Roberts v The Attorney General & Anor

This is an appeal against a decision of HHJ Seys Llewellyn Q.C. sitting in the Cardiff County Court, by which the judge struck out a claim for damages for negligent misstatement against the defendants. In summary, the claimant had applied for the post of Chief Constable of Dyfed-Powys Police. The second defendant attended a selection panel meeting of the local police authority and made certain statements about the claimant which are alleged to be false and which are alleged to have been made negligently. As the judge noted at paragraph 4 of his full and thorough judgment handed down on 8 July 2016:

“The essence of the Particulars of Claim is that (i) HMI Flannery owed a duty of care to the Claimant; (ii) she acted in breach of that duty of care in making a number of negligent misstatements about the Claimant to the selection panel; (iii) as a result the Claimant suffered loss of income and entitlements, and/or a loss of chance of selection, and/or the loss of his lifetime ambition to become a Chief Constable in Wales.”

The court held that the defendants did not owe a duty of care to the claimant as any advice given by the second defendant to the selection panel was given in the exercise of a statutory power and it would be inconsistent with the purposes for which that power had been conferred to impose a duty of care at common law in respect of statements made in the course of giving that advice. The claimant appeals contending, amongst other things, that the court was wrong to find that no duty of care was owed because it would conflict with the exercise of a statutory function.

Section 11 of the Police Act 1966 (“the Act”) provided at the material time for appointment to the post of chief constable to be made by the police authority for the relevant area, subject to the approval of the Secretary of State for the Home Department and compliance with any regulations made pursuant to section 50 of the Act.

Section 54 of the Act made provisions for the appointment of Her Majesty’s Inspectors of Constabulary (“HMIC”) and provision in connection with their functions. The material provisions for present purposes are as follows:

“(1)

Her Majesty may appoint such number of inspectors (to be known as “Her Majesty's Inspectors of Constabulary”) as the Secretary of State may with the consent of the Treasury determine, and of the persons so appointed one may be appointed as chief inspector of constabulary.

“(2)

The inspectors of constabulary shall inspect, and report on the efficiency and effectiveness of, every police force maintained for a police area.

“(3)

The inspectors of constabulary shall carry out such other duties for the purpose of furthering police efficiency and effectiveness as the Secretary of State may from time to time direct.”

The particulars of claim aver that there were also in place at the material time guidelines prepared and agreed between the Home Office, HMIC, the Association of Police Authorities and staff associations representing police officers.

Before me were certain extracts of a document said to be these guidelines. Paragraph 8 of the first extract, taken it seems from section 2 of the guidance, provides:

“Professional Police Advisors

8.

The chief constable will act as advisor to the selection panel for assistant chief constable and deputy chief constable. The Regional HMI will be invited to be present to advise at interviews for chief constable appointments and may also be present to advise at interviews for assistant chief constable and deputy chief constable appointments. Neither the chief constable nor the Regional HMI will act as a member of the panel. It is essential that in all cases the selection panel have the Clerk to the Authority present at all stages of the selection process to advise on legal and technical points, including personnel advice. It is recommended that a personnel expert and a diversity advisor should be available during proceedings. The Treasurer to the Authority may also attend to advise on technical points.”

An extract from later sections of the document include paragraphs 6 and 7 which provide that:

“6.

In appointing chief officers it is important that selection panels should have professional advice. In the case of assistant chief constable and deputy chief constable appointments, the panel is required to consult the chief constable before an appointment is recommended and it is strongly recommended that the chief constable should be present at the interviews of all candidates. The chief constable could then advise the panel of the professional validity of candidates’ responses. The selection panel should also invite professional input from the Regional HMI. But the final decision on an appointment is for the selection panel alone.

7.

In the case of chief constable appointments, the Regional HMI should be present at the interview stage to act as a professional advisor on the operational correctness and the professional validity of candidates’ responses. He/she should not be invited to comment on the overall performance of a candidate or to express any opinion as to suitability. For appointment of a new chief constable, the outgoing chief constable should not be present under any circumstances at short-listing or assessments.”

The particulars of claim aver that the claimant applied for the post of chief constable of Dyfed-Powys in 2008. It is contended that the second defendant, Kate Flannery, one of the HMIC, provided an assessment that the claimant was wholly suitable for appointment.

