Swinney v Chief Constable of Northumbria Police Force

A police force does not have a blanket immunity from a negligence claim arising from the handling of confidential information supplied by an informant. Where the pleaded facts show that the police assumed responsibility for preserving confidentiality, and that disclosure exposed the informant to a special risk beyond that faced by the public generally, a duty of care may be arguable.

Public-policy considerations must be assessed in the round. The need to avoid defensive policing and diversion of resources must be weighed against the public interest in protecting informants and maintaining the flow of information to the police. At the strike-out stage, the claim should proceed unless it is bound to fail.

The claimants alleged that the first claimant gave confidential information to the police to assist the identification of a person responsible for killing a police officer. The information, including her identity, was recorded and allegedly left in an unattended police vehicle. It was stolen, shown to the suspect, and said to have led to threats and psychiatric injury.

A district judge struck out the negligence claim. Laws J allowed the claimants’ appeal. The Chief Constable appealed to the Court of Appeal, contending that the pleadings disclosed neither a sufficiently proximate duty of care nor a viable claim because public policy immunised the police. The claimants also obtained leave to add a claim for breach of confidence.

1. Appeal dismissed unanimously, with costs. Lord Justice Hirst, with whom Lord Justice Peter Gibson and Lord Justice Ward agreed, held that the negligence claim was properly arguable and could not be struck out.

2. On an application under Order 18 rule 19, the pleaded facts must be assumed true and no evidence is admissible. Strike-out is appropriate only where the defendant shows beyond peradventure that the claimant must fail. The pleaded confidentiality, the police messages requiring confidence, and the particular risk of reprisals made it arguable that the claimants stood in a special relationship with the police. Their position was arguably closer to Home Office v Dorset Yacht Co Ltd than to Hill v Chief Constable of West Yorkshire.

3. The public-policy reasoning in Hill v Chief Constable of West Yorkshire was of general importance, but did not establish the blanket immunity asserted by the Chief Constable. The court had to balance the risks of defensive policing and diversion of police resources against the public interest in protecting informants and encouraging them to provide information. On the pleadings, it was arguable that the latter considerations prevented immunity from applying.

4. It was also arguable that the police had assumed responsibility for confidentiality. If established, that could engage the voluntary-assumption-of-responsibility qualification identified in Elguzouli-Daf v Commissioner of Police of the Metropolis & Anr.

5. Earlier, the court granted leave to amend after limitation to add breach of confidence. The proposed claim arose from identical facts and was at least arguable, including where disclosure was alleged to have been inadvertent rather than deliberate. The court did not decide the ultimate viability of that cause of action.

• Court of Appeal: dismissed the Chief Constable’s appeal and upheld the refusal to strike out the negligence claim. It also granted the claimants leave to amend to add breach of confidence.

• High Court, Queen’s Bench Division (Laws J): allowed the claimants’ appeal from the district judge’s order striking out the claim.

• District Judge: struck out the claim under Order 18 rule 19 of the Rules of the Supreme Court.