JOHN MURRAY v SALEH IBRAHIM MABROUK

A person may be jointly liable in tort for another’s assault or battery where they materially assist the primary tortfeasor pursuant to a common design that the tort be committed. The assistance need only be more than trivial and may be indirect. A common design may be inferred and may be conditional upon an anticipated event.

Procurement liability requires conduct amounting to direction, procuring, direct request or direct encouragement of the wrongful act. The civil standard of proof is the balance of probabilities. Liability for intentional trespass to the person is not excluded merely because the claimant’s injury resulted from witnessing a battery inflicted on another, and the rules governing secondary victims do not necessarily apply.

The claimant, a police officer, witnessed the fatal shooting of his close colleague, WPC Yvonne Fletcher, during a demonstration outside the Libyan People’s Bureau in London in 1984. He developed psychiatric injury and brought claims in assault and battery against the defendant, a member of the Revolutionary Committee that controlled the Bureau.

The defendant initially indicated an intention to defend the claim but subsequently took no part in the proceedings. The court proceeded in his voluntary absence. The central issues were whether the shooting constituted torts against the claimant and whether the defendant was jointly liable as an accessory through common design or procurement liability.

1. Nature of the torts. The shooting and pointing of loaded firearms constituted an assault on those in the vicinity, including the claimant. The claimant could also recover for psychiatric injury suffered as a direct consequence of the battery inflicted on WPC Fletcher. The ordinary controls applicable to secondary victims did not govern the intentional-tort claim. In any event, the claimant satisfied those criteria.
2. Common design liability. The applicable test required: (i) a tort by the primary tortfeasor; (ii) assistance by the defendant in its commission; and (iii) assistance pursuant to a common design that the tort be committed. The common design could be inferred and could be conditional. Assistance had to be more than de minimis, but it could be indirect and need not be substantial in comparison with the primary tortfeasor’s contribution.
3. The evidence established, on the balance of probabilities, a coordinated plan by those controlling the Bureau to respond to the demonstration with violence and shooting. The defendant was one of the Bureau’s leaders, controlled access to it, knew that guns were present, warned that there would be fighting, helped organise preparations, and directed counter-demonstrators to positions outside the line of fire. Those acts amounted to active assistance in pursuit of the common design. His absence from the Bureau when the shooting occurred was immaterial.
4. Procurement liability. The court also found, as an alternative and although unnecessary to the result, that the defendant’s conduct met the standard of inciting, persuading, inducing or otherwise procuring the shooting. The evidence on this issue depended more heavily on inference than the common-design case, but was sufficient on the balance of probabilities.
5. Judgment was entered for the claimant. The defendant was jointly liable with those who carried out the shooting for the battery inflicted on WPC Fletcher, the assault on police officers placed at risk, and the resulting torts against the claimant. Damages were awarded in the sum of £1.

This was a first-instance trial in the High Court. The defendant did not attend or participate, and the court determined that the trial could fairly proceed in his voluntary absence.