02 August 2018

The Supreme Court handed down its judgment in James-Bowen and others v Commissioner of Police of the Metropolis on Wednesday last week. It found that the Commissioner owed no duty of care to her officers to safeguard their economic and reputational interests when the Commissioner was involved in litigation.

The facts

This dispute arose from the arrest of Babar Ahmad in 2003 on terrorism-related charges. Mr Ahmad complained of being seriously assaulted during the course of his arrest. The Commissioner settled that complaint in 2009 and issued a public apology for the ‘gratuitous violence’ he had suffered.

The arresting officers were charged in 2010 with criminal offences arising out of Mr Ahmad’s arrest, but were acquitted by a jury in a trial the following year.

The officers then brought civil proceedings against the Commissioner on a number of grounds. In particular, the officers alleged that the Commissioner owed them a duty of care to protect their interests when litigating and settling Mr Ahmad’s claim. This duty of care was allegedly breached when the Commissioner made a public apology that, the officers claimed, was tantamount to an admission that the officers were at fault, and which thereby caused them reputational and economic loss.

This was a novel argument, and the Commissioner sought to have the claim struck out on the basis that the claimants’ assertions were unarguable as a matter of law. The High Court agreed with the Commissioner, but the Court of Appeal subsequently agreed with the claimants that it was at least arguable that such a duty of care existed. The Commissioner appealed to the Supreme Court.

The Supreme Court’s decision

The Supreme Court recognised that the law of negligence can be extended incrementally, provided that such developments are always coherent and in line with legal policy.

In this instance however, the court decided it was not fair, just, and reasonable to impose a duty of care on the Commissioner to protect the interests of officers when the Commissioner was involved in litigation.

A Commissioner is not strictly the employer of the officers, but they do have a quasi-employment relationship and the court considered the arguments in this light. In rejecting the claim, the court cited the stark difference of interest between employer and employee when responding to third party litigation as a reason that the claimed duty of care should not be imposed.

The court also took account of a number of policy considerations which militated against the claimants' arguments, including that imposing such a duty:

  • may lead to employers becoming more inclined to defend claims at trial rather than settle, in order to avoid any allegation of breaching a duty of care towards employees. This would put further pressure on an already stretched court system
  • would open the floodgates to multiple consequential claims – it is important that parties to a dispute can conduct dispute resolution without fear of incurring liability to third parties.


The officers’ novel claim can be seen as the latest example of a trend of imaginative legal arguments being brought in England and Wales that have sought to stretch the boundaries of previously accepted principles. These claims are being brought by all types of claimant – not just those with the deepest pockets. The Supreme Court’s acknowledgement, however, that there is scope to extend the tort of negligence in line with legal policy, means we can only anticipate seeing further ground-breaking claims going through our courts.

How can Burges Salmon help?

Should you wish to discuss any of this further, please contact Ann Metherall or your usual Burges Salmon contact.

Key contact

Ann Metherall

Ann Metherall Partner

  • Head of Dispute Resolution
  • Head of Health and Safety
  • Transport

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