Harry Cross v William Dickinson Kirkby [2000] EWCA Civ 426 (1 8 February 2000)

(His Honour Judge Inglis
(sitting as a deputy High Court Judge))

Royal Courts of Justice
London WC7
1 8th February 2000

B e f o r e :



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____________________MR J WATT-PRINGLE (Instructed by Messrs Knights, Kent TN1 1VT) appeared on behalf of the Appellant
MR D MATHESON QC and MR J WHTTTTNG (Instructed by Messrs Bridge McFarland, Grimsby DN31 1JE)
appeared on behalf of the Respondent



Crown Copyright ©

    2. Mr Harry Cross, the claimant, is vehemently opposed to hunting. With his partner, Mrs Davis, they are committed to disrupting the meets of the Brocklesby Hunt and would for that purpose trespass on the land over which the hunt was taking place.
    3. Mr Kirkby, the defendant, is a farmer. He was formerly a keen huntsman but, after a series of falls, had injured his right shoulder and he had given up riding to hounds. He was responsible for the management of his family’s farm and also had tenanted land.
    4. On 7th October 1992 the hunt was riding over one of the defendant’s farms near Barton-on-Humber in South Humberside. During the morning the claimant and his partner, Mrs Davis, had twice been removed from the defendant’s land. The claimant had argued with Mrs Margaret Edwards, the wife of the huntsman, who obtained assistance to walk him off. As he was going, the claimant threatened that the next time it would not be just “girly slaps”. On the second occasion when he was being removed by two men from a field of beet, he seized one of them by the throat and pushed the other over. Not long afterwards, near Burnham Beeches Wood, the claimant was talking to Mrs Edwards, the huntsman’s wife, when he noticed the defendant attempting to walk his partner off the land. She was resisting and bit the defendant. He started to walk her off the land and she eventually agreed to go towards a car which was parked on the grass verge near a track. At this moment the claimant ran up the track and attacked the defendant. From the car Mrs Davis got out an iron bar. The claimant armed himself with a baseball bat. He was angry, almost hysterical. He banged the baseball bat on the ground splitting the bat. He shouted:

“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.

    1. Unfortunately the blow caused a linear fracture of the claimant’s skull and subdural bleeding. The claimant subsequently suffered epileptic attacks.
    2. On 14th June 1995 the claimant issued the writ in these proceedings claiming damages for the injuries he sustained. In his defence the defendant alleged that the claimant had repeatedly assaulted him, had armed himself with a baseball bat, had threatened to kill him and that he had acted in self-defence. Alternatively in the circumstances the injuries were his own fault and arose out of his own unlawful conduct. He relied on the principle expressed in the Latin maxim ex turpi causa non oritur actio. These issues were tried at Grimsby Court Centre by His Honour Judge Inglis sitting as a judge of the High Court. He heard evidence and submissions over five days and on 22nd April 1999 gave judgment for the claimant for £52,000. He had found the claimant 60% responsible for the injuries he suffered and awarded him 40% of agreed damages of £130,000. The judge had rejected the defendant’s argument that the claimant’s own criminal and unlawful actions precluded him from recovering damages but he gave permission to appeal on that issue.
    3. On the hearing of the appeal at the invitation of the court the defendant applied for permission to appeal also against the judge’s rejection of his claim that he acted in self-defence. For reasons which will appear, we gave the defendant permission to argue that ground of appeal.
    4. The judge had heard evidence from six eye-witnesses, including the claimant and defendant. He also received evidence from two consultant pathologists about the nature of the blow which had caused the claimant’s injury.
    5. The events as described by the claimant and Mrs Davis were in sharp conflict with those described by the defendant and the other eye witnesses. The judge said:

“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.”

    1. The claimant had tried to make out that he was struck from behind by the defendant as he bent over the boot of his car but the judge rejected this out of hand. The judge found that the claimant had kicked and punched the defendant as he ran past him, that he had baited him, hitting him with his bag, and shouting threats and insults. Mrs Davis had got a metal bar out of the car. The claimant, already excited and aggressive, became very angry and got the baseball bat out of the car. He then pushed the defendant in the chest with the broken end of the bat, pushing him up against a hedge and uttering threats. The defendant did not retaliate but began to walk away into the entrance of the farm track leading to his vehicle. The claimant came after him and after a few paces at the most the defendant turned to face him. The claimant then hit the defendant twice on the upper arm with the bat, the second blow being harder than the first, hurting the defendant and causing bruising. The judge said:

“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.”

    1. It is necessary also to set out the reasons why the judge described the blow as “a hard blow”. Doctor Timperley, a pathologist, had given evidence for the claimant of seeing both parts of the broken bat. He had weighed the handle part which was 283 grams and was just over 26 inches long. The other part weighed 419 grams and was 22 inches long. He had been asked to estimate the force necessary to inflict the injury on the claimant’s head on a scale of 0-5 where 0 equalled no force and 5 was the most force an adult could deliver. He thought the force was at least on scale 3 and possibly scale 4. Doctor Baden-Powell, also a pathologist, in evidence for the defendant said that it was necessary to be very cautious in extrapolating from the pathology and making specific qualitative assessments as to the force of a blow. The experiments done produced widely variable figures. He thought a blow of average force could produce the injury and when asked to estimate on the same imaginary scale the force of the blow he thought it was average or 2.5. The judge accepted the need for caution expressed by Doctor Baden-Powell but said:

“… 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.”

