England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MANCHESTER DISTRICT REGISTRY)
MR JUSTICE KERSHAW

		Royal Courts of Justice Strand London WC2
		3rd April 1996

LORD JUSTICE SIMON BROWN: By a policy of insurance in force from 1st April 1987 to 1st June 1992 (the Policy) the Municipal Mutual Insurance Ltd (the Company) insured the Lancashire County Council (the Council) against third party liability in certain events. This appeal concerns the scope of indemnity under the Policy, in particular with regard to claims for exemplary damages.

Section A, the primary insuring clause in the Company's standard printed form for public liability insurance for local authorities provides as follows:

"Section A

THE INDEMNITY

1. The Company agrees to indemnify the Insured in respect of all sums which the Insured shall become legally liable to pay as compensation arising out of

(a) accidental bodily injury or illness (fatal or otherwise) to any person other than any person employed under a contract of service or apprenticeship with the Insured if such injury or illness arises out of and in the course of the employment

(b) accidental loss of or accidental damage cause to property

when such injury illness loss or damage occurs during the currency of the Policy and arises out of the exercise of the functions of a Local Authority.

2. The Company will also pay any costs awarded against the Insured in any proceedings solely for the recovery of compensation aforesaid.

3. In addition the Company will pay all costs and expenses incurred with its written consent

(a) in defending any claim for compensation

(b) for representation at any Coroner's Inquest or Fatal Inquiry in respect of any death

(c) in defending any proceedings in respect of any act or omission or alleged breach of statutory regulations causing or relating to any event

which may be the subject of indemnity under the Policy."

(the numbering of Section A is mine for convenience)

By Endorsement No. 5, operative as part of the original Policy, the Company agreed also to indemnify the Chief Constable of Lancashire (the Chief Constable) and further, so far as material, as follows:

"5(c)

(i) The Company agrees to regard bodily injury or illness caused by assault committed by a constable as being accidental.

(ii) Section A of this Policy shall read as if there were a reference incorporated therein to wrongful arrest, malicious prosecution and false imprisonment by a constable.

(d) The reference to a person under contract of employment or apprenticeship with the Insured appearing in Section C [which extends indemnity under the Policy inter alia to such persons] shall not include a constable but at the request of the Chief Constable the Company will indemnify any constable.

Provided that

(i) the claim to which such request relates is one for which the Chief Constable would be entitled to indemnity hereunder had such claim been made against him.

(iii) the constable was at the time of the incident giving rise to the claim acting within the scope of his authority.

(e) (i) Notwithstanding anything contained in Provisos (i) or (iii) of (d) above but subject otherwise to the Policy, terms and conditions and exclusions the Company will indemnify a constable in respect of a claim resulting from an act which was committed by him outside the scope of his authority, but which he genuinely believed he was authorised to carry out or which having regard to all the circumstances it was not unreasonable for him to have carried out.

(ii) In the event of an unauthorised act by a constable resulting in a claim against the Chief Constable in respect of any of the matters referred to in (c) above and the circumstances being such that had the claim been made against the constable he would not under the terms of the preceding paragraph have been indemnified by the Company, the Company shall be entitled to take such proceedings as it may think fit in the name of the Chief Constable to recover compensation or secure indemnity from the constable."

(again, the numbering of Clause 5(e) is mine for convenience)

The legal liability of a Chief Constable - the first pre-condition of his entitlement to indemnity under the Policy - arises pursuant to section 48 of the Police Act 1964 which so far as material provides:

"48 Liability for wrongful acts of constables

(1) The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.

(2) There shall be paid out of the police fund -

(a) any damages or costs awarded against the chief officer of police in any proceedings brought against him by virtue of this section

and any costs incurred by him in any such

proceedings so far as not recovered by him in the proceedings; and

(b) any sum required in connection with the settlement of any claim made against the chief officer of police by virtue of this section, if the settlement is approved by the police authority."

In effect, therefore, Chief Constables are made vicariously liable for the torts of constables in essentially the same way as employers for their employees. With section 48 in mind the effect of Clause 5(d) can accordingly be seen to be that in cases where the Chief Constable is not himself sued, but would be liable if he were, he is entitled to ask the Company to indemnify any constable who is sued. The effect of Clause 5(e)(i) is essentially that the Company will also indemnify a constable, even where the Chief Constable would not himself be liable under section 48, in certain specific circumstances where the officer has acted reasonably. As to Clause 5(e)(ii), this allows the Company in certain circumstances to bring indemnity or contribution proceedings in the Chief Constable's name against a constable whose unreasonable behaviour has exposed the Chief Constable to liability.

