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Employers’ duty of care in the conduct of litigation: James-Bowen and others v Commissioner of Police of the Metropolis [2018] UKSC 40

Employers do not have a duty to take reasonable care to protect employees from economic and reputational harm in the conduct of legal proceedings.

Four police officers alleged breach of contract and negligence arising out of the Commissioner’s defence to a claim of assault during an arrest, which was settled with an admission of liability and an apology for “gratuitous violence”. The officers argued there was a duty to take reasonable care to safeguard their safety, health, welfare and reputational interests, in the preparation, conduct and settlement of the assault claim.

The High Court struck out the claim for lack of prospects, but the Court of Appeal thought it arguable. The Supreme Court held that the imposition of the duty argued for was not fair, just and reasonable:

  1. A duty was not within the implied term of trust and confidence. It would go beyond the specific duties already established was too far removed from a duty to exercise care in the conduct of business;
  2. It was already established there was no duty of care to protect officers’ economic and reputational interests in disciplinary proceedings (Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228);
  3. Such a duty may give rise to conflicting interests. An employer, vicariously liable for its employees, must be able to investigate a claim, assess its strength and the prospects of defending or settling it. In contrast, the employee’s main interest will be vindicating their reputation;
  4. Imposing the duty until an actual conflict arises is impracticable. Cases develop in unexpected ways and notifying an employee of the conflict would disrupt and prolong litigation;
  5. Parties should be free to resolve disputes without fear of incurring liability to third parties. The imposition of the duty of care would have “a chilling effect” on the defence of civil proceedings;
  6. It would also present a “fruitful” source of satellite litigation and collateral challenges to earlier proceedings;
  7. To defend a claim for breach of the duty, an employer would be compelled to waive privilege, which would undermine the conduct of the original litigation and inhibit frank discussions.

James Tunley / 29th Aug 2018


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