Dear Colleagues;

The UK Supreme Court decision in James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40 (25 July 2018) https://www.supremecourt.uk/cases/docs/uksc-2017-0003-judgment.pdf is an interesting example of how the court determines the duty of care in negligence in a novel case, even after the warning in the recent Robinson case that the Caparo test should not be used too freely.

The plaintiffs were police officers whose actions in arresting one BA had been challenged as using excessive force. The Commissioner was defending a claim for the “serious assaults” alleged to have been inflicted (presumably the claims were for battery), on the basis that she was vicariously liable for the actions of the officers. Until she decided to settle the claims, over the strenuous objections of the officers, “on the basis of agreed damages of £60,000 and agreed costs of £240,000 with an admission of liability and an apology for “gratuitous violence” to which BA had been subjected by the officers” – para [5]. The officers were later charged with “assault occasioning actual bodily harm” but were acquitted. They sued the Commissioner in these proceedings for the damage done to their reputations and economic loss they had suffered from the way the Commissioner had acted in the course of the litigation.

In a single jointly agreed judgment by Lord Lloyd-Jones (is this the first time he has written a judgement for the SC?), the SC holds that the Commissioner did not owe a duty of care of the nature alleged. The court held that it could not be framed as an incident of an implied duty of “trust and confidence” between employers and employees- see the discussion at [14]-[20]. (This duty, of course, while recognised by the UK courts, has been rejected as a part of the common law by the High Court of Australia in Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014)). But in any case, Lord Lloyd-Jones said that the duty could not be wider than any duty owed in tort, and hence the tortious liability was the primary consideration- [21].

This was a “novel” claim, and hence suitable for application of the Caparo “fair, just and reasonable” analysis. But to the Australian eye, the way the analysis is conducted looks very similar to the balancing of “salient features” which is the approach of the High Court of Australia these days. New duties should only be recognised on an “incremental” basis- [23]. Reference to the various ways that the law already protects “reputation” suggests concern for the “coherence” of the law- [24]. Conflicting interests are noted- see [28] ff.

“These stark differences between the interests of employer and employee strongly suggest that it would not be fair, just or reasonable to impose on an employer a duty of care to defend legal proceedings so as to protect the economic or reputational interests of his employee.”- [32]

 

Other “legal policy” considerations concerning the conduct of litigation are cited- [34]. Parties who are sued should be able to freely conduct litigation in their own interests. Issues arising from legal professional privilege are noted. In the end the conclusion at [47] is “The imposition of the claimed duty would not be fair, just or reasonable.” For these sort of reasons (though they would be analysed slightly differently) I suspect that the HCA would have come to the same conclusion.

Regards

Neil

 

 

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

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T: +61 2 49217430

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