Neutral Citation Number: [2015] EWCA Civ 380
Case No: B3/2014/0055 and B3/2014/1173
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Mr Justice Keith
[2013] EWHC 3620 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 22/04/2015
Before :
LORD JUSTICE RICHARDS
LORD JUSTICE UNDERHILL
and
LORD JUSTICE CHRISTOPHER CLARKE
--------------------Between :
Daniel McCracken (a protected party suing by his
mother and litigation friend Deborah Norris)
- and -
Claimant/
1st Respondent
(1) Damian Smith
1st Defendant/
2nd Respondent
(2) The Motor Insurers’ Bureau
2nd Defendant/
3rd Respondent
(3) Darren Michael Bell
3rd Defendant/
Appellant
----------------------------------------Stephen Grime QC and Richard Whitehall (instructed by DWF Solicitors) for the Appellant
Christopher Melton QC and Simon Kilvington (instructed by Slater and Gordon (UK)
LLP) for the 1st Respondent
nd
rd
The 2 and 3 Respondents did not appear at the hearing of the appeal
Hearing dates : 4-5 March 2015
---------------------
Approved Judgment
Judgment Approved by the court for handing down.
McCracken v Smith, MIB and Bell
Lord Justice Richards :
Introduction
1.
The background to this case is set out very clearly in the opening paragraphs of the
judgment of Keith J in the court below:
“1. Some years ago the police in Carlisle were receiving a
number of complaints about trials bikes, the sort used in
scrambling. They were being ridden dangerously in an area to
the west of the city. It was decided to mount a special
operation to monitor the extent of such incidents. It was only a
month after this operation was discontinued that the accident
which gave rise to this claim took place. That was on 31
January 2007. It involved a trials bike which had been stolen
or unlawfully taken and was not allowed on normal roads. It
was being ridden far too fast on a path reserved for cyclists by a
16 year old boy who did not have a driving licence or
insurance. He was carrying a pillion passenger, another 16 year
old boy, even though the bike was not designed for passengers.
Neither of them were wearing helmets. Both boys were
seriously injured in the accident, the boy who was the
passenger particularly so. It is he who brings this claim
through his mother and litigation friend. His name is Daniel
McCracken.
2. The boy who was driving the bike is Damian Smith. He is
the first defendant. He has not been represented, and although
he was present during the trial, he has taken no active part in it
save for giving evidence. Because his riding of the bike was
uninsured, and he has no assets of his own to speak of, any
judgment which Daniel obtains against Damian will be
valueless, and the Motor Insurers’ Bureau (‘the MIB’) has been
joined as the second defendant. The third defendant, Darren
Bell, was the driver of the minibus which was involved in the
accident. Mr Bell disputes that he was negligent in any way.
There is no doubt that Damian’s riding of the bike was
negligent, but the MIB resists the claim against it on the basis
that Daniel’s participation in Damian’s wrongdoing should
disentitle him from being compensated for his injuries. At the
very least, the MIB argues that Daniel himself was at fault, and
that his damages, if any, should be discounted to reflect his
own contributory negligence. Agreement has been reached that
the reduction in Daniel’s damages because of his failure to
wear a helmet should be 15%, but the possibility of a
significantly greater finding of contributory negligence exists
depending on how blameworthy Daniel was (if at all) in
allowing himself to be a pillion passenger on the bike. The
MIB also resists the claim on the basis that its liability has been
excluded because Daniel knew or ought to have known that the
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McCracken v Smith, MIB and Bell
bike had been stolen or unlawfully taken and that it was being
used without insurance.”
2.
In the event, the judge’s primary findings, as set out in his judgment, were as follows:
i)
Damian was liable to Daniel in negligence.
ii)
As regards the MIB, (a) the defence of ex turpi causa non oritur actio did not
succeed in respect of Daniel’s claim against Damian or, therefore, against the
MIB; (b) the MIB had failed to prove that Daniel knew or ought to have
known that the bike had been stolen or unlawfully taken; but (c) the MIB had
proved that Daniel knew that the bike was being used without insurance, so
that the MIB’s liability was excluded by clause 6.1(e)(ii) of the Uninsured
Drivers’ Agreement under which the MIB had agreed with the Secretary of
State to satisfy judgments in respect of injuries caused by uninsured vehicles.
iii)
As regards Mr Bell, (a) since the defence of ex turpi causa had been rejected
in relation to Damian and the MIB, it was not necessary to consider whether it
was available to Mr Bell; (b) Mr Bell had driven negligently; but (c) as to
contributory negligence, Daniel’s damages should be reduced by 45%
(including the agreed 15% for failure to wear a helmet) to reflect his own
responsibility for his injuries.
3.
In subsequent written notes the judge dealt with a number of consequential matters.
They included an apportionment of liability between Damian and Mr Bell, in the ratio
of 80% to 20%. They also included a ruling that the MIB was entitled to 90% of its
costs and that those costs should be paid by Mr Bell (as the unsuccessful codefendant) rather than by Daniel.
4.
Mr Bell now appeals to this court against (1) the judge’s rejection of the defence of ex
turpi causa; (2) the finding that Mr Bell was negligent; (3) the judge’s reduction in
damages by 45%, rather than a substantially higher figure, on account of Daniel’s
contributory negligence; and (4) the ruling that the MIB’s recoverable costs be paid
by Mr Bell rather than by Daniel.
The facts in greater detail
5.
At paragraphs 5-40 of his judgment the judge examined the evidence and made
detailed findings of fact. I will pick out some of the key findings.
6.
The special operation which the police mounted in Carlisle to monitor the extent to
which trials bikes (i.e. motor cycles not adapted or suitable for road use) were being
ridden dangerously in and around the town was called Operation Minx and
commenced in February 2006. The intelligence gathered by the police was that the
road in which Daniel’s family, the McCrackens, lived – and in particular the cul-desac in which the family lived – was the centre of much of the activity. It was where
the bikes disappeared when followed or chased by the police.
7.
The kind of activity the police were monitoring could be seen on video footage posted
on YouTube on 13 October 2006. The footage showed a number of people driving
dangerously on trials bikes, doing “wheelies” and other manoeuvres. The streets were
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McCracken v Smith, MIB and Bell
identified as streets in Carlisle, and the footage ended in the road where the
McCrackens lived. At one point the face of a boy could be clearly seen, but the judge
rejected a suggested identification of the boy as Daniel’s younger brother.
8.
During Operation Minx itself there was no intelligence that Daniel had been involved
in the activity. But on 7 January 2007, about three weeks before the accident, a police
officer investigating reports of people riding trials bikes in an area of west Carlisle
saw Daniel astride a bike in circumstances that caused him to visit Daniel at home
later that day and, in effect, to warn him about the use of the bike. The judge found
that the likelihood was that Daniel had been riding one of the bikes on the road that
day and that the probability was that he rode trials bikes on the road in Carlisle on
other occasions. He also found that Damian was likely to have been correct when he
said in cross-examination that Daniel had ridden trials bikes on the road about as often
as he, Damian, had done. The judge stressed, however, that “the fact that Daniel had
been in the habit of riding bikes on the road in Carlisle does not mean that he had
necessarily ridden them in the dangerous way depicted on the YouTube footage”.
9.
The bike being ridden at the time of the accident was a green Kawasaki 85cc bike
which had been stolen over a year earlier from an outbuilding in a remote part of
Cumbria. It was an off-road competition bike, designed to carry a single rider and not
a pillion passenger. The presence of a pillion passenger on it would have affected the
stability of the bike and the efficiency of its brakes. It was not in dispute that it was
one of the bikes seen on the YouTube footage. The judge found it likely that the bike
was kept by one or other of the McCrackens. The probability was that it had been
used recently in Carlisle, which was why it had been at the McCrackens’ home on the
day of the accident.
10.
The accident took place at about 2.30 pm on Wigton Road, Carlisle, at the entrance to
Morton Community Centre. On the stretch of road in question the speed limit was 30
mph and the road had a single lane in each direction. There were cycle paths on both
sides of the road, between the road and the pedestrian footpath. They were separated
from the road and the footpath by a green verge on either side of them. Where the
cycle path crossed the entrance to the community centre, there were double broken
white lines informing cyclists that they had to give way to other traffic.
11.
The accident occurred when the bike which Damian was riding, with Daniel as his
pillion passenger, collided with the minibus driven by Mr Bell. The bike was being
ridden on the cycle path on the southern side of Wigton Road towards the city centre.
The minibus had been travelling towards the city centre and was turning right into the
community centre. The bike collided with the offside of the minibus near the driver’s
door. The circumstances of the collision itself are considered in greater detail later in
this judgment, when I come to examine the challenge to the judge’s finding that Mr
Bell was negligent.
12.
The judge found that Damian and Daniel were close friends and that this went some
way towards explaining how Daniel came to be a passenger on the bike. Damian
himself had given various accounts of how Daniel came to be on it, but the judge
found it probable that Damian had no actual recollection of events leading up to the
accident. One of the accounts given by Damian was that he had been told by another
boy, Brian Lee, that he had received a text from Daniel on the day of the accident
asking him to pick Daniel up from school, that he had gone to Daniel’s home to
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McCracken v Smith, MIB and Bell
collect the bike, and that they had met up with Daniel’s younger brother and another
boy. The judge found that what Brian Lee told Damian about Damian having
collected the bike from Daniel’s home was likely to have been correct, in view of his
finding that that was where the bike had been on the day of the accident. Whether
Damian picked Daniel up by an arrangement which Daniel had initiated or by a
chance encounter between the two of them was “not all that important”, because on
any view Daniel was content to get on the bike and remain on it for more than a
matter of seconds.
13.
As to that last point, the judge said that the overwhelming weight of the evidence
suggested that Daniel was picked up by Damian after he had walked some way along
Wigton Road from the school. He had walked beyond the community centre. The
probability was that after Daniel had been picked up they went towards the city centre
before turning round and going back up Wigton Road past the community centre, and
then turning round again. It meant that Daniel would have been on the bike for a
matter of minutes rather than a matter of seconds before the accident.
14.
There was another bike on Wigton Road at the time. It was a yellow bike and was
probably a trials bike. There was evidence that it was being ridden out of the city at
the same time as the green bike with Damian and Daniel on it was travelling away
from the city centre, and that when the green bike turned round the yellow bike did so
as well. The witnesses disagreed about where on the road the yellow bike was being
ridden, but it was on the road rather than on the cycle path. The judge was in no
doubt that the yellow bike was travelling with the green bike. He found it
unnecessary to make a finding as to whether Daniel’s younger brother was on the
yellow bike. He was sure that the people on both bikes knew each other and were
riding together.
15.