A selection panel meeting was held on 28 March 2008 to consider the two applicants for the post. The selection panel was composed of seven members of the Dyfed-Powys police authority which had statutory power to appoint a chief constable for their area. Also present, among others, was the second defendant who was the HMIC for the region.

Paragraph 16 of the particulars of claim asserts that the Regional HMIC was to be present at the selection process but was not a member of the selection panel and that it was implicit from the guidelines that the HMIC should not comment on the overall performance of a candidate, nor express any opinion as to suitability at the selection.

The particulars of claim aver that the second defendant asked to, or was invited to, comment about the performance of the claimant and his suitability at the selection panel meeting. The particulars aver that the second defendant made a number of statements on such matters. They aver that, in doing so, the second defendant owed a duty to the claimant to take reasonable care that the statements were true. In fact, it is alleged that the statements were false and were made negligently. It is alleged that that negligence caused loss and damage to the claimant who was not appointed to the post.

The second defendant applied to strike out the claim on the grounds that she owed no duty of care to the claimant in respect of the making of statements to the selection panel. The court below (as does this court) proceeded, as it was an application to strike out, on the basis that the facts must be taken to be as alleged by the claimant in his particulars of claim (see paragraph 7 of the judgment below).

As the judge noted at paragraph 15 of his judgment:

“At the heart of the Second Defendant’s application is the submission that no duty of care was owed because HMI Flannery was carrying out duties within a statutory framework for the protection of an aspect of the public interest, or a group other than the Claimant, and reliance is placed on the principles expressed in Trent Strategic Health Authority v Jain [2009] UKHL 4 and the authorities on which the HL in Jain drew.”

The decision in Jain concerned section 30 of the Registered Homes Act 1984 (“the 1984 Act”). Registration under that Act was a necessary requirement for the operation of a nursing home. That Act provided that:

“(1)

If—(a) the Secretary of State applies to a justice of the peace for an order—(i) cancelling the registration of a person in respect of a nursing home or mental nursing home … and (b) it appears to the justice of the peace that there will be a serious risk to the life, health or well being of the patients in the home unless the order is made, he may make the order, and the cancellation … shall have effect from the date on which the order is made.

“(2)

An application under subsection (1) may be made ex parte, and shall be supported by a written statement of the Secretary of State's reasons for making the application.

“(3)

An order under subsection (1) above shall be in writing.

“(4)

Where such an order is made, the Secretary of State shall serve on any person registered in respect of the home, as soon as practicable after the making of the order—(a) notice of the making of the order and of its terms; and (b) a copy of the statement of the Secretary of State's reasons which supported his application for the order.”

The defendant in that case applied ex parte for, and obtained, an order removing the claimants’ registration. The effect was the closure of the home. The claimants contended that the defendants owed a duty of care to them, as the registered proprietors of the nursing home, in making the application for an order. The House of Lords held that no duty of care was owed. As Lord Scott of Foscote observed at paragraph 20:

“ My Lords, I am of the opinion, in agreement with the majority in the Court of Appeal, and substantially for the reasons they have given, that an authority making an application to a magistrate under section 30 for the cancellation of the registration of a nursing home, or, for that matter, under section 11 for the cancellation of the registration of a residential care home, does not owe a common law duty of care to the proprietors of the home. In making the application the authority is exercising a statutory power. The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority's statutory powers had come to the authority's attention but nothing had been done. But to conclude that an authority exercising, or deciding whether to exercise, its statutory powers owed a duty of care also to the proprietors of the home seems to me much more difficult.

The judge below in the present case essentially accepted that similar principles applied in the present case. He considered that the statements made by the second defendant at the selection panel were made pursuant to the exercise of a statutory power and that the imposition of a common law duty of care in respect of the exercise of the power would have a chilling effect on the proper discharge of the statutory function: see paragraphs 72 and 74 to 75 of the judgment below. The judge noted that if the second defendant had stepped wholly outside the statutory function assigned to her, there were would be some force in the claimant’s case that a remedy should not be denied: see paragraph 58 of the judgment.

The assumption underlying the application to strike out and the judgment of the court below was that all the advice that the second defendant gave to the selection panel was given in the exercise of a statutory function and the purpose underlying that function was the furtherance of the efficiency and effectiveness of the police.

