This is an appeal against the order of Jay J. striking out the particulars of claim and entering judgment for the respondent, the Commissioner of Police for the Metropolis, in an action brought against him by the four appellants, all of whom were, at the time of the events with which it is concerned, serving officers in the Metropolitan Police Service (“MPS”).

The origin of the proceedings lies in the arrest of a terrorist suspect, Babar Ahmed (“BA”), in December 2003, in which each of the officers took part. BA subsequently complained that he had been seriously assaulted in the course of his arrest and subsequent detention by the police and in July 2007 he brought proceedings for personal injury against the Commissioner as the person vicariously liable under section 88 of the Police Act 1996 for torts committed by constables in his force.

The proceedings were conducted by the Metropolitan Police Department for Legal Services (“DLS”), an internal legal department headed by the Director of Legal Services. The Director himself and a number of his staff are qualified solicitors. Although none of the officers had been joined as defendants to the action, it must have been obvious to all concerned that, since they had been directly involved in the arrest and detention of BA, it would be necessary for them to give evidence on behalf of the Commissioner if the claim were to be successfully defended. Moreover, their personal reputations and standing within the MPS were liable to be affected by any findings that the court might in due course make. To that extent, therefore, they had a close personal interest in the proceedings.

Following service of particulars of claim on behalf of BA, the DLS instructed counsel to advise and act on behalf of the Commissioner in connection with the proceedings. On 10th January 2008 the Commissioner made an offer to settle the claim, but it was rejected by BA. On 18th March 2008 the officers attended a conference with counsel, in the course of which it is alleged that he and the representative of the DLS who was present said that the legal team was acting for and in their interests, which they would protect, and that BA’s claims would be vigorously defended. The names of the second, third and fourth appellants as being officers involved in the arrest of BA had been made public in early 2005, but photographs of them had not been published, and because of the threat which they considered supporters of BA represented to themselves and their families, the officers were anxious that they should not be required to give evidence in open court unless special measures were put in place to conceal their identities. It is said that in the course of the conference on 18th March 2008 counsel assured the officers that they would not be called to give evidence unless special measures of that kind were put in place. The trial of BA’s action was fixed for March 2009.

In the event, an application for the use of screens to protect the officers while giving evidence was rejected on 13th February 2009. There was a further conference with counsel on 11th March 2009, at which the officers were again present together with a representative of the solicitors Russell Jones and Walker. It is said that in the course of that conference the view was expressed that the claim was unlikely to be successfully defended. It is also said that the DLS made it clear that it was no longer acting on their behalf. The officers reiterated that they were reluctant to give evidence unless special measures were put in place.

The trial of BA’s action began on 16th March 2009 and on 18th March 2009 the Commissioner agreed to compromise the claim on terms which included a consent order, the recital to which admitted all (save one) of the 22 allegations of gratuitous violence, and a public apology demanding an investigation into the officers’ refusal to give evidence and other conduct. In August 2010 the appellants were charged with various criminal offences arising out of the arrest of BA, but, after a hearing lasting five weeks, the jury, after a very short retirement, acquitted them of all charges.

The present proceedings were begun in the Mayor’s and City of London Court in January 2014 and were subsequently transferred to the High Court. In them the officers seek to recover damages against the Commissioner for reputational, economic and psychiatric harm suffered as a result of errors made by both the MPS itself and the DLS in the preparation and conduct of the defence to BA’s claim. They contend that the Commissioner’s admission of liability and his public apology unfairly branded them as abusive thugs, which resulted in their being required to undergo the stress of a criminal trial and damage to their prospects of promotion.

On 28th April 2014 the Commissioner applied for an order that the officers’ claim be struck out pursuant to CPR rule 3.4(2)(a) or that summary judgment be entered against them pursuant to CPR rule 24.2(a)(i) and (b). He also applied for an order pursuant to CPR rule 3.4(2)(a) striking out certain paragraphs of the particulars of claim which, he contended, pleaded or relied on matters protected by legal professional privilege, but that application was adjourned pending a decision on the two primary applications. The applications were heard by Jay J., who struck out the particulars of claim in their entirety and entered judgment for the Commissioner.

