This appeal raises an interesting question as to the ingredients of the tort of misfeasance in public office, which we will call ‘misfeasance’ for short. It is common ground that the claimant must prove damage, sometimes called material or special damage. The question is whether loss of liberty is damage and, if so, what amounts to loss of liberty for this purpose.

It is an appeal from part of an order of District Judge Avent made at the Central London County Court on 24 September 2004 in which he struck out the claimant’s claim against both defendants. The first defendant was the Commissioner of Police of the Metropolis whom we will call ‘the Commissioner’. The second defendant was the Secretary of State for the Home Department, although it appears that the intended defendant was the Home Office. For convenience we will call the second defendant ‘the Home Office’. The claimant, whom we will call ‘the appellant’, did not appeal against the order striking out his claim against the Home Office. His application for permission to appeal against the order striking out his claim against the Commissioner was refused by the district judge. Permission was subsequently granted by his Honour Judge Collins on 22 March 2005 and the appeal was transferred to this court under CPR Part 52.14. As appears below, the grounds of appeal now advanced are not the same as the grounds which persuaded Judge Collins to grant permission to appeal.

On 8 November 2001 the appellant was sentenced at Woolwich Crown Court to 6 years imprisonment for conspiring to defraud Her Majesty’s Customs & Excise. It was a VAT fraud. He was also sentenced to 3½ years imprisonment for perverting the course of justice. The sentences were ordered to run consecutively, so that the total period of imprisonment was 9½ years.

The appellant had been held on remand pending his trial. While on remand he was held in Category A conditions. By the time of his conviction he had been on remand for about 3 years. After conviction he was given the status of a Category B prisoner. On 15 February 2002 he was given the status of a Category D prisoner and consequently moved to HMP Ford in Sussex. HMP Ford is an open prison.

On 19 March 2002 the appellant was segregated in HMP Ford under rule 45 of the Prison Rules 1999. The reason given on Form F1299D, which is entitled “Segregation under Prison Rule 45” and which was signed on that day by Nigel Foote, was as follows:

“Following information received, it is believed to be unsafe for you to remain at Ford. To remain in the segregation unit for your own safety until a move is arranged from HMP Ford.”

On the same day Mr Foote completed a Re-Categorisation/Re-Allocation Form (known as an RC/1). Under the heading “comments” he said this:

“Information received from PLO (Police Liaison Officer) that this prisoner’s life might be in danger if he remains at HMP Ford. Should return to closed conditions in the interest of prisoner’s safety. Any move back to open conditions must be in liaison with Police Liaison Officer.”

The RC/1 stated that the appellant was to remain a Category D prisoner, although on the same day he was moved from HMP Ford to HMP Winchester. It is alleged in the particulars of claim that HMP Winchester is a closed Category B prison and that it does not cater for prisoners with a Category D status.

On 21 March 2002 the appellant completed a complaints form. The top half of the form is completed by prison staff and shows that the appellant was still considered a Category D prisoner on that date. The appellant said that he was not aware that he was in any danger and asked that his case be investigated. He also said:

“… on the afternoon of 17 March 2002 I was escorted by 2 prison officers to HMP Winchester, once again to secure conditions. I was told it was for my safety, I could not understand how or why my own safety suddenly became an issue. After arriving here at HMP Winchester, the staff were as surprised as me and were anxious to help me get to the bottom of my plight. After looking into my problem, I was told that the only further information they could come up with was, not only was my safety an issue, but also my wife was in danger. … I am aware that a police liaison officer has passed this information on to a higher authority who had little chance but to respond. This is where my suspicions lie. … I do not wish to sound cynical, however from the very start there has been a great deal of animosity and hostility between the police and those of us charged by them. … I believe without any doubt that the police are victimizing me even though my case is over. It seems very odd the police have not approached me to discuss this threat…”

The date of 17 March seems to be a mistake for 19 March.

On 10 April 2002 the appellant was categorised as a Category C prisoner. On a Form ICA 1, which was completed by one IK Lawson and produced by the Prison Service, the following handwritten note appears:

“Instructed by HQ to categorise this inmate as CAT D. Thought inappropriate as he was a potential CAT A until 21/11/01. There is no old categorisation form in his F2050 and page 1 states CAT B.”

