Flint v Tittenso & Anor (Rev 1) [2015] EWHC 466 (QB)

[2015] EWHC 466 (QB)Case No HQ13X03870
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/02/2015
Before
MR JUSTICE EDIS
Between
OLIVER FLINTClaimant(1) ELLIOTT TITTENSORDefendants(2) MOTOR INSURERS BUREAUDefendant
Andrew Roy (instructed by Osbornes Solicitors LLP) for ClaimantWilliam Norris, Q.C (instructed by Steele Ford & Newton) for First DefendantTimothy Horlock, Q.C.(instructed by Weightmans) for Second DefendantHearing Hearing dates: 17th, 18th & 19th February 2015
JudgmentMr. Justice Edis:
[1]This claim arises out of an incident which occurred on the 15th August 2010 at around 0145 outside McDonalds on the corner of Kentish Town Road and Holmes Road, London. As a result of the incident, the claimant sustained very serious injuries. This is the trial of liability only and it is not necessary to describe those injuries in detail because I accept the submission of the defendants that they do not assist in deciding any relevant issue on liability. The claimant sustained serious head injuries when he was thrown from the bonnet of a moving car. The extent of those injuries does not, on the evidence, assist in deciding how fast the car was moving or any other relevant issue.[2]On the 19th February 2015 I announced that there would be judgment for the claimant and that I would hand down a written judgment giving reasons. These are my reasons.[3]The first defendant is an actor and in August 2010 was in a relationship with Kaya Scodelario, an actor from the television series Skins. The first defendant is an actor best known for the television series Shameless. Immediately before the incident occurred, the claimant was a pedestrian and the first defendant was in his car, a BMW Z4. Ms. Scodelario was in or about to enter McDonalds. The first defendant had parked outside McDonalds, having stopped so that she could get out and go in. The first defendant’s car was not insured at the time of the incident, which is why the MIB is a party to the proceedings. I am not asked to resolve any issue between the defendants, who have essentially advanced the same case.[4]The circumstances of the incident are disputed. The claimant’s case is that he had been out with his friends and family at a bowling alley. At one point he became separated from the group. His mobile telephone had run out battery. He had his SIM card which would work in other phones using the same network if they were charged, and he wanted to ring his cousin so he could go to his address which he had forgotten. He therefore sought to borrow a telephone from several people. He went into McDonalds and recognised Miss Scodelario and there was an encounter between them. He had no luck in McDonalds and so approached the first defendant, sitting in his car outside McDonalds, and asked if he could use his mobile telephone. The first defendant refused in aggressive terms. The claimant then walked away. After a further unsuccessful attempt to borrow a telephone elsewhere, the claimant returned and asked the first defendant again. The first defendant again refused, swearing at the claimant. The claimant responded by swearing back and slamming his hand on the car bonnet. The first defendant then drove forward towards the claimant. This caused him to hit the claimant with the front of his car, forcing the claimant onto the bonnet. He then reversed, and drove forward again. The claimant alleges that the first defendant continued to drive forward whilst shaking the wheel to throw him off the bonnet, and succeeded in throwing him violently and heavily onto the ground. The first defendant then fled the scene.[5]The first defendant’s case by contrast is that he was out with his then girlfriend. He parked outside McDonalds and waited in the car whilst Ms Scodelario went inside. The claimant approached him in an aggressive manner. The first defendant ignored him, pulling down his hat and avoiding eye contact. The claimant walked away and then turned back and walked in front of the vehicle. The claimant aggressively challenged the first defendant to get out of the car. The first defendant gestured for him to move. The claimant continued to shout and punched the vehicle bonnet. Among other things, he shouted “get out of the fucking car”. He also spread his arms wide. The first defendant reversed at which point the claimant advanced and again punched the bonnet again. At times when he was approaching the car, the claimant put his hand down the front of his trousers causing the first defendant to believe that he had a knife. The first defendant edged forward without making contact with the claimant. This movement was intended to shepherd the claimant out of the way. The claimant then leant forward and climbed onto the bonnet and began punching the windscreen whilst holding onto the lip of the bonnet. He was screaming abuse and pulling at the windscreen wiper. The first defendant says that he thought the claimant was trying to get through the windscreen and that he was in fear that he would be killed. The first defendant then reversed before driving forwards in first gear and turning the wheel slightly from side to side to dislodge the claimant. The first defendant did not want to stop at the scene in case the claimant attacked him. He therefore agrees that he left the scene, albeit doing a u-turn briefly to pass by again. He voluntarily attended Holloway Police Station at 0312 the same morning. The first defendant relies on the fact that the claimant, who suffers from attention deficit hyperactivity disorder (ADHD), has a history of aggressive behaviour and had been drinking.[6]The claimant’s case is that, in law, the first defendant’s conduct amounted to an unlawful trespass or trespasses to the person, and that the impact with the claimant which caused him to go on to the bonnet of the car was deliberate or at least reckless. It is agreed that the action of the first defendant in driving away and using the steering wheel to cause the claimant to fall from the car was deliberate. The first defendant’s response is that on the facts as he alleges them to be he was entitled to use some force to remove the claimant from the bonnet of his car, which is the only act directed towards the claimant which occurred. He says he acted in genuine and reasonable fear and panic. He further relies on two defences usually expressed by latin tags:
“volenti non fit iniuria” and “ex turpi causa non oritur actio”
. These, in different ways, also rely on the conduct of the claimant as a bar to his claim. The second defendant has served a defence in identical terms.[7]The claimant also puts his case in his Skeleton Argument on an alternative basis. He relies on the agreement that the claimant was, at one point, being carried some distance on the bonnet of the first defendant’s car when the first defendant manoeuvred it to cause him to fall on to the road. He did fall on to the road and it was this fall which caused his injuries. The claimant contends that this use of force was a battery, which was disproportionate to any threat which the claimant might have posed to the driver of the car. In other words he claims to be entitled to succeed even if the first defendant is right about the circumstances which led to him being on the bonnet of the car.[8]A case of this kind may often be resolved by the outcome of criminal proceedings. In this case the only criminal charge brought was an allegation against the first defendant of driving without insurance. He was fined £750 and 6 penalty points were imposed. He says that he thought that he was insured and did not realise that his policy had expired on the anniversary of its last renewal, rather than of the date during its currency when he acquired the BMW. He had informed his insurers of that acquisition and they charged him an additional premium which he thought was for a new 12 month term rather than an extra premium for the original term of his policy. That explanation is not, legally or morally, an excuse for the offence, because drivers are supposed to take care to ensure that they understand their policies and ask questions if they do not. It is their responsibility to make certain that they are insured. However, the basis of conviction means that the first defendant did not deliberately decide to drive while uninsured and this conviction does not assist me in resolving the factual issues which arise and I shall ignore it. The police and the Crown Prosecution Service did consider prosecuting the first defendant for attempted murder, grievous bodily harm and dangerous driving. The Crown Prosecution Service decided not to bring any charge of violence against him because they considered, on their analysis of the evidence, that there was insufficient evidence to rebut a defence of self-defence. For the same reason, no charge of dangerous driving could be sustained because there was insufficient evidence to rebut a defence of duress of circumstances. Of course, in a criminal trial a conviction could only follow if the prosecution proved to the criminal standard that these defences did not apply. I have read the Review Notes which are in the Bundle which record this decision. In the end, it is my evaluation of the evidence which will determine the outcome of this action, and not that of the CPS considering the papers only and applying the criminal law.