Before turning to consider the parties’ submissions and the issues to which the appeal gives rise it is necessary to say a little about the nature of the applications with which the court is concerned. CPR rule 3.4(2)(a) provides as follows

By contrast the material parts of CPR 24 provide as follows:

Although defendants seeking to challenge claims at an early stage often seek to rely on both Part 3 and Part 24 (as in this case), it is important to appreciate that they provide different grounds of relief. Rule 3.4 is concerned with striking out defective statements of case, principally statements of case that disclose no reasonable grounds for bringing or defending the claim. An application under rule 3.4(2)(a), therefore, requires the court to examine the statement of case in order to decide whether the allegations it contains are, if established, capable as a matter law of supporting the claim or providing a defence, as the case may be. It does not involve an examination of the evidence that may be called in support of the pleaded case.

Part 24, by contrast, is concerned with the prospects of success. It proceeds primarily on the assumption that the statement of case is not defective as a matter of law, but that the pleaded case has no real prospect of being made good at the trial. Inevitably the two overlap when the pleaded case is said to be bad in law, because a case which is bad in law has no prospect of success, but in principle it is desirable not to confuse the different procedures.

The essence of the officers’ case is that the Commissioner let them down badly by failing to defend BA’s claim in a robust and efficient manner and instead undermining their emotional, physical and economic well-being by admitting and asserting publicly that they had behaved in a reprehensible manner, when that was the opposite of the truth. They formulate the claim in four ways: breach of a retainer to protect their interests; breach of a duty of care arising at common law from the relationship between themselves and the Commissioner corresponding to that of employer and employee; breach of a duty of care at common law arising from an assumption by the Commissioner of a responsibility to protect their interests; and misfeasance in public office. The last of these was abandoned by Mr. Bowen Q.C. in the course of argument and I need say no more about it. It is convenient to consider the other three limbs of the claim separately, although the different ways of putting the case are to some extent interrelated.

Some of the ways in which the case is put appear at first sight to lie outside the scope of established legal principles, but Mr. Bowen submitted, and I fully accept, that the court should be cautious about striking out at an early stage claims which raise novel questions of law or questions which lie in areas of the law that are currently developing. On the other hand, if the court is satisfied that the case as pleaded cannot succeed on the basis of established rules of law, even if developed in accordance with principle, it must say so and relieve the parties from the expense and inconvenience of being required to deal with a claim that cannot succeed. On an application for summary judgment, however, the court is concerned with a different question and accordingly, if the respondent wishes to argue that his claim, or defence, as the case may be, has a real prospect of succeeding at trial, he must serve sufficient evidence to show that that is the case. The court cannot resolve disputed issues of fact on an application of that kind, but it is not enough for a respondent simply to contend that by the date of trial something may have turned up to strengthen his case.

With that preamble I turn to consider the three ways in which the officers put their case.

The officers’ case on retainer is based on certain assurances which are said to have been given to them during the conference with counsel on 18th March 2008 and in certain emails that were sent a few months later. It is pleaded as follows:

The email exchange on which the officers rely consists of the following:

a message sent by Mr. Cowley to Mr. McCahon of DLS on 25th July 2008 expressing concern that, if things were to go wrong and BA’s claim were to succeed, the officers’ reputations and safety would be at risk; and

Mr. McCahon’s reply later the same day, in which he expressed the view that the incident was so old that the outcome was unlikely to affect the officers in any way, but that they would not be called to give evidence if an application for special measures were to fail.

The judge resolved this issue in the Commissioner’s favour on the grounds that the officers were neither parties to the action brought by BA nor defendants to contribution proceedings brought against them by the Commissioner. In his view, they had attended the conference on 18th March 2008 purely as witnesses and the fact that the outcome of the case might affect their reputations one way or another was not a sufficient basis for finding that the DLS had entered into a contract with them. He expressed the view that the officers could succeed on this limb of their case only if they could point to an express contract of retainer, which, of course, they cannot.

Mr. Bowen submitted that the judge wrongly made a finding of fact that the officers had attended the conference with counsel merely as witnesses and that in any event his analysis of the position was wrong, because a contract of retainer need not be express; it can in appropriate circumstances be implied. He also argued that the precise words used at the conference and their meaning in the context in which they were spoken raised issues which could properly be determined only at trial.