On 15 May 2002 Caroline Dale, of the Deputy Director General’s Briefing and Casework Unit at Prison Service HQ, replied as follows:

“…from our telephone conversations you have stated that you are aware the reasons for your removal were not due to the initial explanation that threats had been made against your life but rather issues surrounding public safety.

Belmarsh considered you to be a model prisoner and re-categorised you to open conditions. It was also noted whilst at Ford you successfully completed an unescorted visit to hospital. However, evidence had been given in the Crown Court as late as 1 May 02, stating that you have access to firearms over and above those held in possession by your brother. Evidence has also shown that you have threatened police and customs officers.

This behaviour is not conducive to being held in Cat D conditions and therefore the decision to transfer you. I offer you my apologies for the initial confusion regarding the reason for your removal from Ford. I understand this may have been distressing to yourself and your family…”

It is the appellant’s case that the reason given in this letter for the appellant’s removal to Winchester is entirely different from that given originally.

In June 2002 the appellant complained to the Prison and Probation Ombudsman about his transfer. On 23 August 2002 he commenced proceedings for judicial review against the Home Office. On 14 or 16 October 2002 he was returned to HMP Ford and apparently re-categorised as a Category D prisoner. On 2 January 2003 the judicial review proceedings were compromised; he withdrew his claim and the Home Office paid the costs of the proceedings. The complaints procedure concluded with a letter from the Ombudsman dated 22 October 2002 saying, among other things, that having regard to the judicial proceedings and the appellant’s re-categorisation as a Category D prisoner, there was nothing more the Ombudsman could do.

On 6 January 2004 the appellant issued these proceedings seeking damages, including aggravated and exemplary damages, against the Commissioner and the Home Office. The proceedings maintained claims in misfeasance against the Commissioner and in both misfeasance and negligence against the Home Office.

As against the Commissioner, it was alleged that

The Commissioner filed a defence which

The allegations against the Home Office were somewhat different. They included a claim in negligence, whereas the allegations against the Commissioner did not, and the pleaded particulars of misfeasance were markedly different. It is not, however, necessary to set out the allegations in detail in order to determine the issues in this appeal, to which the Home Office is not a party. Suffice to say that the Home Office did not file a defence but on 18 March 2004 issued an application to strike the claim out on the grounds that:

The appellant’s case is that DS Hill refused to supply a copy of the letter written to HMP Ford. On 21 April 2004 the appellant issued an application for specific disclosure of the letter. The Home Office objected to production of the letter on the grounds of public interest immunity. We note in passing that it is not easy to see how the Commissioner could object to the disclosure of the letter while at the same time pleading a positive case based upon it. However that may be, the parties agreed that the appellant’s application for production of the letter should be heard after the application to strike out had been determined. That agreement has had what in our view is the unfortunate result that the district judge did not see a copy of the letter and nor have we. Nevertheless, it was accepted by the defendants before the district judge and it has been accepted by the Commissioner before us that the court must proceed on the basis that the facts alleged on behalf of the appellant are true; in particular, that DS Hill provided false information to HMP Ford, that that information was known either by DS Hill or by other police officers to be false, that the information was passed to the Prison Service maliciously and with the intention of causing the appellant damage and that his transfer from HMP Ford to HMP Winchester was carried out as a result of the false information provided by DS Hill to HMP Ford.

The Commissioner at no stage issued a formal application to strike out the claim against him. He was, however, represented before the district judge. The application by the Home Office was not made on the basis that the appellant’s case was doomed to failure but on the basis that, on the assumed facts, the appellant could not succeed.

Before the district judge, the Home Office was represented by Mr Beer and the Commissioner was represented by Mr Walsh. One of the points taken on behalf of the Home Office was that it was necessary for a claimant to allege actual damage in order to succeed in misfeasance. This part of the case was, however, complicated by the fact that, after the conclusion of the argument, but before judgment was handed down by the district judge, on 20 July 2004 the Court of Appeal (comprising Brooke, Clarke and Laws LJJ) delivered judgment in Watkins v The Home Office [2004] EWCA Civ 1136, [2004] 4 All ER 1158.

In Watkins it had been held at first instance that three prison officers had opened a prisoner’s correspondence in bad faith and in breach of the Prison Rules but that his claim for damages for misfeasance failed because loss or damage was an essential ingredient of the tort and that no loss or damage was alleged. It followed that he was not entitled to exemplary damages. In this court it was held that, where the malicious act of a public officer interfered with a constitutional right, it was not necessary to prove special damage, that the officers had interfered with the prisoner’s constitutional right of access to the courts and that the prisoner was in principle entitled to exemplary damages. It should be noted that it was not argued that interference with a person’s mail itself caused relevant damage. The parties made written submissions to the district judge on the basis of the decision of this court in Watkins.

