James -Bowen & Ors v The Commissioner of Police for the Metropolis [2015] EWHC 1249 (QB)

[2015] EWHC 1249 (QB)Case No HQ14X02397
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/05/2015
Before
MR JUSTICE JAY
Between
(1) Rod James-BowenClaimants(2) Nigel CowleyClaimant(3) Mark JonesClaimant(4) John DonohueClaimantThe Commissioner of Police for the MetropolisDefendant
Mr Nicholas Bowen QC and Mr David Lemer (instructed by Pattinson & Brewer) for ClaimantsMr John Beggs QC and Ms Cecily White (instructed by Weightmans LLP) for DefendantHearing Hearing dates: 28 th and 29 th April 2015
Judgment

Introduction

[1]There are three applications currently before the Court. First, by an application notice dated 28th April 2014 the Defendant seeks an order(i) striking out the claims in breach of contract, negligence and misfeasance in public office pursuant to CPR 3.4(2)(a); or(ii) for summary judgment in relation to those claims pursuant to CPR 24(a)(i) and (b); and/or(iii) striking out various specified paragraphs of the Particulars of Claim that plead or rely upon matters protected by Legal Professional Privilege (“LPP”). Secondly, by an application notice dated 14th April 2015 the Claimant seeks specific disclosure, pursuant to CPR 31.19(5) and CPR 31.12 of documents said to be subject to LPP. Thirdly, the Claimants seek permission to serve a Reply to the Defence.[2]It is convenient and appropriate to consider the Defendant’s application first. Not merely does it predate the Claimants’ applications, the latter only arise for consideration in the event that this claim survives the Defendant’s attack upon it. Furthermore, during the course of oral argument it became clear that Mr John Beggs QC for the Defendant was content to leave the third limb of his application for future consideration, should the need arise.