The judge turned to why Daniel was on the green bike. Since this passage of the
judgment is central to the appellant’s criticisms, I should set it out in full:
“37. That brings me to whether Damian was simply giving
Daniel a lift home at the time, or whether, once Daniel had got
on the bike, they were going for a ride together with whatever
that entailed. The fact that Damian picked Daniel up some
distance from the school, and not all that far from where Daniel
lived, is suggestive of the latter, but by no means decisive. But
the fact that they met up with people they knew on another bike
is much more consistent with them having gone for a ride.
That is borne out by the fact that when Damian picked Daniel
up, he did not take him straight home. They carried on towards
the city centre for a while, before turning back and heading out
of the city towards the school. Maybe Damian wanted to show
off his driving skills to his friends as they were walking home
from school.
38. In addition, Daniel did not get off the bike on either of the
two occasions when the bike turned round. It is unsurprising
that he did not get off the bike when it turned round for the
second time. He was at that stage not far from the school
which he had left some 15 minutes previously. But the fact that
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McCracken v Smith, MIB and Bell
he did not get off the bike when it turned round the first time
suggests that he wanted to stay on it. That does not mean that
he wanted to show off to anyone. It could mean that he just
enjoyed being a pillion passenger on a trials bike being ridden
by a friend of his on the road.
39. The way the bike was being ridden. There was plenty of
evidence that the bike was being ridden otherwise than safely.
Two people saw it do a ‘wheelie’ in Wigton Road, admittedly
not as it approached the community centre. Hayley Birrell
described it as travelling ‘really fast’. Joanne Robinson said
that it was travelling faster than when it had been coming from
the city centre, and that when it had been coming from the city
centre it had been going faster than the few cars on Wigton
Road. Darren Foster put its speed at 40-50 mph in his first
statement, but modified that to 20-30 mph in a later statement,
ascribing the difference to the act that his second statement had
been made a few years later when he was older. But the most
compelling description of the way it was being ridden came
from Kelly Ann Mulholland. I have no reason to doubt her
evidence. She said that as it came towards her and her friends
from the city centre, it was swerving from side to side, albeit
not in a dangerous way. She did not think that the people on
the bike were trying to scare them or were even showing off.
She said that it had been swerving only slightly, and that she
had not felt in danger. Despite that, she had been walking quite
close to the cycle path, and she had to step out of the way as it
passed close to her as she had thought that it might hit her arm.
It was still swerving from side to side as it came back.
40. The question inevitably arises whether the bike was racing
with the other bike. Both Joanne Robinson and Hayley Birrell
got the impression that it was, but Kelly Ann Mulholland
thought otherwise. She thought that the green bike was just
trying to catch up with the other one, and the probability is, I
think, that she was right. They were travelling in tandem, and
Damian wanted to keep up with the bike in the road. But I
have no doubt that it was completely inappropriate for the bike
to have been ridden as fast it was being ridden on a cycle path,
especially as the presence of Daniel on it as a passenger must
have affected its stability and the efficiency of its brakes.
Having said that, there is nothing to suggest that Daniel was
encouraging Damian to drive in the way he did. As I have said,
he could just have been a pillion passenger going along for the
ride. Since there is nothing to suggest otherwise, that is the
basis on which I have to proceed, even though he must have
known that the bike was likely to be ridden on the road and too
fast.”
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McCracken v Smith, MIB and Bell
16.
In the course of considering the issues of liability, the judge made further findings as
to Damian’s riding and Daniel’s role. In holding that there must be judgment against
Damian, unless Daniel’s participation in Damian’s wrongdoing should disentitle him
from being compensated for his injuries, the judge said that there was no doubt that
Damian’s riding was negligent: he was travelling too fast, and he collided with the
minibus because he was either going too fast to stop when the minibus crossed the
cycle path or because he was not keeping a proper lookout for any vehicles or
pedestrians which might cross the cycle path; he should not have been riding the bike
on the cycle path at all; he ignored the broken white lines which told him that he had
to give way to other traffic; and he should not have been carrying a pillion passenger.
From other passages in the judgment, to some of which I will refer in a moment, it is
clear that the judge’s finding went further than one of negligence and that in his view
Damian was riding the bike dangerously. It is in any event common ground on the
appeal that Damian’s riding is properly so characterised.
17.
The factual basis of the judge’s rejection of the defence of ex turpi causa was his
finding that Daniel was just going along for the ride and was not a party to the way in
which Damian rode the bike. One sees that reasoning in a number of places:
“44. … [Damian’s] behaviour had been very much worse than
Daniel’s. Although Daniel is likely to have known that Damian
would be riding the bike in a dangerous manner, he had not
been encouraging Damian to do that. He was, as I have said,
just going along for the ride ….
…
47. Daniel’s criminal act is alleged to have been that he
allowed himself to be a pillion passenger on the bike when he
knew that the bike was not designed for pillion passengers, that
Damian would be riding it without insurance or a valid driving
licence, and that Damian was likely to drive the bike in a
dangerous manner, perhaps because Damian got a thrill out of
that, perhaps because he wanted to show off his driving skills to
whoever was on the other bike or others who might be in the
vicinity. Daniel, it is said, was prepared to go along with that
because he got a kick from being a pillion passenger in those
circumstances. But in my opinion, it is difficult to characterise
Daniel’s decision to allow himself to be a pillion passenger on
the bike in those circumstances as being the cause of his
injuries. I appreciate, of course, that if he had not been on the
bike, he would not have been injured at all, but it was not his
presence on the bike which was the cause of his injuries: the
cause of his injuries was the way the bike was being ridden by
Damian.
48. The MIB contends that this is not the correct analysis. Mr
Worthington argued that what Damian and Daniel were
engaged in was a joint enterprise whose core feature was
driving at speeds which made the driving dangerous. Damian
would have had his hands on the controls, but Daniel was a
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McCracken v Smith, MIB and Bell
willing participant in it. Even if he was not actively
encouraging Damian to go as fast as he did, he was aiding and
abetting what Damian was doing just by his presence on the
bike …. [The argument was then advanced by reference to the
decision in Joyce v O’Brien [2013] EWCA Civ 546, considered
below.]
…
50. I cannot go along with that analysis. On the findings I
have made, Daniel was not encouraging Damian to ride in the
way he did, whether actively or otherwise, for example, by his
presence on the bike being intended by Daniel to spur Damian
on to take the risks he did. Daniel was, as I have said, just
going along for the ride, even though he knew that the bike was
likely to be ridden on the road and too fast. If Daniel had been
charged with aiding and abetting Damian’s dangerous driving,
he would, on my findings of fact, have had to be acquitted. His
criminal conduct consisted of allowing himself to be a pillion
passenger on the bike when he knew that it had not been
designed for pillion passengers, and that Damian would be
riding it without insurance or a valid driving licence. The fact
that he knew that Damian was likely to ride it dangerously did
not make him a party to the way Damian in fact rode the bike
…. To the extent that Daniel was at fault, that has to be
reflected by reducing his damages for his own contributory
negligence.”
The challenge to the judge’s characterisation of Damian’s role
18.
I think it sensible to consider the challenge to the judge’s characterisation of Daniel’s
role before I turn to examine the legal arguments on the issue of ex turpi causa. Mr
Stephen Grime QC, for the appellant, submits that the judge made three main
mistakes: (1) he was wrong to characterise the activity as “just going for a ride”
rather than going for a joyride, a term that Mr Grime uses to encompass the gamut of
dangerous activities associated with the use of trials bikes on the roads of Carlisle; (2)
he should have found that Daniel, although a pillion passenger, was participating in a
joint enterprise with Damian to ride the bike dangerously; and (3) he should have
found that Daniel’s injuries were caused by his participation in the joint enterprise. If
the judge’s findings on those matters are reversed, Mr Grime submits that on the
proper application of the relevant legal principles, Mr Bell should succeed in his
defence of ex turpi causa.
19.
Mr Christopher Melton QC, for Daniel, has properly reminded the court of the need
for caution when considering a challenge to the judge’s evaluation of the facts. The
hearing below lasted seven days and, although Daniel’s mental incapacity prevented
him from giving his own account, much time was spent analysing what he knew or
must have known. It is submitted that special respect must therefore be given to the
judge’s findings of primary fact and to the inferences drawn by him, which were well
balanced. Reliance is placed on the words of Lord Hoffmann in Biogen Inc v Medeva
Plc [1997] RPC 1 and on the principles stated in Assicurazioni Generali SpA v Arab
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McCracken v Smith, MIB and Bell
Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577 (as approved in Datec
Electronics Holdings Ltd v UPS Ltd [2007] UKHL 23, [2007] 1 WLR 1325, at
paragraph 46). Whilst I readily acknowledge the need for caution, it should be
stressed that the appellant does not take issue in this case with any of the judge’s
findings of primary fact and that the challenge is limited to the inferences to be drawn
from those findings. We may not be in quite as good a position as the judge in
relation to the drawing of inferences but the exercise is one that we can and should
undertake, assisted in this respect by the detail and clarity of the judge’s findings of
primary fact.
20.
The judge was on any view generous to Daniel in distancing him as he did from
Damian’s dangerous riding. The reluctant conclusion to which I have come is that he
was unduly generous and that the inferences urged on us by Mr Grime are irresistible
inferences on the facts as found. The judge was plainly right to find that Damian and
Daniel “were going for a ride together with whatever that entailed”; but if one asks
oneself what that ride was going to “entail”, the only realistic answer, as it seems to
me, is that it was going to entail the very kind of dangerous riding that in fact took
place on this occasion. That was the kind of activity that youngsters on trials bikes
had been engaging in on the roads of Carlisle, as illustrated by the YouTube footage
(including the footage of this very bike). It was joyriding in the sense that Mr Grime
attributes to that term. That is what Daniel must have expected to happen when he
got on the bike. He clearly knew about trials bikes and the way they were being used
on the road. He himself had ridden them on the road, albeit there was no evidence
that he had ridden them dangerously. This particular bike had been stored at his home
on the day of the accident. It was being ridden by his close friend Damian. When
Damian picked him up on it, then, as the judge found, “he must have known that the
bike was likely to be ridden on the road and too fast” (paragraph 40); “Daniel is likely
to have known that Damian would be riding the bike in a dangerous manner”
(paragraph 44); “he knew that Damian was likely to ride it dangerously” (paragraph
50). Moreover, the evidence shows that the bike was in fact ridden dangerously along
the cycle path while Daniel was on it, yet he did not avail himself of the opportunity
to get off it on either of the two occasions when it turned round.
21.