The district judge subsequently handed a down a closely reasoned decision. So far as the claim against the Home Office is concerned, his conclusions may be summarised in this way. The claim in negligence was struck out because it was necessary to allege actionable damage, which the appellant had failed to do and because exemplary damages were not recoverable in the absence of damage which could form the basis of a claim for compensatory damages. The district judge further held that the Home Office did not owe the appellant a duty of care. As to misfeasance, although (in the light of Watkins) a claim was actionable per se (ie without proof of economic or material loss or damage) if the claimant could show that the defendant had interfered with a constitutional right, there was no such interference in this case because a prisoner has no right, whether constitutional or otherwise, to be detained in a prison of a particular category. In any event the appellant had not alleged material damage and had failed to plead his case of bad faith with sufficient particularity. The appellant did not seek to appeal against the decision striking out his claim against the Home Office.

Although, as already stated, the Commissioner did not make a formal application to strike out the claim against him, he was represented before the district judge by Mr Walsh and adopted the submissions made by Mr Beer on behalf of the Home Office. He did so by accepting (or perhaps averring), in answer to the district judge, that there was a commonality of interest between the Commissioner and the Home Office and that if the appellant had no cause of action against the Home Office, he equally had no cause of action against the Commissioner.

Counsel for the appellant, who was then Mr Sefton-Smith, had accepted in his skeleton argument that a finding that the appellant had suffered what he described as the ‘wrong type of damage’ for the purposes of the claim for misfeasance against the Home Office, would also be fatal to the claim against the Commissioner. He accordingly did not oppose the making of an order striking out the appellant’s claim against the Commissioner but he applied for permission to appeal. The judge refused his application on the ground that an appeal would have no real prospect of success because the ‘right’ contended for did not fall within the category of constitutional right contemplated by this court in Watkins.

The appellant sought permission to appeal from Judge Collins on the grounds that the district judge was wrong to hold that no actionable damage was pleaded and/or that residual liberty was a protected right of a constitutional or equivalent nature. As already stated, Judge Collins granted permission to appeal and transferred the appeal to this court.

Since then there has been a further important development. The House of Lords allowed the defendant’s appeal in Watkins [2006] UKHL 17, [2006] 2 WLR 907. The House held in essence that special or material damage is part of the gist of the tort of misfeasance, that whether a right could be said to be constitutional or not was not relevant to whether there was such damage and that the prisoner’s claim failed in Watkins because no such damage was alleged. This decision radically altered the nature of the appeal which the appellant could advance in the instant case. His appeal has accordingly been recast in the light of the decision of the House of Lords. Although Mr Beer naturally draws attention to the way in which the appellant’s case has changed, he realistically recognises that this has been caused by a radical change in the legal landscape and that he cannot fairly submit that the Commissioner is prejudiced by the appellant being allowed to advance the case in the way he has put it before us.

The appeal now raises two issues of principle. The first is whether a person who loses his freedom as a result of misfeasance has suffered damage sufficient to entitle him to recover general damages from the defendant. The second is whether, if so, a prisoner who is moved from open conditions as a Category D prisoner to closed conditions as a Category B prisoner is such a person.

It is common ground that, in the light of the decision of the House of Lords in Watkins, loss or damage is an essential ingredient of the tort of misfeasance. It is not suggested that the appellant has suffered financial loss. So the question is what amounts to damage for this purpose. Mr Beer submits that on the assumed facts here the appellant did not suffer relevant damage and that his claim for misfeasance, which on the assumed facts would otherwise succeed, is bound to fail. Mr Challenger submits, on the other hand, that the House of Lords was not considering a case of this kind and that principle leads to the conclusion that a person who loses his freedom as a result of a dishonest abuse of power by a public servant such as a police officer has suffered damage sufficient to entitle him to recover general damages for that loss of freedom.

