Shah v Gale [2005] EWHC 1087 (QB)

Case No HQ 03 X02433[2005] EWHC 1087 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/05/2005
Before
MR JUSTICE LEVESON
Between
REVENTHI SHAHClaimant
Mark Simeon Jones (instructed by Chua’s Solicitors, London) for ClaimantDingle Clark (instructed by Owen White & Catlin, Feltham) for Defendant & Part 20 Claimant for The Part 20 Defendants did not appear and were not represented.Hearing Hearing dates: 23-25 May 2005
Judgment
[1]On the evening of Saturday 9th March 2002, Mr Naresh Shah, a 45 year old Accountant, was at his home at 41 Hibernia Road, Hounslow when his front door burst open and he was attacked. In addition to some bruising, he suffered at least seven stab wounds to his chest and back which damaged his heart and lungs; he sustained further wounds to his left hip, thigh, groin and lower leg together with defensive wounds to his hand as he tried to fend off the knife. Tragically, he lost his life and his family have ever since found it difficult, if not impossible, to come to terms with the enormity of what has befallen this entirely innocent and much loved member of their family.[2]A police investigation was commenced and led to a very substantial prosecution of five men and two women at the Central Criminal Court between November 2003 and February 2004. The upshot was that one man, Jason Grant, was convicted of murder and sentenced to life imprisonment. Mark Young, Paul Hilton and Samantha Easton were convicted of conspiracy to inflict grievous bodily harm and sentenced to terms of imprisonment. This Defendant, Kelly Anne Gale, along with two other men, were acquitted.[3]Mr Shah’s family were unhappy with the outcome of the criminal proceedings. In particular, this Defendant had admitted that, albeit in error, she had pointed out Mr Shah’s home as the home of a man, Xhafer Ismaili, against whom Mr Hilton, at least, had a grievance of which she was well aware. It is thus contended that she bore a substantial responsibility for Mr Shah’s death. As a result, Mrs Reventhi Shah, his mother and the administratrix of his estate, has commenced proceedings against her seeking damages (including aggravated damages) on the basis that Miss Gale was a joint tortfeasor of the battery inflicted on Mr Shah and/or conspired to assault him. It is important to underline from the outset that damages are not sought for personal injury or under the Fatal Accidents Acts for loss of a dependency: that fact was confirmed at a Case Management Conference before the Master as long ago as 12th February 2004 and was repeated by Mr Mark Simeon Jones (acting for Mrs Shah), in submissions before me.[4]In any event, Miss Gale denies all liability in law for Mr Shah’s death. In particular, she denies that she was party to any joint enterprise, that she procured or solicited that result or that she conspired with others to assault him or anyone else. Rather she contends that liability for his death rests with those convicted of murder and conspiracy to cause grievous bodily harm against whom, in the alternative, she seeks an indemnity or contribution. They have been debarred from defending the Part 20 proceedings.

