James -Bowen & Ors v The Commissioner of Police for the Metropolis

A claimant who is not a party to underlying litigation cannot infer a contractual retainer merely because the defendant’s legal team also communicates with or supports the claimant as a witness. A concurrent duty of care will not ordinarily be imposed where it would conflict with the defendant’s right to conduct and settle its own litigation in its own interests. For psychiatric injury, foreseeability requires more than distress, reputational concern or an adverse employment-related event; absent indications of special vulnerability, psychiatric injury will generally not be reasonably foreseeable. A claim based on voluntary assumption of responsibility requires an arguable retainer, entrustment or other factual ingredient capable of amounting to reliance. Misfeasance in public office requires properly pleaded subjective bad faith and the relevant public officer.

Four serving or former police officers sued the Commissioner in contract, negligence and misfeasance in public office. They alleged that the Metropolitan Police Directorate of Legal Services and counsel had represented their interests while defending a civil claim brought by Babar Ahmad against the Commissioner, and that the later settlement, apology and failure to disclose evidence caused reputational, economic and psychiatric harm.

The Commissioner applied under CPR 3.4(2)(a) and CPR 24 to strike out or obtain summary judgment on the pleaded claims. The claimants also relied on voluntary assumption of responsibility. The central issues were whether a retainer or duty of care existed, whether psychiatric injury was foreseeable, whether reliance had been pleaded, and whether the misfeasance claim was adequately constituted.

1. Retainer. The claimants were not parties to the civil action and were attending conferences as witnesses, not clients. The Commissioner had not sought contribution from them. The evidence therefore disclosed no express retainer, and no contractual nexus could be implied merely because the underlying litigation might affect their reputations. The concepts of joint interest and common interest concerned legal professional privilege, not the existence of a joint retainer. Summary judgment was granted on this part of the claim.
2. Negligence. Although proximity arising from the quasi-employment relationship was arguable, it would not be fair, just and reasonable to impose a concurrent duty requiring the Commissioner to conduct or settle litigation in the claimants’ interests. That duty would conflict with the Commissioner’s entitlement to pursue his own interests and with the primary duties owed by his lawyers. The third limb of Caparo Industries plc v Dickman remained relevant after Michael v Chief Constable of South Wales Police.
3. The psychiatric injury claim also lacked a real prospect of success. The pleaded circumstances might cause anger, distress and reputational concern, but there were no pleaded signs of special vulnerability and nothing sufficiently egregious to make psychiatric illness reasonably foreseeable. The approach in Yapp v FCO, together with the guidance in Hatton v Sutherland, applied by analogy.
4. Voluntary assumption of responsibility. Reliance is context-dependent, but the claimants had no relevant retainer, affairs or direct interest entrusted to the defendant. No additional factual ingredient capable of establishing reliance had been pleaded. The claim also failed independently because psychiatric damage was not reasonably foreseeable.
5. Misfeasance. The pleading did not identify the public officer or plead the required subjective bad faith, improper purpose or knowledge of probable injury. There was no exceptional basis for adjourning the application pending disclosure.

The applications under CPR 3.4(2)(a) and CPR 24 succeeded. Judgment was entered for the defendant on the entirety of the Particulars of Claim.