If this question were free from authority, we would accept Mr Challenger’s submissions without much hesitation. It is common ground that a person who is unlawfully detained and loses his freedom as a result of the tort of false imprisonment is entitled to general damages: see eg Roberts v Chief Constable of Cheshire [1999] 1WLR 662, and, more importantly, Thompson and Hsu v Commissioner of Police for the Metropolis [1998] QB 498, where this court gave guidance as to directions which might be given to juries in cases of false imprisonment and malicious prosecution. The guidance related to what the court called basic damages, aggravated damages and exemplary damages.

Lord Woolf MR, who gave the judgment of the court (which also included Auld LJ and Sir Brian Neill), said at pages 514 to 515:

“(1)

It should be explained to the jury that if they find in the plaintiff’s favour the only remedy which they have a power to grant is an award of damages. Save in exceptional situations such damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage which he has suffered. They are not intended to punish the defendant.

(2)

As the law stands at present compensatory damages are of two types. (a) Ordinary damages which we suggest should be described as basic, and (b) aggravated damages. ….

(3)

The jury should be told that the basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff. But they should be provided with an appropriate bracket to use as a starting point. ….

(4)

In a straightforward case of wrongful arrest and imprisonment or malicious prosecution the jury should be informed of the approximate figure to be taken as the correct starting point for basic damages for the actual loss of liberty or for the wrongful prosecution, and also give an approximate ceiling figure. …”

We have put both the reference to damages being intended to compensate the plaintiff (now the claimant) for any injury or damage which he has suffered and the reference to basic damages for actual loss of liberty in italics because they seem to us make clear that it was this court’s view in Thompson that in cases of false imprisonment general damages are awarded for damage suffered by the claimant for loss of his or her liberty. The damage referred to in paragraph (1) of the quote is the loss of liberty referred to in paragraph (4).

We recognise that, in so far as the court was speaking of damages for false imprisonment, the instant case is different in that false imprisonment is a tort actionable per se without proof of special damage whereas, as Watkins in the House of Lords shows, misfeasance is actionable only on proof of such damage. However, that does not seem to us to be a relevant distinction. Indeed, Mr Beer does not rely upon that distinction but upon the submission that loss of liberty does not amount to injury or damage for the purposes of the tort of misfeasance. He submits that such a conclusion follows from the reasoning of the House of Lords in Watkins.

We will return to Watkins in a moment but it does not seem to us to be correct in principle to distinguish between what is injury or damage for the purposes of the tort of false imprisonment on the one hand and for the purposes of the tort of misfeasance on the other. As we see it, loss of liberty should either be relevant injury or damage in both cases or in neither case. In either case, in the absence of a claim for identifiable loss, a successful claimant should be entitled to recover general damages for loss of liberty. Such damages should in our view be recoverable in both cases and assessed in accordance with the guidelines laid down in Thompson. The amount of the damages so assessed would of course depend upon the circumstances of the particular case.

It is to be noted that in Thompson, although the court was not considering a case of misfeasance, as paragraph (4) quoted above makes clear, it was laying down guidelines applicable both to false imprisonment and to malicious prosecution. Malicious prosecution, like misfeasance, is a tort which requires proof of damage. This was clearly explained by Lord Steyn (with whom the other members of the appellate committee agreed) in Gregory v Portsmouth City Council [2000] 1 AC 419. Speaking of the tort of malicious prosecution, he said this at pages 426H to 427A:

“This element of the tort was explained in a dictum of Holt CJ in Savill v Roberts (1698) 12 Mod Rep 208. Holt CJ defined the interest protected by the tort as follows:

“there are three sorts of damages, any one of which is sufficient ground to support this action. First damages to [the plaintiff’s] fame, if the matter wherof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses.”

In Berry v British Transport Commission [1961] 1 QB 149 at 160 Diplock J observed that there were ten different reports of the decision in Savile v Roberts but that the most valuable were those at 1 Lord Raymond’s Reports at 374 and 5 Modern Reports at 405. The reports include 1 Salk 13, 3 Salk 16, Carthew 416, 12 Mod 208, Holt KB 150 and 193, 5 Mod 405 and Holt KB 8. The plaintiff was variously called Savill, Savile or Saville in the reports. Diplock J’s decision was reversed in the Court of Appeal but not on a ground that is relevant here: see [1962] 1 QB 306.

In the report of Savill v Roberts in 1 Ld Raym at page 378, Holt CJ is reported as saying that there are “three sorts of damages which would be sufficient ground to support the action”:

“1.