In my view Mr. Bowen’s criticisms of the judge are misplaced. Since the earliest statement on which the officers rely as giving rise to a retainer is said to have been made in conference with counsel, the judge was entitled to consider the capacity in which they had been invited to attend. They were not parties to the proceedings and were unlikely to become parties. It is difficult to see in what capacity other than witnesses they could have attended. In any event, what matters is whether, while they were present, anything was said that could, either alone or bolstered by the later emails, have given rise to a contract of retainer.

For present purposes the first question to consider is whether the facts pleaded are capable in law of supporting the existence of a retainer. It is not sufficient simply to say that the picture might look different at trial; any circumstances which are said to put a particular gloss on the words used ought to have been pleaded, or at the least described in supporting evidence. On one view of the matter I can see that the judge’s reasoning, with its reference to the need for there to have been an express retainer, could be regarded as circular, but his remarks have to be understood in the context of the case before him. In my view he was saying no more than that on the facts of this case nothing short of an express retainer would do.

In my view the judge reached the right conclusion on this question. The facts pleaded in the statement of case are not capable of supporting the allegation that a contract of retainer came into being between the officers and the DLS, let alone between the officers and the Commissioner, who is the only defendant to the action. A retainer, as the word is used in this context, is a contract under which a solicitor agrees to provide legal services to a client. In most cases such a contract comes into existence as the result of an express agreement, nowadays usually in writing. But the authorities recognise that it may come into being informally if the parties have conducted themselves in a way that makes it clear that they intended to enter into a relationship of that kind. Thus, in Dean v Allin & Watts [2001] EWCA Civ 758, [2001] P.N.L.R. 921 this court held that “an implied retainer could only arise if on an objective consideration of all the circumstances an intention to enter into such a contractual relationship ought fairly and properly to be imputed to the parties” (per Lightman J.). An example can be found in the decision of the Singapore Court of Appeal in Anwar Patrick Adrian v Ng Chong & Hue LLC [2014] SGCA 34, [2014] 3 S.L.R. 761, but the circumstances of that case are so far removed from those of the present as to render it of little or no assistance beyond providing an example of the application of established principles.

In Caliendo v Mishcon de Reya [2016] EWHC 150 (Ch) Arnold J. reviewed the authorities, including Dean v Allin and earlier cases and the later case of Brown v InnovatorOne Plc [2012] EWHC 1321 (Comm), in which Hamblen J. referred to and cited from the judgment of Mance L.J. in Baird Textiles Ltd v Marks & Spencer Plc [2001] EWCA Civ 274. Hamblen J. expressed the view that the court should not find that parties had created a contract by conduct unless it was necessary to do so. These authorities led Arnold J. in Caliendo to reformulate the test as follows: ‘Was there conduct by the parties which was consistent only with Mishcon de Reya being retained as solicitors for the claimants?’ (Emphasis added.)

In circumstances where the parties could have entered into an express retainer but have not chosen to do so, I think the court should be slow to find that they have entered into such a contract by conduct. In my view it cannot properly do so unless they have behaved towards each other in a way that can be explained only by the existence of an intention to enter into legal relations of a particular kind. Unless that is so, the court is left uncertain as to their intentions and has no basis on which to impute a contract to them. In the present case the pleaded allegations fall a long way short of what would be required for that purpose. The officers were important witnesses, but they were not parties to the proceedings, so there was no reason for the DLS to undertake any legally binding obligation to act for them in relation to the proceedings. The description of Mr. Johnson as “our” barrister takes the matter nowhere; it simply reflected the fact that he had been instructed to act for the Commissioner and by extension for the MPS generally. Even an assurance that the defendant’s legal team was acting for and in the officers’ interests is not enough. It is just the kind of assurance that one could expect to be given by the Commissioner’s lawyers to officers who were important witnesses and whose personal interest in the litigation was (at least at that stage) broadly the same as that of the Commissioner. It is not indicative of an intention to enter into legal relations. Nothing that Mr. Johnson is alleged to have said during the conference or that was said by the DLS in subsequent emails went beyond an informal recognition that the interests of the officers and the Commissioner in defeating the claim were in broad terms the same.

