Yarl's Wood Immigration Ltd and Others v Bedfordshire Police Authority

JurisdictionEngland & Wales
CourtQueen's Bench Division (Commercial Court)
JudgeTHE HONOURABLE MR JUSTICE BEATSON,Mr Justice Beatson
Judgment Date30 Sep 2008
Neutral Citation[2008] EWHC 2207 (Comm)
Docket NumberCase No: 2007 FOLIO 1241

[2008] EWHC 2207 (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 Beatson

Case No: 2007 FOLIO 1241

Between :
(1) Yarl's Wood Immigration Limited
(2) Gsl Uk Limited
(3) Creechurch Dedicated Limited (Being The Sole Member
Of D J Pye Syndicate 962 At Lloyd's Subscribing To
The Contract of Insurance Policy Number 0000014763)
Claimants
and
Bedfordshire Police Authority
Defendant

Approved Judgment

Hearing dates: 24 & 25 June 2008

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 HONOURABLE MR JUSTICE BEATSON

INDEX

Paragraph

(1) Introduction 1

(2) The Preliminary Issues 7

(3) Facts agreed for the purposes of the preliminary issues hearing 13

(4) The legislation

(A) Riot and liability under the Riot Acts 33

(B) Legislation concerning immigration detention centres 38

(5) The parties' cases 42

(6) Discussion

(A) The status, powers and responsibilities of the parties 48

(i) The status of the first and second claimants

(ii) The relationship of the first and second claimants

(v) Conclusion

(B) The scope and intent of the 1886 Act 100

(i) The general approach

(ii) Do a detention centre's buildings qualify as “buildings”

(iii) Are the claimants qualifying persons under the 1886 Act?

(a) The legislative predecessors to the 1886 Act

(iv) Matters not taken into account

(a) Analogy with alleged common law “source

(7) Conclusions on the preliminary issues and overall conclusion 157

Appendix: Extracts from the Yarl's Wood Joint Protocol Agreement and the

Group 4 and Bedfordshire Police Contingency Plans for Yarl's Wood

Mr Justice Beatson

Mr Justice Beatson:

(1) Introduction

1

On the night of 14 February 2002 a major disturbance occurred at the Yarl's Wood Immigration Detention Centre at Clapham, Bedfordshire. Almost half of the premises were destroyed by fire. The issue in this case is whether the authority responsible for an immigration detention centre can make a claim under the Riot (Damages) Act 1886 (“the 1886 Act”) against the relevant police authority in respect of damage to or destruction of property in the centre caused by those detained in it during a riot. The Yarl's Wood Immigration Detention Centre is a contracted out immigration detention centre operated by the first and second claimants, Yarl's Wood Immigration Ltd (“YWIL”), and GSL UK Ltd (“GSL”), formerly called Group 4.

2

The 1886 Act imposes liability on police authorities or the statutory bodies responsible for their funds for injury to or theft or destruction of certain types of property in their areas caused by “any persons riotously and tumultuously assembled together”. That liability replaced a similar liability first imposed by the Riot Act 1714 (the 1714 Act”) on the hundred, a Saxon concept and a subdivision of the county for administrative, judicial and military purposes, or on a city or town which was either a county of itself or was not within any hundred.

3

Those detained at Yarl's Wood and other immigration detention centres are detained and held by the Home Secretary pursuant to powers contained in Schedule 2 to the Immigration Act 1971 (“the 1971 Act”). The 1971 Act empowers the Home Secretary to detain a person pending a decision to give or refuse him leave to enter the United Kingdom, or pending a decision to direct that he be removed, or his removal. The provisions for immigration detention centres to be either directly managed by the Home Secretary or to be contracted out are in the Immigration and Asylum Act 1999 (“the 1999 Act”). They are similar to the provisions in Part IV of the Criminal Justice Act 1991 empowering the contracting out of the running of prisons.