THE EVIDENCE

[9]Investigations into CCTV in the vicinity were carried out by the police but were inconclusive. Therefore, in resolving the factual issues between the protagonists in this incident, it is necessary to look at the independent witness evidence, and the inherent probability or otherwise of the rival accounts and any inconsistencies or other reasons to prefer one account to the other. Three independent eye witnesses were identified and spoken to by the police. One of them is out of the country and I read his statement. I have regard to the fact that he has not given oral evidence and been cross-examined in assessing the weight his evidence should be given. He was the driver of a car in which two witnesses from whom I heard oral evidence, Abraham Akhi and Alomgir Miah were passengers. Mr. Akhi was in the rear seat and Mr. Miah in the front seat. Their car turned left into Kentish Town Road from Holmes Road, and thus passed the BMW which was parked outside McDonalds which is on the junction of Holmes Road and Kentish Town Road. The witnesses’ car was intending to turn right from Kentish Town Road into Islip Street. They therefore passed the BMW which was to their left and moved into the centre of the road to make that right turn. This meant that when the BMW moved forward with the Claimant on the bonnet, it passed them on their nearside and at very close quarters. Some of the incident occurred after they had passed the BMW and thus Mr. Akhi would be the closest to it. They were entirely independent witnesses and the passengers went at once to the aid of the Claimant and summoned help for him. I also accept that the driver tried to follow the first defendant and that he did get his registration number. This exemplary conduct means that there is no reason to disregard the written evidence of the driver, Mr. Hasnath Tarafder, which was quite obviously given in a genuine attempt to assist the police in their enquiry. Where a trial happens 4½ years after an incident, as here, the contemporary written statements are extremely valuable evidence. The three occupants of this car were on their way back from the Mosque during Ramadan and were not in any way affected by alcohol. In these circumstances I accord substantial weight to the written police statement of Mr. Tarafder. The two passengers in his car who gave oral evidence both made the obvious point that the incident happened a long time ago and that it was fresher in their minds when they made their statements to the police. They essentially stuck to their accounts, but each sensibly accepted that other accounts may possibly be right. In view of submissions by the defendants as to the impact of that concession, it is important to record that it occurred when they were asked to consider a different account, and said (in summary) that it is possible that the other account is right but that is not how they saw the matter. No doubt Mr. Tarafder, if cross-examined, would have said something similar which would not have greatly affected the weight to be given to what he said in his original statement.[10]Abrahim Akhi gave evidence before me. He saw the entire incident from when the time when the claimant stuck the car bonnet with his hand. His initial account at the scene (recorded by the police who attended) was:
“I saw a male thumping his fist on the bonet (sic). The vehicle drove forwards towards HIGHGATE ROAD [‘The male got on the bonet (sic)’ crossed through, continuation says ‘and took the male on the front of the bonnet with him’]... and the vehicle reversed. The vehicle drove towards HIGHGATE ROAD at speed. The male fell of (sic) the bonet (sic) and onto the pavement.”
[11]Mr Akhi made a more detailed statement to the police on the same day. His statement for these proceedings is in very similar terms. The police statement says:
“The male appeared angry … he may have been shouting … I saw the male bang his fists down on the bonnet of the car... then I saw the car lurch forward almost instantly about 2 or 3 feet at least, the male appeared to jump onto the bonnet to avoid being run over. The male grabbed hold to (sic) the front of the bonnet in the area where the window wipers are situated. At this point our car was now past the BMW and was travelling up Kentish Town Road towards Islip Street. I was now looking out of the rear windscreen. Almost as soon as the male was on the bonnet of the car the BMV (sic) reversed at speed approximately 20 feet back down Kentish Town Road... The BMW came to a sudden stop and then immediately forward. The male was clinging onto the bonnet of the car. When the car went forward it accelerated very quickly, he floored it, he did not slow down the car then swerved to the right and then to the left. .. as the BMW was level with our car the male could no longer hold onto the bonnet and fell onto the road … the BMW continued up Kentish Town Road still accelerating … Approximately 30 seconds later I saw the same car come back down Kentish Town Road ... travelling at high speed … I found the incident quite merciless, the driver did not slow down at any time to give the male a chance to get off the bonnet of the car.”
[12]Mr Akhi thus, whilst confirming the claimant’s aggression in striking the bonnet, gives a vivid and compelling account of violent driving on the first defendant’s part. In his oral evidence, he told me that the claimant had been angry and threatening although he could not hear anything being said. He said that he saw him hit the car at least once while he was standing up but denied that he had struck the car at all while he was on the bonnet. His evidence about that was very vivid. He described the claimant clutching on, and losing his grip with one hand and trying to recover it. He said that he looked terrified. He said that the first forward movement of the car was what caused the claimant to dive or lean on to it to avoid getting his legs broken. After that everything moved so fast that the claimant had no opportunity to get off the car. That was because the car was only stationary before and after the reversing movement for a very brief time. He said that when the BMW finally moved forward it did so at speed, he explained that it was a very powerful sports car and the driver had, he said, floored the accelerator. In view of the first defendant’s evidence about his movements after the incident it is important to record that Mr. Akhi said that he and Mr. Miah got out of the car at once which stopped so that they could do so before moving off. They went straight to help the claimant and must therefore have been there when the first defendant, as he did, did a U-turn further up the road and drove back past the scene before turning left into Caversham Road. The first defendant told me that when he drove past he saw the Claimant lying on the side of the road, not moving, but said that he did not see anyone else. This was the first time the first defendant had ever said this, having suggested previously that when he left the scene he still feared that the claimant (who may have been armed) represented a threat of serious violence to him and Ms. Scodelario. If, as was plainly the case, he had in fact seen the claimant immobile on the pavement being helped by passers by that earlier account of his state of mind when he finally left the scene was untrue.[13]Hasnath Trafadar was driving the vehicle in which Mr Akhi was a passenger. His first account was to this effect:
“The victim using both his hands & thumping the bonnet. the suspect then drove at the victim striking him, the suspect then reversed about 20 yards and drove directly at the victim hitting him and & launching him through the air where he landed O/S ICELAND” “I saw a male get hit by vehicle with speed the male was on top of the bonnet. Male fell on pavement.”
[14]His more detailed statement to the police given the same date expands on this as follows:
“He was in front of the bonnet and on the drivers (sic) side ... [he] looked as if he was talking to the driver... I went a little passed (sic) the car... when I heard a very loud bang, that shocked me. I stopped my car immediately where I was and looked round. I then saw the grey sports car reversing with the white tall man still stood in the middle of the road. The grey sports car was only about a metre away from the back of my car, I had a very good view of the other car ... I saw the car reverse about 15 feet and then within seconds he had driven forward, I believe driven at the white tall man who was still standing in the road, the driver of the sports car drove very quickly straight at the man in the road and hit him. The white tall man went straight onto the bonnet of the grey sports car and was carried on the car about 20-25 feet where the driver then did an ‘emergency’ brake and the white tall man fell off the car and onto the pavement just before Iceland. As the driver drove with the man on the car he was driving very roughly from side to side … I followed him to try and get his number plate …he tried to reverse into my car as he performed a u turn. I was scared at this point, I thought he was going to hit me.”