Background and Overview

[5]In 2002, Kelly Gale regularly visited Yates’ Wine Lodge in Hounslow where a friend, Samantha Easton, worked occasionally as a door supervisor as did Miss Easton’s boyfriend, Mark Young. Miss Gale also knew Xhafer Ismaili who was a friend of her boyfriend, James Blerim, and an ex-boyfriend of another friend, Michelle Kerry. Mr Ismaili and Mr Blerim are of Kosovan Albanian origin.[6]It is clear that there was a feud between a number of the doormen at Yates’ Wine Lodge and a number of Albanians including Mr Ismaili. This had led to a series of violent incidents although for the purposes of this case it is unnecessary to go back earlier than Thursday 7th March. Although not specifically admitted in the defence, it is clear from the evidence that, in the public house, Mr Ismaili was behaving like a pest (as was not unusual). He had recently split up with Michelle Kerry whom he blamed for the loss of his baby through miscarriage, and it may be that he particularly directed the focus of his temper on Miss Gale because of her friendship with Miss Kerry. Suffice to say that he was insulting to Miss Gale and her friends and, as a result, was required by the doormen to leave the public house. He had previously threatened both Miss Kerry and Miss Gale.[7]Later that evening, there was considerable communication between Mr Ismaili and Miss Gale’s telephone: between 12.10 a.m. and 12.48 a.m., there appear to have been three text messages, 4 comparatively short calls and 2 calls of some 7 and 13 minutes. Miss Gale said that that along with Michelle Kerry, they met at sometime after midnight. She goes on to say that, after initial confrontation, the three had what she described as a civilised conversation. Further, in circumstances that are far from clear (the Claimant not accepting the contention that it was unconnected coincidence), there was some disturbance (said by Miss Gale to involve a number of restaurant workers) which led to her being injured and being taken to hospital.[8]The following day, Mr Ismaili returned to the public house with a friend. In the course of that evening, there was a fracas that led to Mark Young, Paul Hilton and other doormen again escorting the Albanians from the public house in the process of which Mr Ismaili was set upon by Young and Hilton and sustained head injuries which required him to go to hospital. Miss Gale became aware of this fact by virtue of a text message sent to her by another friend, Natasha Hobbs, and on the day after learned from Michelle Kerry that it had been bouncers at Yates’ Wine Lodge who had beaten up Mr Ismaili.[9]On Saturday 9th March, Mr Ismaili returned to the public house with others and (so it was believed and is alleged) set about Paul Hilton’s van with a weapon or weapons in the form of a baseball bat, iron bar or similar implement. Substantial damage was caused and Mr Hilton was injured: he was later seen to have blood on his clothes. Miss Gale learnt of the incident (and, in particular, the damage to the van and the fact that Mr Hilton had been hurt) while she prepared to go out that evening.[10]It is what happened thereafter that is at the core of this case. The only eye witness from whom I have heard is Miss Gale. What she says is challenged by Mr Jones but I start with the account which she gave in these proceedings (which is what she told the jury at the Central Criminal Court). When she arrived at Yates’ Wine Lodge that evening, she says that she was asked by Samantha Easton to show Paul Hilton where Mr Ismaili lived. Her reaction was that she had come out for a night’s entertainment and “did not want to get involved with anything else”. She was later asked a second time and, according to her, after she was assured by Miss Easton that nothing was going to happen, she agreed to do so. She was then taken in a car by Paul Hilton and another man whom she did not know (Jason Grant who was not an employee of Yates’ Wine Lodge) to identify where Mr Ismaili lived. She pointed not to 25 Hibernia Road (where Mr Ismaili in fact lived) but rather to 41 Hibernia Road (where Mr Shah lived). She claims that she said that she was not 100% sure that she had pointed to the correct house to which Jason Grant responded “I do not give a fuck who is in the house, whoever is in there is going to get it”. She then says that she became worried that events might turn to violence.[11]Having pointed out the house, Miss Kelly was returned to Yates’ Wine Lodge. She told her friend Natasha Hobbs who told another friend, Siobhan Kent. Clearly referring to what she had done, Miss Kent called Miss Kelly a “stupid cow” to which she responded “I know, I feel guilty enough as it is”. She spoke to Samantha Easton again expressing her concern that she was not 100% sure about the house that she had identified and what would happen: she was told not to worry and reassured her that nothing was going to happen. Relying on that assurance, she did nothing more.[12]In fact, having returned Miss Gale to the public house, Paul Hilton and Jason Grant collected Mark Young, Yassa Rafiz and Aslam Khan (other doormen from the public house) and went back to 41 Hibernia Road. An entry to the premises was then forced by Jason Grant if not by others as well and Mr Shah was brutally murdered. Causing further distress to the family, Mr Shah’s brother, Atul, was first arrested as a suspect and all Mr Shah’s business records were seized; it was only later that attention turned to the true attackers.[13]The Shah family contend that Miss Gale knew perfectly well that the occupier of 41 Hibernia Road (believed by the attackers to be Mr Ismaili) was going to be beaten up if not worse. They do not accept that the incident after midnight on 7th March (when she was injured) was unconnected and, in the light of what had happened over the following two days, contend that she must have known that the only purpose that Mr Hilton had for wanting to seek out Mr Ismaili was to extract revenge for the damage to his vehicle and his own injuries on the early Saturday evening. They point to her appreciation that violence would be used following Jason Grant’s comment that whoever was in the house was going to “get it” and, given that she made no attempt to warn Mr Ismaili (on the basis that the house might have been his) invite me to reject the suggestion that there was ever a time when she did not believe that was the case.[14]It is important to appreciate the approach of the jury in the criminal trial. Although there is no evidence as to how the matter was left to them by the trial judge, His Honour Judge Boal Q.C., the jury clearly convicted Jason Grant of murder on the basis that he wielded the knife that inflicted the fatal injuries. Further, they convicted Mark Young, Paul Hilton and Samantha Easton of conspiracy to cause grievous bodily harm on the basis that they were each party to an agreement to cause serious bodily injury to Mr Ismaili but must have acquitted Mark Young and Paul Hilton of murder on the basis, at the very least, that (having regard to the standard of proof) they may not have known that Jason Grant was armed with or would use a knife to injure the occupant of the house. For criminal purposes, it did not matter that the victim was not the man intended to be attacked and it is difficult to see how the verdicts are otherwise explicable. Kelly Gale (who was charged only with conspiracy to cause grievous bodily harm) can only have been acquitted on the basis that the jury were not sure that she was party to the agreement to cause grievous bodily harm. In other words, the jury were not satisfied so as to be sure that when she took Paul Hilton and Jason Grant to identify the home of Mr Ismaili, she knew that they intended to cause him grievous bodily harm and did so agreeing to involve herself in that enterprise.[15]I ought to deal with one other matter at this stage. The statement served by Mr Atul Shah expresses anger at the verdict of the jury and Mr Shah’s sister, Ms Meenaxi Shah, asserts that Kelly Gale’s account at the trial was completely unbelievable and that she was “totally responsible for pointing out the house which resulted in my brother’s murder”. As to the first point, I repeat my enormous sympathy for every member of Mr Naresh Shah’s family for the truly dreadful way in which he was murdered and their lives devastated. This hearing is not, however, a re-hearing of the criminal trial and it is simply not open to me to revisit it. As to the second, although I entirely accept that Ms Meenaxi Shah is fully entitled to her view of what transpired and to consider Miss Gale morally responsible for her brother’s death, I can only judge this claim according to my view of the facts and in the light of the law as I find it to be. Although I shall deal with what Miss Gale did and could have done, it is no part of my function to judge her moral (as opposed to legal) responsibility.