    1. From this observation it is clear that Doctor Baden-Powell had not departed from his opinion that the blow was of average force. Further the difference between his estimate on the imaginary scale and Doctor Timperley’s was a difference of 10%.
    2. In view of the reasons given by the judge for rejecting the defence of self-defence, it is convenient to set out the evidence of the defendant of the attack upon him and what he believed at the time.
    3. The fact the judge accepted the version of events given by the defendant and three witnesses does not mean, of course, that he accepted every word. But it is significant that he accepted the version “without any doubt” and made no express reservations from his acceptance.
    4. The defendant described Mrs Davis as getting out the iron bar from the boot of the car and the claimant standing with a baseball bat in his hand moving towards him. He was threatening to kill him and striking the ground furiously with the bat when the bat broke. He then came towards him:

“… 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.”

    1. He then threw the bat away and said:

“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.”

    1. In cross-examination he had said:

“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.”

    1. His evidence of the threats, the way he had been attacked and his actions was completely borne out by the evidence of the other witnesses. Mrs Edwards described him as just trying to protect himself from being hurt and that it had all happened very quickly. Mr Beel, another witness, also bore out the way in which the claimant had attacked the defendant. He described the struggle in these terms:

“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.”

    1. Mr Jobson, another witness, said that the claimant had said:

“I am going to fucking kill you Kirkby”

    1. and forced him back into the hedge. The plaintiff had hit the defendant twice on his shoulder and went to hit him a third time. The defendant put his hand up and got the bat, “quick as a flash” changed it over to his right hand and hit the claimant. He said:

“It was that quick.”

    1. He described the claimant as being out of control.
    2. The Judge’s Reasons for Rejecting Self-defence.
    3. The judge said:

“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 [1971] 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.”

    1. In that passage Lord Morris stressed that the defence of self-defence was a straightforward conception. It involved no abstruse legal thought and only common sense was needed for its understanding. He pointed out that everything depended on the particular facts and circumstances. Some attacks may be serious and dangerous. Others may not be. And that if an attack was so serious that it put someone in immediate peril, immediate defensive action might be necessary. Most importantly he said:

“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.”

    1. He stressed that, if a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be “most potent evidence that only reasonable defensive action had been taken
    2. The judge paraphrased this passage referring to strong evidence that he only took reasonable defensive action. He also said that he accepted that it was the nature of the blow rather than the disastrous consequences that had to be looked at.
    3. He then said:

“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.”

    1. Mr Duncan Matheson QC for the claimant supported the judge’s findings. He laid particular stress on the part of the judge’s findings in which he said:

“… It was a sudden blow but, as I have earlier said, a heavy one delivered deliberately to the side of the plaintiff’s head.”

    1. And that:

“… the Defendant, in that moment, intended to hit the Plaintiff on the head with a hard blow, …”

    1. He said the judge was entitled to make those findings and that, as he had seen and heard the witnesses give evidence, this court ought not to interfere. I cannot accept this submission. These findings can only have been based on inferences which the judge drew from the evidence which he heard. They were not in my view justified from the evidence or from the judge’s recital of his findings. He said:
    2. “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, and a careful aimed blow would have been avoided by the Plaintiff.” (my emphasis)
    3. The defendant had not suggested that he did not intend to hit the claimant but his evidence could not possibly be read as suggesting that he aimed the blow at the claimant’s head. On the contrary, he said:

“I had no time to aim a blow or to think what harm I might do.”

    1. He said it had happened very quickly in part of a second and this was confirmed by the evidence of the other witnesses. Whereas the judge in one breath suggested that if it had been a careful aimed blow the claimant would have avoided it, in another he seems to suggest that it was delivered deliberately to the side of the claimant’s head. Against his acceptance of the evidence that there was no swinging of the bat or raising it above his head, I do not think the judge was justified in holding that the defendant had any intention beyond an intention to hit the claimant. Further there was no evidence of the claimant’s posture or the position of his head which would undoubtedly have been changing as the struggle continued. From the evidence which the judge accepted, the idea of a blow delivered intentionally to the claimant’s head was entirely alien and in my view cannot be supported. This is quite unlike any case in which there is direct evidence that a blow has been delivered deliberately to the claimant’s head.
    2. In this passage, while emphasising that it was a hard blow to the side of the claimant’s head with a hard wooden implement and one likely to cause, as it did, serious injury, the judge seems to have overlooked the fact that it was the same implement with which the claimant was attacking the defendant and had struck him three times. It was thus implicit that the defendant was defending himself from an attack with a hard wooden implement which was likely to cause him serious injury. Moreover the actions of the defendant had to be judged by the facts as he believed them to be (R v Gladstone Williams [1987] 78 Cr App R 276). There was ample evidence from the witnesses, whose evidence the judge preferred, supporting the defendant’s evidence that he thought he was facing serious injury and that he had no time to and did not aim a blow but hit the claimant instinctively. Further, although the judge had said that it was the nature of the blow rather than the disastrous consequences i.e. the injury that had to be looked at, the whole basis of his finding that the blow was hard was based on the serious nature of the injury and the estimate on the imaginary scale of the force necessary to produce it. The judge accepted Doctor Baden-Powell’s reservations about inferring the degree of force from the nature of an injury but seems to have decided the blow was hard on the basis that Doctor Timperley thought it was 10% harder than a blow delivered with average force. I think that the judge here fell into the error which Lord Lane graphically described in Reed v Wastie [1972] Crim LR 221 of:

“… using jeweller’s scales to measure reasonable force.”