That leads in to the question of joint enterprise. The judge said that Daniel’s criminal
conduct was limited to allowing himself to be a pillion passenger on the bike when he
knew that it had not been designed for pillion passengers and that Damian would be
riding it without insurance or a valid driving licence. He dissociated Daniel from
Damian’s criminal conduct as the rider of the bike. He said that Daniel was just going
along for the ride; he was not encouraging Damian, whether expressly or by his
presence, to ride in the way Damian did; he was not aiding and abetting Damian’s
dangerous driving; he was not a party to the way Damian in fact rode the bike. It
seems to me here too the judge was unduly generous to Daniel, in compartmentalising
the conduct of the two boys in that way. The proper inference, in my view, is that the
two boys were parties to a joint enterprise the essence of which was that the bike was
to be ridden dangerously. That this must have been their common purpose from the
outset is clear enough from the background to which I have referred but is reinforced,
in relation to the time of the accident, by the fact that Daniel did not avail himself of
the opportunity to get off the bike when it was in fact being ridden dangerously along
the cycle path. I think it unrealistic to say, as the judge did, that the fact that Daniel
remained on the bike did not mean that he wanted to show off to anyone but “could
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mean that he just enjoyed being a pillion passenger on a trials bike being ridden by a
friend of his on the road” (paragraph 38).
22.
In R v Baldessare (1931) 22 Cr App R 70 the Court of Criminal Appeal upheld a
conviction for manslaughter in circumstances where the appellant had been a
passenger in a car which he and the driver had taken without permission and which
was driven with criminal recklessness, knocking down and killing a pedestrian. The
court said that the jury had come to the conclusion that the appellant and the driver
“were acting together and joined in responsibility, not merely for the taking away of
the car from the owner’s possession, but also for the driving of it in the way in which
it was in fact driven”. There was held to have been evidence on which the jury could
properly find that “community of purpose and action”:
“Here was a clandestine ride – commonly called a ‘joy-ride’ –
on a dark night in February, without proper lights, and the two
men had taken the car for a purpose, which the jury have found
was not felonious, but which had as its object a ‘joy-ride’
without the knowledge and assent of the owner. Looking at
these facts, and at the actual speed of the car and its movements
before and after the collision, we think that the jury were
entitled to find that both the appellant and [the driver] were
responsible for the way in which the car was being driven at the
moment of collision.”
The facts of that case were of course stronger. In this case there was no joint taking
of the bike, albeit it was a stolen bike stored at, and collected by Damian from,
Daniel’s home; nor did the judge make any finding as to whether Daniel himself was
picked up on the bike by prearrangement with Damian. But the principle of joint
responsibility is equally applicable and in my view, as already indicated, there is
enough in the present facts to justify the inference that both boys were responsible for
the way in which the bike was being ridden.
23.
For a further example of the application of the principle of joint enterprise in a road
traffic context, reference can be made to R v Mahmood (Asaf) [1995] RTR 48. The
appellant was the teenage passenger in a stolen motor car driven by the teenage codefendant. The car was driven recklessly in the course of a police chase. The car
slowed down and the two teenagers jumped out, leaving the car in gear. It continued
onto the pavement and struck a child’s pram, killing the child. The court held that
“had the fatality occurred by reason of the car driven by the co-defendant colliding
with a pedestrian, or colliding with some other car and killing the driver or passenger
therein, it might well have been possible to leave it to the jury to take the view that
what had occurred had resulted from a common unlawful enterprise which had
culminated in unforeseen consequences” (page 52J-K), but the evidence did not
sufficiently support a case from which the jury could infer that the appellant had
entered a joint enterprise in which he contemplated the abandonment of the vehicle in
the way that occurred. In the present case there is no such additional complexity;
simply a “common unlawful enterprise” in which rider and passenger shared the
purpose of going for a joyride.
24.
The joint enterprise so described rested in my view on implied agreement between
Damian and Daniel to participate. I should also consider, however, the judge’s
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rejection of the way the case was put in terms of Daniel aiding and abetting Damian’s
dangerous riding. There was no evidence of Daniel giving express encouragement to
Damian to ride as he did, but it seems to me that the inference can and should be
drawn that he gave implied encouragement by getting on the bike and by remaining
on it in the circumstances already covered. He was more than a mere passenger. His
presence on the bike must have been, and have been intended to be, an encouragement
to Damian to ride as he did.
25.
I should add that it was common ground that the relevant standard of proof in this
case, even in relation to the issue of participation in a criminal joint enterprise, was
the civil standard of balance of probabilities, applied in the manner laid down in In re
H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and subsequent cases
explaining that decision. There was, however, no suggestion that anything turned on
the standard of proof or the precise manner of its application.
26.
Having considered Mr Grime’s submission that the judge erred in relation to the
ride/joyride issue and the joint enterprise issue, I turn to the criticism of the judge’s
finding that the cause of Daniel’s injuries was the way the bike was being ridden by
Damian, not Daniel’s decision to allow himself to be a pillion passenger. Mr Grime
submits that Daniel’s injuries were caused by his participation in the joint enterprise.
He points to the “paradox” that the judge, having made this finding as to causation,
went on to find in relation to contributory negligence:
“83. … Unquestionably there was fault on Daniel’s part.
When he got on the bike, he knew that Damian was likely to
drive on the road and too fast. He knew that a pillion passenger
was not allowed on the bike, and he knew that Damian was
using the bike without insurance or a valid driving licence.
Daniel was the author of his own misfortune to a significant
extent ….”
Clearly, that finding does not sit comfortably with the judge’s earlier finding. But in
any event, if at the time of the accident Daniel was party to a joint enterprise to ride
the bike dangerously, his participation in that joint enterprise must in my view be
regarded as a cause of his injuries – a conclusion which fits far better with the judge’s
view that he was the author of his own misfortune to a significant extent.
27.
I will need to come back to the issue of causation, however, when considering how to
approach it when applying the ex turpi causa principle to Daniel’s claims against
Damian and Mr Bell respectively.
Ex turpi causa: the authorities
28.
In this section of my judgment I will look at the authorities of primary relevance to
the issue of ex turpi causa as it arises in this case. In the following section I will
consider how the principles to be derived from those authorities apply in the
circumstances set out above.
29.
In Pitts v Hunt [1991] 2 QB 24 the plaintiff was a pillion passenger on a motor cycle
which was involved in a collision resulting in the death of the motor cycle rider and
serious injuries to the plaintiff. Both the plaintiff and the rider were teenagers. They
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had both been drinking prior to the accident, the plaintiff knew that the rider did not
hold a driving licence and was uninsured, and on the findings of the judge at first
instance “the deceased was riding this motor cycle recklessly and dangerously and at
the very least the plaintiff was aiding and abetting that driving. He was not
manipulating the controls of the machine but he was fully in agreement with and was
encouraging the way in which the deceased was manipulating the controls” (page
37C). The plaintiff’s claim in negligence against the rider was dismissed on the
ground that, on the application of the ex turpi causa principle, the rider owed no duty
of care to the plaintiff.
30.
The Court of Appeal upheld the decision, though there was no clear-cut ratio as to
how the ex turpi causa principle produced that result. Beldam LJ, referring to the
seriousness of the offences committed, considered that the plaintiff was precluded on
grounds of public policy from recovering compensation for the injuries which he
sustained in the course of the very serious offences in which he was participating
(page 46E-F). Balcombe LJ founded his judgment on the basis that the circumstances
of the case were such as to preclude the court from finding that the deceased owed a
duty of care to the plaintiff (page 51A-B). Dillon LJ took the view that the court
could not establish the standard of care for the course of criminal activity (pages 59G60C).
31.
Gray v Thames Trains Ltd [2009] 1 AC 1339 was a very different case but is
important for its effect on the later cases in which Pitts v Hunt has been considered.
The claimant in Gray was a passenger on a train involved in a major railway accident.
He suffered post-traumatic stress disorder which he alleged had been caused by the
accident. While suffering from that disorder he killed a man, in respect of which he
pleaded guilty to manslaughter on the ground of diminished responsibility and was
detained pursuant to a hospital order. He brought a claim in negligence against the
train operator and the company responsible for the rail infrastructure, claiming
damages for loss of earnings, for loss of liberty and damage to reputation, and for
feelings of guilt and remorse consequent on the killing. The House of Lords held that
all such recovery was excluded on grounds of ex turpi causa.
32.
Lord Hoffmann said that the relevant rule could be stated in a wider or a narrow form:
“The wider and simpler version is that which was applied by
Flaux J [at first instance in Gray]: you cannot recover for
damage which is the consequence of your own criminal act. In
its narrower form, it is that you cannot recover for damage
which is the consequence of a sentence imposed upon you for a
criminal act.”
The justification for the narrower rule was based on the inconsistency of requiring
someone to be compensated for a sentence imposed because of his own personal
responsibility for a criminal act. As to the wider rule:
“51. … It differs from the narrower version in at least two
respects: first, it cannot, as it seems to me, be justified on the
grounds of inconsistency in the same way as the narrower rule.
Instead, the wider rule has to be justified on the ground that it is
offensive to public notions of the fair distribution of resources
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that a claimant should be compensated (usually out of public
funds) for the consequences of his own criminal conduct.
Secondly, the wider rule may raise problems of causation
which cannot arise in connection with the narrower rule. The
sentence of the court is plainly a consequence of the criminality
for which the claimant was responsible. But other forms of
damage may give rise to questions about whether they can
properly be said to have been caused by his criminal conduct.
52. The wider principle was applied by the Court of Appeal in
Vellino v Chief Constable of Greater Manchester Police [2002]
1 WLR 218. The claimant was injured in consequence of
jumping from a second-floor window to escape from the
custody of the police. He sued the police for damages,
claiming that they had not taken reasonable care to prevent him
from escaping. Attempting to escape from lawful custody is a
criminal offence. The Court of Appeal (Schiemann LJ and Sir
Murray Stuart-Smith; Sedley LJ dissenting) held that, assuming
the police to have been negligent recovery was precluded
because the injury was the consequence of the plaintiff’s
unlawful act.
53. This decision seems to me based upon sound common
sense. The question, as suggested in the dissenting judgment of
Sedley LJ, is how the case should be distinguished from one in
which the injury is a consequence of the plaintiff’s unlawful act
only in the sense that it would not have happened if he had not
been committing an unlawful act. An extreme example would
be the car which is damaged while unlawfully parked. Sir
Murray Stuart-Smith, at para 70, described the distinction:
‘The operation of the principle arises where the claimant’s
claim is founded upon his own criminal or immoral act. The
facts which give rise to the claim must be inextricably linked
with the criminal activity. It is not sufficient if the criminal
activity merely gives occasion for tortious conduct of the
defendant.’