The Standard of Proof

[16]At the outset, issue was taken as to the appropriate standard of proof and it is appropriate to deal with this matter before turning to the evidence. Mr Dingle Clark (for Miss Gale) relied on the decision of Rougier J in Halford v. Brookes, The Times, 3rd October 1991 which was the first occasion on which such a claim had been brought and in which the learned Judge expressed the view that the burden of proof should be the criminal standard because “no one, whether in a civil or criminal court, should be declared guilty of murder unless the tribunal was sure that there was no other sensible conclusion”. Mr Jones, on the other hand, contended that, as these proceedings were civil in nature, it was necessary only to prove the case on the balance of probability. He referred to Francisco v. Diedrick, The Times, 3rd April 1998 in which Alliott J decided the issue of liability in another allegation of assault causing death by reference to the balance of probabilities “while bearing in mind that the allegation is of utmost gravity and can only be established by truly cogent evidence”.[17]Alliott J cited the decision of the House of Lords in the speech of in the House of Lords case Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 and, in particular the speech of Lord Nicholls of Birkenhead in these terms (at page 96B):
“…The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts [1964] 1 W.L.R. 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’”
[18]Mr Clark pointed to the observation of Lord Lloyd of Berwick who agreed with the approach in that case but was not prepared to endorse without further argument the proposition of Millett LJ in the Court of Appeal ([1995] 1 FLR 643 at 659E) that in all civil cases (save for contempt) there was only one standard of proof, namely, proof on the balance of probabilities. He submitted that care proceedings could be considered in a different category on the basis that they were directed to the welfare of children.[19]In my judgment, it would be wrong to approach this case on any basis other than the balance of probability with appropriate respect paid to the need for cogent evidence to reflect the serious nature of the allegation and the inherent improbability that this 22 year old young lady of good character should involve herself in such conduct as that alleged. I simply do not accept that it is appropriate, as a matter of law, to require a higher standard of proof simply because of the nature of the allegation. If murder, why not allegations of rape or the most serious fraud? It may be that Rougier J was concerned with the special facts of that case (which was brought to erect a case against a man who had not been prosecuted but whose evidence had been relied upon in an unsuccessful attempt to convict his step son who was a second defendant). As a matter of generality, with great respect, I prefer the approach of the courts in child care proceedings reflected by Alliott J in Francisco.[20]I ought to deal with one other submission made by Mr Clark. He suggested that I should have regard to the standard of proof required before the verdict of an inquest can be unlawful killing or suicide (see R. v. West London Coroner ex parte Gray [1988] QB 467). In my judgment, it is simply inappropriate to seek to transfer the requirements of that, very different, jurisdiction into civil proceedings.

