Date: Wed, 29 Mar 2006 15:59:24 -0700

From: Lewis Klar

Subject: Rights in The House of Lords

One can I suppose argue trespass (if the letter was in my possession at the time); or invasion of privacy (which seems to be an increasingly recognized tort).

On a different point, my own view is that misfeasance in a public office is being watered down by the courts and is beginning to merge into a tort for breach of statutory duty. I am against the trend that Odhavji and other cases seem to be encouraging that knowingly breaching a statutory duty with knowledge that some individuals are likely to be harmed is sufficient to establish malice or bad faith to constitute the tort. It seems to be that one can intentionally refuse to carry out a statutory duty because one feels, for example, that the harm that is likely to be caused to the plaintiff if one refuses to perform the duty is less than the harm which would be caused to others or the public if one carries out that duty. In the interests of full and complete disclosure, I am currently working on an article which expressed this view. Thus to the extent that Watkins v Home Office begins to reign in the tort somewhat, I am encouraged.

Lewis Klar

>>> Robert Stevens 03/29/06 4:28 AM >>>

The House of Lords have overturned a decision of the Court of Appeal and held that a prisoner cannot bring a claim for damages based upon 'misfeasance in a public office' unless he has consequential loss.

The court refused to follow Holt CJ in Ashby v White, where the denial of a right to vote was actionable in damages without proof of consequential loss.

I wonder if the case was argued correctly. We all of us have a liberty to correspond with our lawyer. If someone to whom the letter is not addressed opens my correspondence surely they commit a tort, regardless of whether they are the holder of a public office? I have a right not to have my letters opened. Does it matter in my claim for damages that I have no consequential loss? Of course, prison officers are given a statutory privilege under the Prison Rules to open a prisoner's letters, but this privilege is not absolute and did not cover the bad faith opening of letters with a legal adviser in the circumstances of Watkins.

A depressing failure to take rights seriously in my opinion. (Compare Lord Bingham at [9] with Holt CJ in Ashby v White (1703) 2 Ld Raym 938, 955, 92 ER 126, 137.)

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