this sort of behavior was an maltreatment of the relevant commissariats in the Companies Act 1862 every bit good as of the tribunals and the bankruptcy Torahs.Lord Brooke so turns to the difference between libel and slander to farther exemplify his statement.Jones V Jones[ 7 ] was about the jurisprudence on slander and whether an instance could be made without cogent evidence of particular harm. In this instance Viscount Haldane considers the history of the jurisprudence on libel and slander and hints their development. Because of the manner the tribunals were originally organised, libel was heard in the Court of Star Chamber, as a offense and besides as a incorrect that could be remedied by the application of amendss.

This attack has later been taken forwards after the abolishment of the Court of Star Chamber in favor of the common jurisprudence tribunals. By contrast, slander had evolved from the start in the civil tribunals and as such was more interested in supplying a redress that was aimed at the existent harm caused – instead than utilizing the condemnable tribunals doctrine of penalty. Because of the peculiar nature of the case in point in the history of slander ‘s development it was non possible for the Judgess to widen the jurisprudence to let this action to win.Neville V London “ Express ” Newspaper Ltd[ 8 ] concerned an action for amendss for care.

While Lord Brooke does non see the facts of this instance as peculiarly relevant to the present inquiry it is to three of the addresss, two in the minority that he turns. First, though, Lord Finlay, in the bulk, provides a different attack to that of the minority towards Holt CJ inAshby v White. He finds that after the violation of a right it is non necessary to demo harm.

Lord Finlay underlines that the state of affairs is the same in the instance of trespass even if there is no harm whatsoever. Lord Finlay, nevertheless, provinces that an action for care does non fall into that category of rights. Viscount Haldane, in the minority, explains that in the misdemeanor of an absolute right it is adequate that there has been a misdemeanor, and amendss may merely be nominal, but the jurisprudence will assume that they exist. Lord Atkinson, besides in the minority inNeville, agreed with these points of position.Back in the present instance, Lord Brooke claims thatNeville V London “ Express ” Newspaper Ltdwas non oppugning the determination inAshby v White, but was really about whether the complainant in that instance had an existent right in the first topographic point. It was found inNevillethatAshby v Whitedid non use, non that it was non good jurisprudence.Continuing his scrutiny of the line of instances, Lord Brooke following expressions atNicholas V Ely Beet Sugar Factory Ltd[ 9 ] .

In this instance a piscary proprietor could non turn out harm caused by pollution to the H2O. Lord Wright, in the prima judgement in this instance, relied on the rule inAshby v Whiteonce more, saying that it is a broad rule in jurisprudence that when a right is infringed, the jurisprudence presumes damage so that a redress can be obtained.Pulling this line of instances that go back toAshby v Whitetogether, Lord Brooke explains that they show how the jurisprudence guards both proprietary and possessory rights and that, in this instance, there is no demand to demo particular harm. What redress can, so, be provided by the jurisprudence? To explicate the rule of nominal amendss, Lord Brooke draws on the judgement of Lord Halsbury LC inThe Mediana[ 10 ] .

Nominal amendss are awarded to demo that a legal right has been infringed even though no great harm has been caused. Lord Brooke goes on to state that when a right can be recognised as constitutional, such as that inAshby v Whiteso these rights have a high degree of importance in a broad democracy. Lord Brooke so calls on Laws J inR V Lord Chancellor ex. p. Witham[ 11 ] to link this type of constitutional right to that relevant to the facts in this instance. In that instance Laws J argued that the right to hold entree to the tribunals had efficaciously become a constitutional right under the common jurisprudence.Bringing this line of instances to bear on the affair in manus Lord Brooke concludes that the right that needs to be defended for Mr Watkins in this instance is a right of sufficient importance that it was non necessary to demo harm and hence Lord Brooke overruled the determination of the lower tribunal and recommended that nominal amendss are awarded to the claimant, the sum of which should be decided by the lower tribunal.

Lord Brooke besides maintained that there is no ground in rule why an award of model amendss might non be made against the prison officers themselves, although, in this affair, non against the Home Office.Lord Clark agrees with the judgement of Lord Brooke, as does Lord Laws, who besides adds some remarks of his ain. Lord Laws states that it is a deceptive inquiry to inquire whether the civil wrong in inquiry is actionable in, and of itself.

He believes that there are two classs of instances – one in which harm must be shown, and the other in which it is non necessary. In the first category of instance, where a individual has suffered stuff or economic hurt as a consequence of the malicious, unlawful and knowing act of a public functionary, harm will be presumed by the jurisprudence.Three Riversis an illustration of this instance. In the 2nd class are instances in which the jurisprudence protects a right without necessitating to turn out that there has been a attendant loss. The instance ofAshby v Whiteis an illustration of this class. It is into this class that Lord Laws argues that the present facts autumn. This means that there is no demand for the claimant to demo harm as his right of entree to the tribunals has been infringed.This instance seems to go forth members of the populace in a stronger place with respect to the civil wrong of misfeasance in public office.

Prisoners are a peculiarly vulnerable group and, as Lord Brooke points out, a captive does non lose all his rights on entry to prison. This instance provides cardinal protection to what is considered a constitutional right at common jurisprudence – the right of entree to the tribunals. In the absence of a written fundamental law in this state, the House of Lords has, in this instance, reaffirmed the importance of the right of entree to the tribunals. This is a right, their Lordships maintain in their judgements, that must be protected. These are, certainly, of import rights for citizens in a modern broad democracy to hold and if the tribunals does non protect them, so who will? As a consequence of this instance, it is more easy for a individual whose constitutional rights have been infringed to derive damages from the tribunals.

Furthermore, this determination emphasises that, in the civil wrong of misfeasance in public office, in the fortunes described here, there is no demand to demo that stuff or economic harm has flowed from wrongdoing. Under this civil wrong, the harm is either implied or, when a constitutional right has been infringed, there is no demand to demo harm at all.