The Claimants’ Case

[3]The Particulars of Claim dated 21st January 2014 is a somewhat lengthy and discursive document, and for present purposes it is necessary to distil its essential elements. In line with well established principles, discussed at great length below, the evidence cannot be tried at this stage, and the facts must – unless plainly contradicted by insurmountable material, or otherwise wholly fanciful – be assumed in the Claimants’ favour.[4]I begin with an outline of the pleaded facts. The four Claimants were at the material time serving police officers within the territorial support group, and as office holders were in a quasi-contractual relationship with the Defendant. I understand that all the Claimants, save for the third Claimant who has retired, remain in active police service. On 2nd December 2003 they arrested a terrorist subject, Babar Ahmad (“BA”) who complained of being seriously assaulted during the course of that arrest. Disciplinary charges were brought against the Claimants, and were dismissed in April 2005. In June 2007 BA issued proceedings against the Defendant, claiming that the Commissioner was vicariously liable for the Claimants’ torts. No separate claim was brought against the Claimants, as it might have been, and the Defendant did not seek an indemnity or contribution from his officers, as he might theoretically have done. On 18th March 2008 the Claimants attended a conference at the chambers of Mr Jeremy Johnson, then junior counsel, and heard advice to the effect that BA’s claims would be “vigorously defended”, that if “special measures” to protect their identity were not forthcoming they would not be required to give evidence, and that the Defendant’s legal team was also acting for and in the Claimants’ interests (see, in particular, paragraph 41 of the Particulars of Claim). At a pre-trial review which took place on 13th February 2009, the Commissioner’s application for special measures was rejected. On 19th February 2009 the Claimants were made aware by the DLS that it was seeking to settle BA’s claim. The Claimants expressed their profound concerns about what seemed to them to be the recent turn of events, and said that they would have to take independent advice. On 11th March 2009 the Claimants attended a second conference at counsel’s chambers, and were told that the Directorate of Legal Services (“DLS”) and counsel were no longer instructed to protect their interests. BA’s civil trial commenced on 16th March 2009, and on the following day the second Claimant informed counsel that if special measures were not provided, the Claimants would not testify. On 18th March 2009 BA’s claim was settled on the basis of agreed damages and costs of £60,000 and £240,000 respectively, together with an admission of liability and an apology for the “gratuitous violence” to which he had been subjected by the Claimants. According to paragraph 82 of the Particulars of Claim, the Commissioner’s Office issued a press release stating:
“The Commissioner has demanded an immediate investigation into the circumstances surrounding the officers’ refusal to give evidence relating to this arrest in 2003. Whilst the arrest and subsequent events are historic this is a serious matter which has been referred to the IPPC”
. The Claimants aver, and I am inclined at least for present purposes to accept, that this was tantamount to endorsing the Claimants’ culpability. On 12th August 2010 the Claimants were charged with various criminal offences arising out of BA’s arrest in December 2003, and in May 2011 they were acquitted by the Jury.[5]On my understanding of paragraphs 39-48 of the Particulars of Claim, the Claimants contend that in the circumstances of this case, in particular the Claimants’ participation in the first conference with counsel, and the assurances given during the course of it, “expressly and/or implicitly, a client/solicitor retainer and/or a contractual relationship was created between the DLS and the Claimants”. Paragraph 48 of the Particulars of Claim pleads the express incidents of that relationship, and it is necessary to set it out in full:
“(i) expressly that the legal team acting for the MPS were also acting for and to protect the interests of the Claimants; (ii) expressly that the said legal team would defend the allegations made by BA that the Claimants had brutally assaulted and abused BA as set out at paragraphs 11-12 above; (iii) expressly that the Claimants would not be expected to give evidence unless the special measures application was successful; (iv) implicitly that the defence would be handled with reasonable care and in the event that the said legal team reached the view that a conflict of interest had emerged … and/or that the MPS were considering admitting liability and apologising to BA for the Claimants’ actions the DLS would consult/warn and explain the reasons and advise them to take independent legal advice in sufficient time …”
[6]Paragraph 102 of the Particulars of Claim avers:
“The Defendant owed the Claimants a duty of care in tort (and concurrently in contract: (see paragraphs 43(i)-(v) and 48 above) as employer/quasi-employer to take reasonable care to safeguard the safety, health, welfare, (including economic and professional welfare) and reputational interests of the Claimants.”
[7]Paragraph 103 of the Particulars of Claim avers:
“The scope of the said duties included: (a) a duty to take reasonable care in the preparation and conduct of the defence to BA’s civil claim; and/or (b) a duty to take reasonable care to protect the Claimants’ interests when considering and effecting any compromise/settlement of the said civil claim which involved an admission of liability that BA’s allegations … were true.”