[15]Mr Trafadar’s evidence is therefore also clear in its description of the First Defendant’s aggressive and dangerous driving. There are differences in the accounts given by all three occupants of his car and Mr. Miah told me that they discussed this that same night and realised that they all had different recollections of what had happened. This is not surprising. It was a fast moving incident and none of them had expected to see anything of the kind.[16]Alomgir Miah was the front seat passenger in the car. His initial account was as follows:
“I heard a commotion and turned round and saw the victim hit the bonnet of a BMW with his hand then the victim jumped onto the bonnet and then the BMW drove forward with the victim on the car then the BMW did a manouevre (sic) and the victim fell off the car. The BMW drove off.”
[17]In his statement to the police on 27 August 2010 he said:
“… I heard a loud bang; I turned around in my seat ... I could see the same white male banging his hands down onto the bonnet of the BMW... The next thing that I saw is this BMW reverse and in my opinion it looked like the driver was trying to get away from the white male but then the white male jumped onto the bonnet of the BMW and held on... His face was up close to the windscreen of the car and he was looking right at the driver. The BMW then shuddered forward a very short distance but the white male still did not get off the car and continued to hang on. The BMW then drove forward and passed our car; I saw it turn sharply to the left and right and then I saw the white male fall from the bonnet of the car … I would estimate that the BMW was travelling at 20mph when the male fell off the car.”
[18]It might be said that Mr Miah’s account is more supportive of the first defendant’s than that of either other occupant of that car. The claimant suggests that the first defendant’s account has been tailored to adopt as far as possible Mr Miah’s. It is at this point that the “No Comment” interview which the first defendant first gave becomes important to the claimant’s submission. The point is made that by the time the first defendant’s account was first given to the police, Mr Miah’s account had been disclosed to him. I shall return to this when I analyse his evidence.[19]However, whilst Mr Miah is the independent witness most favourable to the first defendant, there are limits to the assistance which he can derive from his evidence. Mr Miah contradicts the first defendant’s contentions that he drove forward in first gear at no more than 10mph and only moved the steering slightly to dislodge the claimant. He describes it turning sharply to the left and right while travelling at 20 miles per hour. Importantly, none of the three occupants of the car saw the man on the bonnet punching the windscreen at any time. Mr. Miah’s expression in his statement is that he “continued to hang on”.[20]I approach all these witnesses as witnesses who were genuinely trying to help and the differences between them simply mean that the court must be careful in trying to reconstruct every moment of the very short incident which this case involves. Mr. Akhi and Mr. Miah both struck me as obviously truthful and sensible witnesses when they gave their evidence in the witness box.[21]I cannot say the same about either the claimant or the first defendant. I do not believe that the claimant has told me the truth about how this incident started. His account is that he went into McDonalds and saw Ms. Scodelario and called out “Effy”, which is the name of the character she plays in Skins. He said that he had intended to ask her if he could use her phone but because she ignored him he did not do this, thinking that she thought that she was better than him because she was famous. In his witness statement for these proceedings he said that he did ask her for her phone, but he changed that at the time when he said that it was otherwise true at the start of his evidence. She recalls an incident in McDonalds when he was behaving boorishly, and seemed drunk. I accept her account, which I shall return to. He then went outside and asked the first defendant who told him to “fuck off”, because he did not have time to lend him his phone. He went off to ask other people and then returned to the first defendant who was still there. He said that he obviously did have time to lend him his phone because he was still there, and asked him again to do so. The claimant denied that he was drunk and annoyed and said that he was civil throughout. This is the part which I do not accept. I find he was annoyed by Ms. Scodelario (he came near to accepting this) and went out to accost her partner whose car she had just got out of. I find that he was drunk. He has a conviction for possession of an offensive weapon and for drunk and disorderly, and a medical history of anger and violence within the home and at school. I accept his evidence that he has grown up a lot since then, but I think that his evening had not turned out as he had wanted it to, and he was becoming annoyed by the refusal or inability of people to help him by letting him use their phones. He did not know his cousin’s number and the only way of making a call was to use his own SIM card. He had forgotten his cousin’s address and he could not go where he had decided to go without making that call. Although generally he has indeed grown up into a more balanced young man this series of events, at the age of 18, was enough to trigger an outburst of anger towards Mr. Tittensor when he would not do as he was asked. This is why he banged his fist on the bonnet of the car, at least once, and I am also sure that he was shouting and swearing at him. Therefore, I find, on the civil standard, that when this incident started the claimant was committing the criminal offences of being drunk and disorderly in a public place and criminal damage to the car. He was also committing an offence under the Public Order Act, but probably not one as serious as affray. He was thus behaving in such a way that Mr. Tittensor might reasonably have believed that he posed a threat of some physical harm to him, at least if he got out of his car. To his credit the claimant has accepted banging the car with his fist, but not the whole truth of his conduct. There are some discrepancies between what the claimant says now and what he has said to doctors for the purposes of this litigation. These reinforce my rejection of his evidence of the events which caused him to be on the bonnet of the car, but my findings about what happened after he struck the bonnet are not based on his evidence, but that of independent eye witnesses.[22]The evidence of the first defendant is even less satisfactory. I reject his account, except where it is supported by the other evidence in the case. I found his repeated self-justification when asked simple factual questions unimpressive and that he deliberately, perhaps even dramatically, overstated the effect on him of the claimant’s behaviour and tried to hide the truth of his own response to it. It is obvious that at the moment when he decided to drive forwards at speed with the claimant clinging to his bonnet and to swerve so that he would be thrown off the claimant was in much more danger than he was. He told me that at that time he was not thinking of the claimant’s safety at all, because he was so frightened for his own. I have referred already to his evidence that after the incident he drove away, up the road, and then turned round and drove past the claimant who was lying on the pavement, not moving. It is inevitable in the circumstances that he would take a close interest in what had happened. This explains his remarks to Ms. Scodelario later when he said that he thought he had killed someone. After a brief discussion on the phone with Paige Holliday (see below), this was his first account of what had happened and was given within 1 hour of the event. She recorded it in a witness statement dated the 15th August 2010, on the same day. She also said that he told her that he had seen the claimant harassing her in McDonalds which he now says is not true. He says that he did not say these things and she has therefore misunderstood his account to her. At one point he suggested that Londoners often have trouble understanding him because of his Mancunian accent. I regret to say that I find this evidence absurd. He is perfectly intelligible. I shall deal with what she said about this conversation in oral evidence below, but her witness statement could not be clearer. Plainly, in that first account he was accepting that he knew at the time of the incident that the man had been