Bedfordshire Police Authority v David Constable

JurisdictionEngland & Wales
JudgeLord Justice Longmore,Lord Justice Hooper,Sir Peter Gibson
Judgment Date12 February 2009
Neutral Citation[2009] EWCA Civ 64
Docket NumberCase No: A3/2008/1609
CourtCourt of Appeal (Civil Division)
Date12 February 2009

[2009] EWCA Civ 64

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

THE HONOURABLE MR JUSTICE WALKER

Before : The Right Honourable Lord Justice Longmore

The Right Honourable Lord Justice Hooper

And

The Right Honourable Sir Peter Gibson

Case No: A3/2008/1609

2008 FOLIO NO. 27

Between
Bedfordshire Police Authority
Respondent
and
Constable (sued On His Behalf & On Behalf Of All Other Members Of Syndicate 386 At Lloyd's)
Appellant

Mr Gavin Kealey QC & Mr Andrew Wales (instructed by Reynolds Porter Chamberlain LLP) for the Appellant

Mr Colin Edelman QC & Mr Andrew Burns (instructed by Eversheds LLP) for the Respondent

Hearing dates : 21 st & 22 nd January 2009

Lord Justice Longmore

Lord Justice Longmore:

Introduction

1

The issue in this appeal is whether a police authority's obligation, under the provisions of the Riot (Damages) Act 1886, to compensate property owners for damage to their property caused by a riot is covered by the public liability section of an insurance policy, which promises to indemnify the assured authority in respect of sums which the authority “may become legally liable to pay as damages for accidental damage to property arising out of the business” of the authority. This requires an analysis of the insurance policy and of the Riot (Damages) Act 1886 (the 1886 Act”) in the light of what happened at Yarls Wood Detention Centre (“Yarls' Wood”) in February 2002.

2

Yarls' Wood is in the geographical area of the Bedfordshire Police Authority (“the BPA”) and is a contracted-out immigration detention centre operated by Yarl's Wood Immigration Ltd (“YWIL”) who, with the agreement of the Home Secretary, sub-contracted their obligations to GSL UK Ltd (“GSL”), a company formerly known as Group 4. Persons detained at the centre are held there pursuant to powers contained in Schedule 2 of the Immigration Act 1971 which entitles the Home Secretary to detain persons pending decisions to give or refuse them leave to enter the United Kingdom and pending decisions about their removal from the United Kingdom. On the night of 14 th February 2002 there was a major disturbance at the Centre which caused property to be destroyed by “persons riotously and tumultuously assembled together”, to use the wording of the 1886 Act. Almost half the premises were destroyed by fire and some millions of pounds of damage resulted. YWIL and GSL have brought claims for compensation against the BPA pursuant to the 1886 Act. The present status of those claims is that they have been rejected first by the BPA and now by Beatson J mainly on the basis that the 1886 Act, on its true construction, confers rights on private citizens in relation to their property, not on those who were themselves responsible for maintaining law and order at the property. Permission to appeal has been given. Although the BPA has so far prevailed, they consider it would be helpful for the position in relation to their own insurers to be resolved before deciding whether and how to react to YWIL and GSL's appeal.

The Insurance

3

The defendant liability insurer is an excess insurer who has provided insurance in the same terms as the underlying cover. That cover defines the Assured as the Bedfordshire Police Authority and the Chief Constable of the Bedfordshire Constabulary and defines Business as:-

“the usual activities of the ASSURED as a Police Authority which is held to include”

and then a number of incidental examples are set out.

4

Section 1 of the Casualty segment of the policy is the Public Liability section and cover is there afforded in the following terms:-

“The COMPANY will indemnify the ASSURED in respect of all sums which the ASSURED may become legally liable to pay as damages and claimants' costs and expenses for:

a) accidental Injury to any person (other than an EMPLOYEE if such Injury arises out of and in the course of employment by the ASSURED).

b) accidental DAMAGE to PROPERTY:

i) not belonging to nor in the custody or control of the ASSURED.

ii) not in the custody or control of an EMPLOYEE.

iii) which has been the subject of illegal distraint.

……..

d) accidental DAMAGE to buildings including their fixtures and fittings which are leased, hired or rented by the ASSURED but excluding:

i) DAMAGE to their contents.

ii) Liability assumed by the ASSURED under a tenancy or other agreement which would not have attached in the absence of such agreement.

iii) The first £100 of each claim for DAMAGE unless caused by fire or explosion.

occurring within the Geographical Limits during the Period of Insurance arising out of the BUSINESS.”

