IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Inglis
(sitting as a deputy High Court Judge))
B e f o r e :
LORD JUSTICE JUDGE
| HARRY CROSS
|- v -
|WILLIAM DICKINSON KIRKBY
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
MR D MATHESON QC and MR J WHTTTTNG (Instructed by Messrs Bridge McFarland, Grimsby DN31 1JE)
appeared on behalf of the Respondent
Crown Copyright ©
"You're fucking dead, Kirkby"
and jabbed him in the chest and in the throat with the bat. The defendant started to walk away but the claimant persisted. Mrs Edwards was so frightened that she rang the Estate Office asking for the police to be called. To ward off the blows of the bat, the defendant turned and grappled with the claimant. Wrestling the bat from him, he hit the claimant a single blow on the side of the head.
"I find, in the end without any doubt, that the version of events contended for by the Defendant is the one that I should accept. I do not think that the Defendant and three witnesses have got together to make up their version of events, and the difference in the versions is such that there is no room for mistake."
"The two men then struggled briefly for possession of the bat, the handle of which was held in the Plaintiffs right hand and the broken end in the Defendant's left. The Defendant got the bat from the Plaintiff, transferred it to his right hand and immediately struck a blow to the side of the Plaintiff's head. It was not a blow that involved the Defendant lifting his arm above his head, or swinging the bat in the large arc. The condition of the Defendant's arm would probably have prevented that, ... It was a sudden blow, but.... a heavy one, delivered deliberately to the side of the Plaintiff's head. At the time that he took the bat off the Plaintiff and hit him the Defendant was under attack from the Plaintiff. The Plaintiff had persisted in the attack and had begun to hit the Defendant to the extent that he hurt him. I think that the Plaintiff, who had lost his temper, was trying to goad the Defendant into a physical response and was not prepared for the incident to end. The Defendant, for his part, was in fear of having further violence done to him. I do not think that he feared that he was going to be killed, but he faced, and believed himself to be facing, an immediate threat of further possibly serious violence against which it was necessary, as he believed, to take steps to defend himself."
"... I do not think that he would dissent from the proposition that this blow could be described as a hard blow in order to cause the damage it did."
"... and pushed it into my chest and me into the hedge bottom and threatened to kill me again. There was no doubt in my mind he meant business. He may have threatened to kill me. He looked at me as if he was going to do. I thought the least he was going to do was hit me with the thing and damage me. I thought it was time to do something about getting out of the way before something seriously happened. ... I decided to turn to the right and walk away. I kept as quiet as possible hoping nothing would happen. When I turned right onto the track entrance I felt a blow to the left shoulder. I assumed it was from Cross. It tempted me to turn my head but I still kept on walking slowly. Almost immediately there was another blow to the top of my left arm. It hurt. It was a hard blow. I thought there was another coming. I just put my hand up and was half turned looking to see where the blows were coming from. There was one more blow. It landed on my left hand. I was half looking to the left. I was turning. It was so quick. The bat was exchanged into my right hand and I hit out at Cross as I was tripping falling over backwards. It was the handle piece. I was holding the broken end. It happened very quickly, in part of a second. I had no chance to think at all. I hit out because I had been hit twice and the third time it was followed up by pushing and trampling very close to me. I knew I was in danger of tripping backwards. I knew if I didn't do something my life was in danger. I had no time to aim a blow or to think what harm I might do. I didn't think about hitting him. I just instinctively must have hit him."
"I didn't believe I'd hit him hard enough to damage him. I didn't realise I'd hit him as hard as that."
"From my point of view I didn't think I had hit him very hard. I was not angry. I was frightened. I didn't know where I was hitting him. I just hit out. I was very concerned by what I had done. I didn't realise I had done him a serious injury."
"Bill [the defendant] grabbed the bat with his left hand. They were struggling with the bat. Cross [the plaintiff] let go of it. Bill grabbed it with the other hand, while they were close together. Bill had his back to him and caught him to the side of the head with it. Bill then threw the bat into his own field."
"I am going to fucking kill you Kirkby"
"It was that quick."
"The question arises whether he [that is the defendant] used force in striking the blow that was excessive and disproportionate. I have in mind the passage of the speech of Lord Morris in Palmer v R  AC 814 at 831F-832E to which I was referred, and which has inspired part of the model direction on self-defence to be given to juries."
"A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence."
"All that said and remembered, this was a hard blow to the side of the Plaintiff's head with a hard wooden implement, and one likely to cause, as it did cause, serious injury. I find that the Defendant in that moment, intended to hit the Plaintiff on the head with a hard blow, and that that blow using that weapon was excessive so as to be unlawful and not in proportion to the threat of violence that the Defendant believed himself to be facing. I make it plain that the unlawfulness lies in the use of excessive force in self-defence, and not because the situation faced by the Defendant did not call for the use of force by him."
"... It was a sudden blow but, as I have earlier said, a heavy one delivered deliberately to the side of the plaintiff's head."
"... the Defendant, in that moment, intended to hit the Plaintiff on the head with a hard blow, ..."
"I had no time to aim a blow or to think what harm I might do."
"... using jeweller's scales to measure reasonable force."
"What is plain is that joint participation in serious crime will preclude recovery by one criminal against another: Colburn v Patmore (1834) 1 Cromp M & R 73 at 83; and reliance by the Plaintiff on his own serious crime will preclude recovery: Clunis v Camden & Islington Health Authority  2 WLR 902."
