Introduction
The Supreme Court has today decided not to extend the situations in which a duty of care can be imposed. A chief constable, in conducting a civil claim for compensation relating to alleged misconduct by those for whom he is vicariously liable, does not owe a duty of care to take reasonable care to protect his 'quasi-employees' from economic and reputational harm. Emma Gallimore reviews the findings in James-Bowen & Ors v The Commissioner of Police of the Metropolis
Facts
Four Metropolitan Police officers were involved in the arrest of a suspected terrorist, BA, in 2003. BA brought a claim for damages against the Commissioner, alleging that the four officers had seriously assaulted him during arrest. The officers were not named as defendants in the action, but assisted as witnesses. The Commissioner was vicariously liable in law for the alleged assault by the officers. The claim went to trial.
The officers were concerned that BA and his supporters could present a threat to them if they were identified and named as witnesses at the trial. The court refused special measures for the officers, and as such the officers refused to give evidence during the civil trial. The claim was settled, liability was admitted and an apology was provided to BA on behalf of the Commissioner, noting the 'gratuitous violence' used. The conduct of the four officers during BA's arrest was subsequently investigated, and they were charged with various criminal offences. They were acquitted of all charges by a jury at the criminal trial.
The four police officers brought a claim for damages for reputational, economic and psychiatric harm suffered as a result of admissions made by the Commissioner's legal team during the defence of BA's claim. They alleged that the Commissioner had been negligent and had failed to protect their interests when settling the claim: that the Commissioner's admission of liability and public apology unfairly branded them as thugs, resulting in criminal charges being brought against them and leading to their reputations being damaged.
The Commissioner applied to have the officers' claims struck out under CPR Part 3, on the grounds that the statement of case disclosed no reasonable grounds for bringing a claim.
High Court findings
In May 2015 Jay J in the High Court held that as the Commissioner was defending proceedings brought solely against him, he owed no duty to the individual officers who were only involved as witnesses. The claims were struck out and summary judgment was entered. The officers appealed.
Court of Appeal findings
In October 2016 the Court of Appeal, led by Lord Justice Moore-Bick, upheld the High Court's dismissal of the majority of the claim but allowed the claim in tort for economic and reputational harm to proceed. The court held that it was arguable that the Commissioner owed a duty of care to the officers to safeguard their economic and reputational interests and that this extended to the conduct of litigation by the Commissioner. They refused to strike out a claim where the outcome was unclear; they believed it to be arguable that the facts pleaded were capable in law of giving rise to a duty of care on the part of the Commissioner towards the officers. The Commissioner appealed to the Supreme Court.
Supreme Court findings
On 25 July 2018, the Supreme Court unanimously allowed the appeal, and held that no duty of care would arise in this situation. Lord Lloyd Jones gave the leading judgement.
Firstly, the court proceeded on the basis that the Commissioner and the officers should be treated as if they were employer and employee.
The court then had to consider whether to extend a duty of care to a new situation; should an employer, on conducting litigation where they are vicariously liable for their employee, owe a duty of care to protect the employee from economic or reputational harm?
In relation to whether this could be derived from the implied term of trust and confidence, the court believed that to do so would be to move far beyond the established duties.
The court noted that the common law does not usually recognise a duty of care in the tort of negligence to protect reputational interests, and referred to the decision in Calveley v Chief Constable of Merseyside Police [1989] 1 AC 1228 (that a chief constable does not, in principle, owe a duty of care to protect the economic and reputational interests of his officers in respect of the prosecution of an investigation or disciplinary proceedings against them). The court followed this decision, and agreed that similarly a chief constable should not owe a duty to his officers as to the manner in which he defends a claim brought against him by a third party.
A further point against a duty being imposed was the fact that the conflicting interests of the Commissioner and the officers in these circumstances would be too great. The Commissioner has a duty to the public which was found to be 'totally inconsistent' with her owing a duty of care to protect the reputation of her employees. It was held that a defendant should be able to conduct litigation without fear of incurring liability to employees. They must be able to carry out investigations and form views of the employee as a witness. Insurers' opinions will also have to be taken into account. A defendant may consider that the costs of defending the claim are not justifiable and that the claim should be settled. In contrast, the main interest of the employee would be his reputation.
The court also considered that legal policy precluded the imposition of a duty: (1) defendants should be able to conduct litigation and resolve disputes without fear of incurring liability to employees, (2) legal policy encourages the settlement of civil claims and promotes out of court settlement and the proposed duty could be a disincentive to settlement (3) the proposed duty could result in delay to proceedings, and (4) the proposed duty could create increased satellite litigation.
Ultimately, the appeal was allowed as the imposition of the proposed duty would not be fair, just or reasonable.
Comment
This decision is good news for 'employers' such as chief constables, who defend claims where they are vicariously liable for their employees.
This case had serious potential to cause difficulty for defendants alleged to be vicariously liable of the wrongdoings of employees. The imposition of a duty of care in these circumstances would potentially have had bleak repercussions for the settlement of such claims.
Policy considerations mean that defendants who are employers and who are defending claims where their employees for whom they are vicariously liable are alleged to be at fault must be able to investigate and conduct litigation freely, including deciding to settle claims, without fear of the employee witness bringing a further claim against them.
Defendants should always make clear to witnesses that their legal team act for the defendant only, and inform witnesses of their right to obtain independent legal advice. However, considerations need to be given to whether this will disrupt the defence of the claim and dissuade witnesses from assisting.
