Rod James-Bowen and Others v The Commissioner of Police for the Metropolis

JurisdictionEngland & Wales
JudgeMr Justice Jay
Judgment Date01 May 2015
Neutral Citation[2015] EWHC 1249 (QB)
CourtQueen's Bench Division
Date01 May 2015
Docket NumberCase No: HQ14X02397

[2015] EWHC 1249 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Jay

Case No: HQ14X02397

Between:
(1) Rod James-Bowen
(2) Nigel Cowley
(3) Mark Jones
(4) John Donohue
Claimants
and
The Commissioner of Police for the Metropolis
Defendant

Mr Nicholas Bowen QC and Mr David Lemer (instructed by Pattinson & Brewer) for the Claimants

Mr John Beggs QC and Ms Cecily White (instructed by Weightmans LLP) for the Defendant

Hearing dates: 28 th and 29 th April 2015

Mr Justice Jay

Introduction

1

There are three applications currently before the Court. First, by an application notice dated 28 th April 2014 the Defendant seeks an order (i) striking out the claims in breach of contract, negligence and misfeasance in public office pursuant to CPR 3.4(2)(a); or (ii) for summary judgment in relation to those claims pursuant to CPR 24(a)(i) and (b); and/or (iii) striking out various specified paragraphs of the Particulars of Claim that plead or rely upon matters protected by Legal Professional Privilege ("LPP"). Secondly, by an application notice dated 14 th April 2015 the Claimant seeks specific disclosure, pursuant to CPR 31.19(5) and CPR 31.12 of documents said to be subject to LPP. Thirdly, the Claimants seek permission to serve a Reply to the Defence.

2

It is convenient and appropriate to consider the Defendant's application first. Not merely does it predate the Claimants' applications, the latter only arise for consideration in the event that this claim survives the Defendant's attack upon it. Furthermore, during the course of oral argument it became clear that Mr John Beggs QC for the Defendant was content to leave the third limb of his application for future consideration, should the need arise.

The Claimants' Case

3

The Particulars of Claim dated 21 st January 2014 is a somewhat lengthy and discursive document, and for present purposes it is necessary to distil its essential elements. In line with well established principles, discussed at great length below, the evidence cannot be tried at this stage, and the facts must – unless plainly contradicted by insurmountable material, or otherwise wholly fanciful – be assumed in the Claimants' favour.

4

I begin with an outline of the pleaded facts. The four Claimants were at the material time serving police officers within the territorial support group, and as office holders were in a quasi-contractual relationship with the Defendant. I understand that all the Claimants, save for the third Claimant who has retired, remain in active police service. On 2 nd December 2003 they arrested a terrorist subject, Babar Ahmad ("BA") who complained of being seriously assaulted during the course of that arrest. Disciplinary charges were brought against the Claimants, and were dismissed in April 2005. In June 2007 BA issued proceedings against the Defendant, claiming that the Commissioner was vicariously liable for the Claimants' torts. No separate claim was brought against the Claimants, as it might have been, and the Defendant did not seek an indemnity or contribution from his officers, as he might theoretically have done. On 18 th March 2008 the Claimants attended a conference at the chambers of Mr Jeremy Johnson, then junior counsel, and heard advice to the effect that BA's claims would be "vigorously defended", that if "special measures" to protect their identity were not forthcoming they would not be required to give evidence, and that the Defendant's legal team was also acting for and in the Claimants' interests (see, in particular, paragraph 41 of the Particulars of Claim). At a pre-trial review which took place on 13 th February 2009, the Commissioner's application for special measures was rejected. On 19 th February 2009 the Claimants were made aware by the DLS that it was seeking to settle BA's claim. The Claimants expressed their profound concerns about what seemed to them to be the recent turn of events, and said that they would have to take independent advice. On 11 th March 2009 the Claimants attended a second conference at counsel's chambers, and were told that the Directorate of Legal Services ("DLS") and counsel were no longer instructed to protect their interests. BA's civil trial commenced on 16 th March 2009, and on the following day the second Claimant informed counsel that if special measures were not provided, the Claimants would not testify. On 18 th March 2009 BA's claim was settled on the basis of agreed damages and costs of £60,000 and £240,000 respectively, together with an admission of liability and an apology for the "gratuitous violence" to which he had been subjected by the Claimants. According to paragraph 82 of the Particulars of Claim, 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 IPPC". The Claimants aver, and I am inclined at least for present purposes to accept, that this was tantamount to endorsing the Claimants' culpability. On 12 th August 2010 the Claimants were charged with various criminal offences arising out of BA's arrest in December 2003, and in May 2011 they were acquitted by the Jury.

