Rod James-Bowen and Others v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Kerr,Lord Mance,Lord Lloyd-Jones,Lord Wilson |
| Judgment Date | 25 July 2018 |
| Neutral Citation | [2018] UKSC 40 |
| Court | Supreme Court |
| Date | 25 July 2018 |
[2018] UKSC 40
Lady Hale, President
Lord Mance
Lord Kerr
Lord Wilson
Lord Lloyd-Jones
Appellant
Andrew Warnock QC
Lisa Dobie
(Instructed by Weightmans LLP (Liverpool))
Respondents
Nicholas Bowen QC
David Lemer
(Instructed by Penningtons Manches LLP)
Heard on 6 and 7 March 2018
(with whom Lady Hale, Lord Mance, Lord Kerr and Lord Wilson agree)
This appeal raises the question whether the Commissioner of Police of the Metropolis (“the Commissioner”) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from economic and reputational harm.
The pleaded facts may be summarised as follows. On 2 December 2003 the respondents, four police officers serving in the Metropolitan Police Service, (“the officers”) took part in the arrest of a suspected terrorist, BA. BA subsequently made allegations that the officers had seriously assaulted and injured him during the arrest. The complaints were investigated by the Metropolitan Police Service's Directorate of Professional Standards and the Crown Prosecution Service who concluded that there was no case to answer. However, the Independent Police Complaints Commission decided in October 2004 that one charge relating to the use of excessive force should be brought against the first respondent. That charge was dismissed by the disciplinary panel in April 2005. Between 14 January 2005 and 2 February 2005 the Independent Police Complaints Commission released the officers' identities into the public domain. This led to threats of serious violence to the officers and their families on a website which supported BA.
On 18 October 2007 BA issued civil proceedings against the Commissioner in which he alleged that the Commissioner was vicariously liable under section 88 of the Police Act 1996 for the serious assaults which he alleged the officers had inflicted on him. His claim included claims for aggravated and exemplary damages. The officers were not defendants in the action nor were contribution proceedings brought against them by the Commissioner. The defence of the claim on behalf of the Commissioner was undertaken by the Metropolitan Police Directorate of Legal Services (“DLS”). A defence denying liability was entered. On 10 January 2008 an offer of settlement was rejected by BA.
On 18 March 2008 the officers attended a conference with Mr Jeremy Johnson of counsel, instructed by the DLS on behalf of the Commissioner. The officers subsequently alleged that counsel and the DLS solicitor assured them on that occasion that they were also acting for them and in their interests and told them that BA's claims would be vigorously defended. On 13 February 2009 an application by the Commissioner that the officers be permitted to give evidence from behind screens was dismissed at the pre-trial review. On 10 March 2009 BA rejected a further offer of settlement because he wanted an apology or a finding in open court. The officers attended a second conference with Mr Johnson and the DLS on 11 March 2009. On this occasion the officers were accompanied by a solicitor from Russell Jones and Walker who attended only in relation to matters arising from a special measures application which had been made in respect of the evidence to be given by the respondents. At that conference the officers said that they would be reluctant to give evidence without special measures being in place. They allege that Mr Johnson informed them that he was no longer representing their interests but only the interests of the Commissioner. The officers allege that Mr Johnson indicated that the claim would be lost due to BA's medical evidence and they complained to him that they were unable to raise points on various aspects of the defence including medical evidence, expert evidence, CCTV footage and notes of arrest.
The trial of BA's claim commenced on 16 March 2009. The officers declined to give evidence voluntarily without special measures being in place. On the third day of the trial, 18 March 2009, the Commissioner settled the claim on the basis of agreed damages of £60,000 and agreed costs of £240,000 with an admission of liability and an apology for “gratuitous violence” to which BA had been subjected by the officers. Paragraph 82 of the Particulars of Claim in the present proceedings alleges that the Commissioner's office issued a press release stating:
“The Commissioner has demanded an immediate investigation into the circumstances surrounding the officers' refusal to give evidence relating to this arrest in 2003. Whilst the arrest and subsequent events are historic this is a serious matter which has been referred to the IPCC.”