    1. Further the judge placed too much emphasis on the degree of force used in this single blow as he divined it to be. It was wrong simply to concentrate on the blow neglecting the other factors bearing on reasonable force. The defendant had taken every reasonable step to avoid becoming involved with the claimant who the judge rightly described as “trying to goad him into retaliating”. It was only when he was under actual attack with a weapon, described by the judge as “likely to cause serious injury”, that he became involved in the struggle to prevent the claimant hitting him with the bat. Had the defendant in a moment of unexpected anguish only done what he honestly and instinctively thought was necessary? In my view, by starting from his holding that the blow was a hard blow based on medical opinion, the judge overlooked the wider question whether in hitting out with the bat at the claimant the defendant had done what he honestly thought was necessary in the anguish of the moment. As to that there was not only his own evidence but also the evidence of the other eye-witnesses. The judge should have regarded this as most potent evidence that the defendant had indeed only done what was necessary in the circumstances. The mere fact that the blow was 10, 15 or even 20% harder than average as judged by medical men from the injury it had produced was not, in my view, a sufficient ground for rejecting the most potent evidence that the defendant acted in self-defence. Accordingly I would find for the defendant on this ground. But if I am wrong on this point, I would nevertheless find that the claimant’s case failed on the ground that his injury arose from his own criminal and unlawful acts.
    2. Ex turpi causa
    3. The judge rejected the submission by the defendant that the court ought not to permit the claimant to recover because his claim arose out of his own serious criminal conduct. He began by stating that no modern case that he had been referred to gives “an example of the defence being successful where the cause of action is assault”. After referring to the observations of Kerr LJ in Euro-Diam Ltd v Bathurst. [1990] 1 QB 1 at page 35 in which he referred to.
    4. “… circumstances [in which] it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts…”,
    5. the judge turned to what he described as the modern approach in cases of tort. He correctly said:

“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 [1998] 2 WLR 902.”

    1. Next he considered the context of assaults. He said:
    2. “… proportionality of each party’s behaviour towards the other is the important factor “(my emphasis)
    3. He referred to Lane v Holloway [1968] 1 QB 379Barnes v Nayer (1986) The Times, December 19th, Court of Appeal, and Murphy v Culhane [1977] QB 94 on which the defendant had relied. He discounted the decision in Murphy v Culhane It was a case in which the defendant himself had been convicted of manslaughter and sentenced to imprisonment but who had killed the deceased after he had himself been the victim of a concerted attack by a group of which the deceased was one. The defendant had pleaded that the assault in which the deceased was killed had occurred during and was part of a criminal affray which was initiated by the deceased and by others with the joint criminal intent of assaulting and beating him. The master and the judge had ailed that the pleadings showed no defence in law. The defendant appealed and this court held that by taking part in a criminal affray the deceased could have deprived himself of a cause of action arising from its consequences and the defendant was entitled to put forward the defence of ex turpi causa non oritur actio.
    4. The judge felt able to disregard this case because he said the facts had not been established. But this was irrelevant. On an application to strike out a defence the facts alleged in the defence must be taken to be proved and it was on this basis that this court upheld the appeal and permitted the case to go for trial. Finally the judge referred to the case of Revill v Newbery [1996] QB 567 and, in particular, to the observations of Millett LJ, as he then was, in that case.
    5. Having thus reviewed the authorities, the judge sought to apply them to the facts of the case. Unfortunately in my view he fell into error in doing so. He said:

“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.”

    1. I shall take the steps in the judge’s reasoning separately.
    2. 1 .The public conscience test.
    3. Such a test was regarded by the majority in Tinsley v Milligan [1994] 1 AC 340 as unsatisfactory. Lord Goff of Chieveley accepted the reason for the rule stated by Ralph Gibson LJ in this court, [1992] Ch 310 at page 334 in these terms:

“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.”

    1. Lord Keith of Kinkel and Lord Browne-Wilkinson agreed with Lord Goff who said at page 363:
    2. “But, bearing in mind the passage from the judgment of Ralph Gibson LJ which I have just quoted, I have to say that it is by no means self-evident that the public conscience test is preferable to the present strict rules. Certainly, I do not feel able to say that it would be appropriate for Your Lordships House, in the face of a long line of unbroken authority stretching back over 200 years, now by judicial decision to replace the principles established in those authorities by a wholly different discretionary system.”
    3. Lord Browne-Wilkinson described the suggested test as depending:

“… on such an imponderable factor as the extent to which the public conscience would be affronted by recognising rights created by illegal transactions.”