4

It does not appear that a claim has previously been made under the 1886 Act in respect of damage to or destruction of property during a riot at a prison or an immigration detention centre. This case does not concern the application of the 1886 Act to prisons, but the similarity between the positions of the two types of institutions is clear. It was not suggested that there is any material difference between the 1886 Act's application to a prison, whether run by central government or “privatised” or “contracted out”, and its application to a detention centre. There is a long history of prison riots. For instance, in February 1861, twenty five years before the enactment of the 1886 Act, there was a notable riot at Chatham Prison. During the hearing reference was made to the riot and siege at HMP Strangeways in Greater Manchester in 1990. It cost some £55 million to rebuild HMP Strangeways. Fourteen years earlier, in 1976, some two-thirds of HMP Hull in Humberside was wrecked by rioting prisoners. It was accepted by Mr Gatt QC on behalf of the claimants that, on his submissions, the Home Secretary, who was then responsible for prisons, could have made such claims under the 1886 Act against the relevant police authorities and in the future the Secretary of State for Justice and Lord Chancellor will be able to bring such claims.

5

On 1 September 2000 YWIL entered into an agreement with the Home Office (“the Project Contract”) for the design and building of the centre, a hearing facility and associated offices, as well as for its operation and maintenance. On the same date, with the consent of the Home Office, it sub-contracted the operation and maintenance of the detention centre to GSL (the “Operating Contract”). The terms of the Operating Contract between YWIL and GSL reflected those of the Project Contract in all material respects. GSL agreed to be responsible for Yarl's Wood on the same terms as in the agreement between YWIL and the Home Office. On 8 September 2000 the Secretary of State for Defence leased the premises to YWIL and GSL was granted a non-exclusive licence to occupy them.

6

In these proceedings, YWIL, GSL, and the third claimant, Creechurch Dedicated Ltd (“Creechurch”), their insurers, claim that the defendant police authority is liable to them for damage caused during the riot. They seek to recover over £42 million under the 1886 Act. Claim forms were submitted to the defendant on 28 March 2002. The defendant rejected the claims on 22 December 2005. Proceedings were issued on 9 August 2007.The case was argued on the basis that there is no difference between the position of YWIL and GSL. I generally refer to them collectively as “the claimants” and to the third claimant as “the claimants' insurers”.

(2) The Preliminary Issues

7

On 21 December 2007 Tomlinson J ordered a trial of five preliminary issues. One of these, whether the terms of a Joint Protocol Agreement (the “JPA”) between GSL and the Bedfordshire Police have the effect of waiving any liability of the defendant under the 1886 Act, no longer falls for decision since the defendant does not rely on waiver. It will be seen that the remaining issues overlap. They are:

8

Issue (1): Whether GSL and/or YWIL (as each defined in the particulars of claim) were acting as a public authority exercising coercive powers of the state in carrying out its public function, and, if so, whether claims in this action are outside the scope and/or intention of the 1886 Act.

9

Issue (2): Whether Yarl's Wood Immigration Detention Centre was outside the effective scope of police control by reason of the fact that GSL and/or YWIL were the sole, alternatively primary, body entrusted by the state with the responsibility for maintaining security and good order within Yarl's Wood and, if so, whether the claims in this action are outside the scope and/or intention of the 1886 Act.

10

Issue (3): Whether by reason of the powers, functions and responsibilities of GSL and/or YWIL for maintaining security and good order within Yarl's Wood identified in issues (1) and (2) above, the claims in this action are outside the scope and/or intention of the 1886 Act.

11

Issue (4): Whether the terms of the Joint Protocol Agreement altered or displaced the statutory and common law powers and duties of the police to prevent or respond to criminal acts which occurred or were suspected to have occurred at Yarl's Wood and, if so, whether the claims in this action are outside the scope and/or intention of the Act or would be (a) if a handover pursuant to paragraph 9 of the agreement was invoked on 14/15 February 2002 and/or (b) if a handover pursuant to paragraph 9 of the agreement was not invoked on 14/15 February 2002.

12

The defendant brought a Part 20 claim against Syndicate 386 at Lloyds which insured it on an excess layer, which included public liability, for amounts greater than £2 million and up to £38 million. The issue was whether and if so, to what extent, a potential liability of the defendant under the 1886 Act would give rise to a valid claim by it under the excess policy. This was ordered to proceed as a separate claim. In Bedfordshire Police Authority v Constable [2008] EWHC 1375 (Comm) Walker J held that the defendant is entitled to be indemnified under the excess policy subject to any defences and limitation provisions set out in it. In the determination of those proceedings, Walker J considered the 1886 Act and its predecessors, and the nature of liability under the 1886 Act. It will be seen that I have been materially assisted by his judgment on these matters. I have also been assisted by comprehensive and clear written and oral submissions by Mr Gatt QC and, on behalf of the defendant, by Mr Watson QC.

(3) Facts agreed...

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