[8]Further specific incidents of the duty are set out under paragraph 104.[9]Paragraphs 105-109 set out the various formulations of the Claimants’ case. The first formulation (paragraphs 105-107) is what may be described as negligence simpliciter – the Claimants set out the three stages of the well-known tripartite test outlined by Lord Bridge in Caparo Industries plc v Dickman [1990] 2 AC 605. The second formulation (paragraph 108) is voluntary assumption of responsibility, and is based on the assurances allegedly given by counsel during the course of the first conference in March 2008, which for present purposes I must assume against the Defendant were indeed made. The third formulation is breach of the express or implicit retainer pleaded under paragraph 48 of the Particulars of Claim. The Skeleton Argument of Mr Nicholas Bowen QC for the Claimants explains these formulations in somewhat greater detail, and I will be examining that in a moment.[10]The Claimants aver at paragraph 111 of the Particulars of Claim that the Defendant was in breach of duty in a number of respects, by(i) failing to conduct and prepare a competent defence to BA’s civil claim,(ii) failing to keep the Claimants informed of the progress of the investigation, and to protect their interests,(iii) failing to advise and/or warn the Claimants that they were minded to settle BA’s claim, and(iv) failing to explain why the Defendant’s legal team could no longer represent the Claimants’ interests. The facts and matters averred by the Claimants cannot substantially be disputed for present purposes, and I should add that it is an important part of the Claimants’ case on item (i) above that shortly before their criminal trial in March 2011 the Crown unearthed evidence obtained by a covert recording device or probe of what happened during the course of BA’s arrest in December 2003, or at least a significant part of it. This evidence largely supported the Claimants’ version of events, and undermined BA’s, explaining why the Jury took very little time to find the Claimants not guilty. It is alleged that had this evidence been available earlier, as it ought to have been, the Defendant’s conduct of the civil claim would probably have been different. Again, for present purposes I must assume these facts in the Claimants’ favour.[11]Paragraphs 112-118 of the Particulars of Claim also plead, or purport to plead a cause of action in misfeasance of public office, and I will be returning to that subsequently.[12]Paragraph 119 of the Particulars of Claim is material. It provides:
“By reason of the aforesaid breaches of duty, particularly the failure to defend BA’s civil claim and the failure to disclose/discover the probe caused the loss and damage as pleaded below. LOSS AND DAMAGE By reason of the matters aforesaid the Claimants have suffered reputational and economic loss because of the damage to the officers’ careers having been branded as abusive thugs and have suffered the fear of being disciplined (and in the first Claimant’s case, was disciplined), personal injury, upset, vexation, a sense of isolation and unfairness, stress, economic loss and psychiatric damage … A full schedule will be served in due course.”
Although I was initially concerned that the Particulars of Claim fails to comply with paragraph 4.1 of Practice Direction 16 governing claims for Personal Injuries, I understand that psychiatric evidence has been served along with provisional schedules of loss. The psychiatric evidence has not been examined, and must be assumed to support the claims, but issues arise as to the recoverability of damages for psychiatric injury in these circumstances. LOSS AND DAMAGE A full schedule will be served in due course.”

LOSS AND DAMAGE

[13]Mr Bowen’s Skeleton Argument and speaking note have assisted me in ascertaining more precisely the causes of action on which the Claimants rely, and their exact formulations. First, the Claimants contend that in the circumstances of the instant case a relationship of Joint Retainer and/or Joint Interest existed, by virtue of the fact that the parties retained and shared the same legal team, until the Claimants were informed by counsel in March 2009 that he was no longer representing their individual interests. Additionally, the Claimants contend that in the light of this relationship no LPP exists as between the Claimants and the Defendant (cf. as between the Defendant and third parties). Secondly, the Claimants contend that even if no Joint Retainer was created, expressly or by necessary implication, a common interest privilege existed between the parties such that no LPP exists as between the Claimants and the Defendant. Thirdly, the Claimants contend that, in the light of the quasi-employment relationship between the parties and all the circumstances of the case, the claim in negligence simpliciter is either within the existing scope of the law of negligence, or but a short incremental pace away from it. Fourthly, the Claimants contend that all the preconditions for a voluntary assumption of responsibility are satisfied. Fifthly, and finally, the freestanding claim in misfeasance in public office is accepted to be exiguous, but the Claimants should be given the opportunity to perfect their pleadings once proper disclosure has been furnished.

The Proper Approach to these Applications under CPR r.3.4 and CPR r.24

[14]The parties have reminded me of the relevant principles. In relation to the strike-out application, the threshold is an extremely high one, and caution must be exercised in cases where no actual findings of fact are made and/or the law is developing: see for example Waters v MPC [2000] 1 WLR 1607 (at 1613H-1614A), Barrett v Enfield LBC [2001] 2 AC 550 (at 557E-G) and Hughes v Colin Richards [2004] PNLR 35. In relation to the summary judgment application, the Claimants must show a “real” or “realistic” prospect of success, recognising that this is not the proper forum to resolve complex disputes of law or fact: see Three Rivers DC v Company of the Bank of England (No 3) (2001) 2 AER 513 (paragraph 159), and ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472.