Moreover, it is important not to lose sight of the distinction between the DLS, which was conducting the litigation on behalf of the Commissioner, and the Commissioner himself. It would be surprising, to say the least, if the Commissioner had entered into a contract of retainer with the officers and to be fair that is not the case being put forward. Paragraph 48 of the particulars of claim alleges that a contract came into existence between the officers and the DLS (possibly in the person of the Director of Legal Services), but the DLS is not a party to the present proceedings. In paragraph 102 of the particulars of claim it is alleged the Commissioner owed the officers a duty in contract (referring back to paragraph 48) but no attempt is made to plead facts which, if established, could possibly render the Commissioner liable for a breach of a retainer entered into between the officers and the Director. There is, therefore, a gaping hole in this limb of the officers’ case.

For these reasons the particulars of claim do not in my opinion disclose reasonable grounds for bringing a claim against the Commissioner for breach of a contract of retainer and I would strike out this limb of the claim on those grounds. However, even if that were wrong, the evidence filed in opposition to the application does not persuade me that it has any real prospect of success on the facts. Mr. Cowley, who is the only one of the officers to have provided a statement, explains why he (and no doubt the others) assumed that the DLS would look after his interests. But when it comes to dealing with the conference with counsel on 18th March 2008 he says only that “the impression given was that they [the legal team] were completely behind us and were acting for us.” That falls far short of the kind of evidence that would be required to establish a contract of retainer. It is no answer to these difficulties for Mr. Bowen to say that this is all part of a factual dispute which must go to trial. As I have already mentioned, a respondent to an application under Part 24 is expected to put before the court sufficient evidence to satisfy the court that he has a real prospect of success at trial. Vague references to evidence that might emerge at a later date are insufficient for that purpose. Accordingly, even if I had thought that the particulars of claim disclosed reasonable grounds for bringing this head of claim (which I do not), I would have dismissed this ground of appeal on the basis that the judge was right to enter judgment for the Commissioner on this issue under rule 24.2. I should, perhaps, add that I do not think that the DLS Standard Operating Procedure, to which we were referred, is of much assistance one way or the other. It merely confirms that, if officers are made parties to proceedings, the DLS will act on their behalf, provided that they sign a formal retainer. That may suggest that the Director of Legal Services does not expect to act for officers unless there is a formal retainer, but I do not think it can prevent an implied retainer coming into existence if on an objective view of the facts that is what has happened.

The second way in which the officers’ claim is put is that the Commissioner owed them a duty of care as a quasi-employer to take reasonable care to safeguard their health, welfare (economic and professional) and reputational interests (particulars of claim, paragraph 102). That general duty is said to encompass a duty in this case to take reasonable care in the preparation and conduct of the defence to BA’s action, and to take reasonable care to protect their interests when deciding whether to compromise the claim, and if so, on what terms (particulars of claim, paragraph 103). The duty is also said to involve keeping them informed of the progress of the case, explaining why the Commissioner considered it desirable to settle the claim and giving them notice of his intention to do so in sufficient time to enable them to take independent legal advice about how best to protect their own interests (particulars of claim, paragraph 104).

The judge decided this question in favour of the Commissioner on a number of grounds. He accepted a submission made by Mr. Beggs Q.C. that, if the officers could not satisfy the three-fold test set out in Caparo Industries Plc v Dickman [1990] 2 A.C. 605, they could not succeed by relying on their relationship with the Commissioner as his quasi-employees. The judge understood that the duty for which the officers contended was a duty to take reasonable care to avoid causing them psychiatric harm and that their claims for reputational damage and economic loss were, as he put it, “entirely consequential of [sic] that particular genus of personal injury”. He therefore concluded that, when applying the third of the Caparo principles, the question whether it was fair, just and reasonable to impose on the Commissioner a duty to protect the officers’ interests in his conduct of the civil proceedings was a matter to be determined in the specific context of claims for psychiatric harm, rather than any other kind of personal injury. With that in mind he held that it would not be fair, just and reasonable to impose on the Commissioner a duty of care towards the officers of the kind alleged, because such a duty would conflict with his right (and indeed obligation) to conduct the litigation in the best interests of the MPS and the public at large. The judge also considered that the officers’ claim for psychiatric injury (on which he thought they had to succeed if they were establish any of their claims) could not be made out on the facts.