seriously injured, which means that his subsequent movements are not explicable by any continuing fear of a threat either to him or to Ms. Scodelario from the claimant. He says, despite this, that after driving past the claimant he turned into Caversham Road and chose a place to park where he could see McDonalds (to find Ms. Scodelario) but not be seen from the place further up to the road where the claimant and those attending him were. This piece of evidence means that at this time he was thinking clearly and that he was not worried about any threat to her from the claimant. Otherwise he would have wanted to keep the claimant in his sight and would, on his own account, have rung the police to ensure her safety. He told me that he thought the claimant had a knife. She was not to be seen, so he left. He then rang her friend Paige Holliday to ask her to find Ms. Scodelario. He did not tell her that he thought she was in any danger, which is very strange if, as he now says, that was his state of mind. Having spoken to Ms. Scodelario first at the flat, they then made contact with Paige Holliday and her mother, who drove them all to the police station. He there gave an account to a police officer (SPCSO Leanne Gumm) which she wrote down in a statement she made on the same day. This is also different in important respects from his evidence to me, which again he attributes to the failure by the officer to understand what he was saying and to write it down accurately. His evidence therefore involves the assertion that within a couple of hours of the incident he was misunderstood in important respects by two different people on two different occasions. Yet each of them has accurately remembered the substance of what he was saying, namely that the claimant had punched his car causing him fear and panic and that he acted in self-defence. He told the police officer that while the claimant was on his bonnet, punching the windscreen, he had:
“looked for his mobile phone to call his girlfriend, but his mobile phone no longer had any battery left to call anyone and he also noticed his girlfriend’s mobile was also in the vehicle, so in a panic he reversed the vehicle with the male still lying on the front bonnet. Elliott stated that the male fell of the vehicle and because he was in shock Elliott drove off from the scene immediately.”
[23]He now denies that he looked for any mobile during the incident. He does, however, accept that his own phone had run out of power and Ms. Scodelario had left hers in the car. PC Gumm has not, therefore, invented this conversation. He also denies that the claimant fell off his car while it was reversing, and now accepts driving forward and deliberately dislodging him. These were, I find, deliberate attempts at self-justification before he had seen the independent evidence. He has jettisoned his suggestion that while under ferocious and life threatening attack he looked for his mobile phone to call his girlfriend. He has realised that it undermines his evidence about the nature of the attack and its effect on him. It sounds rather unlikely, so it has disappeared from his account.[24]When interviewed under caution on the day of the incident he produced a prepared statement which raised self defence but gave no detail of the incident. He was interviewed on a second occasion, after disclosure, on the 14th September when he did give an account of what had happened. Because he was cautioned before the first interview and because of the accounts which he gave to Ms. Scodelario and PC Gumm I infer that he did change his account after the 15th August 2010. This is a legitimate inference from the no comment interview itself, but is reinforced by the direct evidence from those two sources, which I accept, that he was saying things that night which are not the same as what he has said since. He told me that he gave his prepared statement and answered “No Comment” because he did not have the advice of the lawyer of his choice. He said in evidence that he thought perhaps that his lawyer at the time, a duty solicitor, may have advised to say “No Comment” until the new lawyer was instructed. There has been no waiver of privilege in the original solicitor’s file. I doubt very much if any competent solicitor would have advised the first defendant to say “No Comment” so that could he could give his account at some later stage. He could not know that the police would be able or willing to conduct a second interview, as they agreed to do in this case. If CCTV evidence had been found which suggested he was guilty of a crime he might have been charged on that day, and no further chance to give his account would have been available. At all events, having given myself the direction usually given to juries about inferences under section 34 of the Criminal Justice and Public Order Act 1994 I think it fair to hold that the account given in the second interview was tailored to fit the disclosed evidence. This conclusion adversely affects his credibility generally, and the cogency of his assertion that he thought that the Claimant may have had a weapon because of the way he was fiddling with his trousers in particular.[25]The evidence of Ms. Scodelario is important. Broadly, I accept what she says and found her to be an impressive and clear thinking witness. This is of particular importance in two respects. The first is the original incident between her and the claimant. She describes him shouting at her in a drunken and intimidating way outside McDonalds and then following her in. The first defendant told me that he parked his car so that he could see into McDonalds to make sure she was safe. I accept her evidence as to this part of the episode. This means that the claimant did not ask her if he could borrow her phone, as he has previously said, and as he now, belatedly accepts. There is evidence from other witnesses that he did want a phone to make contact with his cousin, and I am sure that is true. However, the incident between him and the first defendant did not happen because he wanted to borrow a phone from either of them. The second aspect of her evidence which is important is her account of what he said to her at their flat when they first met after the incident. This is related because the witness statement she made, as I record above, says that he told her that he had seen the incident between her and the claimant outside McDonalds. In her oral evidence she sought to suggest that although she had said that he said this, and also that he said that he thought he had killed the claimant, in fact she did not think that he did. This case has been on her mind for many years and I am sure that she has rationalised her recollection in this respect. She remains close to the first defendant although their relationship is over. She speaks very highly of him as a person and I think she genuinely believes that he is entirely blameless in relation to this incident. However, she is, as I have said, a clear thinking person and she made her statement on the day of the incident while she was trying to set out her account knowing that Mr. Tittensor had been arrested for attempted murder. I am sure that she was extremely keen to ensure that it was accurate and that she therefore accurately set out the conversation. She actually confirmed in evidence that her police statement was true, subject to an unimportant correction, and said that she had read it recently when doing so. It was only when cross-examined by Mr. Roy that she gave this evidence about the conversation which is adverse to his case. In these circumstances I proceed on the basis that her witness statement is true. I also accept her account of the subsequent meetings with the claimant on which he relies to show that she knows him to have been an entirely innocent victim because otherwise she would not talk to him. She made it clear that she was very worried about talking to him and threatened him with the police if he attacked her. It seems that the claimant has a difficulty in seeing himself as others see him. For these reasons, I find that the incident between him and Ms. Scodelario happened outside McDonalds in the way that she said it did. I also find that Mr. Tittensor did tell her that he had seen it. It was a very noisy incident, according to her, and it happened outside the restaurant a few feet from his car. He told me he was watching after her. I find that he did see it because I do not see how he could have missed it. Both the claimant and the first defendant have therefore lied about the start of their confrontation. No-one else knows how or why it started and I find that it was in some way a result of the claimant’s behaviour towards Ms. Scodelario. He had been aggressive and confrontational with her. Both the claimant and the first defendant behaved badly, which is why they have both tried to hide the truth of what happened.

