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.
Comment
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.