Howard Gray Roberts v (1) The Attorney General (1st Defendant) (2) Kate Flannery (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Lewis |
| Judgment Date | 20 December 2016 |
| Neutral Citation | [2016] EWHC 3219 (QB) |
| Docket Number | Case No: A90CJ008 |
| Court | Queen's Bench Division |
| Date | 20 December 2016 |
[2016] EWHC 3219 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
Cardiff Civil Justice Centre,
2 Park Street
Cardiff CF10 1ET
The Honourable Mr Justice Lewis
Case No: A90CJ008
The claimant appeared in person
Colin Thomann (instructed by Treasury Solicitor) for the 1 st Defendant
Gerard Clarke (instructed by: LHS Solicitors LLP) for the 2 nd Defendant
Hearing dates: 25 November 2016
This is an appeal against a decision of HHJ Seys Llewellyn Q.C. sitting in the Cardiff County Court, by which the judge struck out a claim for damages for negligent misstatement against the defendants. In summary, the claimant had applied for the post of Chief Constable of Dyfed-Powys Police. The second defendant attended a selection panel meeting of the local police authority and made certain statements about the claimant which are alleged to be false and which are alleged to have been made negligently. As the judge noted at paragraph 4 of his full and thorough judgment handed down on 8 July 2016:
"The essence of the Particulars of Claim is that (i) HMI Flannery owed a duty of care to the Claimant; (ii) she acted in breach of that duty of care in making a number of negligent misstatements about the Claimant to the selection panel; (iii) as a result the Claimant suffered loss of income and entitlements, and/or a loss of chance of selection, and/or the loss of his lifetime ambition to become a Chief Constable in Wales."
The court held that the defendants did not owe a duty of care to the claimant as any advice given by the second defendant to the selection panel was given in the exercise of a statutory power and it would be inconsistent with the purposes for which that power had been conferred to impose a duty of care at common law in respect of statements made in the course of giving that advice. The claimant appeals contending, amongst other things, that the court was wrong to find that no duty of care was owed because it would conflict with the exercise of a statutory function.
THE FRAMEWORK FOR APPOINTMENTS
Section 11 of the Police Act 1966 ("the Act") provided at the material time for appointment to the post of chief constable to be made by the police authority for the relevant area, subject to the approval of the Secretary of State for the Home Department and compliance with any regulations made pursuant to section 50 of the Act.
Section 54 of the Act made provisions for the appointment of Her Majesty's Inspectors of Constabulary ("HMIC") and provision in connection with their functions. The material provisions for present purposes are as follows:
"(1) Her Majesty may appoint such number of inspectors (to be known as "Her Majesty's Inspectors of Constabulary") as the Secretary of State may with the consent of the Treasury determine, and of the persons so appointed one may be appointed as chief inspector of constabulary.
"(2) The inspectors of constabulary shall inspect, and report on the efficiency and effectiveness of, every police force maintained for a police area.
"(3) The inspectors of constabulary shall carry out such other duties for the purpose of furthering police efficiency and effectiveness as the Secretary of State may from time to time direct."
The particulars of claim aver that there were also in place at the material time guidelines prepared and agreed between the Home Office, HMIC, the Association of Police Authorities and staff associations representing police officers.
Before me were certain extracts of a document said to be these guidelines. Paragraph 8 of the first extract, taken it seems from section 2 of the guidance, provides:
"Professional Police Advisors
8. The chief constable will act as advisor to the selection panel for assistant chief constable and deputy chief constable. The Regional HMI will be invited to be present to advise at interviews for chief constable appointments and may also be present to advise at interviews for assistant chief constable and deputy chief constable appointments. Neither the chief constable nor the Regional HMI will act as a member of the panel. It is essential that in all cases the selection panel have the Clerk to the Authority present at all stages of the selection process to advise on legal and technical points, including personnel advice. It is recommended that a personnel expert and a diversity advisor should be available during proceedings. The Treasurer to the Authority may also attend to advise on technical points."
An extract from later sections of the document include paragraphs 6 and 7 which provide that:
"6. In appointing chief officers it is important that selection panels should have professional advice. In the case of assistant chief constable and deputy chief constable appointments, the panel is required to consult the chief constable before an appointment is recommended and it is strongly recommended that the chief constable should be present at the interviews of all candidates. The chief constable could then advise the panel of the professional validity of candidates' responses. The selection panel should also invite professional input from the Regional HMI. But the final decision on an appointment is for the selection panel alone.
7. In the case of chief constable appointments, the Regional HMI should be present at the interview stage to act as a professional advisor on the operational correctness and the professional validity of candidates' responses. He/she should not be invited to comment on the overall performance of a candidate or to express any opinion as to suitability. For appointment of a new chief constable, the outgoing chief constable should not be present under any circumstances at short-listing or assessments."
THE PARTICULARS OF CLAIM
The particulars of claim aver that the claimant applied for the post of chief constable of Dyfed-Powys in 2008. It is contended that the second defendant, Kate Flannery, one of the HMIC, provided an assessment that the claimant was wholly suitable for appointment.
A selection panel meeting was held on 28 March 2008 to consider the two applicants for the post. The selection panel was composed of seven members of the Dyfed-Powys police authority which had statutory power to appoint a chief constable for their area. Also present, among others, was the second defendant who was the HMIC for the region.
Paragraph 16 of the particulars of claim asserts that the Regional HMIC was to be present at the selection process but was not a member of the selection panel and that it was implicit from the guidelines that the HMIC should not comment on the overall performance of a candidate, nor express any opinion as to suitability at the selection.
The particulars of claim aver that the second defendant asked to, or was invited to, comment about the performance of the claimant and his suitability at the selection panel meeting. The particulars aver that the second defendant made a number of statements on such matters. They aver that, in doing so, the second defendant owed a duty to the claimant to take reasonable care that the statements were true. In fact, it is alleged that the statements were false and were made negligently. It is alleged that that negligence caused loss and damage to the claimant who was not appointed to the post.
THE PROCEEDINGS IN THE COURT BELOW
The second defendant applied to strike out the claim on the grounds that she owed no duty of care to the claimant in respect of the making of statements to the selection panel. The court below (as does this court) proceeded, as it was an application to strike out, on the basis that the facts must be taken to be as alleged by the claimant in his particulars of claim (see paragraph 7 of the judgment below).
As the judge noted at paragraph 15 of his judgment:
"At the heart of the Second Defendant's application is the submission that no duty of care was owed because HMI Flannery was carrying out duties within a statutory framework for the protection of an aspect of the public interest, or a group other than the Claimant, and reliance is placed on the principles expressed in Trent Strategic Health Authority v Jain [2009] UKHL 4 and the authorities on which the HL in Jain drew."
The decision in Jain concerned section 30 of the Registered Homes Act 1984 ("the 1984 Act"). Registration under that Act was a necessary requirement for the operation of a nursing home. That Act provided that:
"(1) If—(a) the Secretary of State applies to a justice of the peace for an order—(i) cancelling the registration of a person in respect of a nursing home or mental nursing home … and (b) it appears to the justice of the peace that there will be a serious risk to the life, health or well being of the patients in the home unless the order is made, he may make the order, and the cancellation … shall have effect from the date on which the order is made.
"(2)...
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