| Ashby v White | |
| Court: | Court of King's Bench |
| Date Decided: | 1 January 1703 |
| Citations: | (1703) 92 ER 126, (1703) 2 Ld Raym 938, (1703) 1 Sm LC (13th Edn) 253 |
| Dissenting: | Holt CJ [1] |
| Opinions: | Holt CJ, Powell J, Powys J, Gould J |
Ashby v White (1703) 92 ER 126, is a foundational case in UK constitutional law and English tort law. It concerns the right to vote and misfeasance of a public officer. Lord Holt laid down the important principle that where there is injury in the absence of financial loss (injuria sine damno) the law makes the presumption of damage and that it is sufficient to demonstrate that a right has been infringed.
Said Holt: "It is a vain thing to imagine, there should be right without a remedy; for want of right and want of remedy are convertibles: if a statute gives a right, the common law will give remedy to maintain it; and where-ever there is injury, it imports a damage."[2]
Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant.
At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the House of Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the House of Commons.
Sir Thomas Powys defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts.
Lord Holt CJ was dissenting from the judgment in the Court of King's Bench, but his dissent was upheld by the House of Lords by a vote of fifty to sixteen. His judgment reads as follows.[3]
As far back as 1703, exemplary damages were being recognised as part of the decision in Ashby for misfeasance in public office, where it was accepted that a greater degree of compensatory damages would be appropriate in order to both punish and deter harmful conduct by office holders.[4]
In 1704, on the reversal of the judgment given in the lower court,[5] it was ordered by the Lords Spiritual and Temporal in Parliament that Matthew Ashby could recover his damages as assessed by the jury and was also awarded costs.[6]