It has been recognised for some time that, although police officers are not employed by their chief constables, their relationship with them is in many respects similar to that between employer and employee: see, for example, Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700, in which Clarke L.J., with whom Potter L.J. and Bodey J. agreed, said:

Subject to any questions of public policy which may bear on the particular circumstances of the case, therefore, it is helpful to begin by considering whether an employer owes his employees a duty of care in relation to the way in which he conducts litigation which has arisen out of alleged misconduct of some kind on their part (usually, though not necessarily, a negligent act or omission) for which the employer is said to be liable.

The starting point, in my view, is that a party to litigation is entitled, provided he complies with any relevant procedural requirements, to conduct it in whatever way he thinks best serves his own interests. He may, if he so chooses, press on with a claim that has little prospect of success; he may also, if he so chooses, compromise proceedings in which he has every chance of success, if he considers that his broader interests would be better served by doing so. Commercial litigants frequently compromise small but unmeritorious claims when the cost of contesting them is considered too great. This is simply a reflection of the fact that everyone is entitled to act in what he considers to be his own interests unless he owes a duty to another person to take account of that person’s interests.

Mr. Bowen submitted, however, that this is one such case. He placed considerable reliance on Malik v Bank of Credit and Commerce International S.A. [1998] A.C. 20, in which the House of Lords accepted that the contracts of employment between the bank and its employees contained an implied term that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. There is no contract of employment between the Commissioner and the officers, of course, but Mr. Bowen submitted that, since the relationship between the Commissioner and the officers was in substance the same as that between employer and employee, a similar relationship of trust and confidence existed between them. Accordingly, he owed the officers an analogous duty of care not, without reasonable and proper cause, to act in a manner likely to destroy or seriously damage the relationship of confidence and trust between them, at any rate when it was foreseeable that his actions might cause them psychiatric, economic or reputational harm.

In my view it is certainly arguable that a relationship of trust and confidence exists between a chief constable and the individual officers in his force, but since the relationship between them is not contractual, any duty he owes them must sound in tort. Accordingly, the real question is whether, as their quasi-employer, a chief constable owes a duty to his constables to take reasonable care to avoid causing them harm of the kind alleged in this case. Although its precise scope is in issue, the Commissioner has accepted in his defence that he owed the officers a duty to take reasonable steps to protect them from reasonably foreseeable physical or psychiatric harm. The question in this case is whether it encompasses the conduct of proceedings against him based on their alleged misconduct and if so whether it extends to other kinds of harm, in particular, economic and reputational harm.

Although the existence of a duty of care as between employer and employee is well established, no case has been drawn to our attention in which the court has been asked to consider whether it extends to the conduct of litigation and if so whether it extends to economic or reputational harm. Whether it does, or may do so, is likely to depend to a large extent on whether the court considers that the third requirement identified in Caparo v Dickman is satisfied, namely, that it would be fair, just and reasonable for a duty of care to be imposed on the employer in those circumstances. That is likely to involve a question of legal policy and I agree with the judge that the court should not strike out a claim on that ground at an early stage unless the position is very clear.

In the present case the officers say that it was, or should have been, clear to the Commissioner that their reputations and promotion prospects would be harmed and that they would, or might, suffer psychiatric harm if the court were to find that they had assaulted BA or if he were to compromise the claim on terms which included a public admission of liability. In those circumstances, they say, there is nothing unfair, unjust or unreasonable about imposing a duty on him to take reasonable care not to conduct the proceedings in a way that would have that result. The duty should be held to extend to economic and reputational harm, because they are the kinds of harm that officers are most likely to suffer in this sort of situation.

The judge rejected that argument on the grounds that to impose on the Commissioner a duty of care of the kind for which the officers contended would be inconsistent with his duty to conduct the proceedings in the best interests of the MPS and by extension the public. It would therefore not be fair, just and reasonable to do so. I agree that the Commissioner’s primary duty was to protect the interests of the MPS, but I do not think that a duty of the kind alleged in the present case necessarily cuts across it. It was in the interests of the Commissioner and the officers for the defence to be conducted as effectively as possible and a duty of care in that regard would not inevitably give rise to any conflict of interest. I think it is arguable that the Commissioner also owed a duty to the officers to take reasonable care not to sacrifice their interests and professional reputations without good reason and without giving them reasonable warning of what he intended to do. Whether he was in breach of any such duty is quite a different question, which is likely to call for a careful examination of the courses of action open to him, but I do not think it would be right at this stage to strike out this limb of the claim on the grounds that the facts pleaded are incapable in law of giving rise to a duty of care on the part of the Commissioner towards the officers.