    1. It is important to bear in mind that although commonly raised by the defence the rule is not for his benefit. As stated by Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341 at page 343, the reason for the rule is:

“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.”

    1. 2. The principle of proportionality.
    2. When the judge referred to the proportionality of each party’s behaviour towards the other in the context of assaults, the cases to which he referred were not based on a simple comparison between the force used by the parties. Rather the question was whether one of the parties whose illegal conduct might be regarded as trivial should be precluded from recovering damages resulting from an aggravated assault in retaliation.
    3. As Lord Denning made clear in Lane v Holloway (supra), the claimant had only aimed a punch at the defendant because he thought he himself might be struck. It had been argued that no action lay because it was an unlawful fight and that both of them were concerned in illegality and that therefore there could be no cause of action in respect of the injury suffered by the claimant. Lord Denning thought that even if the fight started by being unlawful, one of them could sue the other for damages if the subsequent injury was inflicted by a weapon or savage blow out of all proportion to the occasion.
    4. Lord Salmon, then Salmon LJ, said:

“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.”

    1. Winn LJ put it even more trenchantly:

“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.”

    1. The case was therefore one in which any illegality on the claimant’s part was regarded as trivial and not as a cause of, or connected with, the assault for which he was claiming damages. To that extent the court was prepared to disregard any illegality in the conduct of the claimant. Barnes v Nayer went on a similar principle. Murphy v Culhane (supra) was, however, an entirely different case and showed that the court would not overlook criminal conduct which if proved was serious and which was connected with the act of the defendant sufficiently closely for it to be said that any injury inflicted by the defendant “arose out of the claimant’s own behaviour”.
    2. Lord Denning in that case described the conduct of the claimant in Lane v Holloway as “trivial” and the conduct of the defendant as “savage out of all proportion to the occasion”. The defendant could be solely regarded as responsible. Later he said:

“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…”

    1. In Revill v Newbery (supra) self-defence did not arise. The majority of this court (Neill and Evans LJJ) decided the case on the basis that the judge was entitled to find that the discharge by the defendant of a shotgun towards a burglar who had shown no intention of violence towards him “cannot be said to be an integral part or a necessarily direct consequence of the burglary”. The judge in that case, Rougier J, had said, and Neill LJ quoted his judgment at page 571:

“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.”

    1. Neill LJ pointed out that the duty owed by the defendant in that case to the claimant had to be determined by applying a test similar to that set out in Section 1(4) of the Occupiers’ Liability Act 1984. He also pointed out that in passing that Act Parliament had made it plain that the occupier of premises could owe a duty of care towards a trespasser, or indeed even a burglar. Further, Neill LJ said that the terms of that Act left no room for a two-stage determination whereby the court considered first whether there was a breach of duty and then considered whether, notwithstanding the breach, the claimant was barred from recovering by reason of the fact that he was engaged in crime.
    2. Evans LJ said at page 579:

“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.”

    1. Later he said that it was abundantly clear that the trespasser/criminal was not an outlaw and he referred to the common law authorities which had recognised the existence of a duty of care towards trespassers.
    2. The observations of Millett LJ to which the judge referred “that there was no place for the doctrine of ex turpi causa non oritur actio in this context”, have to be read with his next sentence:

“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.”

    1. It is clear to me that Millett LJ was applying the maxim to the particular circumstances of that case and was not intending to lay down any absolute rule by this observation or to cast doubt on the decision of this court in Murphy v Culhane (supra).
    2. In my view the cases referred to by the judge do not lead to his conclusion that it is permissible in every case for the court to weigh up nicely the degree of illegality by the claimant on the one hand and the defendant on the other to decide which of them should be allowed to recover damages for an assault.
    3. 3. Violence between two people, one of whom becomes the claimant.
    4. The judge sought to distance the claimant from the consequences of his own criminal acts by analogy with the case of the participant in a crime of violence when another participant goes outside the violence contemplated by the two of them. It seems he may have had in mind the remarks of Lord Hutton in the case of R v Powell and Daniels R v English [1999] AC 1. But in my view he misapplied the principle of that case which was that a participant in a crime of violence will be guilty unless the actions of the other participants are of a fundamentally different kind to any act foreseen by the other participant.
    5. In the present case the parties were not jointly participating in a criminal assault on a third party. But assume for the moment that they had been and that the claimant, armed with a baseball bat in threatening or striking the victim had broken the bat and that the defendant had then picked up a broken part of the bat and delivered a blow to the victim, it is absurd to suggest that the claimant could have argued that he was not criminally responsible because the actions of his co-defendant were fundamentally different to any kind of violence foreseen by him. The act of the defendant would have been the very kind of act on which he himself had moments before been engaged.
    6. 4.Does the fact that the defendant in the judge’s words committed the tort of assault and used disproportionate and unlawful force prevent him from relying on the ex turpi causa defence?
    7. The judge posed the wrong question. The question was whether the claimant was precluded from recovering because of his illegal and criminal conduct. The judge had clearly overlooked Lord Mansfield’s exposition that it was not for the sake of the defendant that the rule was enforced but because the court would not lend its aid to the claimant and that where each was equally at fault the position of the defendant was the stronger.
    8. Even on the assumption that the defendant should be regarded as being party to an affray because he used excessive force, on the facts of this case no rational analysis could regard him as equally responsible and indeed from his subsequent apportionment of responsibility the judge did not do so.
    9. Mr Matheson submitted that the judge’s decision should be upheld for three reasons. First the claimant did not need to plead or to prove illegality in order to establish his claim. (The pleading and proof point.) Secondly, he did not need to rely on his own illegal conduct to establish his claim. (The reliance point.) Thirdly, in any event, the tort of battery on which he relied was not so closely connected with his own illegal conduct that he should be precluded from recovery.
    10. I do not think it is necessary to deal separately with each aspect of his submissions. They were advanced with his usual clarity and, if I may say so, persistence. He relied on the opinion of Lord Browne-Wilkinson in Tinsley v Milligan (supra) in which he examined how far the court should refuse relief at common law where an equitable property right had been acquired as a result of an illegal transaction. After examining the authorities, Lord Browne-Wilkinson said at page 370:

“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.”

    1. It seems to me that the application of the “stern” rule as enunciated by Lord Mansfield has become qualified in cases in which the court has to decide property or contractual rights between two people. In such cases the court often faces the dilemma that, by denying relief on the ground of illegality to one party, it appears to confer an unjustified benefit illegally obtained on the other.
    2. As it is one object of the rule to maintain respect for the legal process, it is not surprising that courts have sought to provide a solution to this dilemma.
    3. I do not believe that there is any general principle that the claimant must either plead, give evidence of or rely on his own illegality for the principle to apply. Such a technical approach is entirely absent from Lord Mansfield’s exposition of the principle. I would, however, accept that for the principle to operate the claim made by the claimant must arise out of criminal or illegal conduct on his part. In this context “arise out of clearly denotes a causal connection with the conduct, a view which is implicit in such different cases as Lane v Holloway and the recent case to which we were referred in this court, Standard and Chartered Bank v Pakistan National Shipping Corporation & Ors Court of Appeal transcript, Friday 3rd December, 1999. In my view the principle applies when the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct.
    4. In truth, it is not possible to generalise. The variety of cases and circumstances is such that there will always be cases which fall on one side or the other of the appropriate line. I have no doubt that in this case the court ought not to have turned a blind eye to the criminal conduct of the claimant. He was guilty of several serious criminal offences. He had committed an offence of having an offensive weapon in a public place contrary to the Prevention of Crime Act 1953, an offence carrying a maximum term of imprisonment of two years. He had committed the offence of affray under the Public Order Act 1986 with a maximum sentence of three years. He had assaulted the defendant causing him actual bodily harm and he had made a threat to kill which, even on the assumption that he did not intend the defendant to believe he would carry it out, nevertheless amounted to a further offence under the Public Order Act.
    5. Although Mr Matheson QC argued valiantly that the claimant’s claim did not arise out of his own criminal acts, in my view the argument is untenable. He had not only continued to assault the defendant with the baseball bat when the defendant was plainly seeking to avoid any confrontation, he had in the judge’s words “goaded the defendant into seeking to defend himself. The judge found that at the time the blow was struck it was struck in self-defence, that is to say though heavier than the judge thought objectively necessary, he was seeking to protect himself from the claimant’s attack. The claimant’s injury in respect of which he brought his action originated and arose (oritur) from the claimant’s own criminal conduct. In my view in the circumstances of this case the court ought not to countenance a claim for damages so founded. I would allow the appeal.
    6. LORD JUSTICE OTTON: I agree that this appeal should be allowed and for the reasons given by my Lord, Lord Justice Beldam.
    8. Self-defence
    9. Like my Lords my conclusion differs from that of the learned judge. I shall therefore highlight the most significant features of the facts found by him, even at the risk of repetition of some of the detail narrated by Lord Justice Beldam in his judgment.
    10. All that day the claimant and his partner were deliberately trespassing on Mr Kirkby’s land. More than once they were removed and they nevertheless returned. That is the context.
    11. When Mr Kirkby walked the claimant’s partner off his land she bit him and resisted by going to the ground. The claimant’s response was violent. He approached Mr Kirkby and punched and kicked him and became abusive and threatening. No doubt thoroughly alarmed by this development Mr Kirkby asked a neighbour to send for the police.
    12. The claimant and his partner then armed themselves with weapons taken from their car, he with a baseball bat, she with an iron bar. In the end the metal bar played no direct part in the incident, but its presence helps to convey something of the tense and troublesome atmosphere at this increasingly alarming scene.
    13. The claimant broke the baseball bat by striking it repeatedly on the road. Eventually it broke, mostly lengthways. He retained part of it, maintaining his hold of the handle and he assaulted Mr Kirkby. He was angry and threatening and pushed Mr Kirkby in the chest and throat with the weapon. Mr Kirkby tried to get away. The claimant pursued him and came up close behind him. According to the judge’s findings, Mr Kirkby turned to face him. If Mr Kirkby had not done so it is difficult to avoid the conclusion that he would have been struck. At any rate on the judge’s findings, the claimant was looking for a fight. Once he had turned to face his attacker, Mr Kirkby was struck two painful blows with the weapon on his left upper arm.
