Mitsui Sumitomo Insurance Company (Europe) Ltd v Mayor's Office for Policing and Crime

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeMaster Of The Rolls
Judgment Date20 May 2014
Neutral Citation[2014] EWCA Civ 682
Docket NumberCase No: A3/2013/2834 A3/2013/2843 A3/2013/2845

[2014] EWCA Civ 682

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (COMMERCIAL COURT)

MR JUSTICE FLAUX

[2013] EWHC 2734 (Comm)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Master Of The Rolls

Lord Justice Moore-Bick

and

Lord Justice Lewison

Case No: A3/2013/2834

A3/2013/2840

A3/2013/2843

A3/2013/2845

Between:
(1) Mitsui Sumitomo Insurance Co (Europe) Ltd
Respondent
(2) Tokio Marine Europe Insurance Ltd
Respondent
(3) Royal & Sun Alliance Insurance Plc
2nd Respondent
(4) Lace International Ltd
3rd Respondent
(5) Clear Vision Ltd
3rd Respondent
(6) Asphyxiation Films Ltd
3rd Respondent
and
Mayor's Office for Policing and Crime
Appellant

Mr Sam Grodzinski QC and Mr David Pievsky (instructed by Directorate of Legal Services, Metropolitan Police) appeared for the Appellant

Mr Michael Crane QC, Miss Tamara Oppenheimer and Miss Marianne Butler (instructed by DAC Beachcroft LLP) appeared for the Respondents

Mr Michael Crane QC and Mr Charles DoughertyQC (instructed by Kennedys) appeared for the Second Respondent

Mr Simon Pritchard (instructed by Keystone Law) appeared for the Third Respondents

Hearing dates: 8 and 9 April 2014

Master Of The Rolls
1

This is the judgment of the court to which all its members have contributed.

Introduction

2

Mark Duggan was shot and killed by police in Tottenham on 6 August 2011. For the next four days thousands of people rioted in London and other English cities. During that period, at 23.40 on Monday 8 August, a gang of youths broke into the Sony distribution warehouse in Enfield, looted it, and burned it down with petrol bombs. If the gang were "persons riotously and tumultuously assembled", the Mayor's Office for Policing and Crime ("MOPC") is liable to compensate anyone who sustained loss by reason of the looting or arson (or if their insurers have paid, their insurers).

3

Flaux J decided that the gang were "persons riotously and tumultuously assembled", but that MOPC's liability did not extend to consequential loss. His judgment is at [2013] EWHC 2734 (Comm); [2014] 1 All ER 422. MOPC appeals against the finding of liability. The insurers (as well as the owners of some uninsured stock contained in the warehouse) cross-appeal against his decision on the extent of the liability. Both the appeal and the cross-appeal are brought with the permission of the judge.

The primary facts

4

The primary facts can be taken from the judge's judgment. The judge also had the benefit of a site view, which no doubt also informed the facts that he found. The warehouse is located on Solar Way in the Innova Business Park. There is a Premier Inn about 100 metres to the south. The business park lies on the eastern edge of a built-up residential area. It is bounded on the east by Mollison Avenue, which in turn is on the edge of the Lea Valley Regional Park. A short way to the north lies the M25. To the south east, separated from the business park by open ground, lies the Enfield Island Village, a large housing estate. As its name suggests, it is situated on an island formed by the River Lea Navigation and the Rammey Marsh Flood Relief Channel.

5

There had been serious civil disorder in Enfield Town on the night of 7/8 August which culminated in an attack by a gang of 15 – 20 youths on a jeweller's shop, in which the shop window was broken and items of jewellery were stolen. As 8 August wore on reports were received by the police that what had happened the previous night would happen again. Some of the concerns related to the possibility of rioting in the vicinity of the warehouse and the Premier Inn. One of the staff at the Premier Inn and one of her colleagues heard rumours via Facebook and Blackberry Messenger that the riots were going to move from Enfield Town to Enfield Island Village. In consequence the manager closed the restaurant slightly earlier than usual and locked the back doors. Furthermore, the security guard employed at the warehouse, Edward Mireku, was asked by Sony's Security Manager, John Rapley, to work overnight at the warehouse on the night of Monday 8 August 2011 as a precaution because of the riots elsewhere in London in the previous days. That reflected a concern that the Innova business park where the warehouse was situated might be attacked.