54. This distinction, between causing something and merely
providing the occasion for someone else to cause something, is
one with which we are very familiar in the law of torts. It is the
same principle by which the law normally holds that even
though damage would not have occurred but for a tortious act,
the defendant is not liable if the immediate cause was the
deliberate act of another individual. Examples of cases falling
on one side of the line or the other are given in the judgment of
Judge LJ in Cross v Kirby [2000] CA Transcript No 321. It
was Judge LJ, at para 103, who formulated the test of
‘inextricably linked’ which was afterward adopted by Sir
Murray Stuart-Smith in Vellino v Chief Constable of the
Greater Manchester Police [2002] 1 WLR 218. Other
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expressions which he approved, at paras 100 and 104, were ‘an
integral part or a necessarily direct consequence’ of the
unlawful act (Rougier J: Revell v Newbery [1996] QB 567, 571)
and ‘arises directly ex turpi causa: Bingham LJ in Saunders v
Edwards [1987] 1 WLR 1116, 1134. It might be better to avoid
metaphors like ‘inextricably linked’ or ‘integral part’ and to
treat the question simply as one of causation. Can one say that,
although the damage would not have happened but for the
tortious act of the defendant, it was caused by the criminal act
of the claimant? (Vellino v Chief Constable of the Greater
Manchester Police [2002] 1 WLR 218). Or is the position that
although the damage would not have happened without the
criminal act of the claimant, it was caused by the tortious act of
the defendant? (Revill v Newbery [1996] QB 567).”
33.
At the very end of that passage, Lord Hoffmann referred to the decision of the Court
of Appeal in Revill v Newbery [1996] QB 567. The claim in that case was brought by
a man who was shot and injured by the occupier of land in the course of an attempted
burglary on the property. The Court of Appeal held that the liability of the occupier
depended on ordinary principles of negligence at common law and that he had been
negligent in firing the shot. Its rejection of a defence of ex turpi causa was based on
general considerations relating to the existence of a duty of care even towards
trespassers engaged in criminal activities, rather than on the causation analysis
suggested by Lord Hoffmann. The only member of the court to deal in terms with
causation was Evans LJ, who said this at page 579B-D:
“The issue here is whether the plaintiff in a personal injury
claim for damages for negligence is debarred from making any
recovery where he was a trespasser and engaged in criminal
activities when the injury was suffered. Any broad test of
causation is satisfied almost by definition in such a case,
because he would not have sustained the injury caused by the
defendant unless he had been where he was and acting as he
was at the relevant time.
These are the factors of fault and responsibility which are taken
into account when assessing the issue of contributory
negligence pursuant to section 1 of the Law Reform
(Contributory Negligence) Act 1945 …..”
That last passage was a reference to the trial judge’s apportionment of responsibility
between the claimant and the defendant in the ratio two-thirds to one-third, which was
not challenged on the appeal.
34.
Lord Hoffmann’s observations in Gray were applied in Delaney v Pickett [2011]
EWCA Civ 1532, [2012] 1 WLR 2149. The claimant in that case was the passenger
in a car driven by the first defendant and was injured in an accident caused by the first
defendant’s negligent driving. The majority of the Court of Appeal upheld the finding
of the judge at first instance that the purpose of the journey was the transportation of
cannabis intended for resale and that the two men were acting in concert in a joint
enterprise for illegal purposes. In unanimously rejecting the defence of ex turpi
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causa, however, the court applied a causation test. Ward LJ, with whom the other
members of the court agreed on this point, stated:
“37. … Here the crucial question is whether, on the one hand
the criminal activity merely gave occasion for the tortious act
of the first defendant to be committed or whether, even though
the accident would never have happened had they not made the
journey which at some point involved their obtaining and/or
transporting drugs with the intention to supply or on the other
hand whether the immediate cause of the claimant’s damage
was the negligent driving. The answer to that question is in my
judgment quite clear. Viewed as a matter of causation, the
damage suffered by the claimant was not caused by his or her
criminal activity. It was caused by the tortious act of the first
defendant in the negligent way in which he drove his motor car.
In those circumstances the illegal acts are incidental and the
claimant is entitled to recover his loss.”
35.
The cases referred to above, together with a body of other authorities, including
Australian cases, were considered in Joyce v O’Brien [2013] EWCA Civ 546, [2014]
1 WLR 70. In that case the claimant and the first defendant had stolen some ladders
and placed them in a van in which they fled the scene of the crime. The claimant fell
out of the back of the van, suffering serious injury, while the first defendant was
driving quickly away from the crime scene. The first defendant subsequently pleaded
guilty to dangerous driving. The claimant brought a claim in negligence against him
and his insurers. The Court of Appeal upheld the dismissal of the claim on the basis
of ex turpi causa. Elias LJ, in a judgment with which the other members of the court
agreed, set the scene as follows:
“5. The concept applies generally when a claimant is injured
whilst committing a criminal offence We are concerned in this
case with its application in one particular context, namely
where one criminal is injured by the negligence of another
when they are both engaged in a criminal enterprise. The
authorities demonstrate that whilst it is widely recognised that
the ex turpi principle will often apply to deny the claimant the
right to damages in such cases, the jurisprudential basis for
reaching that conclusion is a matter of some dispute. I will first
consider the principles which have been developed in the
context of injuries incurred in the course of joint criminal
enterprises, then focus on the distinct principles which apply
where the criminal is injured by a third party unconnected to
the criminal activity, and then suggest how the two strands of
authority may be integrated.”
36.
Elias LJ then dealt, at paragraphs 6-20, with the issue of criminal joint enterprise,
including Pitts v Hunt and the bases on which liability was held to be excluded by the
ex turpi causa principle in that and other cases. The section ended with consideration
of the decision of the High Court of Australia in Miller v Miller [2011] HCA 9, where
the court’s conclusion on the issue of principle was expressed as follows:
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McCracken v Smith, MIB and Bell
“If, in a particular case, it were to be shown that a probable
consequence of commission of an offence of taking or using a
vehicle illegally was the commission of other driving offences
(including reckless or dangerous driving) those who were
complicit in the initial offence would be criminally liable for
the subsequent offences as well. More particularly, if, as here,
the driver of the illegally used vehicle drove dangerously, and
driving in that manner was a probable consequence of the
prosecution of the joint illegal purpose, a person complicit in
the crime of illegal use would also be complicit in the offence
of driving dangerously. And if, as a result of the dangerous
driving, the complicit passenger were injured, it would
evidently be incongruous to decide that the offender who drove
the vehicle owed that passenger a duty to drive with reasonable
care. The passenger would have committed the offence of
dangerous driving and yet, if the driver owed the passenger a
duty to take reasonable care, the passenger (who would be
criminally responsible for the driver’s dangerous driving) might
sue the driver for damages for driving negligently.”
37.
The next section of Elias LJ’s judgment, at paragraphs 21-29, was headed “Ex turpi
and criminal acts by individual”. It started as follows:
“21. The principle developed in these joint enterprise cases can
be seen as merely one specific application of a wider principle
that a man cannot recover compensation where his cause of
action is based on his own criminal or immoral act. However,
the test for determining liability in those circumstances has
focused on causation rather than on considerations of whether a
duty of care can properly be said to exist.”
38.
Elias LJ referred to what Lord Hoffmann had said in Gray about causation. He noted
that Lord Hoffmann was considering a case where the question was simply whether
the claimant had brought the injury on himself in circumstances where the alleged
tortfeasor who caused the injury was not a party to the crime; Lord Hoffman was not
dealing with cases where a claimant is injured in the course of a joint criminal
enterprise by another person who is party to that enterprise, and he did not refer to any
of the relevant authorities where that situation has arisen. Elias LJ said that in view of
that, “an argument could no doubt have been advanced that in the joint enterprise
context the older authorities, with the focus on duty rather than causation, better catch
the particular feature which justifies the application of the ex turpi principle in these
cases” (paragraph 26), but that the Court of Appeal had applied the causation
principle to a joint enterprise case in Delaney v Pickett. Having considered Delaney v
Pickett, he continued:
“27. Accordingly, the same causation principle should apply
whether the criminal is acting alone or as part of a joint
enterprise. But this does not in my opinion mean that the
established jurisprudence on joint enterprise cases is of no
continuing relevance. The material additional feature in such a
claim is that the claimant may be denied recovery not merely
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where the injury results directly from his own criminal conduct,
but also where it results from the action of a joint participator
carried on in furtherance of the joint enterprise. In certain cases
the injury will still be treated as having been caused by the
claimant even though the direct cause of the injury was his codefendant.
28. In my judgment, in the application of the causation
principle developed in Gray v Thames Trains Ltd [2009] AC
1339, the courts should recognise the wider public policy
considerations which have led them to deny liability in joint
enterprise cases. This is compatible with Lord Hoffmann’s
approach. The earlier authorities provide valuable assistance in
answering the question whether the claimant’s injury will be
treated as having been caused by his own conduct
notwithstanding that the immediate cause was the act of a
partner in crime. They reflect what seems to me to be the
underlying policy even if the rationale for denying liability
must now be cast in terms of causation rather than duty. In my
view the injury will be caused by, rather than occasioned by,
the criminal activity of the claimant where the joint criminal
illegality affects the standard of care which the claimant is
reasonably entitled to expect from his partner in crime. This is
consistent with the result of Ashton v Turner [1981] QB 137
and Pitts v Hunt [1991] 1 QB 24, but it focuses on causation
rather than duty.
29. I would formulate the principle as follows: where the
character of the joint criminal enterprise is such that it is
foreseeable that a party or parties may be subject to unusual or
increased risks of harm as a consequence of the activities of the
parties in pursuance of their criminal objectives, and the risk
materialises, the injury can properly be said to be caused by the
criminal act of the claimant even if it results from the negligent
or intentional act of another party to the illegal enterprise. I do
not suggest that this necessarily exhausts situations where the
ex turpi principle applies in joint enterprise cases, but I would
expect it to cater for the overwhelming majority of cases ….”
39.
As to the application of the principles to the facts of the case, it was held that the
judge at first instance had been entitled to conclude that the injury was caused by the
criminal activity in which the claimant was engaged: it resulted both from his
personal conduct in placing himself in such a dangerous position (standing at the back
of the van, supporting the ladders) and because he took the heightened risk of
dangerous driving by the driver and that risk materialised. The court dismissed the
suggestion that active encouragement of the dangerous driving was necessary: “It is
enough that the claimant and negligent driver are involved in the criminal enterprise
together and that the accident arises out of activities which it can be foreseen might be
committed in the course of the enterprise” (paragraph 48). The court also rejected an
argument based on proportionality:
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“51. Given that the doctrine is one of public policy, I would
accept that there should indeed be some flexibility in its
operation. The doctrine will not apply, for example, to minor
traffic offences. I suspect that in most joint criminal liability
cases at least, the nature and characteristics of the principal
offence will in practice determine which acts of a coconspirator will attract the application of the ex turpi doctrine,
and for relatively trivial offences the range of such acts is likely
to be very limited. None the less, I recognise that there may be
a problem in determining in certain cases whether the offence
attracts the application of the doctrine or not.
52. However, in my view, wherever the precise line is to be
drawn, the theft of these ladders would fall clearly on the side
where the doctrine applies. It is not merely an imprisonable
offence but carries a seven-year maximum sentence; it is not a
strict liability offence which may be committed without any
real moral culpability ….”
