AS A matter of law, exemplary damages might not be awarded in an action for the tort of misfeasance in public office.
The Court of Appeal (Auld LJ dissenting) dismissed the claimant's appeal against an order striking out his claim for exemplary damages against the defendant.
The claimant commenced proceedings against the defendant, claiming exemplary damages for misfeasance in public office, the allegation being that a police officer for whom the defendant was responsible had committed the tort by forging the withdrawal of a complaint of theft.
The defendant's application to have the claim struck out as showing no reasonable cause of action succeeded, the judge holding himself bound by the decision of the Court of Appeal in AB v South West Water Services Ltd  1 All ER 609 that the effect of the House of Lords' ruling in Rookes v Barnard  1 All ER 367, as interpreted in Cassell & Co v Broome  1 All ER 801, was that in the first two categories of case in which exemplary damages were available, they were only recoverable in respect of those causes of action for which such damages had been awarded before Rookes v Barnard. He held that misfeasance in public office, although satisfying the "categories" test, did not satisfy the "cause of action" test. The first two categories of case set out in Rookes v Barnard were cases of oppressive, arbitrary or unconstitutional action by servants of the government; and cases of wrongful conduct which had been calculated by the defendant to make a profit for himself which might well exceed the compensation payable to the claimant.
The claimant appealed, submitting that the tort of misfeasance in public office should be regarded as an exception to the "cause of action" test or, alternatively, that it was arguable on a close analysis of some early authorities that it satisfied the test.
David Harris QC and Nicholas George (Smith Partnership, Leicester) for the claimant; Simon Freeland and Georgina Kent (Michael Feeney, Leicester) for the defendant.
Lord Justice Beldam said that the respondent's contention, upheld by the judge below, was that exemplary or punitive damages were not recoverable having regard to the principles laid down by the House of Lords in Rookes v Barnard  1 All ER 367 and Cassell & Co v Broome  1 All ER 801, and by the Court of Appeal in AB v South West Water Services Ltd  1 All ER 609. …