Tort law gets the Lady Hale treatment as Supreme Court hears vicarious liability appeal

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Case stems from the arrest of a suspected terrorist

Five justices of the Supreme Court will this morning hear an appeal on a tort law doctrine close to law students’ hearts: vicarious liability.

Students who have studied tort law will know that, generally, employers can be liable for the wrongdoings of their employees. The practical implications of this legal principle are most commonly seen in the workplace, where an employer can be held legally responsible for their employees’ behaviour, if it can be shown that this behaviour occurred in the course of their employment. Key cases in this area include: Mattis v Pollock and Lister v Hesley Hall.

In 2016, the Supreme Court caught law students’ attention when it made two fundamental vicarious liability rulings: Cox v Ministry of Justice and Mohamud v Morrison. Crucially, the justices here extended the outreach of the vicarious liability doctrine by ruling it can exist even when there is no contract of employment. This double whammy of rulings meant the doctrine now catches more factual scenarios than previously.

But employment contracts are not what is at issue this morning, when Lady Hale, Lord Mance, Lord Kerr, Lord Wilson and Lord-Lloyd Jones will hear James-Bowen v Commissioner of Police for the Metropolis. Instead, the case looks at whether employers who are defending vicarious liability actions owe a duty of care to the employees alleged to have committed the actions their employer is vicariously liable for.

James-Bowen and the other respondents are all current or former police officers, who in 2003 took part in the arrest of a suspected terrorist who later complained he’d been seriously assaulted in the course of his arrest. A report in The Guardian says of Babar Ahmad’s arrest: “Ahmad was subjected to a 40-minute ordeal of physical, sexual, religious and verbal abuse.” It quotes him as saying:

“They twisted the handcuffs until I cried out in pain. Two of the officers punched me repeatedly on the head, face, ears and back. On two occasions the officers sexually abused me by tugging at and fondling my genitals. And then the officers stamped on my bare feet with their boots.”

Ahmad was, in 2009, awarded £60,000 after the London Met admitted he’d been subjected to unjustified violence. The officers were charged with various criminal offences but, after a hearing lasting five weeks, the jury acquitted them on all charges.

Then, and related to present proceedings, the police officers sued the Commissioner for reputational, economic and psychiatric harm suffered as a result of its defence to Ahmad’s claim. Lord Justice Moore-Bick, who heard the case in the Court of Appeal, explains: “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.”

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The question for the Supreme Court to consider over the next two days is whether a person who is sued, vicariously, for the alleged misconduct of their employees owes a duty to those employees to safeguard their reputations.

To help the bench make up its mind on this are 1 Chancery Lane’s Andrew Warnock QC and Lisa Dobie, who will be representing the appellant (the Commissioner). Doughty Street Chambers‘ Nicholas Bowen QC and David Lemer will be acting for James-Bowen and the other officers.

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IMO they were fortunate to be acquitted by the jury. The 40-minute ordeal of physical, sexual, religious and verbal abuse has been acknowledged. The fact that individual officers cannot be precisely identified as the perpetrators does not diminish this. The arresting officers, collectively, have a responsibility to the public and each other to ensure that such abuses of power do not take place and are not condoned or encouraged.

Lord Elpuss

COX and Mohamud didn’t extend vicarious liability to no-contract situations (see the Christian Brothers case). Do your research please.


Ooh ooh Lady Hale OMG it’s a female judge my name’s Katie please please can I write a not very good boring article about it

Just Anonymous

These specific claimants were not parties to the original litigation. Nor did they have any contractual agreement setting out how the litigation should be run. Accordingly:

(1) They did not have to fund the defence of the claim
(2) They were not at risk of personally paying damages
(3) They were not at risk of personally paying the other side’s costs
(4) They did not pay the actual settlement sum

Yet now they want to complain about the litigation strategy employed by the police commissioner – the actual party burdened with all the above.

This just doesn’t smell right.

Surely the appropriate course of action, if they don’t like the said strategy, is to apply to join the claim as defendants and conduct their own defence as they see fit – accepting all the consequences and risks that that course of action entails.

A barrister

Couldn’t agree more. How did this end up in the Supreme Court?


But if an employer decides to admit liability for your actions in circumstances where they shouldn’t (e.g. you didn’t do anything wrong, and they are playing a selfish PR game) and where your reputation is seriously damaged, why should your only resort be to expose yourself to the risks of co-defending the claim?

I’m saying that’s what’s happened here, but in slightly different circumstances our sympathy could very easily be with the employee no?


I’m *NOT* saying that’s what happened here, rather


“Lady Hale treatment” AKA let’s ignore precedents since its the 21st century.

Triggered Loon

Shut up, bigot. Precedent is a sign of patriarchy!


Here’s the article giving the full background to the guy arrested by these officers

73 injuries?! He either caused them himself or the officers caused them. The officers didn’t claim that they hit him to subdue him in a struggle, they say they never struck him at all and all his injuries were self inflicted.

In the criminal trial in 2011, the medical expert for the officers admitted at least seven of those injuries were the result of deliberate strikes by the officers, not as a result of a struggle. Not sure why a jury acquitted them of actual bodily harm by joint enterprise!


You have a point….on the other hand, if they win in the SC, you have just added a tenner to the damages claim!

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