40.
It is necessary finally to consider the decision of the Supreme Court in Les
Laboratoires Servier v Apotex Inc [2014] UKSC 55, [2014] 3 WLR 1257, in which
Lord Sumption (with whom Lord Neuberger and Lord Clarke agreed) sought to
provide a principled framework for the ex turpi causa defence. The context of that
case, namely a patent dispute in which the relevant defence was that it was contrary to
public policy for a company to recover damages under a cross-undertaking that
prevented the sale of products the manufacture and importation of which would have
been in breach of patent, was very different indeed from the present, and no reference
was made to the criminal joint venture cases. Whilst those considerations need to be
kept in mind, the statements of principle are of obvious importance.
41.
In a section on the illegality defence, at paragraphs 13-22 of his judgment, Lord
Sumption pointed out that two features of this area of law have been characteristic of
it from the outset: first, it is a rule of law and not a mere discretionary power; and
secondly, it is based on public policy and not on the perceived balance of merits
between the parties to any particular dispute. One of the tests formerly applied in the
cases had been that it would be an affront to the public conscience to grant the relief
sought, but the House of Lords in Tinsley v Milligan [1994] 1 AC 340 was unanimous
in rejecting that test, on the ground that it was unprincipled. The House was divided
on the question what should be substituted for the public conscience test, but neither
of the alternative tests put forward was discretionary in nature or was based on
achieving proportionality between the claimant’s misconduct and his loss: on the
contrary, it was recognised that the practical operation of the law in this field will
often produce disproportionately harsh consequences. In Gray, Lord Hoffmann had
identified two rules as relevant where the illegality defence was raised in answer to a
claim for compensation. Neither rule depended on the court’s assessment of the
significance of the illegality, the proportionality of its application or the merits of the
particular case. Having criticised the Court of Appeal in the case before him for
applying a discretionary approach which was contrary to established legal principle,
Lord Sumption concluded this section of his judgment as follows:
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McCracken v Smith, MIB and Bell
“22. However, it does not follow that the courts should be
insensitive to the draconian consequences which the ex turpi
causa principle can have if it is applied too widely. The
starting point in any review of the modern law must be that we
are concerned with a principle based on the application of
general rules of law and not on fact-based evaluations of the
effect of applying them in each individual case. However, the
content of the rules must recognise that within the vast and
disparate category of cases where a party in some sense founds
his claim on an immoral or illegal act there are important
differences of principle. The application of the ex turpi causa
principle commonly raises three questions: (i) what acts
constitute turpitude for the purposes of the defence? (ii) what
relationship must the turpitude have to the claim? (iii) on what
principles should the turpitude of an agent be attributed to his
principal, especially when the principal is a corporation? Each
of these questions requires a principled distinction to be made
between different kinds of immoral or illegal acts and different
ways in which they may give rise to claims. For present
purposes, we are concerned only with the question what
constitutes turpitude for the purposes of the defence ….”
42.
Under the heading “What is ‘turpitude’?”, Lord Sumption continued:
“23. The paradigm case of an illegal act engaging the defence
is a criminal offence. So much so, that much modern judicial
analysis deals with the question as if nothing else was relevant.
Yet in his famous statement of principle in Holman v Johnson 1
Cowp 341 Lord Mansfield CJ spoke not only of criminal acts
but of ‘immoral or illegal’ ones. What did he mean by this? I
think that what he meant is clear from the characteristics of the
rule as he described it, and as judges have always applied it.
He meant acts which engage the interests of the state or, as we
would put it today, the public interest. The illegality defence,
where it arises, arises in the public interest, irrespective of the
interests or rights of the parities. It is because the public has its
own interest in conduct giving rise to the illegality defence that
the judge may be bound to take the point of his own motion,
contrary to the ordinary principles of adversarial litigation. In
some contexts, notably the invalidity of contracts prohibited by
law, the ex turpi causa principle can be analysed as part of the
substantive law governing the parties’ rights. The contract is
void, and any right derived from it is non-existent. But in
general, although described as a defence, it is in reality a rule of
judicial abstention. It means that rather than regulating the
consequences of an illegal act (for example by restoring the
parties to the status quo ante, in the same way as on the
rescission of a contract) the courts withhold judicial remedies,
leaving the loss to lie where it falls. This is so even in a
contractual context, when the court is invited to determine the
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financial consequence of a contract’s voidness for illegality.
The ex turpi causa principle precludes the judge from
performing his ordinary adjudicative function in a case where
that would lend the authority of the state to the enforcement of
an illegal transaction or to the determination of the legal
consequences of an illegal act.
…
25. The ex turpi causa principle is concerned with claims
founded on acts which are contrary to the public law of the
state and engage the public interest. The paradigm case is, as I
have said, a criminal act. In addition, it is concerned with a
limited category of acts which, while not necessarily criminal,
can conveniently be described as ‘quasi-criminal’ because they
engage the public interest in the same way ….
…
29. It is right to add that there may be exceptional cases where
even criminal and quasi-criminal acts will not constitute
turpitude for the purposes of the illegality defence. In Gray v
Thames Trains Ltd [2009] AC 1339, para 83, Lord Rodger of
Earlsferry suggested that some offences might be too trivial to
engage the defence. In general, however, the exceptional cases
are implicit in the rule itself. This applies in particular where
the act in question was not in reality the claimant’s at all.
Leaving aside questions of attribution which arise where an
agent is involved, and which are no part of the present appeal,
there is a recognised exception to the category of turpitudinous
acts for cases of strict liability, generally arising under statute,
where the claimant was not privy to the fact making his act
unlawful: see Stone & Rolls Ltd v Moore Stephens [2009] AC
1391, paras 24, 27 (Lord Phillips of Worth Matravers). In such
cases, the fact that liability is strict and that the claimant was
not aware of the facts making his conduct unlawful may
provide a reason for holding that it is not turpitude at all ….
The application of the exception for cases of strict liability may
require a court to determine whether the claimant was in fact
privy to the illegality. To that extent, an inquiry into the
claimant’s moral culpability may be necessary in such cases
before his act can be characterised in law as ‘turpitude’. This
may be a difficult question, but it is not a question of degree.
The conclusion will be a finding that the claimant was aware of
the illegality or that he was not. It is a long way from the kind
of value judgment implicit in the search for a proportionate
relationship between the illegality and its legal consequences of
the claim.”
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Ex turpi causa: the application of the principles to the facts of this case
43.
On Lord Sumption’s approach in Les Laboratoires Servier, the first question to
consider is whether Daniel’s conduct amounted to “turpitude” for the purposes of the
ex turpi causa defence. In the light of my previous findings, the conduct in question
must be taken to have been Daniel’s participation with Damian in a joint enterprise to
ride the bike dangerously. I have no doubt that such conduct did amount to turpitude.
A person who drives a mechanically propelled vehicle dangerously on a road or other
public place is guilty of an offence contrary to section 2 of the Road Traffic Act 1988,
punishable on conviction on indictment by up to two years’ imprisonment.
Dangerous driving was at the heart of the conduct found to engage the ex turpi causa
principle in Pitts v Hunt; see also, for example, the Australian case of Miller v Miller
referred to at paragraph 36 above. On no view is it a trivial offence. At one point in
argument there appeared to be a suggestion that it might fall to be treated in the same
way as an offence of strict liability, since the standard of dangerous driving is an
objective one: by section 2A of the 1988 Act, a person is to be regarded as driving
dangerously if and only if (a) the way he drives falls far below what would be
expected of a competent and careful driver, and (b) it would be obvious to a
competent and careful driver that driving in that way would be dangerous. I see no
substance in the suggestion. In any event, the exception for strict liability offences to
which Lord Sumption referred at paragraph 29 of his judgment in Les Laboratoires
Servier relates to offences where liability is strict and the claimant is not aware of the
facts making his conduct unlawful; whereas in the present case Daniel was plainly
aware of the facts giving rise to the offence of dangerous driving.
44.
The next question is whether Daniel’s claim against Mr Bell is founded on that
turpitude so as to provide a defence to the claim. I use “founded on” in a general
sense. It is common ground that it is not a question of whether facts disclosing the
immoral or illegal act are relied on as part of the claimant’s pleaded case or evidence.
Lord Sumption’s survey of the illegality defence in Les Laboratoires Servier starts
with the statement of principle in Holman v Johnson (1775) 1 Cowp 341 that “[no]
court will lend its aid to a man who founds his cause of action on an immoral or an
illegal act”, and ends with the paragraph in which he refers to “the vast and disparate
category of cases where a party in some sense founds his claim on an immoral or
illegal act” (paragraph 22, quoted in full above). He goes on to ask “what relationship
must the turpitude have to the claim?” It was unnecessary to consider that question
any further in Les Laboratoires Servier itself. In the present case we have to decide
whether the relationship between Daniel’s turpitude and his claim against Mr Bell is
such as to debar the claim.
45.
If this appeal concerned Daniel’s claim against Damian, rather than his claim against
Mr Bell, I think that the answer to the question would be straightforward. There is a
close parallel with the circumstances in Pitts v Hunt, where the motor cycle pillion
passenger injured in a collision resulting from the rider’s dangerous driving was
unable to recover against the driver because, in effect, the dangerous driving was the
subject of a joint enterprise to which the pillion passenger was a party. The reason for
denying recovery in such a situation has been developed and refined since Pitts v
Hunt, in that a generalised reliance on public policy will no longer suffice and there
has been a shift in focus away from duty of care or standard of care and towards
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McCracken v Smith, MIB and Bell
causation. But nothing that has happened would lead one to expect a different
outcome from that in Pitts v Hunt itself.
46.
That is confirmed by Joyce v O’Brien. The section of Elias LJ’s judgment on
criminal joint enterprise considers the line of authority tending towards the view that a
driver who drives dangerously should not be held to owe a duty of care to a passenger
who was complicit in the offence. I have the impression that Elias LJ would have
preferred to base himself on a duty of care analysis but felt obliged to follow the
causation analysis propounded by Lord Hoffmann in Gray and applied in that context
in Delaney v Pickett. I have considerable sympathy for that point of view. Lord
Hoffmann was not considering a case of criminal joint enterprise but was addressing
the very different situation where a criminal act by the claimant is said to have been
the consequence of the defendant’s tort. It may be that the court in Delaney v Pickett,
of which I was a member, seized too readily on the causation analysis as providing an
obvious answer to the issue in that case. In any event, Elias LJ made a brave attempt
to bring the two approaches together in his statement, at the end of paragraph 28 of
his judgment, that “the injury will be caused by, rather than occasioned by, the
criminal activity of the claimant where the joint criminal illegality affects the standard
of care which the claimant is reasonably entitled to expect from his partner in crime”.