FINDINGS OF FACT

[26]In summary therefore, I find that Mr. Tittensor reacted aggressively to Mr. Flint’s aggressive and confrontational behaviour directed first at Ms. Scodelario and then at him. He had, as he told her, been aware of the incident with Ms. Scodelario outside McDonalds and this had annoyed him. What followed was, I believe, a loutish shouting match in a public street between two young men who were behaving badly. The evidence for this comes from the claimant who, while denying his own part in starting it, does accept, as he puts it in his statement, that they “exchanged insults”. This seems wholly probable to me, except that his choice of language in the statement sanitises this stage of the affair. They were probably jointly involved in an offence under the Public Order Act or at least a breach of the peace. The claimant then struck and damaged the first defendant’s expensive new car. This was a criminal offence of criminal damage. This caused the first defendant to drive forward deliberately towards the claimant who went forward on to the bonnet because otherwise he would have been struck and injured by the car, which was being used as a weapon. I accept the evidence of Mr. Akhi about this and am not surprised that he gave the clearest evidence about this moment which he was able to observe from the back seat of the car through the rear windscreen (see his statement set out at paragraph 11 above). It is true that he accepted that it was possible that the claimant had jumped on the car to attack it, but he quite clearly said that this was not what he thought had happened. Like any sensible witness he was simply accepting the possibility that he might have made a mistake. He certainly did not think that he had done so. He made this clear in re-examination. The first defendant then reversed quickly to try to throw the claimant off, before rapidly changing direction and moving forwards at considerable speed steering sharply, still trying to throw him from the car. At no time during this was the claimant attacking the car or doing anything other than trying to hold on to the moving car to avoid injury. Again, the evidence of the witnesses in the other car, especially Mr. Akhi, justifies this finding. None of them speaks of seeing the claimant attacking the car while he was on the bonnet. It also coincides with the probabilities. It is hard to see how he could have managed to stay on the bonnet as long as he did if he was attacking the car, as opposed to grabbing on to it to try to stay on. The incident started outside McDonalds, the first defendant then reversed a significant distance with the claimant on the bonnet and accelerated quite hard and travelled forward a significant distance before the claimant fell off beside Iceland not very far before the junction with Islip Street. It must have been obvious that when swerving to eject the claimant the car was travelling so fast that serious injury to him was likely when he fell. Its precise speed does not matter, but I accept the evidence of Mr. Akhi and Mr. Miah that the car accelerated hard when it set off forwards, carrying the claimant. I find that this was a use of force which was primarily motivated by anger and a desire to come off best in the altercation. I accept Ms. Scodelario’s evidence that he was in real fear by the time he spoke to her, shaking and crying. As she explained to me his real concern was that the claimant was seriously hurt, or dead. He was frightened at that stage of the consequences for him of what he had done. In that frame of mind he was already telling everyone who would listen that he had acted in self-defence. He did not tell anyone on that day that he had suspected that the claimant was armed with a weapon. He would certainly have done so had that thought actually been in his mind as he now says. Although many people would worry that a young man in a street behaving like the claimant might have a knife, this thought did not in fact occur to Mr. Tittensor. If it had, he would have told Paige Holliday, Ms. Scodelario, PC Gumm and the police in his prepared statement about it. It would have been at the forefront of his mind. If the claimant had had a knife, it would almost certainly have been discovered at the hospital. I find he did not. If there was no knife, his evidence that he saw the claimant reaching into his trousers as if to take hold of it is untrue. I find that the first defendant invented that belief between the first and the second interview when it was mentioned for the first time, one month later. He also told me on more than one occasion that he was in fear for his life while the claimant was on the bonnet of the car. He said he thought he was going to die. That is a very specific statement about a thought which he says was in his mind. I find it very strange that it was not mentioned in terms to the police in the second interview. He told them that he was very scared, that he thought the claimant might have a weapon, and that he might “injure” him, see page 12E of the transcript of the second interview. A belief that one is about to be injured is not the same as a belief that one is about to be killed. I also find it hard to see why he thought he might be killed. When one man is driving a car and the other is being carried on the bonnet, both may be at some risk, but only one of them is in grave and immediate danger of being killed (if no weapons are involved). It is not the driver. The first defendant could see the claimant’s hands and that he did not have a weapon in hand at that stage. In the result, I find that the first defendant has deliberately exaggerated the threat posed by the claimant in order to minimise his responsibility for what happened.[27]Therefore, the claimant has proved, on my findings, that he was injured by the first defendant’s deliberate acts in first driving a very short distance towards him and causing him to “end up on the bonnet”, then secondly carrying him on the bonnet backwards and forwards and finally steering the car causing him to be thrown off the bonnet. The claimant had started the confrontation by his deliberately aggressive conduct and had deliberately and unlawfully damaged the first defendant’s car. He had not, however, behaved in a way which caused the first defendant to fear for his life, or that he was in danger of suffering really serious harm. I shall explain how these findings are decisive of the legal issues as I deal with them.

THE LAW

[28]The legal issues were helpfully summarised by Mr. Horlock QC who appears for the MIB. They were as follows:- i) Has the claimant proved a case in trespass? On this question, the issue is intention and the requirement in this tort for “hostility”. ii) Has the first defendant shown that his actions were lawful in that they were in reasonable self-defence? iii) If the first defendant fails to establish that his conduct was lawful, is the claimant’s claim nevertheless barred because of his own illegal conduct? This is the rule of public policy which is usually described by the Latin maxim ex turpi causa non oritur actio.[29]There was a tension between the submissions of Mr. Norris QC, who appeared for the first defendant, and those of Mr. Horlock in relation to consent. This is raised on the pleadings as volenti non fit iniuria, but I think it is common ground that that is a defence in law to a claim based on breach of duty. Battery is not such a cause of action. Consent in battery does, of course, have a role in defining the tort. It arises in cases where an act has been done in the course of medical treatment which would be unlawful in the absence of consent. It also renders lawful acts of touching in a sporting or sexual context. However, what is involved there is actual consent to what was done. Consent in that sense does not arise on the facts of this case because the claimant did not consent to being driven at in such a way as to cause him to be on the bonnet and, once on the bonnet, did not consent to being thrown off it at speed. The way in which his conduct finds legal expression is in the defences of self-defence and illegality, rather than in a legal fiction which finds consent where there was none. I therefore agree with Mr. Horlock that the role of “consent”, in this case, is a way of expressing the relevance of the consequences of the claimant’s conduct under the third issue, illegality.