The Defendant’s Involvement

[21]I turn now to the evidence of Miss Gale’s involvement. Mr Jones challenges her account that when she went to Hibernia Road, she had no idea that there was any plan to visit Mr Ismaili with violence not only on the basis of its inherent implausibility (bearing in mind what she knew of the background, the incident earlier that day and her failure to warn him after she heard the threat in the car) but also because it flies in the face of what she said to the police in the first interviews that she gave initially as a witness but confirmed following her arrest. Following a voire dire,these interviews were excluded from evidence by Judge Boal in the criminal trial. I have not been shown a transcript of his ruling and no evidence has been called about the matter: I can only infer that the decision was based on section 78 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”) and the failure of the interviewing officers to administer a caution to Miss Gale as I have said, (a 22 year old young woman of good character) at a time that a reasonable suspicion of involvement must have arisen which failure also infected the first interviews under caution when she declined the presence of a solicitor.[22]Mr Clark did not press a formal objection to the admissibility of these interviews but did contend that, having regard to the fact that the trial judge had felt that the fairness of the criminal proceedings would be adversely affected by their admission in that trial (which is the effect of the section 78 ruling), the weight that I could attach to them was very limited. This raises a not unimportant point upon the inter-relationship of criminal and civil proceedings and the evidence available for each.[23]The 1984 Act creates a structure which governs, among other things, the interviewing of suspects and the ultimate admissibility of what is said. Section 66 provides for Codes of Practice; these include the obligation to caution those in respect of whom there are grounds to suspect of having committed an offence (paragraph 10.1 Code C). By section 67(11), the Codes are admissible in all criminal and civil proceedings and can be taken into account if relevant to any question arising in those proceedings. Section 76 makes it clear that no confession shall be admitted except insofar as the prosecution prove beyond reasonable doubt that it has not been obtained by oppression or in consequence of anything said or done which was likely in the circumstances existing at the time to render unreliable any confession made in consequence. Section 78 is far wider and provides that the Court may refuse to allow evidence on which the prosecution proposes to rely to be given in evidence if it appears to the court, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.[24]I agree with Mr Clark’s formulation that the relevance of the statutory code in civil proceedings is in relation to weight. Taking an extreme (and, I hope, entirely theoretical) example, if a claimant in such proceedings wished to rely on a confession obtained by torture, I have little doubt that no court would attach any weight to it. Even a suggestion of oppression would require that what was said be subject to anxious scrutiny and may be of little, if any, value. Any failure to comply with the rights of those suspected of crime must be examined carefully and appropriate allowance made for that failure. On the other hand, it must be born in mind that for the purposes of civil proceedings, not concerned with the imposition of punishment by the state, the most important aspect of any so-called confession must be its reliability. Torture or oppression critically affect reliability; failure to comply with other rights although of potentially vital importance in criminal proceedings may not have the same impact in civil proceedings.[25]I turn to this case. Miss Gale knew of the police investigation and, on 26th March 2003, was telephoned by the police and asked to attend the police station the following day. She did so and was treated as a significant witness (the result of this being that her interview, as a witness, was tape recorded). She was not arrested or cautioned but she was told that she could have access to legal advice. She was also told in terms of the significance of making a statement and the fact that if she wilfully stated anything she knew to be false or did not believe to be true she was liable to prosecution. She acknowledged, after each piece of advice that she understood. Having been interviewed between 1.30 and 3.10 p.m. she left the police station, returning on 10th April. On this occasion, she was arrested and again interviewed, once more being offered legal advice which she declined. She was advised that if, during the interview, she changed her mind, a solicitor would be obtained for her. This time, she was fully cautioned in compliance with the Codes of Practice although it has to be recognised that the police had the benefit of knowing what she had said on the previous occasion.[26]In what way is the reliability of what Miss Gale said to the police on either of these occasions impugned? No evidence was led on this issue at all. In particular, Miss Gale does not suggest that she was misled by the police, confused about why she was in the police station or about the events of early March, or in any way unable to understand what was going on. I readily accept that had she been cautioned earlier, or in fact had the benefit of a solicitor, she might have chosen to say nothing but that, in itself, does not necessarily affect the truthfulness, and thus the reliability, of what she actually said. In fact, as I shall examine, although she later said something different and gave evidence along the lines that I have set out above, Miss Gale was consistent over both interviews. In the circumstances, although I bear in mind that what she said was said without the benefit of a caution or legal advice, I take the view that the answers she gave to the police in March and April do reliably reflect what she then either knew or at least believed had happened.[27]I come now to a summary of what she said. In the first interview on 27th March, she spoke of an occasion when Mr Ismaili grabbed her throat and ever since persisted with phone calls threatening to kill both Michelle Kelly and her; this was “all the time”. She recounted being told of the damage to Mr Hilton’s car and said that the bouncers were angry. She said that Samantha Easton had said that Mark Young and Paul Hilton had wanted to know where he lived and she said she would take them adding “but I am not sure what house… he lives at”. She said that she thought the conversation was with Samantha and the bouncers who said that they were “just going to get him” which she understood to mean “probably beat him up”. She said that on the way to Hibernia Road “they were just talking among themselves and … saying we are just going to get [Ismaili]” and that when she said she was not 100% sure “Jay [i.e. Grant] said “I don’t care, I don’t care if its not his house, I am going to get whosoever in there”.[28]In a second taped interview on that day, she repeated that they were going “probably just [to] beat him up” and asked why she was happy to give them the address to allow that to happen said “I was just angry at him and all the things he’s done, lied to my friend and what he’s done to me”. At the end of that interview she said that she was sorry but that she was angry with Mr Ismaili and “really didn’t think this was going to happen”.[29]On the 10th April, Miss Gale was arrested and cautioned. During the course of her interview, she repeated that she had been threatened and was later asked why she said that she knew where he lived. The interview goes on:
“A. Because I knew, I knew that, I know it was stupid but I knew what they were going to do, when they found him. Q. Which was what? A. Beat him up.”
In answer to a later request to be honest and to say what she thought was going to happen she said:
“I didn’t, I did think like, they were going to beat him and I know, I know that’s bad to say, but as I said that I was angry and I knew, but as I say that, I really didn’t know that it would have gone that far. …I didn’t know they were go round there to intentionally kill someone [sic].”
Q. Which was what? …I didn’t know they were go round there to intentionally kill someone [sic].”