The Retainer Issue

[15]It is convenient to consider this issue first, because it is logically prior to the Claimants’ tortious formulations, and Mr Beggs accepts that if he should fail in this respect, the remaining claims should be permitted to proceed. For the avoidance of doubt, here I am examining paragraphs 39-48, 102 (in part), 104 (in part) and 109 of the Particulars of Claim.[16]Mr Beggs submits that the available material falls short of demonstrating the existence of a contractually binding commitment between the Claimants and the Defendant. The Claimants have not pleaded any facts on which a Court could conclude that the retainer between the Defendant, the DLS and Counsel extended to protecting their interests, and any assurances given by Counsel cannot have the legal effect of creating such a retainer. Mr Beggs also relies on the Defendant’s standard operating procedures (“SOP”) in support of the contention that the DLS would normally act for all parties who are sued in civil proceedings provided that an appropriate authorisation is signed. The fact that the Claimants were not parties to the underlying civil claim brought by BA is a decisive factor counting against the existence of an express or implied retainer.[17]Mr Bowen submits that it is arguable on the available material that the parties retained and shared the same legal team. This argument is fortified by the witness statement of Nigel Cowley to the effect that the DLS do act for and represent officers in the absence of a conflict. Here, the Claimants were working closely with the Defendant to prepare and defend the case, and they were effectively being treated as clients and not mere witnesses. Further, Mr Bowen draws attention to a string of emails (see paragraph 32 of his Skeleton Argument) which indicates that the parties were proceeding on the common assumption that the DLS was intending to safeguard the Claimants’ interests.[18]Mr Bowen drew attention to Jackson & Powell, 7th Edition, paragraph 11-005 in support of the proposition that the court may infer an implied retainer from the conduct of the parties and all the circumstances, that the absence of consideration is not a decisive factor, and an intense focus on the facts is required. Support for these propositions, which I would regard as uncontroversial, may be derived from Dean v Allin & Watts (a Firm) [2001] PNLR 39, although in that case the claim only succeeded on the basis of an assumption of responsibility.

Discussion

[19]In my judgment, this issue must be resolved in the Defendant’s favour on a narrow albeit conclusive basis. As I have already said, the Claimants were not parties to the civil claim brought by BA against the Defendant, nor did the Commissioner seek any contribution from them under the 1978 Act. They attended the conferences with Counsel as witnesses, not as clients. Although the course and outcome of BA’s civil claim might well impact on the Claimants’ reputations, either favourably or adversely, that in itself would not be a reason for implying a contractual nexus between the Claimants and the DLS; if it were such a reason, the same implication would arise in all cases where claims are brought against the principal, and the individual servants or agents are not sued. In my judgment, the Claimants have to point to an express contract of retainer with the DLS, and none exists. The present situation is clearly distinguishable from that contemplated by the Defendant’s SOP; see, in particular:
“Separate Representation of Officers and Other Staff Where civil proceedings are started against the Commissioner and members of staff, for actions taken in the course of their various duties and responsibilities, the DLS will normally act for all parties on the condition that the officers and staff concerned sign a retainer authorising the DLS to act for them. Where there is a conflict of interest between the MPS and its staff, officers and staff concerned will normally be asked to seek separate representation …”
Mr Bowen submitted that this paragraph needs careful parsing to extract its possible meaning, but in my view it is clear enough. Indeed, the present case is more aptly covered by the next rubric of the SOP, which provides:
“Support of Police Witnesses at Civil Trials Giving evidence at a civil trial can be more stressful and intimidating that giving evidence at a criminal court. Witnesses will be required to attend a pre-trial meeting with officers from the CAIU. This meeting is intended to support and prepare witnesses prior to giving evidence at a civil trial … The DLS lawyer will also be available to talk to officers and staff involved in civil action trials, to discuss the procedures and their implications …”
I cannot accept Mr Bowen’s attempt to circumvent this conclusion by asserting, as he does at paragraph 29 of his Skeleton Argument, that “this Joint Retainer/Interest was expressly recognised by virtue of the fact that the parties retained and shared the same legal team”. Not merely does this formulation tend to obvious circularity, I must reiterate that the Claimants were not parties to the underlying civil claim.[20]In my view, the Claimants’ submissions hereabouts are not improved by invoking the concepts of “Joint Interest” or “common interest”. This is to confuse the LPP issue (where those concepts are germane) with the Joint Retainer issue (where they are not).[21]Accordingly, I accede to the Defendant’s application under CPR r.24 in relation to this strand of the Claimants’ pleaded case.