It will readily be appreciated that the police fund from which damages are to be paid under the provisions of section 48 is itself funded by the relevant local authority, here the Council.

The present litigation was prompted by the Company's repudiation of liability for exemplary damages in two particular cases: first, a claim by a solicitor called Ratner for false imprisonment, wrongful arrest, malicious prosecution, assault and trespass to the person; second, a group of claims by plaintiffs alleging abuse whilst they were in care at one of the Council's childrens' homes.

By Order made in Originating Summons Proceedings on 23rd May 1994, Judge Kershaw QC, sitting as a High Court Judge in the Mercantile List at Manchester:

1. Declared, in favour of the Council, that on the true construction of the Policy the indemnity provided by Section A "includes such sums as the Insured may become legally liable to pay by way of exemplary damages (whether or not separately identified as such) in relation to an insured event"; and

2. Dismissed the Company's counterclaim for a declaration that it would be contrary to public policy to provide indemnity "against an award of exemplary damages in respect of oppressive, arbitrary or unconstitutional action of a servant of government".

The Company now appeals against both limbs of that Order, its arguments being essentially threefold:

1. The critical words in Section A - "all sums which the Insured shall become legally liable to pay as compensation" (hereafter "compensation") - unambiguously exclude awards of exemplary damages. These by definition "are not paid to compensate the plaintiff, who will be fully compensated by the ordinary measure of damages. They are paid to punish or deter the defendant, to mark the disapproval which his conduct has provoked. For the plaintiff such damages represent a bonus, an addition to the sum needed to compensate him fully for the loss he has suffered as a result of the wrong done to him" - per Sir Thomas Bingham, M.R. in AB v South West Water Services Ltd [1993] QB 507 at 528, in one of many such authoritative statements on the point.

2. Even if, contrary to argument 1, "compensation", could and would otherwise be construed to include exemplary damages, so to construe it would be contrary to public policy: those liable for exemplary damage awards ought not to be indemnified against such liability. "Compensation" should accordingly be more narrowly construed.

3. Even if, contrary to arguments 1 and 2, the Policy on its true construction provides indemnity against liability for exemplary as well as compensatory damages, public policy renders the Policy unenforceable in exemplary damage cases.

Before examining each of these arguments in turn it is convenient first to set out afresh the terms of Section A(1) of the Policy, this time extending it to accommodate Endorsement 5(c) in the way that both sides agree it falls to be incorporated:

"1. The Company agrees to indemnify the Insured (including the Chief Constable of Lancashire) in respect of all sums which the insured shall become legally liable to pay as compensation arising out of

a. Accidental bodily injury or illness (fatal or otherwise) to any person .........(The Company

agrees to regard bodily injury or illness caused

by assault committed by a constable as being accidental).

b. Accidental loss or accidental damage caused to property

c. Wrongful arrest, malicious prosecution and false imprisonment by a constable

when such injury illness loss or damage occurs during the currency of the Policy and arises out of the exercise of the functions of a Local Authority.

Construction (all questions of public policy aside)

Although I accept Mr. Glasgow, Q.C.'s submission that the natural and ordinary meaning of "compensation" in the context of a legal liability to pay damages is one which excludes any element of exemplary damages, I cannot accept that this meaning is wholly clear and unambiguous. On the contrary it involves very much a literal, lawyers' understanding of the term and is one which would not command universal acceptance. Many, including no doubt most recipients, would regard compensation to mean instead all damages (of whatever character and however calculated) payable to the victim of a tort. That, moreover, as a matter of language, the word is capable of bearing this broader and less legalistic meaning is apparent from a passage in Stephenson, L.J.'s judgment in Riches v News Group Newspapers Ltd [1986] 1 QB 256 at 268:

"......in a civil court the jury have to consider first whether the sum which they award the victim of a tort as compensation is itself adequate to punish the defendant without more, and if, and only if, it is not do they go on to consider an increased award to teach the defendant (and others) that the tort does not pay. But any such increase will not go into the public purse but will go as compensation into the pocket of the victim; indeed it is not to be regarded as an additional sum added to the compensation ......, but as an identified part of a round sum from which the jury can, if asked, by a feat of substraction identify the smaller sum they would have awarded for compensation only....."