Q. Which was what?

[30]In her evidence at the Central Criminal Court (on 16th January 2003) and before me, Miss Gale gave the different account that I set out in paragraphs 10 and 11 above. In short, this was that Samantha Easton asked if she would show Paul Hilton where Xhafer Ismaili lived and initially declined because she did not want to get involved. Later the request was repeated, Samantha Easton assuring her that nothing was going to happen. It was because of that assurance that she agreed and only when she had said that she was not 100% sure of the house and Grant had replied that “whoever is in there is going to get it” that she became worried. She went on that her concern was allayed by Samantha Easton who again reassured her that nothing was going to happen.[31]Miss Gale was cross examined by Mr Jones not only about the history and her failure to contact Ismaili at the time that she became concerned that he might be attacked (although she said that she knew that someone else did) but also about the obvious differences between her present account and what she had said within weeks of the killing. In the course of cross examination, I sought to summarise what she was saying in these terms:
“I am not saying that this account to the police was not true. What I am saying is that I cannot now remember if what I then told them is what actually happened.”
Miss Gale was given a number of opportunities to consider this summary and, on each occasion, she confirmed it. She went on to say that when she spoke to the police she tried to help them by telling the truth. What she was emphatic about, however, was that she did not intend Mr Ismaili (let alone Mr Shah) serious bodily injury.[32]I can express my conclusions quite shortly. I can find no reason whatsoever why Miss Gale should admit to the police (if it was not the truth as she then knew it to be) that she said that she knew where Mr Ismaili lived because she was angry with him and that she understood that, if she pointed out the address, he would be beaten up. She was, at that time, giving a truthful account of her involvement not appreciating (as she made clear to me) that she might have done anything wrong.[33]Further, that assessment is entirely in keeping with her background knowledge. She knew of the incident the previous day (when Mr Ismaili had been put in hospital by one or more bouncers) and the incident that afternoon (when Mr Hilton’s car had been damaged with an implement and he had been injured). She also knew that it was Mr Hilton and Mr Young that wanted to know where he lived. The only reason can have been to retaliate in some way. Even on her own account, these concerns caused her initially to refuse to help.[34]I do not accept that, before the trip, Samantha Easton said that nothing would happen or that if, in the alternative, she did, that Miss Gale believed it. Miss Gale did not make any suggestion to that effect to the police (or even suggest that she was not aware of the likely consequence of the use of violence): her account was to the contrary. Further, if she had truly believed that ‘nothing would happen’, when she heard what Grant said in the car, later words of reassurance from Samantha Easton would not have been sufficient. She did not know Jason Grant and had no reason to believe that those whom she did know had any influence over him. If she wished Mr Ismaili no harm, she would certainly have contacted him immediately and directly: she knew his telephone number and it had been used on numerous occasions just two days before. Finally, it is not without importance that so fired up were the bouncers that it was within 35 minutes of Miss Gale first arriving at the public house, that the trip had been made, the bouncers had returned, Mr Shah had been murdered and his body found: this urgency must have been apparent.[35]Mr Clark referred me to the evidence of Samantha Easton at the criminal trial and in particular her confirmation that she did reassure Kelly Gale that no harm would come to Mr Ismaili. He suggested that this was of particular significance because it did not assist her case and there was no self serving reason for her to say it. I am afraid that I do not attach that significance to what Miss Easton said at her criminal trial. First, she has not given evidence before me and her evidence before the jury was clearly rejected. Secondly, I do not accept that this confirmation was not part of her case: she contended that she did not know that harm was to come to Xhafer Ismaili so she could hardly suggest that she gave any other impression to Miss Gale.[36]In the circumstances, I conclude (and, would have been prepared to express myself as sure if that had been the appropriate test) that Kelly Gale knew perfectly well that she was endeavouring to identify the house occupied by Xhafer Ismaili so that Young and Hilton (and, as it transpired, Grant as well) could retaliate for the damage done to Hilton’s car and the injury inflicted upon him: I reject her evidence to the contrary. She did so because she was angry with Ismaili for reasons entirely unconnected with the dispute between him and the bouncers.[37]I must now deal with the difficult question of the knife. Although the acquittal of Mark Young and Paul Hilton of murder (and thus the absence of a finding beyond reasonable doubt that they were aware of the possible use of a knife) does not bind me, I have seen no evidence of any sort upon which it would be right to base any finding to the contrary. Still less is there evidence that Kelly Gale was aware of that possibility. That was not even suggested to her or part of the case that Mr Jones advanced. So that it is clear, I have no doubt that she was not and believe that she would not have been prepared to have anything at all to do with the use of a knife. Although she understood that Mr Ismaili would be subject to violence, she did not anticipate and would have been horrified to learn that there was any risk of fatal injury being inflicted.