That led into his formulation of principle, at paragraph 29, which I think it helpful to
repeat:
“where the character of the joint criminal enterprise is such that
it is foreseeable that a party or parties may be subject to
unusual or increased risks of harm as a consequence of the
activities of the parties in pursuance of their criminal
objectives, and the risk materialises, the injury can properly be
said to be caused by the criminal act of the claimant even if it
results from the negligent or intentional act or another party to
the illegal enterprise.”
47.
Whatever reservations one may have about the reasoning that led to that statement of
principle, it seems to me that this court is bound by Joyce v O’Brien and ought now to
follow it rather than try to backtrack. If the statement of principle is applied to
Daniel’s claim against Damian, it should in my view lead to a denial of recovery.
Since there was a joint enterprise between Daniel and Damian to ride the bike
dangerously, and the increased risk of harm as a consequence of such riding was
plainly foreseeable, Daniel’s injury can properly be said to have been caused by his
own criminal conduct even though it resulted from the negligent act of Damian.
Another way of expressing the point is that although as a matter of fact the negligent
act was that of Damian, Daniel was jointly responsible in law for it and he cannot
bring a claim in respect of his own negligent act.
48.
It follows that I consider the judge to have been wrong to reject the defence of ex
turpi causa in relation to Daniel’s claim against Damian and therefore in relation to
his claim against the MIB. Those claims are not, however, the subject of the present
appeal; and it by no means follows that the same conclusion applies to Daniel’s claim
against Mr Bell, with which alone we are concerned.
49.
Since Daniel was jointly responsible for the dangerous driving, he is in the same
position as Damian, the actual rider of the bike, as regards a claim in negligence
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McCracken v Smith, MIB and Bell
against Mr Bell. The question in each case is whether the fact that the bike was being
ridden dangerously provides a defence to the claim. The answer to that question is one
with potentially wide ramifications, capable of affecting any driver involved in an
accident with a negligent third party in circumstances where he or she is driving
dangerously or is committing any other road traffic offence of sufficient seriousness
to amount to turpitude for the purposes of the ex turpi causa defence.
50.
If the duty of care analysis formerly applied in the joint enterprise cases had any
application here, it would tell decisively against the ex turpi causa defence
succeeding. It is clear that the dangerous driving of the bike had no effect whatsoever
on Mr Bell’s duty of care or on the standard of care reasonably to be expected of him.
51.
I find the causation analysis more problematic. In my view the situation cannot be
accommodated neatly within the binary approach of Lord Hoffmann in Gray. One
cannot say that “although the damage would not have happened but for the tortious
act of the defendant, it was caused by the criminal act of the claimant”; but equally
one cannot say that “although the damage would not have happened without the
criminal act of the claimant, it was caused by the tortious act of the defendant”. The
accident had two causes, properly so called – the dangerous driving of the bike and
the negligent driving of the minibus – and it would be wrong to treat one as the mere
“occasion” and the other as the true “cause”. Daniel’s injury was the consequence of
both, not just of his own criminal conduct and not just of Mr Bell’s negligence.
52.
I do not think that the fact that the criminal conduct was one of the two causes is a
sufficient basis for the ex turpi causa defence to succeed. Our attention has not been
drawn to any remotely comparable case where it has in fact succeeded: for reasons I
have explained, cases involving a claim by one party to a criminal joint enterprise
against another party to that joint enterprise are materially different. In my judgment,
the right approach is to give effect to both causes by allowing Daniel to claim in
negligence against Mr Bell but, if negligence is established, by reducing any
recoverable damages in accordance with the principles of contributory negligence so
as to reflect Daniel’s own fault and responsibility for the accident.
53.
Lord Sumption has spelled out in Les Laboratoires Servier that the ex turpi causa
defence is rooted in the public interest. The public interest is served by the approach I
have indicated. It takes into account both the negligent driving for which Mr Bell is
responsible and the dangerous driving for which Daniel is responsible It enables
damages to be recovered for the negligence of Mr Bell but not for Daniel’s own
criminal conduct. I see no reason why the court should instead apply a “rule of
judicial abstention” (Lord Sumption in Les Laboratoires Servier, paragraph 23) and
withhold a remedy altogether.
54.
The approach I have indicated was in substance that taken by the Court of Appeal in
Revill v Newbery, the case where a trespasser engaged in criminal activities was held
not to be debarred from claiming against the negligent occupier (see paragraph 33
above). I acknowledge that Lord Hoffmann in Gray treated the case as one where,
although the damage would not have happened without the criminal act of the
claimant, it was caused by the tortious act of the defendant. But I have referred to
what Evans LJ said in the case itself to the effect that any broad test of causation was
almost by definition satisfied, and to his observation that the relevant factors of the
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claimant’s fault and responsibility “are taken into account in the assessment of
contributory negligence”, as was done in the apportionment made by the trial judge.
55.
Accordingly, I would hold in this case that the judge was right to reject the ex turpi
causa defence in relation to Daniel’s claim against Mr Bell, albeit my reasons are
very different from those of the judge. The relationship between Daniel’s turpitude –
his participation in the joint enterprise to ride the bike dangerously – and his claim in
negligence against Mr Bell is not such as to debar the claim. The causal contribution
of the dangerous riding of the bike for which Daniel was responsible can and should
be taken into account in the assessment of his contributory negligence.
The issue of Mr Bell’s negligence
56.
The judge dealt with the issue of Mr Bell’s negligence at paragraphs 64-82 of his
judgment.
57.
Mr Bell’s evidence was that as he approached the community centre along Wigton
Road, he slowed down and indicated that he was turning right. He could not recall
whether the minibus came to a halt but the judge found that it probably did. Mr Bell
said that he was watching the approaching traffic, waiting for an opportunity to cross
into the community centre; he was also checking for any people or vehicles that might
have been coming out of the centre; and he not only checked his rear-view mirrors for
any vehicles behind him, but he was also checking that the cycle path and the footpath
which he had to cross were clear of cyclists and pedestrians. He did not see the bike
that Damian and Daniel were on before the moment of impact. The judge found that
if Mr Bell had looked down the road over his shoulder, the bike was there to be seen,
and that he had failed to check on its presence.
58.
An important part of the judge’s reasoning related to Mr Bell’s acknowledgment in
his witness statement dated 1 May 2007 that as he had been driving up Wigton Road
he had seen the two trials bikes (i.e. the bike Damian and Daniel were on, and the
yellow bike) travelling towards him from the city centre; they were either on the cycle
path or on the footpath on the opposite side of the road; they were travelling too fast.
The judge said this:
“69. There is one other aspect of Mr Bell’s evidence I should
mention. In his witness statement, he said that once the two
trials bikes had passed him, he had dismissed them from his
thoughts: they had not appeared to be slowing down or about
to turn, so he had not considered them to be a hazard.
However, in a statement he gave to the police on 10 April 2007,
he said that when he had been turning into the community
centre the bikes had still been in the back of his mind. Since
Mr Bell had seen them travelling fast on the cycle path or the
footpath, he should therefore be treated as having been alive at
least to the possibility that one or both of them might have
turned round and might have been speeding back towards the
city on the cycle path or the footpath. It goes without saying
that in the normal course of events, it may not have occurred to
someone turning right into the community centre from Wigton
Road that a trials bike might come fast towards the city centre
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on either the cycle path or the footpath on the same side of the
road as the community centre. In such circumstances, there
would have been no need for such a driver to take special
precautions to guard against that risk …. But the fact that Mr
Bell had already seen the bike on which Damian and Daniel
had been on what we know from the evidence of the three
schoolgirls was the cycle path, as well as the other bike, means
that their possible presence on the cycle path was something
which he should have been alive to (and on the basis of what he
had told the police was something to which he had in fact been
alive to), especially as so many of the locals (including him, he
was to admit) knew that trials bikes were being driven
dangerously in the area.
70. So the question is whether the bike which Damian and
Daniel were on was there to be seen or heard by someone who
was alive to the possibility that the bike might be coming back
towards the city centre on the cycle path ….”
59.
The judge found that the view Mr Bell would have had over his shoulder down
Wigton Road would have been at least 107 metres and that a bike travelling at 40 mph
would have taken about 6 seconds to cover that distance (and longer than that if its
speed was less than 40 mph); all of which suggested that the bike was not going so
fast that Mr Bell could not be expected to have seen it when it was within his field of
vision until it was too late. On the basis of other calculations in evidence, he said that
if Mr Bell had looked over his shoulder down the cycle path as he started to cross the
road, the bike would have been between 41.5 and 96.7 metres away: it was there to
be seen. The judge also found that if Mr Bell had looked over his shoulder at the
cycle path or footpath, he was likely to have seen the yellow bike on the road, and the
fact that he did not see the yellow bike suggested that he did not check the cycle path
or the footpath before he started to cross the road. He concluded:
“82. … The bike had been there to be seen, and Mr Bell was
negligent in having failed to check that either of the bikes were
on the cycle path or the footpath, bearing in mind that he
should have been alive to the possibility that one or other or
both of them might have turned round and been returning to the
city centre on the cycle path or the footpath.”
60.
Mr Grime submits that in making a finding which depended on the proposition that
Mr Bell should have been aware of the possibility that the bike would turn round and
continue to travel at speed along the cycle track rather than using the road, when there
was nothing to warn of that possibility, the judge was imposing far too high a
standard; and absent that finding, it could not be suggested that Mr Bell was at fault in
not seeing the approach of the bike when (as he said happened) he glanced over his
shoulder in the final moments before commencing his turn.
61.
I do not accept that there is anything wrong with the judge’s finding. The judge gave
a careful explanation of why Mr Bell should have been aware of the possibility that
one or more bikes were approaching on the cycle path or footpath. I see no basis for
us to interfere with his assessment, founded as it was in the particular circumstances
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McCracken v Smith, MIB and Bell
of the case. And once that particular factor is accepted, the finding of negligence
follows inevitably. I would add that a finding of negligence would seem to me to
have been appropriate even in the absence of that particular factor. On any view, Mr
Bell ought to have looked over his shoulder along the cycle path before turning right;
and if he had looked, on the judge’s findings, the bike was there to be seen. Either Mr
Bell did not look or, despite looking, he failed to see the bike he should have seen. I
do not accept that it was sufficient for him to look only a short way along the cycle
path, such that he could not be expected to see a bike between 41.5 and 96.7 metres
away.
The issue of contributory negligence
62.
I have already set out much of what the judge said in relation to contributory
negligence but it is convenient to repeat and complete the relevant quotation from his
judgment:
“83. As I have said, prior to the beginning of the trial, the
parties agreed that Daniel’s failure to wear a helmet should
result in his damages being reduced by 15%. The question is
whether his damages should be further reduced because of his
fault in allowing himself to be a pillion passenger on the bike.
