Court of Appeal holds that defendants may owe a duty to safeguard their employees’ reputations when conducting litigation

In a remarkable decision with far reaching implications, the Court of Appeal held that the Metropolitan Police Commissioner had arguably owed and breached a duty of care to police officers when he settled a claim a brought against him, vicariously, for an assault allegedly perpetrated by those officers (see James-Bowen v Commissioner of Police for the Metropolis [2016] EWCA Civ 1217). The Court considered that a party’s hitherto assumed right to conduct litigation in his own interests was potentially qualified by the implied term of trust and confidence owed by an employer to his employee.  The court considered that the interests of employee and employer were not in conflict as they both had an interest in the defence being conducted as effectively as possible.

Comment: This decision is likely to result in more cases running to trial, although even then the judgment suggests that if the trial is arguably lost due to deficiencies in the employer’s conduct of the defence, a claim may lie. The judgment does not explain how the principle would apply to cases where the employer brings contribution proceedings against the employee who is alleged to be the tortfeasor and it may be that another effect of the judgment is that such proceedings will be more likely to be brought in future. The case has significant implications for all defendants alleged to be vicariously liable for the wrongdoings of employees.