Roberts v The Attorney General & Anor

The existence of a statutory framework does not automatically exclude a common law duty of care. The court must identify the statutory power and the precise terms of any direction or authorisation under which the defendant acted. The principles in Trent Strategic Health Authority v Jain apply where the impugned advice was given in the exercise of a statutory function and imposing liability would conflict with that function’s purpose. They do not necessarily apply to advice on matters outside the statutory remit. On a strike-out application, the pleaded facts must be assumed to be true. Where the evidence does not establish the scope of the statutory function, the duty question should ordinarily be determined at trial.

The claimant applied for appointment as Chief Constable of Dyfed-Powys Police. He alleged that the second defendant, an HM Inspector of Constabulary, made false and negligent statements about his performance and suitability to the statutory selection panel, causing financial loss and loss of a chance of appointment.

The Cardiff County Court struck out the claim, holding that the statements were made in the exercise of statutory functions and that imposing a duty of care would conflict with the purpose of those functions. The claimant appealed. The central issue was whether the pleaded statements could be treated as advice given pursuant to a statutory power, despite the absence of evidence identifying the relevant direction and despite the pleaded limitation on the HMIC’s role.

1. Appeal allowed. The order striking out the claim was set aside.
2. Section 54(3) of the Police Act 1966 confers on the Secretary of State the power to direct HM Inspectors of Constabulary to perform duties for the purpose of furthering police efficiency and effectiveness. It does not itself establish the precise scope of the HMIC’s advisory role. The terms of any direction must therefore be identified before deciding whether particular advice was given in the exercise of a statutory function.
3. On the pleaded case, the HMIC was authorised to advise on limited matters but was not authorised to comment on a candidate’s overall performance or suitability. If advice was given on those additional matters, it could have been outside the scope of the statutory direction. In that event, imposing a duty to take reasonable care in giving the additional advice would not necessarily conflict with the statutory purpose or have a chilling effect on the proper discharge of the statutory function.
4. The principle drawn from Trent Strategic Health Authority v Jain [2009] UKHL 4 did not justify striking out the claim on the assumptions before the court. That case concerned the exercise of a statutory power directed to protecting nursing-home residents. The present court had insufficient evidence to conclude that the challenged statements were made pursuant to an equivalent statutory function.
5. The court did not decide whether any relevant direction had been given, whether the statements fell within its scope, or whether a duty of care was ultimately owed. Those questions, together with breach and causation, were left for determination at trial if necessary.

• High Court (Queen's Bench Division): Appeal allowed; the order striking out the claim was set aside.
• Cardiff County Court: HHJ Seys Llewellyn Q.C. struck out the claimant’s claim for damages for negligent misstatement.