The word "compensation" is there used four times - the second time expressly to refer to exemplary damages.

Given, therefore, that the word is capable of bearing either meaning i.e. as including, or as excluding, exemplary damages, one asks which meaning it bears in the context of this particular Policy. To that question there seems to me only one possible answer: it includes exemplary damages.

The all important consideration to my mind is this. Whereas in the original printed form, any compensation payable had by definition to arise out of "injury, illness, loss or damage" which was "accidental" - in which context the word compensation hardly needed to comprehend any exemplary damage award - the Policy as here issued, with Endorsement 5(c) incorporated, required the word to be construed in a strikingly different context, one which expressly encompassed claims against the police for assault (deemed accidental), wrongful arrest, malicious prosecution and false imprisonment. Torts of this sort by their very nature attract claims for exemplary damages. Such claims are indeed commonplace. It is in this context that Clause 2 of Section A becomes of such importance. Let me repeat it:

"The Company will also pay any costs awarded against the Insured in any proceedings solely for the recovery of compensation aforesaid."

If the Company's construction be right, then, as was pointed out below, the mere inclusion within the proceedings of a claim for exemplary damages will of itself disentitle the Insured from an indemnity in respect of any costs awarded against it. This will be so even if the exemplary damages claim comes to be roundly rejected: the proceedings would still nevertheless not have been "solely for the recovery of compensation". Clause 2, of course, relates to the Insured's liability for the claimant's costs. To a lesser extent the same point falls to be made with regard to the Insurer's own costs under Clause 3. The Company would perhaps decline to pay these too because they will have been incurred, partly at least, in defence not merely of a claim for compensation but also for exemplary damages.

It is no answer to these objections to say, as Mr. Glasgow argues, first that the Policy is not in these regards made unworkable; it merely means that the Insured has not got as good a bargain as it thought; second, that it is neither surprising nor inappropriate to find entitlement to costs confined to proceedings for compensation rather than exemplary damages. On the contrary it would seem to me most unjust and inappropriate for the Council to be left without indemnity for costs merely because a claim for exemplary damages, however unmeritorious, has been made against them.

Nor are these the only difficulties arising on the Company's construction. In addition to the costs considerations are the difficulties which would undoubtedly arise in the handling of claims under the Policy. In the first place, awards in exemplary damages cases, whether by judge or jury, are generally made as single lump sum awards; often it would be impossible to separate out the various elements of the award for the purposes of applying and enforcing the Policy. Second, settlement of claims would be made altogether more difficult, with periodic conflicts of interest arising between the Company and its Insured.

All these various considerations strongly support the Council's contended for construction. The principles governing the construction of commercial contracts are not in doubt: the more unreasonable the result of a given construction, the readier should the court be to adopt some less obvious construction of the words. Or, as Lord Diplock put it in The Antaios [1985] AC 191 at 201:

"The detailed semantic and syntactical analysis..... must be made to yield to business commonsense ."

There is this further principle also here in play: the contra proferentem rule of construction. In cases of ambiguity and where other rules of construction fail, an instrument should be construed more strongly against its maker or grantor. It is long established that this canon of construction applies - indeed "strongly applies" - to contracts of insurance - see Etherington v Lancashire & Yorkshire Accident Insurance Co [1909] 1 KB 591 at 596. Even, therefore, were there any doubt as to which construction would otherwise apply, it would plainly be right to resolve this ambiguity in favour of the Council.

I should perhaps add this on the issue of construction. The only other provision in the Policy said by anyone to throw light on the question is an Endorsement of 1st April 1990 with regard to pollutant damage. By that Endorsement there is first an express general exclusion, and then a specific limited inclusion, of liability under the Policy for:

"Fines, penalties or punitive damages arising directly or indirectly out of the discharge, dispersal, release or escape of Pollutants."