The Claim in Negligence Simpliciter

[22]The principles of general application governing the existence of a duty of care are familiar: see, for example, the decisions of the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605, Marc Rich Co v Bishop Rock Marine Co Ltd [1996] AC 211, Barrett v Enfield BC [2001] 2 AC 550 and D v East Berkshire NHS Trust [2005] 2 AC 373. An extensive review of recent case-law appears in the decision of Edis J in Sebry v Companies House and another [2015] EWHC 115 (QB). In relation to the tripartite test which remains applicable to claims in negligence simpliciter, at least when his application was opened by Mr Beggs it appeared that the key issue for resolution in the circumstances of the present case is the third stage: is it fair, just and reasonable to impose a duty of care on the Defendant in the present circumstances? However, given the way in which Mr Bowen came to formulate his claim for psychiatric damage, it became apparent that an issue also arose on the first stage, namely foreseeability.[23]On my understanding of his Skeleton Argument, Mr Beggs’ preference was to analyse what may be called the pure negligence claim in two ways: either in relation to a postulated duty owed by the Defendant’s lawyers to the Claimants, or as a postulated duty owed by the Defendant qua quasi-employer to the Claimants. In my view, these formulations do not materially differ from each other. Mr Beggs is correct in submitting at paragraph 117 of his skeleton argument that if the Claimants fail to establish a duty of care pursuant either to the Caparo tripartite test or on the basis of an assumption of responsibility, no freestanding duty can arise from the employer/employee relationship. Essentially, this case is about the Defendant’s alleged failure to conduct the underlying litigation with BA in such a way that the Claimants’ interests were safeguarded, and the foreseeable consequences of that failure. In this regard, the principal focus must be on those giving legal advice to the Defendant, but it is not limited to that. The conduct of the litigation embraces all the evidential steps which the Claimants contend ought to have been taken, but did not. The relevance of the employer/employee relationship (or a relationship akin to it) is that the second stage of Caparo, namely proximity, is clearly satisfied. This relationship may also have some relevance to the critical third stage.[24]Mr Beggs’ core submission is that it would not be fair, just or reasonable to impose a duty of care possessing the scope, incidents and attributes pleaded under paragraphs 103-104 of the Particulars of Claim. The essence of the pleaded case is that the Defendant failed to protect the Claimants’ interests in the conduct of the underlying litigation in circumstances where only the Defendant was a named party to BA’s suit. The general rule, see, for example, White v Jones [1995] 2 AC 207 is that lawyers owe a duty of care to their clients alone and not to third parties, even if the latter happen to be the employees of the entity to whom the lawyers are giving advice. No exceptional circumstances have been identified to take the instant case out of the general rule. Further, it would not be fair, just and reasonable to impose a duty of care in these circumstances, for at least three overlapping reasons. First, the postulated duty would inevitably conflict with the primary duty owed by the Defendant’s lawyers to the Defendant. Insofar as the Claimants rely on vicarious liability for those within the Defendant’s organisation who are not lawyers, for example those within the Gold Group who may have accepted legal advice (or indeed who may have ignored or overridden it – that possibility exists, privilege not having been waived), the position is effectively the same: the Defendant was entitled to settle BA’s claim having regard to its perception of its own interests, regardless of anyone else’s interests. It is irrelevant that the Defendant’s reasons for settling BA’s claim may have been good, bad or indifferent; the point remains that the Defendant was entitled to pursue a wholly self-interested course, without regard to the interests of its employees. To impose a duty of care would, so the argument runs, disable the Defendant from its appropriate freedom of choice in this domain. Secondly, Mr Beggs submitted that LPP was a policy consideration for not imposing a duty of care in these circumstances. If such a duty existed, the Defendant would in effect be compelled to waive privilege in circumstances where it would otherwise be entitled to assert it, because the correctness or reasonableness of its conduct of the underlying litigation could not be properly examined without relevant legal advice being properly exposed to judicial scrutiny. Thirdly, if a postulated duty existed, the Defendant would effectively be compelled to follow a course of action which it believed was not in its best interests. If it was not so compelled, but merely had to give the Claimants an opportunity to obtain independent legal advice, the Claimants could have no possible complaint, because the outcome would have been the same; the underlying claim would still have been settled, possibly at additional cost to the Defendant if the Claimants’ obtaining of advice caused delay. Given that the Claimants were not a party to BA’s claim, there was nothing they could do in their own right which might have prolonged the life of litigation which the Defendant was hell-bent on compromising. Put another way, it is inconceivable that the Claimants might have agreed to take over the Commissioner’s defence of BA’s claim.[25]Mr Bowen’s answer to these submissions was to the effect that the tripartite test in Caparo v Dickman was satisfied. The correct point of departure was to identify the incidents of the postulated duty of care. According to paragraph 20 of Mr Bowen’s speaking note, the duty asserted was a duty(i) properly to prepare the defence of BA’s claim, and to give timeous notification to the Claimants if a conflict of interest arose, and(ii) not to settle BA’s claim with admissions unless that settlement fell within the band of reasonable responses. This, in effect, was the scope of the duty pleaded under paragraphs 103 and 104 of the Particulars of Claim. In the alternative, Mr Bowen submitted that even if the duty was confined to one properly to prepare the defence of BA’s claim, everything else – including the settlement on disadvantageous terms – flowed from the Defendant’s breach of that duty.[26]Mr Bowen raised a series of principled objections to Mr Beggs’ submissions directed to the third limb of the tripartite test. First, he drew a distinction between the public duties of the police force, in respect of which public policy arguments are relevant, and the private law obligations of the Commissioner to his quasi-employees, in respect of which such arguments are irrelevant. Secondly, he submitted that the court should not succumb to this form of policy objection unless completely satisfied that it is well-founded (see, for example, Lord Lowry in Spring v Guardian Assurance plc [1995] 2 AC 326). Thirdly, Mr Bowen submitted that in Michael v Chief Constable of South Wales Police [2015] 2 WLR 343 the Supreme Court preferred an analysis which eschewed reliance on the third limb of Caparo.[27]During the course of his oral argument, Mr Bowen refined his submissions in this important respect. Paragraph 118a of Mr Beggs’ Skeleton Argument had made the point that the Claimants had failed to plead the essential ingredients of any claim for psychiatric injury. Mr Bowen accepts that his pure negligence case depends on establishing the pre-requisites for such a claim, and avers that paragraph 119 of his Particulars of Claim sufficiently pleads “psychiatric damage” for present purposes (in relation to this cause of action, the remaining heads of claim must be envisaged as consequential or parasitic). However, during oral argument the focus moved away from paragraph 119 to paragraph 105, where the following facts and matters are averred:
“The said duty of care arose because it was foreseeable that in the event of breach/breaches that the Claimants would suffer loss and damage to their safety, health, welfare (including economic and professional welfare) and reputational interests.”
In essence, Mr Bowen submitted that psychiatric harm was foreseeable in the present case in the light of at least two key factors. First, BA’s civil claim would have an obvious and direct impact on the Claimants’ reputations, and the Defendant’s general obligation of trust and confidence required it to take reasonable steps to safeguard the Claimants’ interests in that regard. Secondly, it was foreseeable that the Claimants might suffer psychiatric injury if those interests were ignored or jeopardised, not least because the Defendant knew or ought to have known that the Claimants were taking an extremely close and sedulous interest in the conduct of the defence of BA’s civil claim, and personal threats were being made to them and their families. Accordingly, in the particular circumstances of the present case, the Claimants were vulnerable to the risk of psychiatric injury.[28]In support of his submissions buttressing paragraph 105 of the Particulars of Claim, and the foreseeability of psychiatric injury in the circumstances of the instant case, Mr Bowen relied on Leach v Chief Constable of Gloucestershire [1999] 1 WLR 1421, McLoughlin v Jones [2002] QB 1312 and Yapp v FCO [2014] EWCA Civ 1512.[29]Mr Beggs relied on a number of authorities in his Reply which I will address during the course of the discussion which follows.