Unquestionably there was fault on Daniel’s part. When he got
on the bike, he knew that Damian was likely to drive on the
road and too fast. He knew that a pillion passenger was not
allowed on the bike, and he knew that Damian was using the
bike without insurance or a valid driving licence. Daniel was
the author of his own misfortune to a significant extent. The
extent of it is not susceptible to much analysis. It is for the
most part a matter of impression based on an assessment of
Daniel’s blameworthiness and one’s experience of previous
cases. In my opinion, the extent to which Daniel’s damages
should be discounted to reflect his own responsibility for his
injuries (including his failure to wear a helmet) is 45%.”
63.
Mr Grime submits that the total apportionment of 45% is too low because it fails to
take sufficient account of Daniel’s blameworthiness and of the causative impact of his
decision to go on the joyride. He submits that the cases on joyriding indicate that an
apportionment of 50:50 between rider and passenger is generally appropriate (see, for
example, Pitts v Hunt [1991] 1 QB 24 at 49C and 52A-C, and Morris v Murray
[1991] 2 QB 6 at 17F, 30G and 32H). In this case a deduction of 50% (plus the 15%
for failure to wear a helmet) would have been appropriate if Damian had been the
only defendant, having regard to their joint responsibility, and it would be unjust to
make a lesser deduction in relation to the claim against Mr Bell. It is therefore
submitted that there should be a total deduction of 65%. Mr Grime does not contend
for any greater deduction than that.
64.
Mr Melton submits, by contrast, that the total deduction of 45% was greater than was
equitable and that the overall deduction should not exceed one third.
65.
We were referred to the recent decision of the Supreme Court in Jackson v Murray
[2015] UKSC 5 as to the correct approach of an appellate court in respect of an
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McCracken v Smith, MIB and Bell
apportionment on account of contributory negligence. Lord Reed (with whom Lady
Hale and Lord Carnwath agreed) expressed the test as follows:
“35. … In the absence of an identifiable error, such as an error
of law, or the taking into account of an irrelevant matter, or the
failure to take account of a relevant matter, it is only a
difference of view as to the apportionment of responsibility
which exceeds the ambit of reasonable disagreement that
warrants the conclusion that the court below has gone wrong.
In other words, in the absence of an identifiable error, the court
must be satisfied that the apportionment made by the court
below was not one which was reasonably open to it.”
66.
When it came to the facts of the case, Lord Reed could not discern any satisfactory
explanation for the lower court’s conclusion that the major share of responsibility
should be attributed to the pursuer. In his view, the defender’s conduct played at least
an equal role to that of the pursuer in causing the damage and was at least equally
blameworthy. He concluded:
“44. The view that parties are equally responsible for the
damage suffered by the pursuer is substantially different from
the view that one party is much more responsible than the
other. Such a wide difference of view exceeds the ambit of
reasonable disagreement, and warrants the conclusion that the
court below has gone wrong …”
The court therefore allowed the appeal and made a deduction of 50% in the damages
awarded to the pursuer, rather than the 70% ordered by the court below (which had
itself been a variant of the 90% ordered by the judge at first instance).
67.
In the present case, for reasons already given at paragraphs 18-26 above, I am
satisfied that the judge fell into material error in his characterisation of Daniel’s role.
Daniel’s fault went beyond allowing himself to be a pillion passenger on the bike. It
extended to his participation with Damian in a criminal joint enterprise to ride the
bike dangerously. Daniel was therefore the author of his own misfortune to a greater
extent than allowed by the judge. A fair reflection of that greater degree of
blameworthiness and causative potency of Daniel’s conduct would in my judgment be
an overall deduction of 65% in his damages (i.e. 50%, plus the agreed deduction of
15% for failure to wear a helmet), as compared with the overall deduction of 45%
ordered by the judge. It is plainly open to this court, in line with the principles in
Jackson v Murray, to make such an adjustment, attributing to Daniel the greater share
of responsibility for his injuries rather than the lesser share attributed by the judge. I
would so order.
The costs appeal
68.
Following delivery of his judgment on liability, the judge had to consider, among
other matters, various issues concerning the MIB’s costs. In a written Note dated 21
January 2014 the judge considered an argument by Mr Bell’s insurers that the MIB
should not have its costs relating to the issue of whether Mr Bell had been negligent
because that was an issue which the MIB could safely have left to Daniel’s legal team.
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McCracken v Smith, MIB and Bell
This triggered a dispute between the MIB and Mr Bell’s insurers as to whether Mr
Bell’s responsibility for the accident could have been determined by the MIB’s
Technical Committee in advance of the trial, thereby avoiding the need to incur two
sets of defence costs: a finding by the Technical Committee that Mr Bell was
responsible to a meaningful degree would have meant that his insurers assumed the
responsibility to satisfy the whole of any judgment which Daniel obtained. In the
event, for reasons it is unnecessary to go into, the judge concluded in a Note dated 21
March 2014 that it would not be appropriate to decide what order to make in respect
of the MIB’s costs by reference to the role of the Technical Committee. He went on
in the same Note to consider whether the MIB should recover all its costs and who
should pay its recoverable costs.
69.
The judge held that the MIB was entitled to 90% of its costs. That figure is not the
subject of dispute but I should mention one factor taken into account in setting the
figure, since it is relevant to the judge’s further decision as to who should pay those
costs. The judge said that the MIB was incontrovertibly successful in its defence to
Daniel’s claim and, moreover, that “it succeeded in its claim that Mr Bell had caused
or contributed to the accident by his own negligence, thereby ensuring that even if
Daniel had obtained judgment against it, it would have been Mr Bell’s insurers which
would have had to satisfy the whole of Daniel’s judgment” (paragraph 8 of the Note).
He added that he had not overlooked the argument that the MIB could have left the
issue of whether Mr Bell had been negligent to Daniel’s legal team and that the costs
incurred by the MIB in seeking to prove negligence on the part of Mr Bell should not
be allowed, but that “[it] was just as important for the MIB to prove negligence on the
part of Mr Bell as it was for Daniel to, and to expect the MIB to be involved in the
case on the issues of ex turpi causa and its own exemption from liability, and yet to
refrain from taking part in an issue in which it had a direct interest, is unrealistic”
(paragraph 11).
70.
The judge continued:
“12. I turn, then, to who should pay the MIB’s costs – Daniel
or Mr Bell. There is much to be said in favour of requiring
Daniel to pay at least some of the MIB’s costs, since Daniel
lost his claim against the MIB. Indeed, he did so, argued Mr
Grime, on a basis which suggested that the members of his
family who gave evidence minimised his contact with Damian,
his experience of trial bikes and his use of trial bikes on the
road. So if Daniel was relieved of having to pay any of the
MIB’s costs when his litigation friend ought to have realised
that the claim against the MIB could well fail, it would send out
the wholly inappropriate message that you could join the MIB
as a defendant in the action without having to worry about
having to pay the MIB’s costs if someone else is found to be
negligent.
13. I see the force of that, but there is another side to the coin.
Daniel may have failed against the MIB, but he succeeded in
the action, and the real question is whether it was reasonable
for him to sue the MIB as well as Mr Bell. I think it was.
There was always the possibility that Mr Bell would be held
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McCracken v Smith, MIB and Bell
not to have been negligent, and it would have been unrealistic
for Daniel to have sued only Mr Bell when Damian was
obviously the more negligent, provided, of course, that there
was a realistic chance that Daniel could rebut both the defence
of ex turpi causa and the defence on which the MIB succeeded,
even if the members of his family had given evidence along the
lines of what I found had been the case. In my opinion, there
was a realistic chance of that, and in the circumstances I do not
think that Daniel should end up having to pay the MIB’s costs.
Whatever the doctrinal justification for making a Bullock order
rather than a Sanderson order may be, it is easier for the parties
to comply with a Sanderson order. I therefore order Mr Bell to
pay to MIB 90% of its costs ….”
71.
Mr Grime submits that that order was wrong and that the only appropriate order
would have been that Daniel should pay the MIB’s recoverable costs, without
recourse to Mr Bell. He refers to the provisions of CPR rule 44.2 whereby the
conduct of a party (including whether a claimant who has succeeded in his claim, in
whole or in part, exaggerated his claim) is one of the circumstances to which the court
must have regard in the exercise of its discretion with regard to costs. He also cites
the guidance in Irvine v Commissioner of Police for the Metropolis [2005] EWCA
Civ 129, [2005] 3 Costs LR 380, which included the following (in the judgment of
Peter Gibson LJ, with whom the other members of the court agreed):
“22. There is no doubt that the jurisdiction to make a Bullock
or Sanderson order has survived the introduction of the CPR,
though the exercise of discretion to make such an order must be
guided by the overriding objective and the specific provisions
of Rule 44.3 [now rule 44.2]. The jurisdiction is a useful one.
It is designed to avoid the injustice that when a claimant does
not know which of two or more defendants should be sued for a
wrong done to the claimant, he can join those whom it is
reasonable to join and avoid having what he recovers in
damages from the unsuccessful defendant eroded or eliminated
by the order for costs against the claimant in respect of his
action against the successful defendant or defendants.
However, it must also be recognised that it is a strong order,
capable of working injustice to the defendant against whom the
claim has succeeded, to be made liable not only for the
claimant’s costs of the action against that defendant, but also
the costs of the other defendants whom the claimant has chosen
to join but against whom the claimant has failed.
23. The court has a wide discretion over costs, and even where
a claimant reasonably brings proceedings against two separate
defendants and succeeds against one and fails against the other,
there is no rule of law compelling the court to make a Bullock
or Sanderson order (see Hong v A&R Brown Ltd [1948] 1 KB
515). That case demonstrates that the court must also consider
whether it would work injustice on an unsuccessful defendant
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McCracken v Smith, MIB and Bell
to make him liable for the costs of another defendant against
whom the claimant has failed.
24. The circumstances in which the court makes an order are
stated in the White Book 2004, paragraph 44.3.8 as follows:
‘Where a claimant sues two defendants in the alternative and
succeeds against only one, the court has a discretion to order
the unsuccessful defendant to pay the successful defendant’s
costs’.
…
26. Such is the width of the language of Rule 44.3(1) [now rule
44.2(1)] that I do not suggest that the court has no power to
order one defendant to pay the costs of another defendant, even
when the claims are not in the alternative. But that is not the
ordinary circumstances for a Bullock or Sanderson order ….
27. A further factor in determining whether a Bullock or
Sanderson order is appropriate is whether the causes of action
relied on against the defendants are connected with each other
….
30. An important consideration which the court should have in
mind when exercising the discretion whether to make a Bullock
or Sanderson order is the reasonableness of the claimant’s
conduct in joining and pursuing a claim against the defendant
against whom the claimant did not succeed ….”
72.
That guidance was followed in Moon v Garrett [2006] EWCA Civ 1121, [2007] ICR
95, where the court added that “[it] will always be a factor whether one defendant has
sought to blame another” (per Waller LJ at paragraph 36).