Mr. Collins Q.C. sought to pray that in aid in support of the Council's construction: it would not, he submits, have been necessary to exclude "punitive damages" (another term for exemplary damages) unless otherwise they would have been included under the Policy. The decisive answer to that, however, was given by Staughton, L.J. in argument, namely that "fines" and "penalties" are similarly excluded by the Endorsement (before then being introduced on a limited basis) yet no one suggests that they too would otherwise have been recoverable. There is in short no presumption against surplusage in such policy endorsements. This seems to me an altogether preferable answer to that given by the judge below and urged by the Company itself: namely that this Endorsement came into force three years after the initial Policy and so, by analogy with the principle established by the House of Lords in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 572, is not a legitimate aid to construction of the original contract. The James Miller principle should not be extended this far. The April 1990 Endorsement both varied and renewed the Policy: a new contract of insurance came into being on fresh terms which then had to be construed as a whole. I repeat, however, the point is bad for other reasons.

Public policy as an aid to construction

The only way in which public policy can properly be invoked in the construction of a contract is under the rule ut res magis valeat cum pereat: if the words are susceptible of two meanings, one of which would validate the particular clause or contract and the other render it void or ineffective, then the former interpretation should be applied even though it might otherwise, looking merely at the words and their context, be less appropriate. The question, therefore, is whether the Council's construction renders this Policy in certain circumstances void or ineffective.

Mr. Glasgow's argument on public policy appears on analysis to involve two quite distinct propositions. One is that any exemplary damage award for which indemnity might be sought under this Policy will almost inevitably have involved the commission of a crime and no one can insure himself against liability for criminal conduct. The second is that an award of exemplary damages is designed to punish and deter: public policy should accordingly preclude anyone liable for such an award from being entitled to indemnity against it.

It seems to me that Proposition 1, if sound, proves too much to be relevant on the issue of construction. The Council would not merely have to forgo indemnity against an award of exemplary damages but, in cases involving such an award, would cease to be entitled to any indemnity at all. No possible construction could save the contract in these circumstances. On such an approach the Company would, of course, be better off even than it contends.

As for Proposition 2, public policy either does or does not permit the insured to recover the exemplary damage element of an award under the Policy. Even if it does not, it would be wrong to allow this consideration to affect construction: to do so would re-introduce all the same difficulties as to costs as the Council's construction avoids.

I turn, therefore, to consider both propositions under the head of enforcement.

Public policy as to enforcement

Proposition 1 - no indemnity for criminal conduct

This proposition, as stated, would result in the Council being held disentitled to any indemnity whatever in a case involving an exemplary damage award. The argument runs essentially as follows. First, any such award under this Policy could only be in the first of the three categories of case to which exemplary damages are now confined:

(i) Oppressive, arbitrary or unconstitutional action by the servants of government (including local authorities and the police);

(ii) Where the defendant's conduct has been calculated to make a profit in excess of the compensation payable to the plaintiff;

(iii) Where expressly authorised by statute.

See Rookes v Barnard [1964] AC 1129, Broome v Cassell [1972] AC 1027 and AB v South West Water Services

Second, conduct falling within category 1 would almost inevitably be criminal. Third, a person cannot insure himself against liability for committing a crime. Three Court of Appeal authorities are cited in support of this last proposition. First, Haseldine v Hosken [1933] 1 KB 822 in which a solicitor failed to recover loss sustained through having entered into a champertous agreement. It was held that the agreement being illegal (as it then still was), a claim in respect of loss due to having contracted it was not maintainable under an indemnity policy. As Scrutton, L.J. said:

"It is clearly contrary to public policy to insure against the commission of an act, knowing what act is being committed, which is a crime, although the person committing may not at the time know it to be so."

Second, Hardy v Motor Insurers Bureau [1964] 2 QB 745 where injury was caused by an uninsured driver convicted of an offence under section 20 of the Offences against the Person Act 1861. Although the MIB were held liable, this was because the legislation required a policy of insurance covering liability to a third party arising from even an intentional criminal use of the vehicle on a road; it was made plain that the driver himself, by reason of his intentional criminal act, could not have enforced the policy. Contrast the position in ordinary "motor manslaughter" cases where the driver is entitled to recover under his compulsory insurance policy.

Third, Gray v Barr [1971] 2 QB 554 where, in third party proceedings, indemnity under a "hearth and home" policy was denied to a defendant liable in damages for killing a man. He was held defeated by public policy, despite being acquitted of murder and manslaughter, the loss having arisen in circumstances where he was "guilty of deliberate, intentional and unlawful violence, or threats of violence".