    14. With that he grabbed hold of the broken end of the bat and a struggle developed. Eventually Mr Kirkby secured the bat and immediately struck the claimant, once – that is important – on the side of the head with it. It was a hard or heavy deliberate blow. He did not however swing the bat in an arc or raise his arm above his head. The blow therefore was not struck with his full force, and it was the only blow he struck throughout the entire incident. On the judge’s findings it was not struck in revenge, nor retaliation, nor to teach the claimant a lesson, nor to give him a “good hiding”. Mr Kirkby believed that he was facing an immediate threat of further violence and that it was necessary to defend himself. In context these beliefs were entirely justified.
    15. The blow ended the fight. Rather than strike the claimant again, Mr Kirkby threw the bat well out of harm’s way. As it happens, although seriously injured, the claimant was apparently prepared to continue the fight and he went towards the place where the broken bat had fallen. Sensibly, a witness removed it. That did bring an end to the incident. Mr Kirkby asked the claimant if he wanted an ambulance or the police (for whom it will be remembered Mr Kirkby had called after the claimant’s violence had begun). The claimant did not. Eventually both drove away.
    16. The end result of this incident was a very serious one from the claimant’s point of view. The single blow to his head undoubtedly caused him serious injury.
    17. The judge found that although the situation faced by Mr Kirkby justified the use of some force the actual blow struck by him was excessive or disproportionate to the situation the defendant believed himself to be facing. Therefore it was unlawful. The judge’s view is entitled to respect, and I should not interfere with it merely because another view is reasonably open.
    18. One way of testing the conclusion is to consider how a jury might have decided this case, that is a jury correctly directed in accordance with legal principles and applying the civil standard and burden of proof. I find it very hard to accept that a fair-minded cross-section of the community would conclude that Mr Kirkby had acted unlawfully. A jury would undoubtedly begin by recognising the serious nature of the claimant’s injuries. They would also probably have some sympathy for him and regard the injury as most unfortunate. But, in the end, what was Mr Kirkby to do? In a frightening situation, he had disarmed a man who had already struck him, first without a weapon, and then having armed himself for the purpose, with a weapon, more than once. His aggressive and threatening behaviour was determined and persistent. By contrast Mr Kirkby had got into a fight he did not want and which he had done his utmost to avoid. More important still, when he used the weapon, he used it once only and without using his full force. In other words, notwithstanding the steady escalation in the alarming and confusing situation, and its increasing stresses, and notwithstanding everything that the claimant had already done to him, or sought to provoke him to do, to a significant extent Mr Kirkby continued to hold back. In these circumstances it is not in my judgment tenable to stigmatise, and I do not believe that any reasonable jury would conclude, that what Mr Kirkby did was an over-reaction or unreasonable reaction to the situation facing him. When acting in self-defence (as Mr Kirkby undoubtedly was) the victim of violence (again, an accurate description of Mr Kirkby) genuinely believing (and here with every reason) that the violence would be likely to continue until brought to an end, he could not be expected, and the law does not require him to measure the violence to be deployed with mathematical precision.
    19. In the heat of the forensic battle at Grimsby figures were deployed by both sides to urge and support their contentions about the force of the blow to the claimant’s head. I suspect that they eventually assumed a quite disproportionate significance, remote from the harsh realities facing Mr Kirkby. Focusing on these realities, and the dreadful situation in which he found himself, I am satisfied that the violence used by him on this occasion was not unlawful and that we should set aside the judge’s decision.
    20. Ex turpi causa non oritur actio.
    21. I shall now assume, contrary to my conclusion, that the judge’s findings on liability were correct. The medieval concept of outlawry is unacceptable in modern society. An outlaw forfeited the protection of the law. He could not invoke the assistance of the court to enforce non-existent rights. In the United Kingdom today there are no outlaws. However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice. This is the context in which the application in tort of the principle encompassed in the maxim falls to be examined. If it applies at all the claim cannot succeed. The bar is absolute, even if, in all other respects the cause of action is established. The principle, as Lord Goff of Chieveley explained in Tinsley v Milligan [1994] 1 AC 340 at 355, is not:

“… 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.”