73.
Mr Grime’s core submission in the present case is that Daniel’s claim against the MIB
was a dishonest claim and that this should have resulted in an order that Daniel alone
be liable for the MIB’s costs. The detailed development of the submission in the
skeleton argument on the appeal, reflecting the skeleton argument before the judge,
proceeds as follows. Daniel lost against the MIB on the basis that he rode on the bike
when he knew that Damian was not insured. The decision to ride on the bike was his
choice and is “conduct” as referred to in the rule. In the abstract, it may have been a
reasonable choice for the claimant’s legal team to pursue the MIB if the basis for
doing so had a good foundation. But it is necessary to consider not only the lawyers
but also the litigation friend responsible for the conduct of proceedings on Daniel’s
behalf. The litigation friend was Daniel’s mother, who gave evidence and appears to
have been closely involved throughout. She may be presumed to have given the
instructions which caused a dishonest claim to be advanced. Also among the
witnesses seeking to support Daniel’s case were his father and one of his brothers who
provided evidence seeking to distance him from the illegal bike culture. The making
of a dishonest claim is “conduct” and is akin to exaggeration referred to in the rule.
Further, the only reason Daniel found it necessary to attempt to obtain the satisfaction
of Damian’s liability by the MIB was that Damian was uninsured. By riding on an
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uninsured bike Daniel was clearly acting improperly and without regard to the law.
The terms of the MIB’s Uninsured Drivers’ Agreement are designed to exclude
recovery by a claimant in these circumstances. To allow Daniel to avoid a costs
liability would only encourage others to think they could pursue the MIB without
penalty, however dubious the case happened to be. That is a factor not present in the
authorities but is relevant to discretion. In addition, the decision to pursue the MIB
was in no way influenced or encouraged by Mr Bell. Before and during the trial, Mr
Bell did not join Daniel in his case against the MIB or support his claim or become
involved in the issues between Daniel and the MIB in any way. To make a “strong
order” (the language in Irvine) against Mr Bell would work injustice against him.
74.
Mr Kilvington, who presented this part of the case on behalf of Daniel, submits that
all relevant matters were taken into account by the judge and there is no basis for
interfering with his exercise of discretion, and that in any event that the judge’s order
was correct. Although Daniel’s claim against the MIB failed, there was no finding
that the claim was dishonest; and no such inference should be drawn, given that
Daniel himself was brain-damaged and unable to give evidence, and his mother did
not know whether Daniel had knowledge of Damian’s insurance status or not (this
was a point made in Mr Kilvington’s skeleton argument though not developed orally).
Mr Kilvington further submits that the proceedings against the MIB were necessitated
by Mr Bell’s unreasonable refusal to accept any degree of negligence: had negligence
been admitted, a second set of defence costs would have been avoided.
75.
The MIB lodged a skeleton argument supporting the judge’s costs order but did not
appear at the hearing of the appeal.
76.
I am not persuaded that the judge was wrong to order Mr Bell to pay the MIB’s
recoverable costs. In my view the order fell within the reasonable ambit of the
judge’s discretion.
77.
At paragraph 12 of his Note, quoted above, the judge took into account the argument
that Daniel had not only lost the claim against the MIB but should not have advanced
the claim in the first place. Whilst he did not deal in terms with the allegation that the
claim was dishonest, he evidently did not accept the allegation. It is true that in his
judgment on liability he rejected the evidence of Daniel’s family that Daniel and
Damian had not been friends, let alone good friends: as he said at paragraph 8 of the
judgment, “Daniel’s family and his friends would have wanted to distance Daniel
from Damian, and their evidence has to be seen in that light”. But he stopped short of
any finding of dishonesty against family or friends. Nor do I think that there is
anything in the judgment to compel the inference that the claim against the MIB was
dishonest or that it was dishonest to maintain the claim after the MIB defence had
pleaded in its defence that Daniel “knew or ought to have known that … there was no
insurance in respect of the vehicle” with the result that the MIB’s obligation to satisfy
any judgment against Damian was excluded by clause 6.1(e)(ii) of the Uninsured
Drivers’ Agreement. The insurance defence was potentially a complex matter, as is
apparent from the detailed consideration the judge gave to it at paragraphs 51-52 and
55-62 of his judgment (which it is unnecessary for me to set out); and although the
judge cut through the detail by his simple finding that Daniel knew that Damian’s use
of the bike was uninsured (paragraphs 55 and 62), I do not think that it can safely be
concluded that Damian’s mother or other members of his family must have been
aware of that fact or therefore that they sought dishonestly to advance on Daniel’s
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behalf a claim that they knew to be inconsistent with the insurance defence.
Accordingly, I reject the submission that there was dishonest conduct which ought to
have resulted in the judge ordering Daniel, rather than Mr Bell, to pay the MIB’s
recoverable costs.
78.
The judge rightly went on to consider, in paragraph 13 of his Note, whether it was
reasonable for Daniel to sue the MIB as well as Mr Bell. As it seems to me, he was
entitled to take the view that this was a reasonable course for Daniel to take, for the
reasons he gave. But underlying those reasons was the further point, which the judge
had already covered at length and did not repeat in this paragraph, that the MIB’s
continued involvement in the proceedings was necessitated by Mr Bell’s denial of any
degree of negligence. Had Mr Bell admitted negligence, the MIB would have
dropped out and the second set of defence costs would have been avoided. As the
judge had said at paragraph 11, it was just as important for the MIB to prove
negligence on the part of Mr Bell as it was for Daniel, and it was unrealistic to expect
the MIB to leave the point to Daniel’s team. In those circumstances there was a clear
issue as between the MIB and Mr Bell, on which Mr Bell lost. This casts further light
on why the judge decided that the MIB’s costs should be paid by Mr Bell. Taking
everything together, I do not think that this “strong order” was an unjust order or that
the judge was wrong to make it.
Conclusions
79.
I would allow the appeal on liability to the extent of increasing the total deduction for
Daniel’s contributory negligence from 45% to 65%, but I would otherwise dismiss the
appeal. I would also dismiss the costs appeal.
Lord Justice Underhill :
80.
I agree that the appeal should be dismissed for the reasons given by Richards LJ and
Christopher Clarke LJ.
Lord Justice Christopher Clarke :
81.
I, also, agree with the judgment of Richards LJ. In particular, I agree that, on the
judge’s findings, Damian and Daniel were joint participants in the dangerous driving
of the bike. Daniel did not simply get on to an ordinary bike designed to
accommodate a passenger for the pleasure of being driven around on it. He got onto a
trials bike (a type of bike he had ridden before), which was not meant to
accommodate a passenger, and which he knew would be driven dangerously and too
fast in the manner that trial bikes were being ridden in Carlisle at the time. That must
have been part of the fun; and the fact that Damian had Daniel as his passenger must
have encouraged Damian to ride in the way in which he did. Daniel’s willing
participation in the journey could scarcely have been much closer, since he must have
had to hold on to Damian, his close friend, in order not to be thrown off, and his
presence on the bike affected its stability and the efficiency of its brakes. He did not
take advantage of two opportunities to get off even though the bike had been being
driven fast and dangerously on a cycle lane.
82.
In those circumstances, Daniel’s claim fails under the ex turpi causa principle.
Damian and Daniel were both parties to the serious crime of dangerous driving which
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McCracken v Smith, MIB and Bell
was a cause of the injuries that Daniel suffered. Dangerous driving of this nature is
sufficient to engage the doctrine.
83.
Difficult questions may, however, arise in future as to the degree of blameworthiness
needed for the doctrine to apply. In Les Laboratoires Servier v Apotex Inc the
Supreme Court (a) referred to the earlier rejection by the House of Lords of the
“affront to the public conscience” test as unprincipled; (b) rejected a fact based
discretionary approach; (c) said that “the paradigm case of an illegal act engaging the
defence is a criminal offence”; (d) treated the ex turpi causa principle as being
founded on acts which are contrary to the public law of the state and engage the
public interest; and (e) recognised that the doctrine might not apply to offences of
strict liability where the claimant was not privy to the fact making the act unlawful.
84.
The reach of modern criminal law into the field of road traffic is, however, extensive.
Leaving aside dangerous driving, careless driving is, itself, an offence. Causing death
thereby is punishable with imprisonment. There are a number of offences, punishable
otherwise than by imprisonment under the Road Traffic Act 1988, including: motor
racing on highways (s 12); riding a motorcycle without the required protective
headgear (s 16); leaving a vehicle in a dangerous position (s 22); carrying a passenger
on a motorcycle contrary to section 23 (s 23); failing to comply with traffic directions
given by a constable or traffic officer (s 35) or the indications given by traffic signs (s
36); using a vehicle in a dangerous condition (s 40A); and contravention of a
construction and use requirement as to brakes, steering gear or tyres, or use of a motor
vehicle which does not comply with such a requirement, or causing or permitting a
motor vehicle to be so used (s 41A). Speeding itself is a crime not punishable by
imprisonment: Road Traffic Regulation Act 1984 s 89.
85.
There will be circumstances in which the criminal act in question (e.g. of the driver) is
(a) causative of an accident in which a passenger has been injured; and (b) something
for which the passenger himself is criminally responsible because he has aided or
abetted, counselled or procured it. Is the passenger who encourages the driver to
execute a manoeuvre, which it is careless to perform, to be deprived of compensation
from the negligent driver when the resulting collision with another car causes him
injury?
86.
In Joyce v O’Brien Elias LJ said at [51] that the doctrine did not apply to “minor
traffic offences”, whilst recognising that in certain cases there may be a problem in
determining whether the offence attracted the application of the doctrine or not. That
begs the question as to what is meant by “minor”. It may be that the dividing line
should be between those offences which are, and those which are not, punishable by
imprisonment. Or it may be that the criterion is simply whether the public interest
requires the doctrine to apply to a crime of the category in question.
87.
I also agree that Daniel’s turpitude should not disentitle him to any recovery in respect
of Mr Bell’s negligence. Daniel’s injury was caused by the criminally dangerous
driving of Damian, in which Daniel participated, and the careless driving of Mr Bell.
That participation by Daniel precludes recovery by him from Damian, his partner in
crime. But no public interest requires the courts to abstain from affording Daniel any
remedy on account of the carelessness of Mr Bell. The basis upon which contributory
negligence is assessed, namely by taking account of the relative culpability and
causative potency of the negligence in question, provides an acceptable basis for
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determining what damages properly reflect Mr Bell’s culpability and its causative
effect. If the position were otherwise, any driver whose road traffic offence
constituted turpitude, but who was only partially to blame, would fail to recover from
anyone else whose negligence caused the accident. Even if turpitude did not arise
unless the offence was punishable with imprisonment, the driver might still fail to
recover if, for instance, a relatively modest act of carelessness led to the death of
someone – a result which in many cases owes much to chance.