The matter does not end there, however, because for the officers to have a cause of action against the Commissioner it is necessary for them to establish a breach of duty which caused them loss and accordingly both those matters must be pleaded in the particulars of claim if it is to disclose reasonable grounds for bringing the claim. In the present case that would require an allegation that the Commissioner’s decision to admit liability and apologise for the officers’ conduct was unreasonable and taken negligently. As to that, the particulars of claim contain the following allegations:

in paragraph 63, that senior officers knew that such force as had been used in arresting BA was reasonable and did not constitute a crime or civil cause of action;

in paragraph 75, that a meeting of senior officers took place on 18th March 2009 at which the terms of settlement with BA were approved, including an admission of liability;

in paragraph 79, that the consent order disposing of the claim included a recital admitting most of the allegations in BA’s particulars of claim that the officers had been guilty of gratuitous violence;

in paragraph 80(d), that the admission was made despite the knowledge of the MPS and the DLS that the Commissioner’s defence had not been properly prepared and that crucial evidence had not been located or had “gone missing”.

It might be said that taken together those assertions are tantamount to an allegation that the Commissioner failed to take reasonable care to avoid causing harm to the officers when deciding whether, and if so on what terms, to compromise the claim, but in my view they do not go that far. There is no allegation that the Commissioner’s decision to compromise the claim was negligent in all the circumstances and it is said in the defence that it was a reasonable response to the situation he faced and the legal advice he had received.

However, insofar as the Commissioner found himself in a difficult position, that is alleged to have been consequence, at least in part, of a deliberate or negligent failure on the part of the MPS to identify or make available certain important pieces of evidence. For present purposes it must be assumed in favour of the officers that the allegations made in the particulars of claim are well-founded and that the DLS or others within the MPS were negligent in failing to preserve or retrieve evidence in the form of their notebooks, the CCTV recording of events at the police station when BA was taken into custody and an audio recording of the events surrounding his arrest obtained by covert surveillance. It must also be assumed, as alleged in the particulars of claim, that the DLS was negligent in failing to obtain expert evidence in response to that obtained by BA, which tended to suggest that he had suffered injuries consistent with his story. In paragraph 100 of the particulars of claim it is alleged that if that evidence had been made available for the defence of BA’s claim, the Commissioner would not have been placed in a position in which he had little option but to concede BA’s demands. Accordingly, so it is said, if it was reasonable for the Commissioner to compromise BA’s claim on terms which caused harm to the officers, that was a consequence of earlier breaches of duty on his part to take reasonable care to avoid causing them harm in and about the conduct of the litigation. Detailed allegations of failures to conduct the litigation with reasonable skill and care are set out in paragraph 111 of the particulars of claim.

Unfortunately, the particulars of claim are excessively long and repetitive and contain many immaterial averments. One consequence is that this limb of the claim is not formulated with the degree of precision for which it really calls. However, I think that the essential elements of a claim for breach of a duty of care owed by the Commissioner to the officers in relation to the conduct of the proceedings are present and in view of the importance of the issues to which the this limb of the claim gives rise I do not think that it would be right to strike it out under CPR Part 3 on the grounds that the statement of case discloses no reasonable grounds for bringing it.