Responsibility in Law

[38]There is no doubt that those who returned to Hibernia Road were acting in furtherance of a common design to use violence upon the occupant of the address identified by Miss Gale: that much is established by the conviction of Hilton, Young (and, incidentally, Easton) for the offence of conspiracy to inflict grievous bodily harm. Putting to one side the use of the knife, they are jointly responsible and jointly liable as tortfeasors for the torts of assault and battery (to such extent as the did not involve the knife). The question is whether Kelly Gale is also responsible as a joint tortfeasor.[39]The concept of common design is equally applicable in civil as in criminal law. By way of example, an enunciation of this principle is clear from The Koursk [1924] P 140. Scrutton LJ put it (at page 155):
“Certain classes of persons seem clearly to be ‘joint tortfeasors’ … two or more persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly to be joint tortfeasors; there is one tort committed by one of them on behalf of and in concert with another.”
See also per Bankes LJ (who, at 151, made it clear that “each case must depend on its own circumstances”) and Sargant LJ at 159.[40]That is not to say that actual presence at the time is a prerequisite. In the context of a planned trespass on farm premises engaged in the production of genetically modified crops, the Court of Appeal (in Monsanto plc v. Tilly & ors 149 NLJ 1833, The Times, 30th November 1999) rejected the proposition that there was an arguable defence to the claim of being a joint tortfeasor in the case of a man who was aware of the attack, had reconnoitred the day before and was organising the press on the day. Stuart Smith LJ cited his own observation in Credit Lyonnais v. E.C.G.D. [1998] 1 Lloyds Rep 19 at 35 in these terms:
“It seems to me to be well established that a person who acts with another to commit a tort in furtherance of a common design will be liable as a joint tortfeasor. It is not enough that he merely facilitates the commission of the tort unless his assistance is given in pursuance and furtherance of the common design.”
[41]Mr Clark argues that all that it can be shown that Miss Gale did was to facilitate, that is make easier, the assault by others rather than anything more. Suffice to say that I have no difficulty in accepting the proposition that facilitating on its own is not sufficient not only because of the observations of Stuart Smith LJ above but also because of the line of authorities including CBS Songs Ltd v. Amstrad Consumer Electronics plc [1988] RPC 567 (which concerned manufacture of equipment which could be used to infringe copyright).[42]That is not, however, this case for Miss Gale’s act of assistance cannot be considered in isolation. Understanding that the object of the exercise was to find Mr Ismaili and “beat him up” (as she put it), she agreed to assist by pointing out the address at which she believed he lived and, in so doing, expressly or by the clearest implication, became part of the common design. It was not suggested that the fact that Mr Shah (as opposed to Mr Ismaili) was attacked makes any difference and that she was not present when the men returned to the house that she had identified is irrelevant. I have no doubt that in relation to an assault on the occupier of 41 Hibernia Road, Miss Gale was a joint tortfeasor. In this regard, I deal with Mr Clark’s submission that the wrong defendant has been chosen because the Claimant would have been bound to succeed against some or all of the Part 20 Defendants: Mrs Shah has not chosen the only defendant that she could pursue but she has chosen one who is liable and against whom she was entitled to bring proceedings.[43]I turn now to the extent of Miss Gale’s responsibility for what happened as a consequence of the joint enterprise. Mr Jones argues that notwithstanding the finding that she was unaware of the possible use of a knife, her liability extends to the consequences of its use, namely Mr Shah’s death. This is because intended consequences are never too remote, that it was reasonably foreseeable that in “beating up” Mr Ismaili serious injury likely to result in hospitalisation would be caused and that weapons had been used in the earlier incidents (not least the bat or iron bar used by Mr Ismaili to damage Hilton’s car). He submits that there is no break in the chain of causation.[44]If Miss Gale had intended Mr Ismaili’s death, I would accept that the mechanism whereby it was achieved would be irrelevant: as I find, however, she did not. The analogy suggested by Mr Jones (that liability would be established for an injury even if more extensive than anticipated) is simply not apposite. That injury graver than foreseen has ensued is irrelevant if the act that caused the injury was intended and the injuries are of a type reasonably foreseeable. Thus, in this case, if the victim (whether Mr Ismaili or Mr Shah) had been punched so as to fall, strike his head and suffer fatal injury as a consequence, Miss Gale would be responsible in law for the death notwithstanding that she had no idea that such an outcome was possible. That is not what happened.[45]The use of a weapon undoubtedly changes the situation and I recognise that, assuming Miss Gale visualised an attack with some weapon such as a bat or bar, if the attack with the knife was not fundamentally different from an attack with that weapon, her responsibility remains: that would be the position in the criminal law (see R. v. Powell, R. v. English [1999] 1 AC 1) and whether it is articulated as being a consideration of the extent of the common enterprise or a break in the chain of causation, I see no reason for the civil law to be any different.[46]Mr Jones argued that in the same way that a tortfeasor must take his victim as he finds him, so, in the case of intentional torts, he must take his joint tortfeasor as he found him. Mr Jones goes on that a gang of thugs could sally forth armed with little more than fists and their boots but were still more than capable of killing a man and relies upon the observation of Jordan CJ in Dougherty v. Chandler (1946) 46 SR (NSW) 370 at page 375 in these terms:
“If a number of persons jointly participate in the commission of a tort, each is responsible, jointly with the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of his participation.”
This dictum does not support the proposition that a tortfeasor must take a joint tortfeasor as he finds him (and I know of none that does). Neither does it deal with the liability of a tortfeasor for acts committed outside the joint enterprise or common purpose. It does no more than make clear the extent of the liability for the tort in which the tortfeasor joins and thus does not advance the analysis.[47]Although not decisive (for the reasons relating to the standard of proof which I have given) it is relevant that no allegation was even made that either Samantha Easton or Miss Gale was party to a joint enterprise that visualised the use of a weapon of a type not fundamentally different to a knife: had it been otherwise, both would have faced an allegation of murder. In that regard, it is significant that the pathologist makes it clear that the predominant injuries suffered by Mr Shah were substantial stab and knife wounds: his attacker effectively immediately embarked upon a savage assault from which he tried to defend himself. It is not suggested that an attack of that type or ferocity was ever visualised.[48]Further, although Mr Ismaili had used a weapon on the car (although precisely how much Miss Gale was aware of the precise detail is not entirely clear) and a radio might have been involved when the bouncers struck him the previous day, she knew both Mark Young and Paul Hilton and, even on the balance of probability, I am not prepared to conclude that she visualised the use of any weapon of the type that Jason Grant did use let alone the manner in which he used it.[49]In the circumstances, I am not prepared to hold that the joint enterprise that I have found to involve Miss Gale extended to such extent as renders her liable for the knife attack upon Mr Shah that led to his death. I recognise, of course, that had Miss Gale not pointed out his home as that of Mr Ismaili, his home would not have been entered and she is responsible for that undoubtedly unlawful entry and for putting him in fear of being subject to the use of force but the knife attack that followed was, on the balance of probability, outside any joint enterprise to which she was a part. Putting it another way, I agree that, but for her conduct, Mr Shah would not have lost his life; that is not the same, however, as saying that Miss Gale is responsible in law for that tragedy.[50]On the basis that I was not prepared to accept that Miss Gale was a joint tortfeasor so as to render her liable for the entry into Mr Shah’s home and the assault upon him, Mr Jones advanced an alternative cause of action in conspiracy. He submitted that although he could find no example outside the economic torts, there was no objection in principle to tortious liability for conspiracy to assault and batter. In the light of my findings, I do not have to consider this submission but note only that in the absence of loss arising out of the unlawful agreement itself, it is difficult to see how an actionable tort is sustainable.