The 1886 Act

5

The long title of the 1886 Act in its original form was “An Act to provide Compensation for Losses by Riots.” This preceded a preamble in the following terms:

“Whereas by law the inhabitants of the hundred or other area in which property is damaged by persons riotously and tumultuously assembled together are liable in certain cases to pay compensation for such damage, and it is expedient to make other provision respecting such compensation and the mode of recovering the same:”

6

Section 1 sets out the short title: “The Riot (Damages) Act 1886.”

7

Section 2 has a marginal note, “Compensation to persons for damage by riot”. As amended it reads:

2. —(1.) Where a house, shop, or building in a police area has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, such compensation as herein-after mentioned shall be paid out of the police fund of the area to any person who has sustained loss by such injury, stealing or destruction; but in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise.

(2.) Where any person having sustained such loss as aforesaid has received, by way of insurance or otherwise, any sum to recoup him, in whole or in part, for such loss, the compensation otherwise payable to him under this Act shall, if exceeding such sum, be reduced by the amount thereof, and in any other case shall not be paid to him, and the payer of such sum shall be entitled to compensation under this Act in respect of the sum so paid in like manner as if he had sustained the said loss, and any policy of insurance given by such payer shall continue in force as if he had made no such payment, and where such person was recouped as aforesaid otherwise than by payment of a sum, this enactment shall apply as if the value of such recoupment were a sum paid.

8

Section 3 has a marginal note, “Mode of awarding compensation”. It reads:

3. – (1.) Claims for compensation under this Act shall be made to the compensation authority of the police area in which the injury, stealing, or destruction took place, and such compensation authority shall inquire into the truth thereof, and shall, if satisfied, fix such compensation as appears to them just.

(2.) A Secretary of State may from time to time make, and when made, revoke and vary regulations respecting the time, manner, and conditions within, in, and under which claims for compensation under this Act are to be made, and all claims not made in accordance with such regulations may be excluded. Such regulations may also provide for the particulars to be stated in any claim, and for the verification of any claim, and of any facts incidental thereto, by statutory declarations, production of books, vouchers, and documents, entry of premises, and otherwise, and may also provide for any matter which under this Act can be prescribed, and for the police authority obtaining information and assistance for determining the said claims.

Regulations have been made under sub-section (2) and include the stipulation that any claim for compensation should be made within 14 days of the loss or damage to which it relates.

9

Section 4 has a marginal note, “Right of action to person aggrieved.” It reads:

4. – (1.) Where a claim to compensation has been made in accordance with the regulations, and the claimant is aggrieved by the refusal or failure of the compensation authority to fix compensation upon such claim, or by the amount of compensation fixed, he may bring an action against the compensation authority to recover compensation in respect of all or any of the matters mentioned in such claim and to an amount not exceeding that mentioned therein, but if in such action he fails to recover any compensation or an amount exceeding that fixed by the compensation authority, he shall pay the costs of the compensation authority as between solicitor and client.

10

The insurers of the primary layer of the public liability section of the insurance have accepted that the policy covers liability under the 1886 Act. The excess insurers have not. Walker J has held that the obligation of the police authority to pay compensation under the 1886 Act is the sort of liability which the parties would have expected to be covered by a public liability policy and that, despite the requirement that the legal liability must be a “liability to pay as damages” that requirement was satisfied. He also held that the damage at Yarl's Wood and, so far as relevant, the liability for that damage arose out of the business of the authority. The insurers of the excess layer, syndicate 386 at Lloyd's, now appeal with the permission of the...

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8 cases
2 books & journal articles
  • Trade Secrets' Under New Zealand Law
    • New Zealand
    • Canterbury Law Review No. 22-2016, January 2016
    • January 1, 2016
    ...Ltd [2005] EWCA Civ 758, (2006) 1 BCLC 632 cited in Lewison, above n 28, at 235. 31 Bedfordshire Police Authority v Constable [2009] EWCA Civ 64, [2009] 2 All ER 200 cited in Lewison, above n 28, at 235. 32 Durham v BAI (Run Off) Ltd [2010] EWCA Civ 1096, [2011] 1 All ER 605 cited in Lewiso......
  • Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886
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    • The Modern Law Review No. 77-3, May 2014
    • May 1, 2014
    ...reviewed here are not absolutelynovel, they are unfamiliar enough to warrant examination.5Bedfordshire Police Authority vConstable [2009] EWCA Civ 64; [2009] 2 All ER (Comm) 200 at[17].6 See further Yarl’s Wood Immigration Ltd vBedfordshire Police Authority [2009] EWCA Civ 1110;[2010] QB 69......

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