For my part I unhesitatingly accept the principle that a person cannot insure against a liability consequent on the commission of a crime, whether of deliberate violence or otherwise - save in certain circumstances where, for example, compulsory insurance is required and enforceable even by the insured. I further recognise that in many cases where the question of liability for exemplary damages is likely to arise for consideration under this Policy, the police officer concerned will have acted criminally. Conspicuously this will be so in cases of assault (even though the injuries are deemed by the Policy to have been inflicted accidentally). Where, however, in my judgment Mr. Glasgow's argument breaks down is in its assumption that the Chief Constable's liability under section 48 is one against which the law forbids indemnity.

In my judgment there is nothing either in the authorities or in logic to justify extending this principle of public policy so as to deny insurance cover to those whose sole liability is one which arises vicariously, whether as employers or, as here, under an equivalent statutory provision.

The only circumstance which it seems to me could give rise to any doubt or difficulty as to the Council's or Chief Constable's entitlement to indemnity under this Policy would be where the individual constable himself has been sued and is also prima facie entitled to indemnity under the Policy, namely under the provisions of Clause 5(d) or 5(e)(i). It would be necessary to consider carefully the precise circumstances of any such case. In my judgment it is quite inappropriate on what is essentially a construction summons appeal to attempt a definitive ruling on hypothetical facts.

Proposition 2 - no indemnity for the exemplary damage element of any award.

There is no present authority in English law which establishes that it is contrary to public policy for an insured to recover under a contract of insurance in respect of an award of exemplary damages whether imposed in relation to his own conduct or in relation to conduct for which he is merely vicariously liable. Indeed newspapers, we are told, regularly insure against exemplary damages for defamation.

Nor does it appear that there is anything like uniformity of approach in foreign jurisdictions. Counsel for the respondents here have most helpfully researched the position in the United States and it is plain that the law varies very considerably from State to State. Three principal stances appear to emerge. Some States prohibit recovery of exemplary damages in all cases which involve intentionally inflicted wrong; other States have no such rule in any case; others yet have a rule prohibiting recovery where the insured is personally liable, but not where he is only vicariously so.

The foreign cases show a further question periodically arising as to whether exemplary damages ought properly to be awarded in the first place against a party who will be indemnified against such liability under a policy of insurance. That, indeed, was the issue in the Australian case of Lamb v Cotogno (1987) 164 CLR 1 - extensively cited in the judgment below - there in the context not of vicarious liability but rather of compulsory insurance. Exemplary damages were held recoverable on the basis that their purpose is not exclusively to punish and deter the tortfeasor but is also to deter others and to mark the court's strong disapproval of such conduct. Similar considerations plainly apply in cases of vicarious liability. It can then, indeed, additionally be said that the employer or Chief Constable held vicariously liable may in the result be persuaded to take more effective steps to discourage his employees or constables from future such conduct. Certainly for present purposes I shall assume that the courts will not be deterred from making exemplary damage awards merely because that is the only basis for a particular defendant's liability.

The present question, however, is whether this court should now for the first time create and impose a rule of public policy in English law refusing to permit indemnity against exemplary damage awards.

For my part, I would regard that as wholly inappropriate for two main inter-locking reasons. First, there appear to me a number of different policy considerations in play, not by any means all pointing in the same direction. They include the following:

a. Whilst it is true that to allow a defendant liable for exemplary damages to be held harmless against them by insurance must undoubtedly reduce the deterrent and punitive effect of the order upon him, it will greatly improve the plaintiff's prospects of recovering the sum awarded. It is, of course, this consideration - the interests of those harmed by the tortfeasor - which has prompted the law in certain circumstances to require compulsory insurance.

b. Even though the defendant's liability be insurable, an exemplary damage award is still likely to have punitive effect. First, there may well be limits of liability and deductibles under the policy. Second, the insured is likely to have to pay higher premiums in future and may well, indeed, have difficulty in obtaining renewal insurance.

c. There is a separate public interest in holding parties to their contracts, particularly where, as here, it is open to the insurers to exclude liability for exemplary damages. If insurers take the premium, they should meet the risk.

d. True, as some of the foreign cases point out, if the damages are held recoverable against insurers the burden falls on to the general public by way of a rise in premiums. If, however, the damages are not thus recoverable, then, certainly in a case like the present, the burden falls not on to an individual tortfeasor but rather on to the local body of ratepayers.