Damages

[51]For reasons that are not clear, the claim is confined to general and aggravated damages. In his opening submissions, and said to be for the avoidance of doubt, it was made clear that damages “in respect of personal injuries per se” were not sought. Mr Jones argues that damages for tortious assault and battery are similar to but a separate head from damages for pain suffering and loss of amenity recognising that this “may appear intellectually dishonest as the degree of (foreseeable) violence deployed will inevitably affect the degree of pain etc. suffered”. I say at once that I consider this exercise entirely artificial notwithstanding that in any event, in the circumstances of this defendant’s involvement in this tort, damages for pain suffering and loss of amenity would only fall to be awarded for the bruising etc.[52]I accept that damages for the tort of assault (which need be no more than an overt act indicating an immediate intention to commit a battery) and for a battery consisting of a touching can be awarded absent injury. The matter is put in McGregor on Damages, 17th edn in this way (at paragraph 37.001):
“In so far as an assault and battery results in physical injury to the claimant the damages will be calculated as in any other action for personal injury. However, beyond this, the tort of assault affords protection from the insult which may arise from interference with the person. Thus a further important head of damage is the injury to feelings i.e. the indignity, mental suffering, disgrace and humiliation that may be caused.”
[53]It is obviously important to ensure that these damages do not run out of line with the size of damages awarded for personal injury and, in my judgment, subject to aggravation, they will sound only at a modest level. An example of such a case is Pelling v. Johnson [2004] EWHC 492 (QB) in which for a trivial technical assault by a High Court Tipstaff in purported but misconceived performance of his duty, I awarded £50 which, on application for leave to appeal ([2004] EWCA Civ 601), Tuckey LJ considered the most that could be expected.[54]I accept that this assault (entering the home of Mr Shah at night in what must have been a terrifying manner obviously intending to inflict injury) is far more serious than that but neither counsel has been able to provide any example of an award doubtless because these circumstances (where there is no claim for personal injuries) will simply not have arisen. When I pressed Mr Jones for an indication of the size of the award he submitted should flow, he was extremely reluctant to condescend to detail but submitted that it should be equivalent to the decision in Griffiths v. Williams, The Times, 24th November 1995 in which a jury award of £50,000 by way of general and aggravated damages was upheld by the Court of Appeal for the tort of assault which took the form of rape. That The Times report did not seek to break down the sum, but merely indicated that it was impossible to say that such an award was out of all proportion to what was appropriate did not, in his view, mean that it did not provide guidance.[55]Having now seen a transcript of the Court of Appeal decision, it is apparent that the damages covered serious psychiatric injury, such that four years thereafter, the victim was still receiving counselling. The aggravating features (breach of trust by a landlord and former employer, three years’ harassment leading to the need for an injunction and the way in which the defence was conducted) all justified a high award. Each of the judges expressed varying measures of concern about the award but upsetting an award of damages by a jury would then have required a retrial. I do not find this case to be of help.[56]I am required to compensate Mr Shah’s estate for the physical discomfort, distress and inconvenience of the assault committed in the very short space of time between the moment when his home was unlawfully entered and the knife attack without any reference to personal injury. Even making allowance for the terrifying features to which I have referred, I cannot put a figure on this small element of the attack in a sum greater than £750 and that is the sum I award.[57]Mr Jones also claims aggravated damages. This head of award is intended to provide a Claimant with additional compensation where there are aggravating features of the case such that the basic award would not be sufficient compensation. Aggravating features, which relate to the initial incident, can include malicious or oppressive behaviour or behaviour of a high-handed, insulting, malicious or autocratic manner. It can include the way in which the litigation has been conducted. In Appleton v. Garrett [1996] 5 PIQR P1, Dyson J adopted a summary provided by the Law Commission in these terms (paragraph 3.3):
“In Rookes v. Barnard, Lord Devlin said that aggravated awards were appropriate where the manner in which the wrong was committed was such as to injure the plaintiff’s proper feelings of pride and dignity and gave rise to humiliation, distress, insult and pain. Examples of the sort of conduct which would lead to these forms of intangible loss were conduct which was offensive or which was accompanied by malevolence, spite, malice, insolence or arrogance. In other words the type of conduct which had previously been regarded as capable of sustaining a punitive award. It would therefore seem that there are two elements relevant to the availability of an aggravated award, first, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong and second, intangible loss suffered as a result by the plaintiff, that is injury to personality.”
[58]Because he was immediately murdered, there is no scope for injury to personality but it is difficult to think of behaviour which is more serious than the attack upon Mr Shah’s home. I have no doubt that an award is justified although I must bear in mind the observation of Woolf J in W v. Meah [1986] 1 All ER 935 at 942d in rape cases that the award of aggravated damages “must be moderate” and his later comment in relation to police cases (when Lord Woolf MR) in Thompson v. Commissioner of Police of the Metropolis [1998] QB 498 (at 516F):
“In the ordinary way … we would not expect the aggravated damages to be as much as twice the basic damages except where, on the particular facts, the basic damages are modest. … [T]he total figure for basic and aggravated damages should not exceed … fair compensation for the injury which the plaintiff has suffered. … [I]f aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.”
[59]It is important to underline that these aggravated damages are not being awarded in respect of the murder of Mr Shah but only for the circumstances in which he was assaulted and no more. Nevertheless, when Lord Woolf MR expressed the view that the aggravated element should not be as much as twice the basic damages except where the latter are modest, he was considering actions against the police in which comparatively substantial basic awards would also be made. Notwithstanding that this incident was over very quickly, having regard to all the circumstances, I award £2,000. Thus, my total award for the assault alone is £2,750.

