Date: Fri, 31 Mar 2006 10:24:55 +1000

From: Neil Foster

Subject: Rights in The House of Lords

Dear Robert et al;

A very interesting decision. I wondered what other members on the list thought about this quote from para [9] of Lord Bingham's judgement, which seems to represent the overall tone of the decision: "it is correctly said that the primary role of the law of tort is to provide monetary compensation for those who have suffered material damage rather than to vindicate the rights of those who have not." I would have thought that this was not a proposition that was universally accepted, at least in current torts scholarship. Once this is accepted, though, then it is not surprising that a lack of "material damage" is not compensable in the tort of MPO.

As an analysis of previous authority the judgements seem reasonable; good to see their Lordships considering cases from the Commonwealth, and the result seems to be consistent with all the Australian authority as far as I can see.

The CA decision could be viewed as a brave attempt to develop the law of torts and identify another type of harm beyond those categories of "material" harm previously recognised. Breach of "constitutional" rights seems a good category to explore given of course the increasing growth of anti-terrorism laws which seem to undermine rights of this sort (and hence the need of courts to provide a remedy where the protections attempted to be provided by those laws are not provided. Here the prison officers had the power to open letters in clearly defined circumstances, but the rules were ignored. Lord Walker, in his "near-dissent", is right to note in [68] the ineffectiveness of the other suggested "remedies").

In another, not dissimilar case, Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763 a majority of the House seemed to accept that a breach of statutory provisions requiring a prisoner to have access to a lawyer would have been civilly actionable in the tort of "breach of statutory duty". A very strong judgement of Lord Bingham and Lord Steyn so finds (and finds that such a breach is actionable per se - see para [21]). Lord Hutton accepted that the breach of statute was civilly actionable but rejected the claim on the basis that no quantifiable harm had been suffered (paras [41]-[44]), and Lords Millett and Rodger found the breach not civilly actionable.

The application of the tort of breach of statutory duty here in Watkins was ruled out because in R v Deputy Governor of Parkhurst Prison ex p Hague [1992] 1 AC 58 the Prison Rules as a whole were held not to give rise to civil actions - see Lord Rodger in Watkins at [39].

In Australia we do, of course, have a written Constitution, lack of which in the UK was one of the reasons for rejection by the House in Watkins of the category of "constitutional rights" breach of which would amount to an actionable harm. But our Constitution contains very few individual "rights" - the only which spring to mind immediately would be s 116 (preventing the Cth, though not the States, from "prohibiting the free exercise of any religion") and the implied constitutional right to freedom of speech on political matters. It would be interesting to see if our courts would upheld a case for MPO absent "material" damage where what was denied was a right to worship (a Muslim prisoner refused the opportunity to conduct regular prayers?) or a right to receive information about an election in which a person was entitled to vote.

Another element of Watkins is an interesting issue about the development of the law of torts in the Commonwealth. One of the reasons that their Lordships seem to be able to refuse damages here seems to be the view that now (though not at the time of the incidents occurring here?) there would be a civil action under s 7 of the Human Rights Act 1998 - see Lord Bingham at [26]. Lord Hope seems to imply at [32] that such an action would not, however, include exemplary damages.

Previously the view that the House took of a tort matter, while of course no longer binding on an Australian court, would have been fairly persuasive. But it strikes me that courts in Australia will now have to factor in that the law of torts may not develop as it would otherwise have developed in the UK because courts there are influenced by the availability of other remedies or principles derived from the European law. It may be that Lord Bingham is right to be concerned that the development of tort may be "stunted" by the leaving of these issues to be "swept up" by the European Convention on Human Rights - see [26] where his Lordship says that this is not an issue here, but I am not so sure.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Robert Stevens 29/03/06 10:28 >>>

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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