5

On my understanding of paragraphs 39–48 of the Particulars of Claim, the Claimants contend that in the circumstances of this case, in particular the Claimants' participation in the first conference with counsel, and the assurances given during the course of it, "expressly and/or implicitly, a client/solicitor retainer and/or a contractual relationship was created between the DLS and the Claimants". Paragraph 48 of the Particulars of Claim pleads the express incidents of that relationship, and it is necessary to set it out in full:

"(i) expressly that the legal team acting for the MPS were also acting for and to protect the interests of the Claimants;

(ii) expressly that the said legal team would defend the allegations made by BA that the Claimants had brutally assaulted and abused BA as set out at paragraphs 11–12 above;

(iii) expressly that the Claimants would not be expected to give evidence unless the special measures application was successful;

(iv) implicitly that the defence would be handled with reasonable care and in the event that the said legal team reached the view that a conflict of interest had emerged … and/or that the MPS were considering admitting liability and apologising to BA for the Claimants' actions the DLS would consult/warn and explain the reasons and advise them to take independent legal advice in sufficient time …"

6

Paragraph 102 of the Particulars of Claim avers:

"The Defendant owed the Claimants a duty of care in tort (and concurrently in contract: (see paragraphs 43(i)-(v) and 48 above) as employer/quasi-employer to take reasonable care to safeguard the safety, health, welfare, (including economic and professional welfare) and reputational interests of the Claimants."

7

Paragraph 103 of the Particulars of Claim avers:

"The scope of the said duties included:

(a) a duty to take reasonable care in the preparation and conduct of the defence to BA's civil claim; and/or

(b) a duty to take reasonable care to protect the Claimants' interests when considering and effecting any compromise/settlement of the said civil claim which involved an admission of liability that BA's allegations … were true."

8

Further specific incidents of the duty are set out under paragraph 104.

9

Paragraphs 105–109 set out the various formulations of the Claimants' case. The first formulation (paragraphs 105–107) is what may be described as negligence simpliciter– the Claimants set out the three stages of the well-known tripartite test outlined by Lord Bridge in Caparo Industries plc v Dickman [1990] 2 AC 605. The second formulation (paragraph 108) is voluntary assumption of responsibility, and is based on the assurances allegedly given by counsel during the course of the first conference in March 2008, which for present purposes I must assume against the Defendant were indeed made. The third formulation is breach of the express or implicit retainer pleaded under paragraph 48 of the Particulars of Claim. The Skeleton Argument of Mr Nicholas Bowen QC for the Claimants explains these formulations in somewhat greater detail, and I will be examining that in a moment.

10

The Claimants aver at paragraph 111 of the Particulars of Claim that the Defendant was in breach of duty in a number of respects, by (i) failing to conduct and prepare a competent defence to BA's civil claim, (ii) failing to keep the Claimants informed of the progress of the investigation, and to protect their interests, (iii) failing to advise and/or warn the Claimants that they were minded to settle BA's claim, and (iv) failing to explain why the Defendant's legal team could no longer represent the Claimants' interests. The facts and matters averred by the Claimants cannot substantially be disputed for present purposes, and I should add that it is an important part of the Claimants' case on item (i) above that shortly before their criminal trial in March 2011 the Crown unearthed evidence obtained by a covert recording device or probe of what happened during the course of BA's arrest in December 2003, or at least a significant part of it. This evidence largely supported the Claimants' version of events, and undermined BA's, explaining why the Jury took very little time to find the Claimants not guilty. It is alleged that had this evidence been available earlier, as it ought to have been, the Defendant's conduct of the civil claim would probably have been different. Again, for present purposes I must assume these facts in the Claimants'...

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