ISSUE 1: BATTERY

[30]On my findings of fact the elements of the tort of battery are clearly made out. Driving towards the claimant so as to cause him to end up on the bonnet was a deliberate act aimed at him. Having caused him to be on the bonnet, the first defendant accepts that he drove the car at some speed in such a way as to cause him to fall off it. While doing so, he says, he gave no thought at all to what effect that might have on the safety of the claimant. In Wilson v. Pringle [1987] QB 237 the Court of Appeal said:- “It is the act and not the injury which must be intentional. An intention to injure is not essential to an action for trespass to the person. ”[31]I do not find that the first defendant was so paralysed by fear that he had no control over himself or his car. He deliberately decided to perform the three manoeuvres of which Mr. Akhi spoke, namely lurching towards the claimant suddenly, reversing with him now on the bonnet and then driving forward at speed. In this way he subjected the claimant to force which constitutes the tort of battery unless he can justify it as being lawful and in self defence. Technically, no doubt, it is open to a litigant to contend both that his use of force was unintentional and not hostile, and also that it was justified as a reasonable response to a belief which he reasonably held that it was necessary to protect himself by inflicting force on an assailant, but the two contentions are actually quite inconsistent with each other and it would be very difficult to succeed on both.[32]The element of hostility is generally required to distinguish uninvited physical touching which is acceptable in law from uninvited physical touching which is not. In Wilson v. Pringle the Court of Appeal held that it was a question of fact and observed: “Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact. It may be imported from the circumstances. Take the example of the police officer in Collins v. Wilcock [1984] 1 W.L.R. 1172. She touched the woman deliberately, but without an intention to do more than restrain her temporarily. Nevertheless, she was acting unlawfully and in that way was acting with hostility. She was acting contrary to the woman's legal right not to be physically restrained. We see no more difficulty in establishing what she intended by means of question and answer, or by inference from the surrounding circumstances, than there is in establishing whether an apparently playful blow was struck in anger. The rules of law governing the legality of arrest may require strict application to the facts of appropriate cases, but in the ordinary give and take of everyday life the tribunal of fact should find no difficulty in answering the question "was this, or was it not, a battery?"[33]I find that there is no difficulty in answering that question in this case. The deliberate application of potentially lethal force to this claimant was a battery, unless justified as reasonable self-defence and thus lawful.

ISSUE 2: SELF-DEFENCE

[34]It is common ground that for this defence to succeed the first defendant must prove it on the balance of probabilities. As I shall explain below, it is unnecessary to have recourse to the burden of proof to decide this case. I find the relevant facts to be true on the balance of probabilities wherever the burden lies.[35]I have rejected much of the first defendant’s evidence and the issue is to be addressed on my findings of fact and not on his version of events. Since he was in a car at all times, with the engine running and the doors locked, he was able to evade the claimant without difficulty by reversing away from him and, if necessary, driving around him. Even on his own account it would be difficult to justify driving towards him. In his second interview he described that he did do this in these terms (page 5G-H and 6B-D):
“He sort of moved when I sort of tried to usher, like sort of shepherd him back and say for him to move back, he sort of, he sort of just, this sounds really weird but like from how he’s leant on the car, he just sort of, he didn’t end up on the bonnet….. “He was sort of leant over the car and I tried to shepherd him out of the way, which obviously brought him closer to where the windscreen was then where he, where he grabbed the windscreen and started to punch the windscreen.”
[36]He described therefore seeking to use his car to usher him out of the way. Although he said he drove it very slowly, and had no intention of touching him, he also said that the claimant was very close to the car when this manoeuvre was performed. I have found that in fact he lurched suddenly forward at him as described by Mr. Akhi which caused him to fall on the bonnet. Whether this fall was because of contact or because he deliberately leant on to the bonnet in order to avoid the contact with his legs which was otherwise inevitable does not matter. It was the movement of the car which caused him to be on the bonnet, and it was not a deliberate and criminal movement by the claimant jumping on to the bonnet in order to attack the car and its occupant.[37]The first defendant was not able to explain why he had not simply reversed away from the claimant instead of driving towards him, except by panic. He has exaggerated the conduct of the claimant and that panic it induced. I have found that he did simply drive away from the claimant after he damaged the car, as he could have done, because he was angry with the claimant (understandably) and wanted to get the better of him. I do not believe that driving towards the claimant was a defensive action at all, because the first defendant was not in any physical danger, sitting in a fast car and involved in an altercation with an unarmed pedestrian. If I had found that he did believe that it was necessary to defend himself in order to protect himself from injury, then it would be necessary to decide whether that belief was reasonably held, see Ashley v. Chief Constable of Sussex Police [2008] 1 AC 962. Finally it would be necessary to decide whether the response by the first defendant was reasonable (or proportionate) in all the circumstances. I will answer those questions, although in view of my finding that the force used was not defensive but retaliatory they do not arise.[38]I apply the well-established approach which juries are routinely enjoined to take and which is set out with great clarity in the decision of the Court of Appeal Criminal Division in R v. Keane [2010] EWCA Crim 2514. I remind myself as required by paragraph 5 of the judgment of the court that:
“in a confrontation there is no opportunity for the kind of hindsight or debate which can take place months [or years] afterwards in court. The defendant must act on the instant at any rate in a large number of cases. If he does so, and does no more than seems honestly and instinctively to be necessary, that is itself strong evidence that it was reasonable. It is strong evidence, not conclusive evidence.”
[39]I do not believe that it was reasonable for the first defendant to believe, if he did, that it was necessary for him to use force to defend himself. This is for the same reason that led me to conclude that he did not in fact have that belief, namely that it was obviously not necessary to use force to defend himself. The sensible course was to use the car to withdraw to a safe distance and call the police to deal with the criminal damage and, if necessary, to ensure the safety of Ms. Scodelario. His case on the need to use the car to exert force is really based on his evidence that he feared that his assailant might have a knife. I have rejected that evidence. In the absence of that fear, and in the absence of any physical violence towards him (as opposed to the car) at that stage, the decision to use the car in the way he did escalated the conflict. In these circumstances viewing the matter objectively, but making allowances for decisions taken in the agony of the moment, the use of the car was not a reasonable or proportionate act.[40]The rest of what followed was caused by the decision to drive forwards towards the claimant causing him to be on the bonnet, which was unlawful. In any event, even if he was not on the bonnet because of the unlawful act of the first defendant, the driving of the car so as to accelerate sharply and then cause the claimant to be thrown violently to the ground was not a proportionate response to the threat posed by the claimant. I have rejected the evidence of the first defendant that the claimant was trying to get through the windscreen to kill him. I have accepted the evidence of Mr. Akhi that he was actually hanging on with difficulty trying to avoid being thrown off the car. On the basis that the claimant did end up on the bonnet without any unlawful force by the first defendant, it is necessary to be more sympathetic to the use of some force to persuade him to get off the car. Reversing away would not, in itself, be unlawful. However, the first defendant did not simply do this. When this failed to remove the claimant, he stopped for a very short time which did not allow the claimant to get off the car, before driving forwards at some speed and swerving as I have described above. This was done with the deliberate intention of causing him to fall from a rapidly accelerating motor car, and it succeeded in its aim. This is not reasonable or proportionate. Accordingly, if I had found that the act which resulted in the claimant being on the bonnet was not unlawful battery by the first defendant, I would have held that causing him to be thrown off was.[41]In these circumstances, the defence of self-defence fails.