The damage to a man’s fame, as if the matter whereof he is accused be scandalous. … 2. The second sort of damages, which would support such an action, are such as are one to the person; as where a man is put in danger to lose his life, or limb or liberty, which has always been allowed a good foundation of such an action. … 3. The third sort of damages, which will support such an action, is damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused, which is the present charge.”

See also to similar effect the report in Carthew 416, where the second ground is quoted as:

“”Where any damage is done to his person, as by imprisonment, battery etc, for that respects his liberty”

In Berry both Diplock J and the Court of Appeal followed the principle stated by Holt CJ as reported by Lord Raymond (see pages 160 and 318 of the respective reports) and Diplock said (at page 161) that an examination of the other reports showed that, as to the second head of damage, actual imprisonment had to be proved.

Thus a person who is imprisoned or loses his life, limb or liberty has suffered injury or damage sufficient to support the tort of malicious prosecution and, in the light of Thompson, sufficient to entitle him to general damages. It is we think of note that, at any rate in the reports in Lord Raymond and Carthew, Holt CJ treated loss of life, limb and liberty as injuries to the person, or at least as analogous to injuries to the person. Mr Beer submits that malicious prosecution and misfeasance are different torts and that the reason why loss of life, loss of limb or loss of liberty were all sufficient damage for the purposes of malicious prosecution was that historically some criminal offences were punishable by loss of life, limb or liberty. That may be so but we can see no reason in principle to hold that what is damage for the purposes of malicious prosecution is not damage for the purposes of misfeasance.

The question then arises whether the authorities on misfeasance and, in particular, the decision of the House of Lords in Watkins lead to a different conclusion. Mr Beer submits that Watkins does lead to a different conclusion. He relies in particular upon the speech of Lord Bingham. In particular, he relies upon these paragraphs in Lord Bingham’s speech:

“1.

Is the tort of misfeasance in public office actionable without proof of financial loss or physical or mental injury and, if so, in what circumstances? Those are the questions which the House must resolve in this appeal by the Home Office, which is the first defendant in these proceedings. There were originally fourteen other defendants in the action, but none is party to this appeal.

7.

…. There was no challenge to the judge's findings of bad faith against the three officers, nor to his finding that their conduct had caused the respondent no financial loss or physical or mental injury, which in argument was helpfully described as "material damage", an expression understood to include recognised psychiatric illness but not distress, injured feelings, indignation or annoyance. The respondent wished to be free in any later hearing to contend that he had suffered emotions of the latter kind. It was common ground, in the light of the decision of the House in Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 AC 122 that exemplary damages could in principle be awarded where misfeasance in public office was established. But the appellant challenged the proposition, accepted by the Court of Appeal and supported by the respondent, that exemplary damages could be awarded even where no material damage was shown because, as it contended, proof of such damage was a necessary condition of establishing the tort.

23.

These authorities present a remarkably consistent body of law on the point now at issue. The proving of special damage has either been expressly recognised as an essential ingredient, or it has been assumed. None of these cases (and no authority, judicial or academic, cited to the House) lends support to the proposition that the tort of misfeasance in public office is actionable per se. Ashby v White, 1 Smith’s LC (13^th ed) 253 as I have suggested, is not reliable authority for that proposition. I would be very reluctant to disturb a rule which has been understood to represent the law for over 300 years, and which has been adopted elsewhere, unless there were compelling grounds for doing so.

27.

For these reasons, and those given by my noble and learned friends Lord Hope of Craighead, Lord Rodger of Earlsferry and Lord Carswell, I would accordingly rule that the tort of misfeasance in public office is never actionable without proof of material damage as I have defined it.”

It is common ground that the House of Lords held that proof of damage is an essential ingredient of the tort of misfeasance and that this court’s conclusion that, absent such damage, the tort could nevertheless be established if the claimant could establish a breach of a constitutional right, was wrong. Since, as Lord Bingham noted in paragraph 7, there was no challenge to the judge's finding that the prison officers’ conduct had caused the respondent no financial loss or physical or mental injury, which had been described in argument as "material damage", it was not necessary for the House to decide precisely what would amount to “material damage” and what would not.

