The Supreme Court held that the Commissioner of Police of the Metropolis owes no duty of care to her officers, when defending a claim that she is vicariously liable for their alleged misconduct, to take reasonable care to protect them from economic and reputational harm. Four officers sued after the Commissioner settled such a claim with agreed damages, an admission of liability and an apology. The Court decided that imposing the duty would not be fair, just or reasonable.
The claimants were officers involved in an arrest. The arrested man later sued the Commissioner for harm he said the officers had caused. This appeal turned on the Commissioner’s conduct of the defence to that civil claim.
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In October 2007 BA sued the Commissioner under section 88 of the Police Act 1996, alleging vicarious liability for the assaults and claiming aggravated and exemplary damages. The officers were not defendants and the Commissioner brought no contribution proceedings. The Directorate of Legal Services defended the claim and denied liability. Settlement offers were rejected. The officers attended conferences with counsel instructed for the Commissioner. They alleged that they were assured the lawyers were also acting for them and that the claim would be vigorously defended, but that they were later told counsel represented only the Commissioner and that the claim would be lost on the medical evidence.
The Commissioner settled during the hearing and issued an apology. The officers maintained that their interests had been damaged by the way the claim was defended and settled.
The proceedings below
In 2013 the officers sued for breach of contract, negligence and misfeasance in public office, claiming reputational, economic and psychiatric damage from the conduct of the defence rather than from the settlement itself. They alleged a retainer, an assumption of responsibility, and a duty as employer or quasi-employer to protect their safety, welfare and reputational interests. The alleged duties included keeping them informed, explaining any conflict, and warning them in time to take independent advice before any admission or apology. They complained of failures to prepare a competent defence, call witnesses, preserve evidence, obtain medical evidence and seek an adjournment.
Jay J struck out the claims and gave summary judgment for the Commissioner. He held that there was no retainer, that the officers had no sufficient interest in the earlier litigation, that psychiatric injury was not reasonably foreseeable, and that a duty of care would cut across the Commissioner’s freedom to protect her own interests. The misfeasance claim was inadequately pleaded.
The Court of Appeal dismissed the appeal on retainer, assumption of responsibility and psychiatric injury. Moore-Bick LJ, with whom Longmore and Patten LJJ agreed, held that it was nevertheless arguable that the Commissioner owed a duty to defend the litigation as effectively as possible and, when considering compromise, to take reasonable care not to sacrifice the officers’ interests and reputation without good reason and reasonable warning. He regarded a competent defence as being in both sides’ interests and not inevitably conflicting. He agreed, however, that it was fanciful to suggest that an earlier warning would have led the officers to apply to be joined as defendants.
The duty of trust and confidence
The only issue in the Supreme Court was whether the Commissioner owed a duty to conduct the defence “as effectively as possible” in order to protect the officers from economic or reputational harm. There was no cross-appeal on the abandoned heads of claim.
Police officers hold office as constables and have no contract of employment, but the relationship is closely analogous to employment. The mutual obligation not, without reasonable and proper cause, to destroy or seriously damage trust and confidence is implied by law into employment contracts. It has supported specific duties, including the duty recognised in Malik not to conduct a dishonest or corrupt business. No case, however, had held that an employer must conduct litigation so as to protect employees from economic or reputational harm. Extracting that duty would move substantially beyond the established derivative obligations.
Lord Nicholls had cautioned in Malik that association with an unsuccessful, even grossly incompetent, business does not ordinarily found such a claim; dishonesty or corruption was essential there. Scally recognised only a narrow duty to publicise a valuable contractual entitlement. Crossley refused to imply a general duty to take reasonable care for an employee’s economic well-being, which would place an unfair burden on employers. An implied term of this standardised kind could not be wider than a concurrent duty in tort, so the Caparo question whether the duty was fair, just and reasonable could not be avoided.
A novel duty and the policy objections
Harm was arguably foreseeable and the relationship arguably proximate, but the claim sought to extend negligence to a new situation. Such a duty must develop incrementally and by analogy, and must be tested against legal policy.
Reputation is protected by causes of action such as libel, slander and malicious falsehood, not usually by a negligence duty of care. Spring, concerning a negligent reference, is an exception and is better explained as an assumption of responsibility. Calveley is closer. The House of Lords there rejected a duty of care owed by chief constables to officers in the conduct of investigations and disciplinary proceedings. Injury to reputation was not recoverable damage in negligence, purely economic loss faced formidable obstacles, and public policy opposed requiring investigators to act under the shadow of a negligence action. If no duty arises where the chief constable initiates and substantially controls proceedings against officers, it is difficult to impose one where the Commissioner is responding to allegations made by a third party.
An employer’s interests in a vicarious-liability claim differ fundamentally from the employees’ interests. The employer bears unrecovered costs and any liability, must assess the employees’ reliability and likely performance as witnesses, may have to consider insurers, and may properly settle even a defensible claim. The employees’ predominant interest is vindication of reputation, and employees may have inconsistent interests among themselves. A contribution claim under the Civil Liability (Contribution) Act 1978 may be brought up to two years after judgment or settlement. These differences make a duty to defend so as to protect the employees unfair. A duty lasting only until an actual conflict, ended by “timeous notification”, is unrealistic: the potential conflict is too great, and continually reviewing whether it had arisen would be impracticable and disruptive.
The Commissioner also holds public office and must be free to act according to her public duty. That freedom is inconsistent with a duty to protect officers’ reputational interests. The public-policy objections accepted in Calveley and in SXH apply equally.
Parties should generally be able to use litigation to resolve disputes without liability to third parties unless they act maliciously and without probable cause. Decisions about inquiries, experts, witnesses and resources should be taken without fear of a later claim that the defence should have been run differently. The proposed duty would chill the defence, discourage justified admissions and the use of evidence unfavourable to an employee, discourage settlement, risk delay and disruption, and encourage satellite litigation and collateral challenges.
Privilege pointed the same way. The courts below had held that the lawyers were instructed only for the Commissioner and that the officers attended as witnesses, not clients; those conclusions were not appealed. There was therefore no joint privilege. A shared interest in the outcome might support common interest privilege against a third party if documents were voluntarily disclosed, but it did not entitle the officers to compel disclosure. The relationship was not comparable to that between a company and its shareholders, a trustee and beneficiaries, or parties to a joint venture. If the duty were recognised, defending a later negligence claim might require waiver of privilege and inhibit frank advice in the original litigation.
Verdict: The Court unanimously allowed the Commissioner’s appeal. She owed the officers no duty in negligence to defend the earlier claim in a manner that protected their economic or reputational interests.
Source: James-Bowen and others v Commissioner of Police of the Metropolis [2018] UKSC 40
