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Implied Term of Trust and Confidence

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Does a Police Commissioner owe a duty to her officers (and by analogy an employer to its employees) to take reasonable care in the conduct of proceedings against her, based on their alleged misconduct, to protect them from economic or reputational harm?

No, held the Supreme Court in James-Bowen v Commissioner of Police of the Metropolis.

A claim had been brought by a person alleging vicarious liability on the part of the Commissioner for assault during the course of his arrest by certain officers. The claim was settled at trial with an admission of liability and an apology for the "gratuitous violence" to which he was subjected. The officers alleged that this amounted to breach of a duty owed to them.

The court held that the test for whether to extend the implied term of trust and confidence to cover this scenario was essentially the same as that for extending a tortious duty of care, and hinged on whether it would be fair, just and reasonable to do so.

In this case the court said it would not, on various grounds, primarily: the conflicting interests of the parties; the public duty of the Commissioner; and the negative effect on litigation (including inhibiting settlement, risk of disruption of proceedings, and the necessity of disclosing otherwise privileged material to defend such claims).

Thanks to Will Young of Outer Temple Chambers for preparing this case summary.