Although that is so, some consideration was given to the question. We are conscious that we have quoted very few paragraphs from Lord Bingham’s detailed speech. We refer to them expressly because they were subjected to particular focus in the course of the argument before us. Mr Beer submits that, when read with paragraphs 1 and 7, paragraph 27 shows that a person does not suffer material damage merely by losing his liberty. The submission is that a claimant must establish material damage as defined in paragraph 7 and that, as so defined, he must establish financial loss or physical or mental injury, which includes recognised psychiatric illness but not distress, injured feelings, indignation or annoyance. We accept the submission thus far. That is indeed how Lord Bingham put it.

However, Mr Beer further submits that loss of liberty does not fall within Lord Bingham’s definition of material damage. The problem which Mr Beer faces is in our view that Lord Bingham was not considering the particular question which arises in this case. He was not considering whether loss of liberty caused by misfeasance was material damage because the point did not arise for decision and, so far as we can see, was not discussed in argument. We do not think that the decision in Watkins is authority for the proposition that loss of liberty is not material damage for this purpose. Nor do we think that there is anything in Lord Bingham’s speech (or indeed any of the other speeches) which supports Mr Beer’s submission.

If ‘material damage’ is defined as stated above, we would hold that loss of liberty, if not a form of physical of physical injury, is at least akin to or analogous to physical injury. This view seems to us to be supported by the approach of Holt CJ to damage in the tort of malicious prosecution, where (as stated above) a person suffers relevant damage “to his person, whereby he is imprisoned” or where he is “put in danger to lose his life limb or liberty”. In either formulation Holt CJ is treating loss of liberty as a form of material damage. It seems to us that the same approach can properly be adopted to the question whether loss of liberty is a form of material damage for the purposes of the tort of misfeasance. Such damage can then be compensated for by an award of general damages in accordance with the approach in Thompson. Moreover, it might be appropriate to make an award of exemplary damages in such a case, depending of course upon the circumstances.

We see nothing in the reasoning of Lord Bingham to lead to any other conclusion. On the contrary, his detailed historical analysis of the misfeasance cases in paragraphs 11 to 22, which led him (and the House of Lords) to the conclusion that proof of special damage is an essential ingredient of the tort, seems to us to support the appellant’s case. One of the cases cited, which was referred to by Lord Bingham in paragraph 17 was Brasyer v Maclean (1875) LR 6 PC 398, which was an appeal to the Privy Council from New South Wales. Lord Bingham described the case thus:

“It arose from a false return made by a sheriff which led to the arrest of the plaintiff and his attachment for 24 hours. The Board differed from the Supreme Court, which had nonsuited the plaintiff because no malice had been shown. But the Board regarded it (p 404) as "impossible to say that no damage was sustained by the Plaintiff in consequence of that arrest", held (p 406) that the sheriff was guilty of a misfeasance and held (p 406) that the damage resulting from the misfeasance was "sufficient damage to enable the Plaintiff to maintain an action against the sheriff for that misfeasance.”

Given Lord Bingham’s reliance on the case as part of “a remarkably consistent body of authority” on the point at issue and as an example of the court requiring damage to be proved, it is of interest to note the nature of the damage which the Privy Council held to be sufficient damage for this purpose. Sir Barnes Peacock, giving the judgment of the Board, said at page 404, after saying (as Lord Bingham observed) that it was impossible to say that no damage was sustained by the plaintiff in consequence of his arrest:

“He was apprehended and detained in custody from the 6^th to the 7^th March, and he was subject to all the indignity of an arrest, and to the injury to his reputation from having it recorded against him that he had assisted or rescued the prisoner out of the custody of the sheriff, and that he had been attached for contempt of court.”

Sir Barnes Peacock added at page 406:

“The mere fact of the misfeasance and the damage resulting from it by reason of the attachment issuing upon the return as conclusive evidence against the Plaintiff was sufficient damage to enable the Plaintiff to maintain an action against the sheriff for that misfeasance, and to recover the damage which he had sustained in consequence.”

The effect of a writ of attachment being issued against the plaintiff was that he was (as the report puts it at page 398) thereupon arrested, imprisoned and detained in prison until by leave of the court he obtained bail.

It appears to us that that decision supports the conclusion that loss of liberty as a result of misfeasance is sufficient damage to support a cause of action. It also supports the conclusion which we expressed earlier that there is no reason to distinguish in this respect between misfeasance and malicious prosecution. Moreover, the fact that Lord Bingham relied upon it in support of his conclusion that damage is a necessary ingredient of the tort without in any way doubting the Privy Council’s view as to what amounts to relevant damage for this purpose indicates, at the very least, that Lord Bingham had not formed the view that loss of liberty could not amount to such damage.