In the present proceedings the officers maintain that this was tantamount to endorsing their culpability.
On 12 August 2010 the officers were each charged with one count of an assault occasioning actual bodily harm arising out of the arrest of BA. In June 2011, following a trial lasting five weeks, the officers were all acquitted.
On 23 September 2013 the officers commenced the present proceedings against the Commissioner alleging breach of contract, negligence and misfeasance in public office arising from the manner in which the Commissioner had defended BA's claim. They sought compensation for reputational, economic and psychiatric damage. In the particulars of claim the officers put forward three bases on which it was alleged that the Commissioner owed them a duty of care.
(1) A retainer had arisen between them and the Commissioner's legal team because of the assurances given to them by counsel and the DLS solicitor.
(2) The Commissioner had assumed a duty of care to the officers by reason of those same assurances.
(3) The Commissioner owed the officers a duty of care in tort and concurrently in contract as employer or quasi-employer to take reasonable care to safeguard their safety, health, welfare (including economic and professional welfare) and reputational interests, in the preparation and conduct of the defence to BA's claim and when considering and effecting any settlement of it.
This third head of claim was said to include the following specific obligations to take reasonable care.
(a) To keep the officers informed of the progress of the case.
(b) To keep them and their families safe from threats by BA's supporters against their homes and physical safety.
(c) To explain and provide reasons in the event that the Commissioner believed that BA's civil claim could no longer be defended or that a conflict had arisen between the officers and the Commissioner.
(d) To consult the officers in sufficient time prior to the trial for them to obtain alternative and independent legal advice in the event that the Commissioner had decided to admit liability and make a public apology.
(e) To warn the officers in sufficient time (to enable them to take independent legal advice or any other necessary steps to protect their own interests) prior to the opening of the trial that the application for special measures had failed, that the Commissioner's lawyers were no longer acting for the officers or protecting their interests and that the Commissioner was considering admitting liability and making a public apology.
The particulars of claim then provided detailed particulars of the alleged breaches of the duties. The officers do not allege that entering into an agreement on the terms of the settlement between the Commissioner and BA was in itself negligent. Their complaint is about the antecedent conduct of the defence by the Commissioner. In particular it is alleged that the Commissioner failed to conduct and prepare a competent defence to BA's claim. (See Jay J at para 23) Here complaint is made of the failure to proof or call as witnesses a list of named persons or to ascertain the availability of covert recordings. Complaint is made that evidence was lost, not located or not disclosed as a result of a systems failure. Complaint is also made of failure to take account of a list of miscellaneous evidential concerns raised by the respondents which, it is said, were either ignored or not adequately addressed. More generally, it is said that the Commissioner failed to keep the officers informed of the progress of the litigation and the preparation of the defence and failed to advise the officers within a reasonable time of the alleged conflict of interests. Complaint is made of the failure to obtain expert medical evidence to challenge the expert evidence called on behalf of BA and of a failure to apply for an adjournment of the trial.
By notice dated 28 April 2014 the Commissioner applied to strike out the claims pursuant to CPR Part 3.4(2) on the grounds that they disclosed no reasonable grounds for the making of a claim, alternatively for summary judgment pursuant to CPR Part 24 on the grounds that the claims had no real prospect of success.
On 1 May 2015 Jay J struck out the claims and entered summary judgment for the Commissioner. He considered that, in the absence of an express contract of retainer with the DLS, no retainer existed. Furthermore, the officers had no direct interest in the prior litigation and the possibility of consequential impact on their reputations was insufficient to create such an interest to which the Commissioner would be legally required to have regard or to promote or safeguard. The focus of the claim founded on the more general duty of care to protect the health, economic or reputational interests of the officers shifted during the hearing before Jay J. The judge seems to have been under the impression that the duty relied on by the...
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