On analysis, there is not a sufficient evidential basis before the court at the present time to justify such an assumption. Further, that assumption appears to conflict with the particulars of claim.

Section 54(3) of the Act does not, of itself, confer any power on HMIC. Rather it confers a power on the Secretary of State to direct the HMIC to carry out duties for the purpose of furthering police efficiency and effectiveness. I accept, for the purposes of this appeal, that the giving of a direction by the Secretary of State does not require any particular formality or any particular mechanism.

The starting point, however, is to consider the terms of any direction given to HMIC to determine what duties, and subject to what limitations, HMIC have been directed to carry out. It is by considering the terms of the direction that one can tell whether particular advice was given in the exercise of a particular statutory function. If HMIC have been directed to give advice on certain topics only, the fact that the HMIC has taken the opportunity to give advice on other topics would not necessarily mean that that other advice was given in the exercise of a statutory function.

There is no evidence before this court of the terms of any direction given by the Secretary of State. Counsel for the first defendant invited me to regard paragraph 8 of the first extract of the apparently applicable guidance (set out at paragraph 6 above) as the direction, or evidence of the direction, that HMI attend the selection panel and give advice. Counsel submitted that the same was not true of paragraph 7 of the second extract set out above at paragraph 7 (which appears to impose limitations on the scope of the advice that HMIC can provide) as that was best practice and would not have been part of the terms of any direction.

On further submissions by counsel for the second defendant, it became apparent that paragraph 8 could not be, or be evidence of, the relevant direction. That paragraph refers to HMIC being present to advise at the interview stage – not the selection panel stage at which the decision to appoint is taken.

Counsel for the second defendant invited me to treat the first sentence of paragraph 6 of the second extract as the direction, or evidence of the direction, that HMIC advise the selection panel. In my judgment, that is not a tenable reading of the two paragraphs of the guidance referred to. The first sentence of paragraph 6 deals with the fact that professional advice will be given to the selection panel in the appointment of chief officers but that sentence does not indicate by whom or in what form. The remainder of paragraph 6 deals with the advice that will be available in the context of appointments of assistant and deputy chief constables (not, as is the case here, chief constables). Paragraph 7 is dealing with the advice available in the context of the appointment of chief constables and the role of the HMIC is, again, expressed to be in relation to the interview stage not the selection panel.

In the light of that, counsel for the defendants asked for an adjournment so that they could obtain evidence of any specific written direction given to HMIC Kate Flannery in respect of this selection panel, or any written scheme or other document setting out directions governing what duties HMIC are to undertake in relation to advising selection panels considering the appointment of chief constables, or evidence from HMIC Kate Flannery herself as to what she had been directed to do. Both counsel recognised that the claimant may need to amend his case in the light of any evidence that emerged as to the directions that the Secretary of State had actually given as to the duties, if any, of HMIC to advise selection panels.

In my judgment, it was not appropriate to adjourn this appeal for further evidence of what, if any, direction the Secretary of State had given on what advice HMICs could offer selection panels. The second defendant applied to strike out the claim of the claimant. If she had considered that any evidence was necessary and appropriate to deal with that application, it should have been adduced at the time that the application was heard. It is not appropriate to adjourn this appeal hearing for the receipt of further evidence. If there has been an error of law, for whatever reason, in deciding to strike out the claim, the better course of action, is to allow the appeal and to allow any evidential matters to be dealt with, as necessary, at the hearing of the claim. That course of action is, in my judgment, more likely to ensure the just disposal of the claim than adjourning for further evidence at the appellate stage. In those circumstances, this appeal will have to be determined on the basis of the assumption that the facts as alleged in the particulars of claim.

Against that background, I consider then, whether there has been an error of law in the present case. In my judgment, there has been such an error, albeit it is clear that that is not the fault of the court below. First, the court appears to have proceeded on the assumption that the HMIC gave advice in the exercise of a statutory power authorising her to do so. There is, at present, no evidential basis justifying that assumption. It is not, in fact, known what were the terms of any direction to the HMIC as to the role, if any, she should play in the giving of advice to the selection panel.