Lord Hope agreed with Lord Bingham, as well as with Lord Rodger and Lord Carswell. In paragraph 42 Lord Rodger identified the relevant question as whether this court was correct to hold that a claimant could succeed without proof of special damage where the misfeasance interfered with a constitutional right. He too held that it could not. In paragraph 46 he quoted this statement of Lord Hobhouse in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at page 231:

“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.”

As we see it, the special damage asserted by the appellant in the instant case is his alleged loss of liberty.

Lord Walker also accepted, albeit with some reluctance, the proposition that misfeasance is only actionable on proof of special damage. He did not, however, analyse what is meant by special damage because it was not necessary to do so. Lord Carswell agreed with Lord Bingham and Lord Rodger. He used the expression ‘material damage’ rather than ‘special damage’ but, as Lord Bingham’s speech shows, there is no distinction between those two expressions in this context. Lord Carswell did not discuss what was meant by material damage, again no doubt because it was not necessary to do so.

In all these circumstances we have reached the conclusion that loss of liberty is a form of special or material damage sufficient to support a claim for misfeasance in public office if the other ingredients of the tort are made out.

In the instant case the appellant was in prison and thus not at liberty. He was a Category D prisoner held in open conditions at HMP Ford. His complaint is that because of the alleged misfeasance of the police he was moved to a Category B prison, where he was held in closed conditions. The question is whether, on the assumption that those allegations of fact are true, he is in principle entitled to general damages for a further restriction on his liberty caused by his removal to HMP Winchester.

This question has been considered in the past. In R v Deputy Governor of Parkhurst Prison ex p Hague [1992] 1 AC 58 it was held by the House of Lords that by reason of section 12 of the Prison Act 1952 a prisoner could not sue the Home Office for damages for false imprisonment or for breaches of the Prison Rules. Importantly in the present context, the House held that a prisoner has no residual liberty vis-à-vis the governor of the prison to enable him to sue for false imprisonment: se eg per Lord Bridge at page 162 and Lord Jauncey at page 176. However, in those passages Lord Bridge and Lord Jauncey were not considering a claim for misfeasance but were focusing on allegations of breach of duty and false imprisonment in circumstances where no allegations of bad faith had been made: see per Lord Jauncey, with whom the other members of the House agreed, in Racz v Home Office [1994] 2 AC 45 at page 52.

In Hague Lord Bridge did give some consideration to the position where the alleged tortfeasors were not acting with the authority of the governor. He said at page 164:

“I turn next to the question posed by the example given in the judgment of Parker LJ in the Weldon case, ante, pp 145G-146A of a prisoner locked in a shed by fellow prisoners. I think the short answer to this question is given by Taylor LJ who said in the Hague case, ante, p 123:

“In such a situation an action for false imprisonment would surely lie (for what it was worth), since the fellow prisoners would have no defence under section 12 of the Prison Act 1952.”

The prisoner locked in the shed is certainly restrained within defined bounds and it is nihil ad rem that if he were not locked in the shed, he would be locked in his cell or restrained in accordance with the prison regime in some other part of the prison. The restraint in the shed is unlawful because the fellow prisoners acted without the authority of the governor and it is only the governor, who has the legal custody of the prisoner, and persons acting with the authority of the governor who can rely on the provisions of section 12(1).

This consideration also leads to the conclusion that a prison officer who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in public office. Lacking the authority of the governor, he also lacks the protection of section 12(1).”

We note in passing that in the next sentence Lord Bridge said that neither the governor nor the Home Office would be vicariously liable for the misfeasance in such a case, but that view (which was obiter) must now be treated as wrong in the light of the decision in Racz. However that may be, Lord Bridge recognised that a prisoner who is lawfully detained in a prison may recover damages in misfeasance from a prison officer who restrains a prisoner. Lord Ackner put what is essentially the same point at pages 166 to 167:

“I am not however prepared to accept that as a matter of general principle a person who is lawfully deprived of part only of his liberty, cannot sue in tort for false imprisonment, if unlawfully deprived of the residue or balance of that liberty. While a prisoner has no residual liberty vis-à-vis the governor, I would not accept that he had no remedy against a fellow prisoner who locked him in some confined space.”