Discussion

[30]The starting point for my consideration of this issue is that the Claimants have no arguable case that there existed an implied retainer with the Defendant’s legal team pursuant to which the latter undertook to safeguard their interests in the underlying civil claim.[31]Mr Bowen’s most compelling argument was that the incidents of the duty relied on must be envisaged as adjunctive to the quasi-employment relationship which undoubtedly existed between his clients and the Defendant, that it was a function of this relationship that the employer would uphold mutual trust and confidence, and that even in a somewhat novel domain such as this the Court should be very wary about defeating the claim on assumed facts for reasons of policy. Indeed, I agree with him that the policy objection, if that is the correct way of characterising the third limb of Caparo, would have to shine in extremely bright lights to find favour at this preliminary stage of the litigation.[32]Although, as I have said, Mr Beggs’ opening latched onto the third limb of Caparo, the focus of the argument at the Bar evolved as the hearing progressed. The duty relied on by the Claimants was to avoid psychiatric injury, and the claims for reputational damage and economic loss are entirely consequential of that particular genus of personal injury. Accordingly, it seems to me that the issue of whether it is fair, just and reasonable to impose a duty on the Defendant in its capacity as quasi-employer to protect the Claimants’ interests in the context of the underlying civil claim should not be considered in abstract: the inquiry must be undertaken in the specific context of claims for psychiatric harm, not other personal injury. Indeed, applying a modicum of common sense to this exercise, the Claimants could not conceivably have suffered physical harm from the breaches of duty relied on. That is to not to say that psychiatric injury was foreseeable, but it is to circumscribe the parameters of the current inquiry.[33]In my judgment, there are two reasons why these claims should not be permitted to go further. The first reason assumes that psychiatric harm is foreseeable, the second reason determines that it is not. Even though the duty should not be artificially sub-divided in this way (see my preceding paragraph), it is convenient to adopt this approach in order to highlight the principled objections to the Claimants’ case.[34]Looking again at paragraph 20 of Mr Bowen’s speaking note, which does no more than summarise his Skeleton Argument and pleadings, it is clear that the scope or incidents of the postulated duty of care relate solely to the conduct of the underlying civil claim brought by BA. I agree with Mr Bowen that in terms of the pleaded case this may encompass various elements, namely preparation of the defence (including obtaining evidence and making appropriate applications to the court), notifying the Claimants if a conflict emerges, and settling the litigation appropriately. I do not agree with Mr Bowen that the press statement made by the Commissioner himself could give rise to a claim in the tort of negligence (if any properly constituted claim arose, it would be in defamation), nor do I agree that any separate issues arise as to whether the Defendant took appropriate steps to protect the Claimants and their families from the threat of personal violence. Although that matter may be relevant to the issue of vulnerability to psychiatric harm, it is nowhere being alleged that the Defendant was in breach of duty in this respect.[35]Even assuming that the first two stages of the tripartite test are satisfied, I consider that an insuperable difficulty arises at stage three. Given that the Claimants were not parties to BA’s civil suit, the Defendant’s lawyers owed duties solely to their principal, and the Commissioner himself owed a “duty” to protect his own interests, according to his own lights, and no one else’s. The fact that the Claimants could well suffer reputational damage, and (let me assume at this stage of the analysis) psychiatric harm, is insufficient to establish the relevant duty. The Defendant, acting in harmony with legal advice or otherwise, remained entitled to settle BA’s civil claim as he saw fit. If public money was being inappropriately lavished on an unmeritorious case, or had to be expended because the Defendant failed to prepare its defence properly, that may be a matter for the Home Secretary and others, but it is of no concern to the civil courts.[36]The principled objection to this claim is that the postulated duty of care cuts right across the rights and obligations of the Defendant itself, and those advising the Defendant, in circumstances where no implied retainer existed. It would not be fair, just and reasonable to impose a concurrent, conflicting duty of care in these circumstances: see, for example, Pacific Associates Inc v Baxter [1990] 1 QB 993 (at 1032), Marc Rich Co v Bishop Rock Marine Co Ltd [1996] AC 211 (at 241-2), and D v East Berkshire NHS Trust [2005] 2 AC 373 (Lord Nicholls, at paragraph 85, and Lord Rodger, at paragraph 110).[37]The Claimants’ case is not advanced by averring that the Defendant owed a duty to warn them when a conflict of interest arose. Such a duty could only arise as adjunctive to a duty of care, and for the reasons I have already given, none exists. In any event, even if analysed as a separate matter, this issue must be examined objectively, not subjectively. If, regardless of the Claimants’ actual state of mind, a relevant retainer only existed between the Defendant’s legal team and the Commissioner, the quasi-employment relationship would not be a sufficient basis for requiring the Defendant’s servants or agents to explain the evident incidents and potential consequences of these legal relationships. Further, I am struggling to understand how a breach of this particular obligation might have caused the Claimants their psychiatric injury. Even had they been warned, the underlying civil claim would still have been settled and it is fanciful to suggest that the Claimants might have applied to be substituted as the defending parties to it.[38]I should emphasise that my conclusion on the third limb of Caparo does not depend in any way on Mr Beggs’ LPP arguments, nor have I been swayed by his submissions on the merits.[39]Finally in this regard, Mr Bowen sought to persuade me that the third limb of Caparo does not survive the analysis of the Supreme Court in Michael v Chief Constable of South Wales Police [2015] 2 WLR 343. I do not agree: see paragraphs 112-122 of the Judgment of Lord Toulson JSC.[40]My second reason for holding that this claim must be struck out, and/or summary judgment ordered in the Defendant’s favour, is that the claim for psychiatric injury has not been made out. Here, it is necessary to examine some of the authorities which were drawn to my attention. Save in one respect, I shall do this in chronological order.[41]Mr Bowen relied on Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421. In that case the issue was whether the Police owed a duty of care to safeguard the psychological health of an individual who had volunteered to act as appropriate adult in relation to the interview of Frederick West. The majority in the Court of Appeal (Henry and Brooke LJJ) held that, in the absence of an assumption of responsibility, the Police owed no duty of care to someone who had volunteered herself. Mr Bowen relied on pages 1433/4 of the Judgment of Brooke LJ, but in my view they do not assist.[42]Mr Bowen also relied on McLoughlin v Jones [2002] 2 QB 1312. In that case the claim was for psychiatric injury based on a solicitor’s failure to conduct criminal litigation properly, in consequence of which the Claimant was wrongly convicted and imprisoned. The Court of Appeal held that it was reasonably foreseeable that the Claimant might suffer such injury. Brooke LJ pointed out that the existence of a contract of employment could not, without more, give rise to the relevant duty (at 1323A/B). For him, the critical feature of the case was that it was arguable that the purpose of the Defendant’s engagement was that it should use reasonable skill and care in preparing the Claimant’s case for trial in such a way as to minimise the risk of his being wrongfully convicted (at 1323E/F). But in the instant case, there was no relevant engagement as between the Commissioner and these Claimants. For Hale LJ, the Claimant should be regarded as a primary victim (by dint of the contract of retainer), and no issue arose as to whether he was a person of “ordinary phlegm” (see 1331D/E). Mr Bowen relied on Hale LJ at 1331E-H where she equated loss of liberty with personal injury, but in the instant case, in contrast with the facts of McLoughlin, no question of loss of liberty arises. The fact that the CPS decided to bring a criminal prosecution against the Claimants is a new intervening cause.[43]I was also reminded of the stress at work cases, beginning with Colman J’s decision in Walker v Northumberland CC [1995] ICR 702, running through Hatton v Sutherland [2002] ICR 613 (in the Court of Appeal) and Barber v Somerset CC [2004] 1 WLR 1089 (in the House of Lords), and culminating in the recent decision of the Court of Appeal in Yapp v FCO [2014] EWCA Civ 1512. In Yapp, Underhill LJ undertook an extensive review of all the authorities, and at paragraph 119 of his Judgment sought to summarise the current state of the law as follows:
“With regard to the issues of foreseeability and remoteness, the following propositions can be established from that review of the cases: (1) in considering, in the context of the common law duty of care, whether it is reasonably foreseeable that the acts or omissions of the employer may cause an employee to suffer a psychiatric injury, such an injury will not usually be foreseeable unless there were indications, of which the employer was or should have been aware, of some problem or psychological vulnerability on the part of the employee – Hatton. (2) That approach is not limited to cases of the Hatton type but extends to cases where the employer has committed a one-off act of unfairness such as the imposition of a disciplinary sanction – Croft and Deadman (also Grieves). (3) However, in neither kind of case should that be regarded as an absolute rule: Hatton contains no more than guidance, and each case must turn on its own facts – Hatton itself, but reinforced by Barber and Hartman.”
[44]The issue in Yapp was whether it was reasonably foreseeable that the FCO’s conduct in withdrawing the Claimant from his post without having had the opportunity to state his case might lead him to develop a psychiatric illness. Underhill J disagreed with the conclusion of the trial

Judge that it was:

“125. I start from the position that it will in my view be exceptional that an apparently robust employee, with no history of any psychiatric ill-health, will develop a depressive illness as a result of even a serious setback at work … … 127. Against that background I have come to the conclusion that there was nothing about the circumstances of the present case sufficiently egregious to render it foreseeable that the Claimant’s withdrawal from his post would cause him a psychiatric injury. I fully acknowledge that his withdrawal was a major setback to his career and was bound to cause distress and anger, exacerbated by the unfairness which the Judge found. But it was not tantamount to dismissal. Nor was it a disciplinary sanction or based on any established misconduct … This was not a case of some gross and obvious injustice of the kind alleged, for example, in Eastwood. In all those circumstances, ... , I do not believe that the FCO should have foreseen, in the absence of any sign of special vulnerability, that the Claimant might develop a psychiatric illness as a result of its decision.”
[45]In his Reply, Mr Beggs took me to the decision of the Court of Appeal in French v Chief Constable of Sussex Police [2008] EWCA Civ 312. In that case the Claimant police officers averred that the Chief Constable was guilty of systemic failures which led to the fatal shooting of a suspect; and, thereafter, disciplinary and criminal proceedings brought against them without justification.[46]The Judgment of the Court was given by Lord Phillips CJ. He observed that the case could be struck out on the very narrow basis that it was not reasonably foreseeable that corporate or systemic failings by the Chief Constable might cause psychiatric injury (see paragraph 27 of the Judgment). However, there were also broader reasons of principle militating against the viability of these claims. In particular:(i) an employer is usually entitled to expect that an employee will be capable of withstanding the stresses in his or her employment, unless an employer knows or ought to know that these stresses are putting a particular employee at risk (paragraph 29).(ii) the present case was not a stress of work case or analogous to such a case: the chain of causation was that an untoward event, the shooting of the suspect, resulted in disciplinary and criminal charges (paragraph 30).(iii) even if the Claimants had witnessed the shooting, they would not have been secondary victims (paragraph 32).(iv) although it was arguably foreseeable that the stress of the disciplinary and criminal proceedings was capable of causing psychiatric injury (paragraph 33), the Chief Constable owed no duty of care to prevent the occurrence of the untoward event, namely the shooting (paragraph 34).[47]There are aspects of French which avail the Defendant here, and as Mr Bowen pointed out in his note submitted after the close of argument, other aspects which do not. Although the bringing of BA’s civil claim was “untoward” in the sense of being outside the Defendant’s control, its defence of that claim was within its control. I would agree that the Defendant might not be able to compel the Claimants to testify, but in other significant respects, and subject always to the court, the Defendant had considerable freedom of action. On the other hand, Mr Beggs is entitled to rely on paragraphs 29 and 30 of the Judgment of the Lord Chief Justice.[48]Bringing all these jurisprudential strands together, the focus must be on(i) the Claimants’ formulation of their case in the Particulars of Claim, and(ii) whether that formulation has a real prospect of success.[49]Paragraph 105 of the Particulars of Claim alleges that the postulated duty of care arose because it was foreseeable that in the event of breach the Claimants might suffer loss and damage to their health. In my judgment, this is an extremely unpromising basis for founding the duty at issue. The duty must arise for some anterior reason, not from what might happen in the event of breach. Further, paragraph 105 does not make it explicit that the claim is for psychiatric injury. Even allowing the Claimants considerable latitude in this regard, it is necessary to examine the factors which Mr Bowen recruited in oral argument. He submitted that the Claimants were intimately involved in the defence of BA’s civil claim, that they were fully expecting it to be robustly defended, that their reputations were undoubtedly on the line, and that the Claimants had to bear the obvious stress of themselves and their families being under physical threat from BA’s supporters. Although Hatton may lay down the general rule, ultimately each case must turn on its own facts.[50]As I made quite clear during the course of the hearing, I have sympathy with the Claimants to the extent that, if their pleaded case is right, it appears that they were let down by the Defendant in very many ways over a considerable period of time. I have to assume for present purposes that the psychiatric evidence is capable of establishing a causal link between the injuries complained of in all four cases and the breaches of duty relied on. However, I am not persuaded by Mr Bowen that the Claimants have a real prospect of proving at trial that it was reasonably foreseeable that the Defendant’s breaches of duty might cause psychiatric injury. If French was not a stress at work case, or analogous to one, it is difficult to understand how the instant case might be distinguishable. The defence of BA’s civil claim may have been a complete imbroglio, and the admission of liability to BA may have been completely unfair, but by analogy with paragraph 127 of Yapp there was nothing about the circumstances of the present case sufficiently egregious to render it foreseeable that the Claimants might suffer psychiatric injury rather than anger and distress. There was no internal or judicial finding that the Claimants had assaulted BA, and the Commissioner’s press release delivered somewhat ex cathedra is nothing to the point. Further, there were no signs of special vulnerability – none have been pleaded, and the fact that the Claimants were justifiably anxious about the physical threats was, in my view, insufficient.[51]In all these circumstances, I am not prepared to permit Mr Bowen the opportunity to amend his pleadings and remedy the obvious deficiencies in paragraphs 105 and 119 of the Particulars of Claim. There would be no useful purpose in affording him that indulgence. Mr Beggs’ application succeeds under both CPR r.3.4(2)(a) and CPR r.24.

Voluntary Assumption of Responsibility

[52]Ultimately, Mr Beggs’ application turned on a narrow point.[53]Mr Bowen’s pleaded pathway to a voluntary assumption of responsibility proceeds as follows. Assurances were given in conference in March 2008 that the Claimants’ interests would be protected and the claim would be vigorously defended (paragraph 41). These assurances were countermanded, five days before the start of the civil trial (paragraph 60(v)); this was far too late. In consequence of the March 2008 assurances, the Defendant assumed responsibility to the Claimants to safeguard their interests, in particular by undertaking the obligations summarised at paragraph 20 of Mr Bowen’s speaking note (paragraph 108).[54]Mr Beggs’ point is that the Claimants fail to plead that they relied on these assurances, and in any event there could be no relevant reliance in the circumstances of the present case.