It does not necessarily follow, of course, that this limb of the claim has a real prospect of succeeding at trial, but the burden of satisfying the court that it does not rests on the Commissioner. In order to support his application for summary judgment it is necessary for him to put before the court evidence sufficient to satisfy the court that the claim has no real prospect of success. The evidence on which the Commissioner relied in support of his application was that set out in the application notice (which in fact is almost entirely argument), that contained in the witness statement of Police Sergeant Lockeyear and (to the extent that it is to be regarded as evidence) the averments made in the defence. Neither the application notice nor the statement of Sergeant Lockeyear deals with the allegations of negligence in the particulars of claim. The defence does, but since its primary purpose is to set out the Commissioner’s case and it is otherwise unsupported by a witness statement, I do not think it is possible to conclude that the officers’ case has no prospect of succeeding on the facts at trial. The fact that they were unwilling to give evidence in support of the defence in the absence of special measures does not seem to me to be fatal to this part of their case, because it is arguable that the Commissioner’s defence would have been stronger generally if the additional steps to which they refer had been taken and because it was not something of which those advising BA could necessarily be expected to be aware at the relevant time. It follows that, in my view, it would not be right to give judgment for the Commissioner under Part 24 on this limb of the claim.

This leaves only the allegation that the Commissioner was in breach of duty by failing to warn the officers in good time that he intended to pursue the interests of the MPS, if necessary at their expense. They say that, if he had done so, they would have applied to be joined as defendants and would have instructed solicitors to conduct their defence independently. In my view the judge was right to describe that suggestion as fanciful. Neither counsel, both of whom are experienced in this field, was aware of any case in which an officer whose alleged misconduct formed the basis of a claim against his chief constable had applied to be joined as a defendant. That in itself may not take the matter very far, but in this case the officers were clearly reluctant to give evidence in defence of the claim without the benefit of special measures and there is no reason to think that such measures would have been provided if they had been parties to the proceedings, rather than simply witnesses. Without their evidence, however, the defence was likely to fail altogether. This part of their case is not helped by the fact that solicitors had been instructed to advise them in connection with other matters arising out of the arrest of BA, had discussed with the officers their concerns about the preparation of the case only three weeks earlier, were present (according to the Commissioner) at the conference with counsel on 11th March 2009 and would have been able to act on their behalf at short notice, if asked to do so. In my view, therefore, any breach of duty by the Commissioner in that respect can have had no causative effect and for that reason I would give judgment in his favour on that particular issue.

The judge rejected this limb of the claim as a whole on the grounds that the officers’ claim for psychiatric harm, which he considered to be fundamental to their claims as a whole, had no real prospect of success. In the course of argument we were referred to a number of recent decisions on the requirements for establishing liability for psychiatric harm. They included Hatton v Sutherland [2002] EWCA Civ 76, [2002] I.R.L.R. 263, Barber v Somerset County Council [2004] UKHL 13, [2004] I.R.L.R. 475 and Bristol City Council v Deadman [2007] EWCA Civ 822, [2007] I.R.L.R. 888. However, for present purposes it is necessary only to refer, and then briefly, to Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, [2015] I.R.L.R. 112, in which the court drew together the threads from the earlier decisions. In paragraph 119 Underhill L.J. summarised the propositions which could be drawn from the preceding cases as follows:

In my view the authorities show that liability for psychiatric harm is critically dependant on the foreseeability that the defendant might suffer harm of that kind. There is a presumption that the claimant is a person of normally robust constitution, who can weather the ordinary storms of life without suffering such harm. It follows that, in order for the Commissioner to be liable for psychiatric harm in this case, such harm must have been a reasonably foreseeable consequence of his breach of duty. (In this context it might be thought that front-line officers in the police force would be at least as robust as the average citizen, and perhaps rather more so.) However, no facts are pleaded in the particulars of claim in support of the conclusion that the officers might foreseeably suffer psychiatric harm if the Commissioner compromised BA’s claim on the terms that were ultimately agreed and there is nothing in Mr. Cowley’s evidence which supports the conclusion that harm of that kind was foreseeable in this case. In my view, therefore, this head of claim has no real prospect of success.

However, it is arguable, in my view, that the judge was wrong to hold that the officers’ claims for reputational and economic loss depended entirely on their being able to establish liability for psychiatric harm. Although in most cases economic loss is recoverable only as a consequence of personal injury (including psychiatric injury), in this case the officers are seeking redress in respect of the damage to their reputations. The allegation of loss and damage in the particulars of claim is pleaded very broadly with no attempt to identify with any precision how the claim is put. However, as I understand it, the economic loss the officers seek to recover is said to have been suffered as a result of the loss of reputation and consequential damage to their careers. In my view it is arguable that this head of claim, if made out, does not depend on their having suffered psychiatric harm.