ISSUE 3: PUBLIC POLICY OR EX TURPI CAUSA

[42]What the claimant did wrong was to behave towards Ms. Scodelario and Mr. Tittensor in a way which was threatening and intimidating. I accept the evidence of both of those witnesses about the start of the incident. This means that he then shouted at the first defendant, and told him “get out of the fucking car”. This was because he appreciated, as did the first defendant, that he could not easily do him any real harm while he was sitting in his car with the doors locked and the engine running. He was drunk and angry with the first defendant and contemplated a violent incident, but he was not armed. He stood in front of the BMW in order to prevent it from leaving so that he could prolong the altercation. When the first defendant showed no sign of getting out, he hit the car at least once and caused it minor damage in the form of a dent. This is the kind of relatively minor criminality which is not uncommon late at night in our cities. It is deplorable and alarming, and can sometimes escalate into more serious violence. In categorising it as I have, I am not condoning it. It is a fact of life which many people unfortunately have to deal with from time to time. A person who behaves in this way may, if there are relevant previous convictions, expect a short custodial sentence.[43]The first defendant, on my findings in these proceedings, was guilty of serious criminal offences. On conviction, even with no previous convictions, a substantial prison sentence would be imposed. This is not really a consequence of the burden of proving self-defence in a civil claim for battery, because I have expressed my primary findings of fact as ones on which I am satisfied on the balance of probabilities. The evaluation of the objective elements of the defence of self-defence is governed by those findings of primary fact. I am not therefore dealing with a case where it is clear that no crime could ever be proved in the criminal court against the first defendant, but where his defence fails in the civil court because of the different burden of proof. I would have found against him on the civil standard wherever the burden of proof had rested. In these circumstances it is appropriate to decide the public policy defence on the facts as I have found them to be. It is not necessary for a party to have been convicted of a crime in a criminal court before the civil court acts on the basis that that party was in fact guilty of that crime. I have read the reasoning of the Crown Prosecution Service in deciding not to prosecute Mr. Tittensor for anything other than driving without insurance. They, of course, approached the issue on the basis that the burden or proving guilt on the criminal standard was on the prosecution throughout. Mr. Tittensor was perhaps fortunate that he had been permitted to give an account of his actions in a second interview after first declining to do so, and the Crown Prosecution Service decided that it would be unable to disprove that account. It therefore considered the case on a very different factual basis from the one I have found to be the case.[44]Vellino v. Chief Constable of the Greater Manchester Police [2002] 1 WLR 218 was a claim by a man who had been negligently allowed to escape from police custody by jumping out of a high window in the presence of the officers who had arrested him. This constituted the common law offence of escape, and his fall caused the injuries for which he sought damages. His claim failed in its entirety because of the application of the rule expressed by the maxim ex turpi causa non oritur actio. Sedley LJ, dissenting in the Court of Appeal, noted the irreconcilable state of the authorities and held that this permitted the court to allow Mr. Vellino to succeed in his claim in negligence but to reduce the damages for contributory negligence. He said that the concluding passage in Sir Murray Stuart-Smith’s judgment in the case (with which Schiemann LJ agreed) was the nearest one can come to a consistent account of the state of the law. That passage reads:
“70 From these authorities I derive the following propositions. (1) The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the defendant. (2) The principle is one of public policy; it is not for the benefit of the defendant. Since if the principle applies, the cause of action does not arise, the defendant's conduct is irrelevant. There is no question of proportionality between the conduct of the claimant and defendant. (3) In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal but relatively trivial, it is in any event difficult to see how it could be integral to the claim. (4) The Law Reform (Contributory Negligence) Act 1945 is not applicable where the claimant's action amounts to a common law crime which does not give rise to liability in tort.”
[45]The approach which commended itself to Sedley LJ is not available in this case which is not an action in negligence but one for battery, see Co-operative Group (CWS) Limited v. Pritchard [2012] QB 320. This claimant must therefore succeed in full or fail entirely.[46]The inconsistent state of the older authorities was addressed by the House of Lords in Gray v. Thames Trains Limited [2009] 1 AC 1339 in which Lord Hoffmann identified the principle which is to be applied in such cases as the present. He called it the “wider principle” to distinguish it from a narrower rule which prevents recovery of damages for losses sustained as a result of a penalty inflicted by a court for criminal offending. His speech contains the following passages which are helpful in the present context: [In paragraph 51] “It differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead, the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct. ………. “54 This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar in the law of torts. It is the same principle by which the law normally holds that even though damage would not have occurred but for a tortious act, the defendant is not liable if the immediate cause was the deliberate act of another individual. Examples of cases falling on one side of the line or the other are given in the judgment of Judge LJ in Cross v Kirkby [2000] CA Transcript No 321. It was Judge LJ, at para 103, who formulated the test of “inextricably linked” which was afterwards adopted by Sir Murray Stuart-Smith in Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218. Other expressions which he approved, at paras 100 and 104, were “an integral part or a necessarily direct consequence” of the unlawful act (Rougier J: see Revill v Newbery [1996] QB 567, 571) and “arises directly ex turpi causa”: Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116, 1134. It might be better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567). ……….[47]This builds on the decisions cited in approaching the application of the public policy defence as a matter of causation. For the purposes of this rule, the test is not the “but for” test, but a search for the real operative cause of the injuries sustained. Was it the crime of the claimant or was it something else? Lord Hoffmann did not need to address the issue in this case, which is: Where the crime of the claimant has provoked, and thereby in one sense caused, a criminal response as a result of which he sustains injury, what test is to be applied?[48]There is some assistance to be derived from a recent decision of the Court of Appeal which considered the application of the new approach to cases where the injury was caused by the criminal act of a partner-in-crime of the claimant in pursuit of a criminal joint enterprise. This is not the same situation as the present, although there is some parallel. In R v. Keane [2010] EWCA Crim 2514 there is a discussion of the legal consequences for the law of self-defence of an event where all concerned are behaving in a criminal way by fighting with each other, see paragraphs 17-19. It is possible to regard this as a criminal joint enterprise, see the discussion in R v. Gnango [2012] 1 AC 827, but this is a rather strained description of a fight. At all events, the applicability of the causation rule in cases of joint enterprise is instructive in the present case. One possibility is that the court may regard the first defendant and the claimant as being involved in an unlawful confrontation and that neither can recover against the other for the foreseeable consequences of the unlawful acts. In other words, the unlawful confrontation in which they were jointly involved would operate in the same way for present purposes as a more conventional kind of joint enterprise.[49]In Joyce v. O’Brien [2014] 1 WLR 70 the Court of Appeal considered a case where the claimant was injured by the dangerous driving of his partner in crime. He was driving dangerously so that they could both escape with some ladders which they had stolen from the place from which they were escaping. The fast driving was part of the joint criminal enterprise, although not something which the claimant had himself directly caused. Elias LJ, giving the judgment of the court:
