James-Bowen & Ors v Commissioner of Police for the Metropolis (Rev 1)

Strike out and summary judgment serve different functions. Under the Civil Procedure Rules 1998, strike out concerns whether the pleaded facts could support a claim in law, whereas summary judgment requires evidence showing that the claim has no real prospect of success. A chief constable’s quasi-employer relationship may arguably support a tortious duty to take reasonable care not to sacrifice officers’ interests and reputations without good reason or warning. Informal assurances do not ordinarily create a solicitor’s retainer unless the conduct objectively points only to that intention. Assumption of responsibility requires reliance. Psychiatric injury requires reasonable foreseeability, but economic and reputational loss need not depend on psychiatric injury.

Four serving Metropolitan Police officers sued the Commissioner after the Commissioner compromised proceedings brought by Babar Ahmed, admitted most allegations of gratuitous violence, and issued a public apology. They claimed reputational, economic and psychiatric harm, relying on an alleged retainer, a common-law duty of care arising from their quasi-employment relationship, and an assumption of responsibility.

Jay J struck out the particulars of claim and entered judgment for the Commissioner: [2015] EWHC 1249 (QB). The appeal concerned whether any pleaded claim was legally viable and, if so, whether the evidence justified summary judgment.

The appeal was allowed in part. Lord Justice Moore-Bick gave the judgment, with which Lord Justice Longmore and Lord Justice Patten agreed.

1. Procedural framework. Rule 3.4(2)(a) of the Civil Procedure Rules 1998 concerns the legal sufficiency of the pleading. The court asks whether the alleged facts, if established, could support the claim. Part 24 concerns prospects of success and requires sufficient evidence to show that the claim has no real prospect of succeeding. The court must not resolve disputed facts or rely on speculation about evidence that might later emerge.
2. Retainer. An implied solicitor’s retainer can arise only where, objectively, the parties’ conduct is explicable only by an intention to enter that legal relationship. The court should be slow to infer such a contract where an express retainer could have been made. The assurances pleaded by the officers were consistent with their role as important witnesses whose interests broadly coincided with those of the Commissioner. They did not establish a retainer. Further, any alleged retainer with the DLS could not found a contractual claim against the Commissioner without pleaded facts making him liable for it. This limb was struck out and could not succeed on the evidence. The approach was consistent with Dean v Allin & Watts [2001] EWCA Civ 758 and Caliendo v Mishcon de Reya [2016] EWHC 150 (Ch).
3. Common-law duty of care. The relationship between chief constable and officer is closely analogous to employment, subject to public-policy considerations: Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700. It was arguable that the Commissioner owed a tortious duty to take reasonable care not to sacrifice the officers’ interests and professional reputations without good reason and reasonable warning. That duty did not necessarily conflict with the Commissioner’s duty to protect the interests of the MPS and the public. The claim therefore should not have been struck out. The pleading was imprecise, but it sufficiently alleged negligent failures to preserve or obtain important evidence, causing the Commissioner to compromise the underlying claim. The evidence did not establish that this claim had no real prospect of success.
4. Loss and causation. The psychiatric-injury claim had no real prospect because reasonable foreseeability of psychiatric harm was essential, and no supporting facts or evidence had been pleaded: Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512. The reputational and economic claims were arguable independently of psychiatric injury. The warning claim failed for lack of causation because there was no real prospect that the officers would have joined the proceedings or obtained the proposed protective measures.
5. Assumption of responsibility. A negligence claim based on assumption of responsibility requires reliance. The pleaded assurances were incapable of establishing the necessary assumption, and the officers could not show causative reliance. This limb was therefore dismissed.

The retainer, psychiatric-harm and assumption-of-responsibility claims were dismissed or struck out. The economic and reputational duty-of-care claim was allowed to proceed, subject to amendment of the particulars of claim.

1. Court of Appeal (Civil Division): The appeal was allowed only insofar as the economic and reputational loss claim based on a common-law duty of care was permitted to proceed under [2016] EWCA Civ 1217.
2. High Court, Queen’s Bench Division: Jay J struck out the particulars of claim and entered judgment for the Commissioner under [2015] EWHC 1249 (QB).