JAMES OWEN & OTHERS
COMMISSIONER OF THE POLICE FOR THE METROPOLIS (2016) EWCACIV1217
The above appeal concerns, in part, the duty the police force owes to its serving officers.
The case concerns an appeal against the Order of Mr Justice Jay in which he struck out claims brought by a number of serving officers of the Metropolitan Police against their Commissioner.
Matters date back to 2003, when the appellant police officers were involved in the arrest of a terrorist suspect name, Babar Ahmed. This arrest was much publicised. Babar Ahmed complained that he had been seriously assaulted in the course of his arrest and subsequent detention by the police. He brought proceedings for personal injury against the Commissioners as being vicariously liable for the torts committed by the constables in his force.
None of the named appellants were named as Defendants in the claim by Ahmed, although it was clear to the Commissioner that they had been involved in the arrest. The appellants claimed that, during a pre-trial conference with the Commissioner’s Counsel, they were told that the claims would be vigorously defended. They were told that their identities would be concealed for the purposes of trial. They subsequently then told that the application to use screens at trial would not succeed. Thereafter, there was a conference with the appellants and the force solicitor present, where they were told that the claim was unlikely to be successfully defended and that as a consequence they were no longer acting on their behalf.
The trial of Ahmed’s claim was to be on 16th March 2009. On 18th March 2009, the Commissioner agreed to a compromise of the claim which included an admission of 22 allegations of gratuitous violence and a public apology.
In August 2010, the appellants were charged with various criminal offences arising out of the arrest but, after a five week trial, acquitted of all charges.
The appellants brought claims against the Commissioner in damages for reputational, economic and psychiatric harm suffered as a result of the errors made by him and his legal team in defending Ahmed’s claim. The Commissioner applied to have the claim struck out and was successful before Mr Justice Jay. The appellants appealed this decision.
The appellants argued that, upon attending at conference with the Respondent’s Counsel, where they said some assurance had been given to them that a retainer had been entered into between them and the Commissioner’s legal team. Mr Justice Jay had found at the earlier hearing that their attendance at conference had purely been as witnesses and the fact that the outcome of the case might affect their reputation one way or another was not a sufficient basis for finding they had entered into some form of agreement. They would only succeed on this element of the case if they could point to an express contract or retainer, which they could not.
The Court of Appeal rejected the appellant’s arguments, finding that there was insufficient basis upon which to suggest there existed any sort of retainer. Even the assurance at the conference that the Commissioner’s legal team was said to have given, to the effect that they were acting for and in the appellant’s interest, was not sufficient to create such an agreement.
The appellants argued that the Commissioner owed a general duty of care to its officers as a quasi employer. That duty was to take reasonable care to safeguard their health, welfare (economic and professional) and reputational issues.
The appellants argued that the general duty encompassed a duty in this case to take reasonable care in the preparation and conduct of the defence to Ahmed’s action and to take reasonable care to protect their interests when deciding whether to compromise the claim and, if so, on what terms. They also argued that they should have been kept informed of the progress of the case, explaining why the Commissioner considered it desirable to settle the claim and giving them notice of his intention to do so in sufficient time to enable them to take independent legal advice about how they best could have protected their own interests.
Mr Justice Jay had dismissed this cause of action. He had concluded that the question was whether it was fair, just and reasonable to impose on the Commissioner a duty to protect the officers’ interests in his conduct of the civil proceedings, and this is a matter to be determined in the specific context of claims for psychiatric harm, rather than any kind of personal injury. He went on to hold that it would not be fair, just and reasonable to impose on the Commissioner a duty of care towards the officers of the kind alleged, because such a duty would conflict with his right (and indeed obligation) to conduct the litigation in the best interest of the Metropolitan Police Service and the public at large. Mr Justice Jay had also determined that the claim for psychiatric injury could not be made out on its facts.
The Court of Appeal disagreed with this approach. Whilst it agreed that the Commissioner’s primary duty was to protect the interests of the Metropolitan Police Service, it was also “arguable that the Commissioner also owed a duty to the officers to take reasonable care not to sacrifice their interests and professional reputations without good reason and without giving them reasonable warning of what he intended to do”. The court went on to say that whether there was such a breach was clearly a matter for careful examination, but it did give rise to a potential cause of action.
Mr Justice Jay had held that the appellant’s claims for reputational and economic loss depended entirely on their being able to establish liability for psychiatric harm. They concluded that, whilst in most cases economic loss is recoverable only as a consequence of personal injury (including psychiatric injury), in this case, the officers were seeking redress in respect of the damage to their reputation. The allegation of loss and damage in the Particulars of Claim that was pleaded broadly, with no attempt to identify with any precision how this claim is put. However, the court accepted that, as the case appeared to be put on the basis that economic loss the appellants sought to recover was said to have arisen as a result of the loss of reputation or consequential damage to their careers, this could continue as it did not depend on there having psychiatric harm.
The third way in which the appellants had put their case was to argue that the Commissioner had a responsibility to officers to take reasonable care to avoid causing them psychiatric, economic or reputational harm in his conduct of the litigation. This duty of care was said to include a duty to warn the appellants that the application for anonymity had failed, that the legal team were no longer acting for them and that the Commissioner was considering settling the claim on terms which included admitted liability
It was noted that the facts and matters relied on by the appellants giving rise to an assumption of responsibility were essentially those that they relied on in support of their case on retainer. In order to establish a duty of care arising from an assumption of responsibility, the relationship between the parties and the circumstances would have to be such that it was clear that one was relying on the other to act with reasonable skill and care. A Court of Appeal held that, in the present case, the facts pleaded by the officers were not, in their view, capable of satisfying that requirement, because they did not involve words or conduct of a kind that could properly be understood as involving an assumption of responsibility of behalf of the Metropolitan Police Service or the Commissioner in relation to the manner in which the claim would be conducted.
Accordingly, the appeal was allowed, but only to the limited extent referred to above.