Mitsui Sumitomo Insurance Company (Europe) Ltd and another v Mayor's Office for Policing and Crime Royal & Sun Alliance Insurance Plc v Same Lace International Ltd and Others v Same [QBD]

JurisdictionEngland & Wales
CourtQueen's Bench Division (Commercial Court)
JudgeThe Hon Mr Justice Flaux,The Honourable Mr Justice Flaux
Judgment Date12 Sep 2013
Neutral Citation[2013] EWHC 2734 (Comm)
Docket NumberCase Nos: 2012 FOLIO 975 and 1025

[2013] EWHC 2734 (Comm)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Flaux

Case Nos: 2012 FOLIO 975 and 1025

and HQ12X03420

Between:
(1) Mitsui Sumitomo Insurance Co (Europe) Ltd
(2) Tokio Marine Europe Insurance Ltd
Claimants
and
The Mayor's Office for Policing and Crime
Defendant
And Between
Royal & Sun Alliance Insurance PLC
Claimant
and
The Mayor's Office for Policing and Crime
Defendant
And Between
(1) Lace International Ltd
(2) Clear Vision Ltd
(3) Asphyxiation Films Ltd
Claimants
and
The Mayor's Office for Policing and Crime
Defendant

Michael Crane QC and Marianne Butler (instructed by DAC Beachcroft LLP) for the Claimants in Folio 975

Michael Crane QC and Charles Dougherty QC (instructed by Kennedys) for the Claimant in Folio 1025

Simon Pritchard (instructed by Fladgate LLP) for the Claimants in HQ12X03420

Sam Grodzinski QC and David Pievsky (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant

Hearing dates: 8 th to 11 th July 2013

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Hon Mr Justice Flaux The Honourable Mr Justice Flaux

Introduction and background

1

This case concerns the destruction by fire and the looting of the Sony distribution warehouse ("the Warehouse") at 6 Solar Way, Enfield, Middlesex at about 23.40 on the night of Monday 8 August 2011 during the widespread civil disorder and rioting which took place in London and elsewhere in the country, following the shooting of Mark Duggan in Tottenham. I will refer to this civil disorder as "the August 2011 riots". The attack on the Warehouse was perpetrated by a group of some 25 youths who had come across the fields from Enfield Island Village, a nearby housing estate, where they had congregated earlier. The youths smashed into the Warehouse using a variety of makeshift weapons and ran through the building looting it of a certain amount of the stock held there. Two of them then threw petrol bombs into the stacking within the Warehouse and they all made their escape, some carrying what had been looted, and left the Warehouse to burn. The whole incident took no more than just over three minutes. However the fire took hold and burned for some ten days, with the total destruction of the plant, equipment and stock.

2

The claimants in 2012 Folio 975 are the insurers of Sony DADC for property, customer stock and business interruption. They seek compensation from the defendant, which is the statutory body responsible for the oversight of the Metropolitan Police, under the Riot (Damages) Act 1886 ("the 1886 Act") in respect of some £49.5 million of indemnified losses. The claimants in 2012 Folio 1025 are the insurers of the owners of the Warehouse, Cresta Estates Ltd, for property damage and loss of rent. They seek compensation from the defendant under the Act in respect of £9.35 million of indemnified losses. The claimants in the third action HQ12X03420 (transferred to the Commercial Court so that the preliminary issues in all three actions could be tried together) are the owners of certain stock held in the Warehouse who seek compensation from the defendant under the Act of some £3.96 million for uninsured losses.

3

By an Order of 16 November 2012, Christopher Clarke J ordered the trial of three preliminary issues:

(1) Do the losses claimed by the claimants (in so far as proved) arise out of the injury to or the destruction of a house, shop or building, or injury to, theft or the destruction of any property therein, by any persons riotously and tumultuously assembled together within the meaning of section 2(1) of the 1886 Act at the Warehouse on 8 August 2011?

(2) Are consequential losses (including loss of profit and loss of rent) in principle recoverable pursuant to section 2(1) and/or 2(2) of the 1886 Act and if so on what basis?

(3) Are future anticipated losses in principle recoverable pursuant to section 2(1) and/or 2(2) of the 1886 Act?

4

In the event, that third preliminary issue was not pursued against the insurer claimants and it was agreed by Mr Sam Grodzinski QC on behalf of the defendant that whatever issue remained against the uninsured claimants in HQ12X03420 would not be pursued by way of preliminary issue but left so far as necessary for future determination. In the circumstances, I do not need to consider further that third preliminary issue.

The 1886 Act

5

The relevant provisions of the 1886 Act as amended by the Police Acts 1964 and 1996 provide as follows:

"2 Compensation to persons for damage by riot

(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 hereinafter 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.

3 Mode of awarding compensation

(1) Claims for compensation under this Act shall be made to the compensation authority of the police area where 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 to be 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 such 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 compensation authority obtaining information and assistance for determining the said claims.

4 Right of action to person aggrieved

(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…

7 As to claimants in the case of churches, public institutions & c.

For the purposes of this Act—

(a) where a church or chapel has been injured or destroyed, or any property therein has been injured, stolen, or destroyed, the churchwardens or chapelwardens, if any, or, if there are none, the persons having the management of such church or chapel, or chapel, or the persons in whom the legal estate in the same is vested; and

(b) Where a school, hospital, public institution, or public building, has been injured or destroyed, or any property therein has been injured, stolen, or destroyed, the persons having the control of such school, hospital, institution, or building, or the persons in whom the legal estate in the same is vested;

shall be deemed to be the persons who have sustained loss from such injury, stealing, or destruction, and claims may be made by any one or more of such persons in relation both to the building and to the property therein, and payment to any such claimant shall discharge the liability of the compensation authority to pay compensation, but shall be without prejudice to the right of any person to recover the compensation from such payee."

6

In relation to the first preliminary issue, the Court is concerned with section 2 of the 1886 Act and specifically with whether the gang of youths who broke into, looted and set fire to the Warehouse were "persons riotously and tumultuously assembled together" within the meaning of sub-section (1). The second preliminary issue also engages other sections of the 1886 Act and in determining that issue it will also be necessary to examine later in the judgment the preamble to the original Act (now repealed) and various Regulations made under the Act.

Legal framework to the first preliminary issue

7

Before considering the facts in relation to the incident at the Warehouse, it...

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5 cases
1 books & journal articles
  • Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886
    • United Kingdom
    • The Modern Law Review Nbr. 77-3, May 2014
    • 1 May 2014
    ...of such loss from the 1886 Act was confirmed in Mitsui Sumitomo Insurance Co(Europe) Ltd vMayor’s Office for Policing and Crime [2013] EWHC 2734 (Comm); [2014] 1 All ER422.128 n 123 above, para 2.24–2.32. The 1886 Act expressly authorises the insurer’s claim: s 2(2).129 ibid, para 2.24. eg HL......

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