The second main reason why in my judgment it would in these circumstances be wrong to accede to the appellant's argument is because contracts should only be held unenforceable on public policy grounds in very plain cases. The courts should be wary of minting new rules of public policy when the legislature has not done so. Particularly this is so where, as in the present situation, the whole future of exemplary damages is in a state of uncertainty and subject to active and extensive consideration. The Law Commission's recent consultation paper on the topic (No. 132) canvasses a wide range of possibilities as to the appropriate way forward. A sudden burst of common law creativity should not, in my judgment, be one of them. Still less should we in these circumstances be persuaded to impose the most extreme position of all: the forbidding of indemnity even to those only vicariously liable. Yet in truth nothing short of this would suffice for the appellant's present purposes.

It follows that in my judgment this final limb of the Company's case fails like the others before it. I would dismiss the appeal.

Staughton LJ

I agree that this appeal should be dismissed. The word "compensation", when used by lawyers in connection with the recovery of damages from a wrongdoer, usually means a sum of money designed to repair or make good the loss that the victim has suffered. Of course there is always the proviso, so far as money can do that. Where the wrong is loss of reputation, or pain and suffering and loss of amenity, it cannot in reality be repaired or made good by money. But the law has the fiction that it can.

In other contexts compensation may mean something different, such as money paid to a victim on account of his loss, whether or not it be measured so as to repair or make it good. It was used in that sense by no less an authority than Stephenson LJ in Riches v. News Group Newspapers Ltd (1986) QB 256 at p.268:

In a civil court the jury have to consider first whether the sum which they award the victim of a tort as compensation is itself adequate to punish the defendant without more, and if, and only if, it is not do they go on to consider an increased award to teach the defendant (and others) that the tort does not pay. But any such increase will not go into the public purse but will go as compensation into the pocket of the victim ...

In my judgment the word is used in that wider sense in the policy of insurance with which we are concerned. I say that for four reasons.

First, it is common for juries to award a single lump sum, without distinguishing between exemplary damages and the sum which is required to repair or make good the loss. It would be inconvenient if the insurance policy required such a distinction to be made.

Secondly, it would be hard if the insured were indemnified against costs payable to a plaintiff who claimed only compensation in the narrow sense, but not if the claim included exemplary damages, however unlikely they were to be awarded.

Thirdly, if there is doubt one should apply the maxim verba chartarum fortius accipiuntur contra proferentem. The policy wording was prepared by the insurers.

Fourthly, the insurance will for the most part be called on to indemnify the Council or the Chief Constable when they are liable vicariously, for the fault of others. I can see no particular reason why in those circumstances they should require insurance against part but not all of what they are liable to pay.

Next it was suggested that the contract of insurance should be interpreted so as to accord with public policy. Here there is another Latin maxim - verba ita sunt intelligenda ut res magis valeat quam pereat: the contract should be interpreted so that it is valid rather than ineffective. If on one view the contract would be illegal, there is a case for adopting another available interpretation.

That doctrine need not be considered on the present case. If on the Council's interpretation the contract is illegal, that is the end of the claim. I shall return to the point about illegality in a moment.

Apart from the case where on one interpretation a contract is illegal, there is in my judgment no principle requiring it to be interpreted in accordance with public policy. I said as much in Charter Reinsurance Co Ltd v. Fagin (1996) 1 Ll.R 261 at p.270:

It is not the task of the Courts to interpret private contracts in such a way as to ensure that the national interest is well served.

I do not detect that the majority disagreed with that sentiment.

Lastly there is the question of illegality. There are cases where an insurance claim will fail because it is contrary to public policy, and therefore illegal at common law, that the insured should recover. An example is Gray v. Barr (1971) 2 QB 554. That was a case of "deliberate, intentional and unlawful violence, or threats of violence" (p.569).

In the present case any claim for indemnity in respect of exemplary damage is almost certain to be made by the Chief Constable, or possibly the Council, in respect of their vicarious liability. In those circumstances I would hold, for that reason alone, that the claim is not vitiated by illegality.

Thorpe LJ

I agree with both judgments.

Order: Appeal dismissed with costs.