Supreme Court Rules No Duty Of Care Owed To Employees By Employers When Conducting Civil Litigation

James-Bowen & Ors v Commissioner of Police of the Metropolis [2018] UKSC 40

The Supreme Court has ruled that a proposed duty on employers to protect the economic and reputational interests of employees whose misconduct formed the subject of a civil claim against that employer "would not be fair, just or reasonable."

The decision will provide a measure of protection for employers who are required to defend civil claims brought against them (as an employer) on a vicarious liability basis for the actions of their employees. Had the proposed duty been permitted, it would have raised several questions on how litigation in such claims should be conducted, and inevitably produced conflicts of interest for employers.

Background

In 2003, four Metropolitan Police officers ("the officers") took part in the arrest of a suspected terrorist, BA. BA alleged the officers seriously assaulted and injured him during the arrest. In October 2004, the Independent Police Complaints Commission ("IPCC") brought one charge against one of the officers, which was dismissed. However, the IPCC released the officers' identities into the public domain in 2005, leading to threats of serious violence against them and their families.

On 18 October 2007 BA commenced civil proceedings against the Commissioner alleging that the Commissioner was vicariously liable for the alleged assaults. Despite not being parties to the case, the officers met with legal advisers instructed on behalf of the Commissioner, during which they were allegedly assured that the legal advisers were also acting on the officers' behalf.

At a second meeting prior to the trial of BA's claim in March 2009, the officers alleged they were told this was no longer the case. They declined to give evidence without measures to protect their identity. The claim was settled with an admission of liability by the Commissioner and an apology for the officers' "gratuitous violence". The officers were all acquitted in the Crown Court of charges of assault occasioning actual bodily harm arising out of the arrest of BA in 2011.

In September 2013, the officers issued proceedings against the Commissioner seeking compensation for reputational, economic and psychiatric damage on the basis that:

A retainer had arisen with the Commissioner's legal team following their assurances; These assurances meant the Commissioner had assumed a duty of care This duty required the Commissioner to take reasonable care to safeguard their...