    1. As I have endeavoured to show, the judge found that the defendant was liable because, notwithstanding the actual violence inflicted on him with a weapon by the claimant, and his perception of continuing and serious violence at the claimant’s hands, and therefore a situation in which the use of force in self-defence was amply justified, Mr Kirkby’s response was excessive and unreasonable. The question therefore is not whether the claimant should be regarded as an outlaw (which he is not) but whether his direct participation in the violent offence which culminated in the single blow causing his head injury and bringing the violent incident to an end should lead to the failure of his claim for damages for assault.
    2. It is clearly established that the ex turpi causa principle applies to actions founded on tort -see for example Murphy v Culhane [1977] QB 94Revill v Newbery [1996] QB 567 and Clunis v Camden & Islington Health Authority [1998] QB 978. The contrary was not argued by Mr Duncan Matheson QC. The issue therefore is not whether but in what circumstances the principle applies in tort.
    3. The first consideration is obvious. The claimant must be acting unlawfully. But the claim is not doomed to failure merely because the claimant can accurately be described as a wrongdoer whose injuries stemmed from or had their origin in his own criminal conduct. If that represented the single comprehensive test, taken to its logical conclusion, it would mean that the concept of outlawry had been revived. Hardly surprisingly such a test, standing on its own, has been decisively rejected in recent authority. (See, for example, Westward v Post Office [1974] AC 1; Pitts v Hunt [1991] 1 QB 24 and Revill v Newbery [1996] QB 567.
    4. In National Coal Board v England [1954] AC 403 the House of Lords concluded that a claim by an injured claimant should succeed, although he and a fellow employee, acting in concert, had knowingly broken statutory regulations designed to protect them. The judgments have to be read in context. The ex turpi causa argument arose from the agreement between the two men to commit an unlawful act. The same principle would have applied if the claimant had been acting as he did, but on his own.
    5. Lord Asquith said at page 428:

“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. “

    1. In summary, therefore, if ex turpi causa is to apply in tort something more than wrongdoing, whether general or even on the occasion directly in question, is needed. Perhaps the most useful starting point for discovering this additional ingredient is found in the observations of Bingham LJ (as he then was) in Saunders v Edwards [1987] 1 WLR 1116. Although the case was concerned with an illegality arising from a misrepresentation the discussion is of general application:

“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.”

    1. This passage was cited by Creswell J at first instance in Standard and Chartered Bank v Pakistan National Shipping Corporation Others [1998] LLR 684 and later endorsed by Evans LJ in the Court of Appeal, unreported, 3rd December 1999. In this respect it was unaffected, as it seems to me, by the decision of the House of Lords in Tinsley v Milligan overruling the line of earlier authorities of which it formed part, which had suggested that the foundation for the principle was the need to avoid an “affront to the public conscience”.
    2. Lord Bingham’s distinction between behaviour which is “incidental” to the criminal conduct and “directly” connected with it does not stand alone. (See, for example, Pitts v HuntEuro-Pi am Ltd v Bathurst [1990] 1 QB 1.) In very broad terms this feature has a more ancient pedigree in the phrase “immediate and necessary relation” used in Dering v Karl of Winchelsea (1787) 1 Cox Eq 318 cited by Mr James Munby QC in his argument in Tinsley v Milligan More recently, and more authoritatively, in the context of a claim to an equitable interest in property and therefore far removed from the facts of the present case, towards the end of his speech in that case, Lord Browne-Wilkinson used the word “collateral”. In general the impression conveyed by “collateral” is similar to “incidental” and contrasts with and is distinct from “direct” or “immediate”. These words and the contrast between them help to identify the additional ingredient.
    3. In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense.
    4. The principle which I have endeavoured to identify was succinctly encapsulated by Rougier J in his judgment in Revill v Newbery when he concluded that the ex turpi causa principle applied only “if the injury complained of was so closely interwoven in the illegal or criminal act as to be virtually a part of it or if it was a direct uninterrupted consequence of that illegal act”. He rejected the defence in Revill on the basis that the claimant’s injuries “cannot be said to be an integral part or a necessarily direct consequence of the burglary”. (See [1996] QB at 571E-G.)
    5. Before considering whether ex turpi causa was established against the claimant in this case, I must examine the authorities referred to in this context by Judge Inglis.
    6. In Lane v Holloway [1968] 1 QB 379 the submission that the claimant’s claim should fail ex turpi causa was virtually laughed out of court. The elderly claimant was abusive and unpleasant. The youthful defendant left his home “to beat him up and teach him a lesson” (per Salmon LJ) or “thrash him” (per Winn LJ). The submission was founded on the proposition that “no action lies because this was an unlawful fight”. Lord Denning suggested that the behaviour of the defendant was so manifestly disproportionate to the unlawfulness of the claimant that ex turpi causa had no application. However, as I read his judgment, his attention was focused on the consent given and willingly accepted by those who participate in a fight “with fists”. The risks did not extend to a savage blow out of all proportion to such a fight.
    7. The question whether the claimant suffered a blow inflicted in self-defence from an attack initiated by him was not addressed. In truth there was very little room for ex turpi causa based on the claimant’s seemingly feeble first punch offered when the defendant, having come out of his house, moved close up to him in a threatening manner.
    8. This decision was inevitable. Ex turpi causa could have had no application. The claimant might just have been guilty of common assault (although I doubt it) but that was merely incidental background to the savage assault on him which then followed. As Lord Denning was to comment later in Murphy v Culhane, in truth the defendant could be regarded as solely responsible for the claimant’s injury.
    9. The same approach permeated Barnes v Nayer [1986] The Times, December 19th. Again assuming that the deceased was herself guilty of any criminal offence (rather than anti-social, irritating and provocative behaviour) this merely provided the background to her virtually traumatic decapitation at the hands of the defendant wielding a machete.
    10. In Murphy v Culhane the deceased was killed in circumstances amounting to manslaughter. His widow sought damages from the killer. He pleaded that despite his conviction, and therefore his responsibility for the unlawful killing, the claim should fail ex turpi causa. The deceased was involved in a criminal affray and his death arose during the course of the affray. On these assumed facts the Court of Appeal held that the issues merited trial. No concluded view was expressed, and given the interlocutory stage of the proceedings, no more could have been expected. Lord Denning distinguished Lane v Holloway He also observed, obiter, that a householder who shot dead a burglar in his home might well escape liability in damages even if convicted of manslaughter, not because of any merits of his own, but because of the burglar’s criminality.
    11. On the assumed facts there was a very close link between the deceased’s criminal activity and his death. Lord Denning said:

“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.”