"Overall it seems to me that the twin principles of proportionality, and of the Plaintiff not being able to found his case on his own unlawful act, often come together to yield a result. In the case of violence between two people, one of whom becomes Plaintiff, proportionality and participation in the offence itself are closely related. Where (not this case) two men agree to fight with fists, each is in a real sense a participant in the assault committed by the other as being an accessory to it or at least inciting it. Where, in that case, the Defendant goes outside what was contemplated as by using a weapon or a degree of force not anticipated then the Plaintiff can no longer be said to be a party to the Defendant's offence. Where (this case) one man assaults another, he can expect to be met by the use of reasonable force in self-defence, and the amount of force which is reasonable is not for him, who started it, to judge or predict, but depends upon an objective view of the facts by the court. Where the Defendant in fact uses excessive force in self-defence and so commits the tort of assault and as here, the offence contrary to Section 20 of the Offences against the Person Act 1981 of unlawfully and maliciously inflicting grievous bodily harm, that disproportionate and unlawful use of force prevents him from relying on the ex turpi causa defence."
"In so far as the basis for the ex turpi causa defence, as founded on public policy, is directed at deterrence it seems to me that the force of the deterrent effect is in the existence of the known rule and in its stern application. Lawyers have long known of the rule and must have advised many people of its existence."
"... on such an imponderable factor as the extent to which the public conscience would be affronted by recognising rights created by illegal transactions."
"The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
The question therefore is, 'Whether, in this case, the plaintiff's demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country."
"To say in circumstances such as those that ex turpi causa non oritur actio is a defence seems to me to be quite absurd. Academically of course one can see the argument, but one must look at it, I think, from a practical point of view. To say that this old gentleman was engaged jointly with the defendant in a criminal venture is a step which, like the judge, I feel wholly unable to take."
"I do not, having regard to those findings, regard what happened as a fight to which the plaintiff consented, to which he was volens. I regard it as a case where this young man went down to thrash the other, older man."
"A man who takes part in a criminal affray may well be said to have been guilty of such a wicked act as to deprive himself of a cause of action..."
"The discharge of a shotgun towards burglars who are not displaying any intention of resorting to violence to the person is, in my judgment, out of all proportion to the threat involved, even making all due allowance for the agony of the moment, and therefore any injury sustained by such discharge cannot be said to be an integral part or a necessarily direct consequence of the burglary."
"This does not mean that the rule cannot apply, because the underlying principle is that there is a public interest which requires that the wrongdoer should not benefit from his crime or other offence. But it would mean, if it does apply in circumstances such as these, that the trespasser who has also a criminal was effectively an outlaw, who was debarred by the law from recovering compensation for any injury which he might sustain."
"If the doctrine applied, any claim by the assailant or trespasser would be barred no matter how excessive or unreasonable the force used against him."
"From these authorities the following propositions emerge: (1) property in chattels and land can pass under a contract which is illegal and therefore would have been unenforceable as a contract; (2) a plaintiff can at law enforce property rights so acquired providing that he does not need to rely on the illegal contract for any purpose other than providing the basis of his claim to a property right; (3) it is irrelevant that the illegality of the underlying agreement was either pleaded or emerged in evidence: if the plaintiff has acquired legal title under the illegal contract that is enough."
"... a principle of justice; it is a principle of policy, whose application is indiscriminate and so can lead to unfair consequences as between the parties to litigation. Moreover the principle allows no room for the exercise of any discretion by the court in favour of one party or the other."
"Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault. But it seems to me in principle that the plaintiff cannot be precluded from suing simply because the wrongful act is committed after the illegal agreement is made and during the period involved in its execution. The act must, I should have supposed, at least be a step in the execution of the common illegal purpose. If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them B picks A's pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort (provided he had first prosecuted B for larceny). The theft is totally unconnected with the burglary. "
"Where issues of illegality are raised, the courts have to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the claimant, no matter how serious his loss, nor how disproportionate his loss to the unlawfulness of his conduct. On the whole the courts have tended to adopt a pragmatic approach to this problems, seeking, where possible, to see that genuine wrongs are righted, so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the claimant's action in truth arises directly ex turpi causa he is likely to fail. Where the claimant has suffered a genuine wrong to which the allegedly unlawful conduct is incidental, he is likely to succeed."
"If Murphy was one of a gang which set out to beat up Culhane, it may well be that he could not sue for damages if he got more than he bargained for. A man who takes part in a criminal affray may well be said to have been guilty of such a wicked act as to deprive himself of a cause of action, or, alternatively, to have had taken upon himself the risk."
"Parliament has decided that an occupier cannot treat a burglar as an outlaw ..."
"... the trespasser who was also a criminal was effectively an outlaw, who was debarred by the law from recovering compensation for any injury which he might sustain."
"... any claim by the assailant or trespasser would be barred no matter how excessive or unreasonable the force used against him."
"The conduct of the defendant on the instant occasion was clearly dangerous and bordered on reckless."
"... would not have sustained the injury caused by the defendant unless he had been where he was and acting as he was at the relevant time."
ORDER: Appeal allowed. Order nisi under section 18 of the Legal Aid Act 1988. Legal aid assessment of the Claimant's costs. Permission to appeal to the House of Lords refused.
(Order not part of approved judgment)