Contribution

[60]In Part 20 proceedings, pursuant to the provisions of the Civil Liability (Contribution) Act 1978, Miss Gale seeks an indemnity or contribution as joint tortfeasors from each of those convicted of offences arising out of this incident. In the circumstances, I must determine the extent of contribution that is just and equitable having regard to the extent of that person’s responsibility for the damage in question (see section 2(1) of the 1978 Act). I must have regard both to the extent to which each tortfeasor caused the damage and their relative culpability.[61]I do not consider that it is appropriate to order a complete indemnity. Had Miss Gale not pointed out Mr Shah’s house, none of the incidents that followed would have occurred or, at least, would have occurred to him. On the other hand, she did not go to the house herself. In the circumstances, I order a contribution amounting to 80% of the damages although Miss Gale must appreciate that this does not mean that the Claimant is not entitled to look to her for the full sum leaving her to such rights of recovery from the others as she can maintain.[62]In the light of the fact that each of the other tortfeasors has been debarred from defending, it does not seem to me to be appropriate to apportion between them and I do not do so.

Conclusion

[63]Mr Naresh Shah’s death followed from a wicked and brutal attack carried out by a man with a knife who, rightly, is now serving a sentence of life imprisonment. This case has been about the responsibility of the 22 year old woman who, incredibly stupidly, pointed to his house as the home of a man whom others wished to attack. In my judgment, by agreeing to do so, she lent herself to a joint enterprise to inflict injury on whoever was attacked and she is responsible in tort for that. I am not satisfied, however, that her highly reprehensible conduct makes her responsible in law for the use, outside the joint enterprise, of a knife let alone the use of a knife to cause fatal injuries.[64]It must be appreciated by anyone concerned with this case that the damages that I award, extremely modest in amount, are not in any way related to the loss of Mr Shah’s life. Damages for personal injury have not been sought and, in any event, damages reflecting the consequences of his death do not arise. They reflect only the very short time when one or more men entered his home and put him in fear of being attacked; this is the only element of this terrible incident that falls for my consideration.[65]I end by expressing the hope that, now that this matter has been ventilated in court, the Shah family can achieve a measure of peace and start to rebuild their lives.

Cited in 15 later judgments

and 6 more of the most senior