6

At 18.14 a member of the public who lived in Aldridge Avenue, just over the river from Enfield Island Village, rang the police. She said that where she lived there was a gang who called themselves the GMG (Get Money Gang, also known as the Black Gang); she believed they were going to be attending the riots. There "was a load of them on bikes", a reference to her having seen youths who were members of the gang riding around on bikes at that time. At 21.18 there was another call from Aldridge Avenue, in all probability from the same lady, who said she had called earlier about 20 youths being gathered, but they had all left now. She was concerned due to recent activities. At about 21.45, a resident of Enfield Island Village saw a large group of 15 to 20 youths gathered on the junction of Manton Road and Punchard Crescent. They were aged between 17 and 20, some younger. She recognised about ten of them as being from the Village; they were black, mixed race and Somali. She recognised them as members of the Black Gang. The other youths in the group were strangers to the Village whom she did not recognise. Another member of the public saw a group of 15 youths congregating on the corner of Punchard Crescent who were black, Somali or mixed race and members of the Black Gang. They were all in predominantly dark clothing, some wearing bandanas or balaclavas. Some were on bikes. They were all talking among themselves and using their phones, apparently to organise more people to attend and head over to the Innova business park where the warehouse was situated. That person overheard one of the youths saying on his phone and to others in the group: "Everyone doing stuff at their own ends" which he explained meant that local youths were grouping together to attack local premises, to "get rich" and out-do rival gangs.

7

Police intelligence after the incident was that the attack on the warehouse was carried out by members of the GMG joined by members of at least one other gang from Chingford, the Chingford Hall gang. The judge found at [40] that that was indeed the case.

8

At about 23.15 Daniel Thomas and his mother Marina were driving over the bridge to Enfield Island Village on Smeaton Road. Mr Thomas said he saw a group of 10 to 15 youths, all in dark hoodies with their faces covered in scarves and bandanas, running along the pavement on the brow of the bridge and into the little car park by the gate into the fields. One of them was carrying a baseball bat and one a metal pole. His mother's evidence was slightly different. She reported a smaller group of about six walking rather than running over the bridge, all in dark clothing and hoodies, one of them carrying an iron bar and another a sledge-hammer. The judge did not regard the discrepancy as significant. Another intelligence report from a member of the public at 00.22 hours on 9 August was of having seen a group of about 30 hooded males carrying sticks congregating on the fields off Smeaton Road at 23.20. This was some ten minutes before the attack on the warehouse. The judge found at [42] that this was the same group as the group that attacked the warehouse ten minutes later.

9

The group crossed the fields by the footpath to the stile on Mollison Avenue, then crossed the road, possibly reaching the door at the south end of the west side of the warehouse through the car park of the Premier Inn. At 23.40 the night manager of the Premier Inn made a 999 call reporting about four boys in hoodies walking around the bar area. This was at about the same time as the group were smashing their way into the warehouse and these boys were associated with those who were attacking the warehouse.

10

The attack was perpetrated by the GMG and other gangs. They all wore gloves and masks, bandanas or hoodies. There were 20 to 25 of them aged between 12 and 20. They carried at least three petrol bombs with them, and a variety of other weapons, including sticks, iron bars, a hammer and a baseball bat.

11

The judge takes up the story in his own words:

"45. The attack itself is captured on CCTV from the Warehouse. Whilst that CCTV is silent, it still gives a good flavour of the nature of the attack. A number of the group attacked the glazed entrance door, kicking it and hitting it with whatever implements they had, which presumably included the baseball bats and sledgehammers described by the Thomases, as well as a shovel and garden hoe later found abandoned at the scene. Apart from one person in the group who seemed to be wearing a white or pale coloured balaclava or bandana and who stood relatively still whilst the door was being battered in, (suggesting he may have been the ringleader of the group), the others were moving around in what appears to have been an excited and agitated manner, whilst some of the group were attacking the door. Once the door was breached, the group (including the apparent ringleader) swarmed into the building instantly. The attack began at 23.37 and the group broke in just over a minute later.

46. The breaking into the door of the Warehouse caused a smashing sound which was heard by staff at the Premier Inn. Chris Cass … was outside in the bin yard, a smoking area which is on the side of the hotel premises closest to the Warehouse, when he heard the sound of forceful smashing of glass. He went...

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