The third way in which the claim is put is that the Commissioner, through the DLS, assumed a responsibility to the officers to take reasonable care to avoid causing them psychiatric, economic or reputational harm in his conduct of the litigation. The way in which the case is put in paragraphs 108 and 102 – 104 of the particulars of claim is that the Commissioner, as a result of assurances given during, and subsequent to, the conference with Mr. Johnson on 18th March 2008 assumed responsibility to the officers to safeguard their interests by taking reasonable care in the preparation and conduct of the defence to BA’s claim in general and in particular in compromising the claim. The duty of care is also alleged to have involved a duty to warn the officers that the application for special measures had failed, that the DLS was no longer acting for them and that the Commissioner was considering settling the claim on terms which included admitting liability based on an acceptance that the allegations made by BA were true. It is said that he ought to have warned them of these matters in time to allow them to take independent legal advice before the trial began.

The facts and matters on which the officers rely as giving rise to an assumption of responsibility by the Commissioner are essentially the same as those on which they rely in support of their case on retainer, and although there are obvious differences between a contract to provide legal services and an assumption of responsibility for another person’s welfare, this way of putting the case faces some of the same difficulties. The main one arises from the informal nature of the statements on which the officers rely. Starting with Hedley Byrne v Heller, a duty of care arising from an assumption of responsibility has been held to arise in cases where the relationship between the parties and the circumstances in which they are dealing make it clear that one is relying on the other to act with reasonable skill and care. In the present case the facts pleaded by the officers are not in my view capable of satisfying that requirement, because they do not involve words or conduct of a kind that could properly be understood as involving an assumption of responsibility on the part of the MPS or the Commissioner in relation to the manner in which the claim would be conducted.

One question that was canvassed before the judge was whether this head of the claim was defective because the officers had not alleged, and had no real prospect of establishing, that they had relied on the Commissioner’s assurances. Mr. Bowen submitted that it was not necessary for them to do so, but that in fact they had done so, because, if they had been told sooner that the Commissioner was not going to protect their interests, they would have applied to be joined as defendants in order to contest the action and counterclaim for a declaration that they had not committed the acts alleged against them.

I am unable to accept that, where a claim is made in negligence based on an assumption of responsibility, it is unnecessary for the claimant to show that he relied in any way on the defendant to exercise reasonable care in whatever it was he undertook to do. So to hold would run counter to the many expressions of judicial opinion to be found in the long line of cases beginning with Hedley Byrne v Heller, but what is sufficient to constitute reliance may depend on the facts of the particular case. In Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145 Lord Goff said at page 180:

If, contrary to the view expressed earlier, the officers could show that the Commissioner had assumed a responsibility towards them in relation to the conduct of the proceedings brought by BA, I think it is arguable (which is enough for present purposes) that they could show sufficient reliance in order to establish a breach of duty on his part, if it could be shown that negligence on his part in doing so had in fact caused them harm. However, their real complaint is that the Commissioner decided to admit liability and apologise publicly for their conduct and in that respect the position is rather different for the reasons explained earlier. There was never any real prospect that the officers would apply to be joined as defendants to BA’s claim in order to pursue the litigation on their own behalf.

For all these reasons I think the judge was right to hold that this way of putting the claim had no real prospect of success.

Despite all the matters urged on us by Mr. Bowen, I think the judge was right to hold that the particulars of claim do not disclose reasonable grounds for the claims based on retainer or assumption of responsibility, neither of which in any event had a real prospect of succeeding at trial. I would therefore dismiss the appeal in relation to those two limbs of the claim. For the reasons I have given I would also give judgment for the Commissioner on the claim for psychiatric harm. However, the claim for economic and reputational harm based on a breach of a duty of care at common law should, in my view, be allowed to go to trial so that the important issues to which it gives rise can be fully argued and determined on the basis of the court’s findings of fact and to that extent only I would allow the appeal. If the proceedings are to continue on that basis, the officers will have to amend their particulars of claim by deleting the references to retainer, psychiatric harm and assumption of responsibility and pleading their case based on a common law duty of care in a much more succinct and focused way.

I agree.

I also agree.