Lord Ackner then quoted the dictum of Taylor LJ quoted above with approval. It is true that Lord Ackner was there speaking of false imprisonment, but we do not think that there can be any doubt that he would have held that the prisoner had a remedy against a person who was guilty of misfeasance if the misfeasance had deprived him of what Lord Ackner called part of his liberty. Lord Jauncey also said (at page 178) that it did not follow from the fact that a prisoner has no residual liberty against the prison governor that vis-à-vis a fellow prisoner he does not have “such measure of liberty as is permitted to him by the prison regime”.

In Toumia v Evans The Times 1 April 1999, CAT transcript 12 March 1999, this court, comprising Brooke and Clarke LJJ, considered a case in which it was alleged that prison officers who had failed to let prisoners out of their cells because they were attending a union meeting were liable in false imprisonment and misfeasance. The claim was in effect against the Prison Officers’ Association. The action had been struck out but the prisoner’s appeal was allowed on the basis that his claim was at least arguable both in false imprisonment and in misfeasance. As to misfeasance, the court’s conclusion can be seen from this part of paragraph 55 of the judgment of the court delivered by Brooke LJ:

“[Counsel] submitted to us that if the plaintiff could not succeed in false imprisonment because his continued detention in the cell was authorised by the governor, it would follow that he could not establish misfeasance in public office. We do not accept this submission because it is, in our judgment, at least arguable that where a prison officer deliberately and “dishonestly” refuses to carry out his duties such that the governor decides not to give a direct order to unlock the cells, but to leave high risk prisoners in their cells until some agreement is reached with the POA, perhaps in order to avoid turmoil in prison, while the prison officer may not be liable for false imprisonment, he may be liable for misfeasance in public office.”

We would go further. We can see no reason why he should not be liable for misfeasance.

Although none of those cases is binding authority for the proposition that loss of what has been called residual liberty is actionable in misfeasance if the other ingredients of the tort are established, the dicta to which we have referred support the conclusion that it is. So too, in our opinion, does principle. Two examples were given in argument. First, suppose a person is detained within a lawful police cordon in, say, Oxford Street and he is then handcuffed to a lamp post by a police officer. We can see no reason why that person should not be able to proceed against the police officer for false imprisonment if his act was unlawful or for misfeasance if the other ingredients of the tort are established. Secondly, suppose a prisoner is put in solitary confinement by a prison officer acting in such a way that he is guilty of misfeasance. We can see no reason in principle why he should not say that he has been deprived of what Lord Ackner described as the residue or balance of his liberty.

In paragraph 27 of the particulars of claim it is alleged that, by reason of misfeasance, the appellant has suffered distress, anxiety, inconvenience, loss and damage. The decision of the House of Lords in Watkins shows that, while the appellant cannot recover in respect of distress, anxiety or inconvenience, he can in principle recover in respect of loss and damage, if he has suffered any. The ‘Particulars of Injury’ do not allege loss. The question is whether they allege damage. They include:

“(i)

Throughout the duration of his detention at HMP Winchester the Claimant was kept in worse conditions than those at HMP Ford.

(ii)

Throughout the duration of his detention at HMP Winchester the Claimant was deprived of enjoying the privileges and benefits available to prisoners at open prisons and that he would have enjoyed had he remained or been returned to HMP Ford.

(iii)

At HMP Ford the Claimant was allowed to associate freely with other prisoners and move freely about the prison. At HMP Winchester, the Claimant’s movements were more restricted and he was kept locked in his cell the majority of the time.

(iv)

At HMP Ford the Claimant was due for day release for the first time on the weekend following his transfer. He had informed his wife and two young children and a day out to the seaside had been arranged. The transfer meant that this visit did not occur. For the duration of the period he was at HMP Winchester the Claimant was not allowed any day releases or home visits as he would have been had he remained at HMP Ford. ….”

It appears to us that those particulars do allege relevant damage. They allege damage special to the appellant and they allege a significant loss of the liberty which he would have enjoyed if he had remained a Category D prisoner at HMP Ford. He would have been much less confined both while at Ford and on day release than he was after his transfer to HMP Winchester. That damage is in our opinion a form of the special or material damage to which the House of Lords referred in Watkins.

For these reasons we allow appellant’s appeal against the order striking out his claim against the Commissioner. Whether his claim will succeed is of course a very different question and will depend upon whether he can establish the ingredients of the tort which were assumed both before the district judge and before us.