Law Report: Home Office can be liable: Racz v Home - Office House of Lords (Lord Templeman, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Mustill), 16 December 1993

The Home Office can be vicariously liable for acts of prison officers which amounted to misfeasance in public office.

The House of Lords unanimously allowed an appeal by the appellant, Steven Racz, from decisions of the Court of Appeal (The Independent, 23 December 1992) and Mrs Justice Ebsworth (The Independent, 25 September 1993) to strike out his claim of misfeasance in public office against the Home Office, but dismissed his appeal against decisions that the appellant's action be tried by judge alone.

The appellant, a remand prisoner in Armley Prison, Leeds, issued a writ against the Home Office claiming damages and aggravated and exemplary damages for negligence, assault and battery and misfeasance in public office from alleged ill treatment by prison officers. He complained of detention in a strip cell and interference with his food by prison officers who were motivated by malice.

His claim based on misfeasance in public office was struck out by Mrs Justice Ebsworth who also decided that the action should be tried by a judge without a jury. The Court of Appeal affirmed the judge's decisions, on the basis that in Weldon v Home Office (1992) 1 AC 58 the House of Lords decided that the Home Office would not be vicariously liable for misfeasance by the officers because such misfeasance would involve either unauthorised acts or acts which were committed for some malicious purpose.

David Harris QC and Tim Owen (M B Birnberg & Co) for the appellant; Guy Sankey QC and Neil Garnham (Treasury Solicitor) for the Home Office.

LORD JAUNCEY said that in Weldon Lord Bridge concluded that a breach in good faith of the prison rules conferred no cause of action on a prisoner and that a prisoner who had been restrained in a manner contrary to the prison rules could not assert a claim to damages for false imprisonment.

The tort of misfeasance in public office did not arise, bad faith was not an issue and the vicarious liability of the Home Office was never in issue.

Weldon did not support the proposition that the Home Office could not be vicariously liable for acts of prison officers which amounted to misfeasance in public office.

Striking out the claim based on misfeasance in public office could only be justified if the inevitable result was that the unauthorised acts of the prison officers were so unconnected with their authorised duties as to be quite independent of and outside those duties.

It was likely to be a question of fact and degree whether the prison officers were engaged in a misguided unauthorised method of performing their authorised duties or engaged in what was tantamount to an unlawful frolic of their own.

It was impossible to determine the precise character of the actions of the prison officers on which would depend the liability or otherwise of the Home Office from a perusal of the pleadings alone and that could only be done after the facts had been established. The case must go to trial on the whole pleadings as they stood.

Turning to mode of trial, trial by jury in civil causes was governed by section 69 of the Supreme Court Act 1981 where four types of tort were enumerated. There was no logical connection between them and each tort was capable of being committed in very different circumstances. One was left with a strong impression that Parliament had retained the four torts for historial rather than for any logical reason, from which it followed that the similarity to any of those of some other tort was not a factor which must be taken into account by the court in determining whether it was appropriate to rebut the presumption against jury trial.

Lord Justice Neill in the Court of Appeal took into account the fact there was a claim for exemplary damages and considered that a jury might appropriately be called on to decide whether an individual had been subjected to arbitrary or oppressive actions by servants of the Government.

He referred to the fact that the action neither raised matters of constitutional importance nor involved the actions of senior officers, and the injuries alleged although unpleasant were not grave.

He had regard to all the matters which should have been taken into account and did not have regard to any factors which he should not have done.

There was no justification for criticising the manner in which the Court of Appeal exercised its discretion to refuse the application for jury trial. The survival of the misfeasance claim had not altered the basis on which it exercised its discretion.

Ying Hui Tan, Barrister