“28. In my judgment, in the application of the causation principle developed in Gray v Thames Trains Ltd [2009] AC 1339, the courts should recognise the wider public policy considerations which have led them to deny liability in joint enterprise cases. This is compatible with the Lord Hoffmann’s approach. The earlier authorities provide valuable assistance in answering the question when the claimant’s injury will be treated as having been caused by his own conduct notwithstanding that the immediate cause was the act of a partner in crime. They reject what seems to me to be the underlying policy even if the rationale for denying liability must now be cast in terms of causation rather than duty. In my view the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime. This is consistent with the result in Ashton v Turner [1981] QB 157and Pitts v Hunt [1991] 1 QB 24, but it focuses on causation rather than duty. “29. I would formulate the principle as follows: where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise. I do not suggest that this necessarily exhausts situations where the ex turpi principle applies in joint enterprise cases, but I would expect it to cater for the overwhelming majority of cases.”
[50]The defendants in this case rely on this passage to argue that the claimant had created a situation where it was obviously foreseeable that he might suffer some harm and he should therefore be taken to have caused the harm which he suffered.[51]I have held for the purposes of self-defence that the response of the first defendant was not reasonable or proportionate as a response to what the claimant did wrong. It was different in kind from what might have been foreseen by the claimant when he acted as he did. In murder cases the law of joint enterprise, sometimes called parasitic accessory liability, holds all participants guilty of a murder committed in a way which they foresaw might happen, but not if the killer uses a weapon of some fundamentally different kind from that which was the subject of the joint enterprise: see R v. Powell & English [1999] 1 AC 1. Therefore, the criminal law exonerates an accessory of liability where the crime was not foreseeably part of the joint enterprise. Where a person responds to provocation in a way which far exceeds what is reasonable and is a serious crime for that reason, does public policy operate to absolve him from liability for what he has done? It appears to me that any rule of law which operates to excuse serious and unlawful violence to any extent is not one which is obviously justified by public policy.[52]I have cited above Sir Murray Stuart-Smith’s second principle which holds that there is no question of proportionality between the conduct of the claimant and defendant. This has recently been applied by Kenneth Parker J in Beaumont & O’Neill v. Ferrer[2014] EWHC 2398 (QB), [2015] P.I.Q.R. P2. He said this:
“38 I have also considered the issue of “proportionality”
. There is considerable doubt whether the Court should seek to weigh the degree and culpability of the claimant’s criminality against the conduct of the defendant, and to allow a remedy if the Court concluded that the defendant’s conduct was by far the more culpable. Clerk and Lindsell on Torts (20th edn. 2010) at 3–37 sets out powerful objections to the incorporation of “proportionality” in the relevant sense in the public policy underpinned by ex turpi causa , and it appears to me that the recent case of Joyce v O'Brien [2012] EWHC 1324 (QB); [20131 EWCA Civ 546 tends to support the proposition that ‘proportionality’ has ordinarily no role to play. In any event, and for the avoidance of doubt, the Claimants' criminality in this case overwhelmed any fault on the part of the Defendant, and for reasons already stated it would not be disproportionate in the relevant sense to deny compensation.”[53]None of this means, in my judgment, that the court can avoid examining what the claimant did wrong, and what it caused the defendant to do in response. It is necessary to do this in order to decide whether, for the purposes of the causation rule applicable to this public policy defence, the one caused the other. The cases about “proportionality” being irrelevant are not cases which concern two people using unlawful force against each other, but about persons injured in the course of committing crime by the negligence of others.[54]In this case, the law allowed the first defendant a wide margin of latitude in using force to defend himself against unlawful violence. Where his conduct was so far beyond what is acceptable as a response to what the claimant did to him that this defence fails, it would require a very clear justification to dismiss the claim against him on other grounds. It is instructive to ask whether a police officer who dealt with the claimant in the way that Mr. Tittensor did should have a complete defence to the claim for damages. The scope of a general principle which denied claims where the injuries were caused by the criminal and violent conduct of the defendant would require careful consideration to avoid it becoming a contributor to anarchy.[55]The proper approach to causation is in essence to determine whether the injuries were caused by the criminal conduct of the claimant himself, or that of a partner in crime acting within the foreseeable scope of the joint enterprise. He is to be taken to have caused the consequences of his own acts, or those of accomplices who are doing things which he has agreed should be done. In joint crimes of violence where the two parties are by agreement fighting each other unlawfully, the foreseeable consequences of that activity cannot found a claim. A claimant cannot recover for injuries caused by the lawful conduct of others responding to him with violence or using reasonable force to arrest him: they have a defence of self-defence. He cannot recover either for the consequences which are foreseeable in the course of the kind of unlawful confrontation which he has agreed to take part in. That is the public policy defence. However, I hold that where he sustains injuries not in that way, but because a third party voluntarily commits a different kind of serious crime against him, his conduct does not in law cause that injury for the purpose of the particular rule of causation applicable to this defence. If Mr. Tittensor had pulled out a knife and stabbed Mr. Flint for damaging his car, this would, for the purposes of this causation rule, break the chain of causation between the damage to the car and the injuries to Mr. Flint. Using the car as I have found he did is comparable, for causation purposes, to the use of a knife. To hold otherwise would be go to behind another important principle of the law which is that those who commit crime are responsible for their own actions. The conduct of others may mitigate the penalty which flows from that responsibility but does not diminish the responsibility itself.

CONCLUSION

[56]For these reasons there will be judgment for the claimant against the first defendant. I have not been asked to resolve any issues between the first defendant and the MIB and there is no order between defendants.[57]I have asked the parties to agree and draw up an order which reflects this decision, including the appropriate order for costs (which is not disputed) and a direction for a Case Management Conference. I also directed that any application for permission to appeal shall be made in writing, on notice to the other parties. That should be done within 14 days of the handing down of this judgment.

Cited in 1 later judgment