No duty of care owed by employer to employees in the conduct of civil litigation

The Supreme Court has held in James-Bowen & Ors v Commissioner of Police of the Metropolis [2018] UKSC 40 that the Commissioner owed no duty to protect the economic and reputational interests of officers whose alleged misconduct formed the subject of a civil claim, which the Commissioner had settled.

The officers had been involved in executing the arrest of BA at BA’s home in December 2003. BA accused the officers of having assaulted and abused him, allegations which received widespread media coverage. He brought a civil claim against the Commissioner, who was vicariously liable for the officers’ actions and who settled the claim with an admission of liability (relating to the officers’ alleged wrongdoing) and payment of compensation. The officers were not parties to the civil claim and had declined to give evidence at the trial due to fears for their own safety following the release of their identities into the public domain by the Independent Police Complaints Commission, now the Independent Office for Police Conduct. After the civil claim was settled, the officers were prosecuted in the Crown Court: a jury speedily acquitted them following disclosure of a probe in BA’s home which undermined his version of events.

The officers brought claims against the Commissioner, as their quasi-employer, for having failed to protect their interests in the conduct of the civil litigation including the settlement of the claim.

The Commissioner applied successfully to have the claims struck out, but the Court of Appeal allowed the officers’ appeal in part, concluding that it was arguable that the officers had been owed a duty in the conduct of the litigation as regards their economic and reputational interests.

The Supreme Court (Lord Lloyd-Jones, with whom Lady Hale, Lord Mance, Lord Kerr and Lord Wilson agreed) unanimously allowed the Commissioner’s appeal. Their Lordships concluded that the duty contended for was novel and, consequently, the Court would proceed incrementally and by analogy with previous decisions: [23].

The Court was ultimately not persuaded that the law should be extended, for four main reasons:

(1) The common law does not usually recognise a duty of care in negligence to protect reputational interests. The judgment of Calveley v Chief Constable of Merseyside Police [1989] 1 AC 1228 was found to be instructive in this regard, where it was held that a Chief Constable did not, in principle, owe a duty of care to protect the economic and reputational interests of his officers in respect of the prosecution of an investigation or disciplinary proceedings brought against them. It was difficult for the Court to see why, by analogy, a duty should be recognised in the present situation: [26], [33].

(2) The proposed duty would conflict fundamentally with the (quasi) employer’s own interests in defending litigation brought against him. The employer would bear the costs and liability of such litigation and therefore must “be able to make his own investigation into the claim to assess its strength based on the conduct of his employee and the prospects of a successful defence”: [30]. The case of Mohidin v Commissioner of Police of the Metropolis [2016] EWHC 105 (QB) was cited as an example of a case where there may be different interests between different employees, with the associated possibility of contribution proceedings being brought (in that case, the then Commissioner brought contribution proceedings against his own officers due to a conflict between one officer and the remaining group). These “stark differences” between the interests of employer and employee strongly suggested that it would not be fair, just or reasonable to impose the duty of care contended for: [32].

(3) Considerations relating to legal policy and the practical conduct of proceedings weighed heavily against the proposed duty. An employer had to be free to defend a claim based on vicarious liability in the way he saw fit, “without having constantly to look over his shoulder” for fear that his conduct of the defence might expose him to a satellite claim by his employees: [35]. The proposed duty would “inevitably inhibit” the conduct of the defence and, more generally, have a “chilling effect” on the defence of civil proceedings: [35].

(4) “Something more” than a shared interest (as contended by the officers) was required before common interest privilege could be used to enable the officers to gain access to documents (advices, notes of conferences and the like) which otherwise attracted legal professional privilege (LPP) belonging to the Commissioner: [42], [45]. LPP was, thus, a further policy – and practical – consideration weighing against the recognition of the duty. (This argument had not been addressed either at first instance or by the Court of Appeal but was accepted by the Supreme Court.)

The Court ultimately concluded that the proposed duty of care would undermine relevant policy considerations and the coherence of the resulting state of the law, and thus its imposition would not be fair, just or reasonable.

The judgment is important for all employers (or, like the Commissioner, quasi-employers) who defend civil claims brought against them based on their vicarious liability for the actions of their employees.

This article was originally posted on the UK Police Law Blog, here.