Discussion

[55]Reliance is an essential ingredient of the Hedley Byrne liability, but what it requires in individual cases is likely to be context-driven. On this occasion, I will work in reverse chronological order. The general principle appears in paragraph 14 of the opinion of Lord Bingham in Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181:
“… Nor do I think that the commissioners can be said in any meaningful sense to have relied on the bank. The commissioners, having obtained their orders and notified them to the bank, were no doubt confident that the bank would act promptly and effectively to comply. But reliance in the law is usually taken to mean that if A had not relied on B he would have acted differently. Here the commissioners could not have acted differently, since they availed themselves of the only remedy the law provided.”
[56]As Lord Steyn explained in the earlier case of Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, at 837:
“The test is not simply reliance in fact. The test is whether the plaintiff could reasonably rely on an assumption of personal responsibility by the individual who performed the services on behalf of the company.”
[57]Mr Beggs drew my attention to the fact that the Hedley Byrne principle has been extended beyond the provision of advice to the negligent performance of a service. In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, Lord Goff explained the position (at 180-1):
“It follows, of course, that although, in the case of the provision of information and advice, reliance upon it by the other party will be necessary to establish a cause of action (because otherwise the negligence will have no causative effect), nevertheless there may be other circumstances in which there will be the necessary reliance to give rise to the application of the principle. In particular, as cases concerned with solicitor and client demonstrate, where the plaintiff entrusts the defendant with the conduct of his affairs, in general or in particular, he may be held to have relied on the defendant to exercise due skill and care in such conduct. […] Furthermore, especially in a context concerned with a liability which may arise under a contract or a situation “equivalent to contract”, it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff: see Caparo v Dickman … per Lord Oliver of Aylmerton. In addition, the concept provides its own explanation why there is no problem in cases such as this kind about liability for pure economic loss …”
[58]Mr Bowen submitted that the Claimants did rely on the Defendant to conduct the defence of the underlying civil claim properly. Further, had a timeous warning of a potential conflict of interest been given, the Claimants might have applied for an adjournment of BA’s trial and sought joinder as parties under the rules. I have already observed that this possibility is quite fanciful.[59]Perhaps Mr Bowen’s better point is that the present case is an exemplification of the sort of case recognised by Lord Goff where it is unnecessary to have to show moving to one’s detriment: it is sufficient to establish (for present purposes, at least arguably) that the Claimants entrusted their affairs to the Defendant and/or its legal team.[60]At one stage during the course of the hearing, I was quite attracted by this formulation, but I have come to the conclusion that it is not sustainable. A client entrusts his affairs to his solicitor in the reasonable belief that the latter will discharge his obligations with skill, diligence and care. This, after all, is a necessary incident of the retainer between solicitor and client. In the present case, there is, on my finding, no such retainer. There were no “affairs” which the Claimants were reasonably entrusting to the safeguarding of the Defendant. The Claimants had no direct interest in the litigation, and in my judgment that there might well have been consequential impacts on their reputations is insufficient to create such an interest – in the sense of constituting a matter which the Defendant was required by legal obligation to have regard to and/or promote or safeguard. In the circumstances of the instant case, I consider that the Claimants have to establish some extra factual ingredient to amount to the necessary reliance, but none has been pleaded and in reality none plausibly exists.[61]In any event, it seems to me that whichever subset of the law of tort is relied on, these claims are for psychiatric damage and other consequential losses, including loss of reputation and economic loss. If psychiatric damage is irrecoverable as not being reasonably foreseeable (see paragraphs 50-51 above), the case is not improved by seeking to bring it within the scope of any extended Hedley Byrne principle.[62]In order to test this last point, let me imagine that the Defendant did not settle BA’s claim and, as a result of gross negligence, it lost at trial with excoriating findings against the Claimants. In my view, the Claimants would have had no claim for psychiatric injury in those circumstances, and this hypothetical case would be clearly distinguishable from McLoughlin v Jones. If that is right, it is impossible to see how a case with less egregious facts from the Defendant’s perspective, namely the instant case, could and should be capable of succeeding.[63]It follows that I must accede to Mr Beggs’ application under both CPR r.3.4(2)(a) and CPR r.24.

Misfeasance in Public Office

[64]The factual basis of this claim is that the Defendant failed to disclose the probe until 2011, and had it been available earlier the destiny of BA’s civil would have been different. Paragraph 117 of the Particulars of Claim avers that the Defendant had actual or constructive knowledge of the probe, and that it failed recklessly to obtain and/or disclose it before the settlement of the civil proceedings. Some support for the likely impact of the probe on the civil proceedings, had it been available at that stage, is given by DAC Simmonds’ redacted memorandum dated 2011.[65]Paragraphs 113 and 118 of the Particulars of Claim appear to accept that the pleading is inadequately constituted at present, and that the position will be reviewed following disclosure.[66]Mr Beggs submits that the pleading has to be scrutinised according to its current iteration, and that in any event no application has been made to amend it. The case law establishes that subjective bad faith must be pleaded: either the public officer, who must be identified, specifically intends to injure a person or persons (and acts pursuant to an improper or ulterior motive), or he knows that he has no power to do the act complained of, and that the act will probably injure the claimant: see, in particular, Calveley v Chief Constable of Merseyside Police [1989] AC 1228 and Three Rivers DC v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1.[67]The Claimants have failed to plead a number of essential components of this tort, and the issue for my determination is whether I should exceptionally adjourn the Defendant’s application pending disclosure. In my judgment, there is nothing exceptional about the present case which would warrant such a course, and nothing which has been drawn to my attention to show that the Claimants might have a promising cause of action under the rubric in due course.

Conclusion

[68]I accede to the Defendant’s applications under CPR r.3.4(2)(a) and r.24(a)(i) and (b) (to the extent indicated under paragraphs 21, 51, 63 and 67 above) in relation to the entirety of the Particulars of Claim, and there must be Judgment for the Defendant.

Cited in 11 later judgments

and 2 more of the most senior