    1. Therefore, ex turpi causa was arguable.
    2. Revill v Newhery was concerned with injuries sustained by a burglar who was shot while attempting to enter a shed. The claimant’s claim in negligence was upheld. In the Court of Appeal the claim for trespass to the person was not pursued. Self-defence by the defendant was not in issue. He, the defendant, was not subject to any spoken threat. Indeed, from the report it looks as though the claimant did not realise that the defendant was present in the shed in which he had been asleep. The defendant was woken by the noise being made by intruders. He loaded a shotgun which was kept in the shed and fired it, so injuring one of those trying to get into the shed. Those facts are very different from those in the present case.
    3. Neill LJ founded his conclusion on the effect of the Occupiers’ Liability Act 1984, saying:

“Parliament has decided that an occupier cannot treat a burglar as an outlaw …”

    1. Neill LJ expressly said that he was not considering the application of ex turpi causa in any other area of the law of tort, presumably confining himself to negligence, and not referring to trespass to the person.
    2. Evans LJ held that if ex turpi causa were to apply in the instant case, it would mean that:

“… 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.”

    1. He concluded that the claimant was not an outlaw, and that the defendant had been negligent.
    2. Millett LJ (as he then was) held that the use of excessive force against an assailant or intruder was an actionable wrong and that there was no place for ex turpi causa. If it did apply the consequence would be that:

“… any claim by the assailant or trespasser would be barred no matter how excessive or unreasonable the force used against him.”

    1. He ended his judgment by saying that:

“The conduct of the defendant on the instant occasion was clearly dangerous and bordered on reckless.”

    1. No member of the court referred to Lord Denning’s admittedly obiter observation in Murphy v Culhane about the position of the householder who found a burglar in his house. More important, although Murphy was cited, no one considered the principle for which it is authority, presumably because it simply was thought not to apply to the facts then under consideration. Further, for the reasons given by Evans LJ, the broad test of causation was satisfied. He pointed out that the claimant:

“… 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.”

    1. Nevertheless, no one criticised Rougier J’s conclusion referred to earlier in this judgment that any injury sustained by such a discharge cannot be said to be an integral or a necessarily direct consequence of the burglary. More important, for present purposes, no one made any express or indeed implied criticism of Rougier J’s formulation of the principle.
    2. If I may say so, I agree with Evans LJ that if Revill’s claim had been “barred” this would have been tantamount to treating him as an outlaw. Equally, I respectfully agree with Lord Millett that if ex turpi causa had applied in Revill v Newbery it would indeed mean that any claim would be barred against an assailant or an aggressor. Nevertheless, applied in its full rigour, his observation would logically lead to the conclusion that there is a species of potentially tortious conduct (that of causing injury to an assailant or trespasser) which represents a previously unknown exception to the ex turpi causa principle. If so, this would be contrary to the principle applied in Murphy v Culhane
    3. In my judgment, on proper analysis, the decision in Revill is consistent with the principle I have endeavoured to state. If Mr Kirkby had not been attacked in the way that he was, but had, rather, found the claimant trespassing on his land intending to cause minor criminal damage, and on that basis armed himself with a weapon and violently assaulted the claimant, ex turpi causa would not have arisen for consideration. The consequent injuries would not have been sufficiently interwoven or linked with the claimant’s criminal activity. That, however, was not this case.
    4. Having examined these authorities, I note from time to time that it is suggested that ex turpi causa should not apply if the behaviour of the defendant can properly be described as disproportionate. This is the way in which Judge Inglis approached the problem.
    5. In many if not most cases, if the defendant’s behaviour is truly disproportionate overall then, as a matter of fact rather than law, this may well provide powerful evidence that the claimant’s criminal conduct is not sufficiently linked to the injuries he has sustained for the purposes of ex turpi causa. This will not always be the case, and the conclusion will not follow merely because, as here, in self-defence and in the agony of the moment, without time for calm reflection, a defendant is held to have overreacted and by mistake used more force in self-defence than was reasonably necessary, by striking his attacker a blow with the weapon which has been used to attack him, and in that sense only behaved disproportionately.
    6. On the occasion with which this case is concerned, as the now repeated narrative of the facts demonstrates, the claimant was criminally violent. His violence was directed at the defendant who eventually struck him with the very weapon with which he, the defendant, had been attacked. Even if the judge had been right to conclude that by delivering this blow the defendant had gone further than he should in reasonable self-defence, its delivery was inextricably linked with the assaults to which the defendant had been subjected, and his urgent need to bring the violence offered to him to an end.
    7. If necessary, therefore, I should have allowed the appeal on this ground also.

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)

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