Mitsui Sumitomo Insurance Co (Europe) Ltd & Ors v Mayor's Office for Policing and Crime

For liability under the Riot (Damages) Act 1886, “riotously” follows the statutory definition of riot, while “tumultuously” requires an assembly of considerable size displaying agitated or excited movement, generally, though not necessarily, accompanied by noise. The inquiry is one of degree and focuses on mob violence. Police fault, confrontation, public location, external audibility and a counterfactual inquiry into prevention are unnecessary.

Section 2(1) permits compensation for all heads of loss proximately caused by physical damage for which the trespasser would have been liable at common law, including consequential loss, subject to statutory qualifications.

During civil disorder in August 2011, a gang attacked and burned a distribution warehouse in Enfield. Insurers and owners claimed compensation from the Mayor’s Office for Policing and Crime under the Riot (Damages) Act 1886.

Flaux J found that the gang were persons riotously and tumultuously assembled, but held that compensation did not extend to consequential loss: [2013] EWHC 2734 (Comm). MOPC appealed against liability. The insurers and uninsured owners cross-appealed on the recoverability of consequential losses. The central issues were the meaning of “riotously and tumultuously assembled” and the scope of compensation under section 2(1).

1. Disposition. MOPC’s appeal on liability was dismissed. The claimants’ cross-appeals on damages were allowed.
2. Liability. “Riotously” was construed by section 10(1) of the Public Order Act 1986. “Tumultuously” required an assembly of considerable size displaying agitated movement and common excitement or emotional arousal, generally, though not necessarily, accompanied by noise. Whether the statutory description was satisfied was a question of degree. The focus was whether the damage resulted from mob violence.
3. The liability imposed by the 1886 Act was strict. It did not depend on actual or notional police fault, a failure to prevent the damage, or the power to disperse the group at an earlier stage. A counterfactual inquiry into what the police might have done was inappropriate. Furtiveness and confrontation were not statutory requirements. A riot could occur in a private place, and noise need not be audible outside.
4. The judge was entitled to consider the group’s conduct while gathering and approaching the warehouse because the events formed one continuous incident. His findings that the group acted in an agitated, frenetic and chaotic manner, and used petrol bombs evidencing wanton violence towards property, were open to him. The appellate court reviewed rather than reheard that evaluative assessment. It would be slow to interfere with primary findings, evaluations or inferences.
5. Damages. Section 2(1) covered all heads of loss proximately caused by physical damage for which the trespasser would have been liable at common law, including loss of rent and loss of profit. The historical legislation showed that the compensating authority stood in the shoes of the trespassers or as their surety. The remedial legislation therefore attracted a liberal construction.
6. The preamble and section 7 did not restrict recovery to repair costs or physical diminution in value. Section 7 identified claimants and did not prescribe recoverable heads of loss. Regulations made under section 3(2) could not drive the construction of a clear Act, particularly where they had not been subject to Parliamentary scrutiny. A claimed longstanding interpretation was unsupported by evidence and did not justify excluding consequential loss. The recoverable heads of compensation were to be determined by English law of damages as it developed.

1. Court of Appeal (Civil Division). MOPC’s appeal on liability was dismissed and the claimants’ cross-appeals on consequential loss were allowed: [2014] EWCA Civ 682.
2. Queen’s Bench Division, Commercial Court. Flaux J found a riotously and tumultuously assembled group but held that consequential losses were not recoverable: [2013] EWHC 2734 (Comm).