Yarl's Wood Immigration Ltd and Others v Bedfordshire Police Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Wall |
| Judgment Date | 23 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1110 |
| Docket Number | Case No: A3/2008/2619 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2009 |
[2009] EWCA Civ 1110
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
THE HONOURABLE MR JUSTICE BEATSON
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION COMMERCIAL COURT
Lord Justice Rix
Lord Justice Wall and
Lrd Justice Aikens
Case No: A3/2008/2619
2007 FOLIO 1241
Mr Ian Gatt QC (on behalf of Messrs Herbert Smith LLP) for the Appellants
Mr James Watson QC & Mr Simon Cridland (instructed by Messrs Weightmans Llp) for the Respondent
Hearing date : Friday 26th June 2009
Lord Justice Rix :
On the night of 14/15 February 2002 a serious riot occurred at the Yarl's Wood Immigration Detention Centre at Clapham, Bedfordshire (“Yarl's Wood” or the “detention centre”). Almost half of it was destroyed by fire. Yarl's Wood is a contracted out detention centre where immigrants and asylum seekers may be detained pending the resolution of their status, ie pending a decision to give or refuse leave to enter the United Kingdom or pending a decision on removal, or pending removal. Whole families may be detained there. Such detention centres may be either directly managed by the Home Secretary or, as in the case of Yarl's Wood, may be contracted out to private operators. In these proceedings the private operators of Yarl's Wood and their insurers have claimed to recover the cost of the riot damage from the local police authority, the Bedfordshire Police Authority (the “Authority”), under the provisions of the Riot (Damages) Act 1886 (the “1886 Act”). The claim is substantial: it has been quantified at some £32 million. The claim failed at first instance: see the judgment of Beatson J [2008] EWHC 2207 (Comm).
There has also been litigation between the Authority and its insurers, for the latter disputed cover. However, that litigation has been resolved in favour of the Authority: see Bedfordshire Police Authority v. Constable [2008] EWHC 1375 (Comm) (Walker J), [2009] EWCA Civ 64.
I will have to set out the provisions of the 1886 Act in greater detail below, but for present purposes it may be remarked that its central provision is contained in its section 2(1), as follows:
“Where a house, shop, or building in a police area has been injured 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…or destruction…” (emphasis added).
The operators maintain that they are within the statutory words “any person” and therefore have a right to compensation within the terms of the 1886 Act. The Authority contends that that phrase must be limited so as to exclude parties, at any rate public authorities, who have primary or some responsibility for order within a detention centre, even if such responsibility is shared with the police. Beatson J agreed. He held (at para 159):
“The fact that YWIL and GSL [the appellants] were acting as public authorities exercising coercive powers of the state in carrying out its public function in respect of the Yarl's Wood immigration detention centre does not per se put them outside the scope of the 1886 Act. However, the fact that they are entities with public law powers and duties for order within the detention centre means that, in respect of loss suffered from riot damage caused by detainees within the centre, they are not qualifying persons within the 1886 Act. The 1886 Act and its predecessors imposed a statutory duty to compensate on those responsible for law and order in a given area. The intention behind the legislation was that local property owners should be entitled to obtain compensation from the body with responsibility for protecting them from the risk of riot. It was not to enable a public authority with a particular responsibility for order within a defined area to seek compensation from another public authority with a broadly equivalent, but not identical, responsibility for order in that area.”
On this appeal the respondent Authority submits that the judge was right for the reasons which he gave. It has a respondent's notice, but of very narrow scope (I will refer to it below in connection with a so-called “temporal issue”). However, it also seeks to limit the statutory language by reference to the nature of the police's duty to prevent riot: it submits that no duty is owed to public authorities such as the appellant operators of a detention centre. The appellants submit, on the other hand, that the purpose of the 1886 Act is clear from its wording, namely to provide compensation on a basis of strict liability “to any person who has sustained loss”, without limitation or any concept of a “qualifying person”. They rely on the full provisions of the Act to support submissions that it clearly contemplates compensation in the case of public buildings and public institutions and contains a proviso which enables account to be taken of any fault or responsibility on the part of a claimant.
This court is thus concerned with a question of statutory interpretation on facts agreed only for the purpose of preliminary issues. Like the judge below, we are not concerned with any findings of facts.
The judge pointed out that the state has never claimed under the 1886 Act in respect of prisons which have been damaged by rioting prisoners. The 1990 Strangeways prison riot in Manchester is an example from relatively recent times of a devastating riot. It cost £55 million to rebuild HMP Strangeways. A detention centre is not unlike a prison in many respects. It does appear that the state has not invoked the 1886 Act (or its predecessors) against police authorities (or their predecessors). That goes back, however, to a time before the state contracted out responsibility for prisons and detention centres to private firms. Under the terms of such contracts it is the private operator and not the state that bears the general risk of damage, even in the case of riot. On the other hand, the judge was clearly concerned that, if the appellants were right in their claim, by such means the state might be said to be transferring to the local taxpayer, through the local police authority, losses which were essentially those of the state itself. It seems that new times have created new points.
The parties
The principal claimants (here appellants) are Yarl's Wood Immigration Limited (“YWIL”) and GSL UK Limited (“GSL”). YWIL is the lessee of Yarl's Wood under a lease made on 8 September 2000 under which the Secretary of State for Defence demised the premises at Yarl's Wood to YWIL for 15 years. It is also the contractor under a Project Contract dated 1 September 2000 between itself and the Home Office under which YWIL agreed to design and construct the detention centre and associated facilities at Yarl's Wood and to maintain and operate it. On the same date YWIL entered into an Operating Contract under which it sub-contracted the operation and maintenance of Yarl's Wood to GSL. Under those contracts, as between YWIL and the state, the loss in question from the damage which has occurred to the premises rests with YWIL. Both YWIL and GSL are companies within the Group 4 group and it is unnecessary to distinguish between them. I shall refer to them as “Group 4”.
The Authority is responsible for the police area for Bedfordshire and is the compensation authority within the meaning of the 1886 Act for that area. It is distinct from the Bedfordshire police force, which is the police force for that area, but is responsible for it. Originally, the responsibility to compensate persons injured by riot was imposed on local inhabitants. The history is discussed by Walker J in Bedfordshire Police Authority v. Constable (at paras 8ff, cited by Beatson J at para 34). The first statute to deal specifically with riot was the Riot Act 1714, but the strict liability there adopted built upon earlier examples, such as the Statute of Winchester of 1285, which made the “hundred” (an ancient subdivision of a county) where a robbery was committed answerable for the loss unless the bodies of the robbers were produced. The Statute of Hue and Cry of 1585 allowed the residents of one hundred where a robbery was committed to claim over against an adjoining hundred where hue and cry proceeded in that latter hundred. The 1714 Act imposed strict liability on the inhabitants of the hundred where riot damage was done. The Remedies against the Hundred Act 1827 consolidated and amended laws relevant to remedies against the hundred, providing that “the Inhabitants of the Hundred, Wapentake, Ward, or other District in the nature of a Hundred, by whatever name it be nominated…shall be liable to yield full compensation to the Person or Persons damnified by the Offence…”. The 1886 Act, in its original form, transferred the liability to make compensation to “the police rate of such district” where the loss took place (section 2(1)) and provided that claims for compensation should be made to the “police authority” of that district (section 3(1)). There were amendments effected by the Police Acts of 1964 and 1996, as a result of which the modern amended form of the 1886 Act refers to “police area”, “police fund” and “compensation authority” respectively.
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