Secondly, and importantly for the purposes of this appeal, the position on the pleadings is that the HMIC should not comment on the overall performance of a candidate nor express any opinion as to suitability at the selection panel (see paragraph 16 of the particulars of claim). In simple terms, it is clear that the particulars are asserting that HMIC was not authorised to give any advice to a selection panel on the overall performance of a candidate nor on suitability. The HMIC did so and it is sought to impose a duty of care in relation to advice given on those matters (not on matters that do fall within the HMIC’s remit to give advice).

I recognise that this limitation is said in paragraph 16 of the particulars of claim to be implicit in the guidelines rather than derived from any limitation in a direction made by the Secretary of State. The guidelines are, however ones that are said to be prepared by the Home Office and agreed with other bodies (see paragraph 10 of the particulars of claim). Furthermore, the pleadings are made in a context where it is recognised that the basis for HMIC to attend and offer advice at a selection panel is a direction to that effect made by the Secretary of State pursuant to section 54(3) of the Act. It is implicit, in my judgment, that the particulars of claim are asserting that HMIC are not authorised to give advice on matters concerning overall performance or suitability and if they do so they will be acting outside the scope of any direction given by the Secretary of State.

In those circumstances, and on that hypothesis, it is not apparent that the principles enunciated by the House of Lords in Jain do operate to exclude any common law duty of care in respect of advice on those matters. The statutory function on that basis would be to give advice on certain matters (not including matters of overall performance or suitability) in order to further police effectiveness and efficiency. An HMIC would not, on this hypothesis, be giving advice pursuant to that statutory power if, in fact, she offered advice on other, additional topics not within the scope of that remit. The imposition of a duty of care to make sure that such additional advice is not made negligently cannot be said to conflict with the purpose underlying any statutory power to give such additional advice – as the additional advice on these topics is, on this assumption, simply not given in the exercise of a statutory function. Similarly, it is not immediately apparent that the imposition of a duty of care in relation to advice HMIC offers on additional topics outside the remit of a statutory direction will have a chilling effect on the giving of advice in areas which do fall within the remit of a statutory direction.

For completeness, I note that counsel for the first defendant contended that there would still be considerable difficulties in the way of the claimant establishing that the second defendant owed a duty of care in respect of advice given to a selection panel. In particular, he submits that it is sought to impose such liability in the context of negligent misstatements. Such liability requires the existence of something akin to a professional relationship where one party undertakes to provide advice to another who relies upon that advice. The present situation is very different, it is submitted, in that it involves a person giving advice to one body about the suitability for appointment to a senior post in the police force of a third person. I am told that there is no authority establishing the existence of a duty of care in such circumstances.

I see the force of those arguments. However, it would not, in my judgment, be appropriate to dismiss the appeal on that basis. First, it is preferable for the consideration of the imposition of such a duty to be determined on the basis of the actual facts of a particular case. Secondly, the second defendant recognises that there may be exceptions in particular cases and, again, it would be preferable, in my judgment, for such questions in this particular case to be considered on the basis of actual, rather than assumed, facts.

For those reasons, this appeal should, in my judgment, be allowed and the order striking out the claim should be set aside. For completeness, I note that I have not decided that the Secretary of State has or has not given a direction in any particular terms in the present case, such as a direction that HMIC advise the selection panel on certain matter only. I have also not heard full argument on the question of whether a direction to give advice on certain topics may, impliedly, include a direction to give advice more generally. The fact is that there is no evidence before me dealing with the actual terms of any direction given in this case. I, therefore, simply deal with the case on the basis of the particulars of claim and on the assumption that any direction that has been given is limited to certain categories of advice only. Similarly, I have not determined whether any duty of care is, or is not, owed by the second defendant in respect of any advice that she may have offered, or been invited, to give. Furthermore, as the appeal has been allowed, the court hearing the claim may need to consider afresh the question of whether or not the imposition of a duty of care is consistent with the exercise of a statutory function if it ultimately transpires on the evidence that a direction was given and the statements were made by HMIC pursuant to a direction.

The claimant also appealed on two other grounds. Ground 2 contended that it was not possible for the hearing below to deal fairly with the issues that arose in this case. It is not necessary to determine that issue given the conclusion that the appeal should be allowed on the first ground. Ground 3 contends that even if there had been no error of law, there were nevertheless compelling reasons why, in the public interest, the case should go a full trial. In my judgment, if there had not been an error of law, there would have been no compelling reasons for allowing a trial if, in fact, no duty of care had been owed.