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COLIN ASHMORE v. ROCK STEADY SECURITY LIMITED


OUTER HOUSE, COURT OF SESSION

[2006] CSOH 30

A1509/02

OPINION OF LORD EMSLIE

in the cause

COLIN ASHMORE

Pursuer;

against

ROCK STEADY SECURITY LIMITED

Defenders:

­­­­­­­­­­­­­­­­­________________

Pursuer: Ivey, Q.C., Lamont; Lawford Kidd

Defenders: Duncan; Dundas & Wilson, C.S., L.L.P.

21 February 2006

Introduction

[1] The pursuer, who is now aged 31, works as a car painter in his brother's repair business in Dublin. In early 2000, he was employed in the Dublin office of an American recruitment and marketing company. On 14 April 2000, he and others travelled to Edinburgh for a friend's stag weekend, checking into their hotel at around 5.00pm. His last memory of that evening, after having had a meal, was of going to Mather's Bar with his friends from about 7.00pm onwards. His next memory was of waking up in an Edinburgh hospital some six days later, by which time he had sustained severe head injuries, including a fractured skull and associated brain damage.

[2] It is, however, a matter of agreement in this action that the pursuer's head injuries were caused in an incident outside an Edinburgh nightclub in the early hours of 15 April 2000. The venue was "Club 30" in Frederick Street, and at the material time the pursuer was persistently trying to regain entry against the wishes of the door staff. As the company providing security at the club, the defenders were responsible for the conduct of the door staff acting in the course of their employment with them. In the course of the incident, one of the door staff named Scott Moncrieff (hereinafter referred to as "Moncrieff") physically manhandled the pursuer away from the club door and struck him once. Unfortunately this caused the pursuer to fall backwards, striking his head violently on the pavement and thereby sustaining the injuries of which he now complains.

[3] In this action the pursuer seeks substantial damages for the severe and lasting consequences of that night's events, maintaining that the defenders are vicariously liable for the criminal assault which caused him to strike his head against the pavement. Total damages are now agreed, on a full liability basis, at the sum of £274,000 inclusive of interest to 31 January 2006. It is also agreed that the pursuer's injuries and their consequences were caused by the actings for which Moncrieff is blamed, and that at the material time the latter was acting in the course of his employment with the defenders. However, the parties remain in dispute as to the circumstances in which Moncrieff struck the pursuer, and in particular as to (i) whether Moncrieff was then acting in self-defence; (ii) whether the pursuer, having allegedly attacked Moncrieff before he was struck, thereby forfeited any right of action by application of the principle ex turpi causa non oritur actio; and (iii) whether Moncrieff in any event acted under provocation, thus leading to a reduction in damages. A proof on these limited issues has now taken place before me.

Summary of the evidence for the pursuer
[4] The pursuer himself gave evidence, and in the witness box demonstrated something of the impairment from which he now suffers. As regards the circumstances of the incident in April 2000, he was able to confirm the purpose of his visit to Edinburgh and the course of the early evening up to the point at which retrograde amnesia set in. He recognised himself on the CCTV images from outside the club (Production 7/5), confirming that at various points he appeared to lean forward suddenly with his upper body towards another man who was probably the door steward Moncrieff. The pursuer was, however, unable to say whether he personally was drunk, aggressive or threatening at that time, or whether he was escorted by anyone in the direction of taxis. As against that, it was clear that he had his hands in his trouser pockets throughout the whole video, and at no time obstructed the entrance to the club.

[5] The second witness for the pursuer was Colin Philp, an American-based computer programming consultant whose early life had been spent in the Edinburgh area. On the night of 14/15 April 2000 he had been in "Club 30" with friends, and had seen at least some of the incident when he left the premises at around 1.30am. In his evidence-in-chief, he described joining two female friends who were waiting for a taxi at the edge of the pavement, and from that vantage point watching the pursuer as he persistently tried to regain entry to the club. Although the pursuer had his hands in his pockets, and did not appear physically aggressive, the principal steward maintained that he was too drunk and would not be allowed back into the premises. The situation became heated, with both shouting and "in each other's face". Things improved when Moncrieff went inside for a short time, but flared up again when he re-appeared. After forcefully pushing the pursuer away on perhaps three occasions, Moncrieff then grabbed him by the lapels and marched him backwards down the slope towards Princes Street. Both men were shouting. The witness then turned round to see the pursuer's eyes rolling and his legs buckling as he fell to the ground. He did not however see any specific punch or cause for what had happened, although he was able to confirm that the pursuer still had his hands in his pockets and was not offering any violence towards the steward. Thereafter, as the pursuer lay on the pavement, the steward shouted, "You're my witnesses! Self-defence!"; nurses and others administered first aid to the pursuer; but against their advice the steward dragged the pursuer to his feet and pulled him back in the direction of the club door.

[6] In cross-examination, however, Mr Philp confirmed the amount of drink which he himself had taken, and disclosed that in his first statement to police officers at the locus he had said a number of things which were very different from his evidence in court. In particular, he had said to the police that the pursuer was shouting and "steaming"; that the doorman had tried to get him away from the club on about seven occasions; that the pursuer had tried to "stick the head" on the doorman, who moved backwards out of the way and threw a single punch to protect himself. The statement went on to confirm that the doorman had definitely acted in self-defence, having had to protect himself from an individual whose conduct was out of order. Mr Philp accepted that he had said the majority of what was recorded in the statement, but explained that he had merely gone along with what the defenders' door staff had said. He was not proud of what he had done at that time, but he had been alone and surrounded by door staff and felt under duress. According to him, the majority of this statement was in fact untrue, as he had explained to the police on the following day when a longer statement was taken from him. In broad terms, that longer statement was consistent with his evidence in court, and also with the evidence which he gave when Moncrieff was previously tried for assault. Moreover, by reference to that statement, Mr Philp recalled how it was a "sharp movement" on the part of the door steward which resulted in the pursuer's eyes rolling, his legs buckling, and his falling to the ground. At most, he confirmed, the pursuer had been verbally abusive or aggressive, although he agreed that it was possible that the pursuer could have attempted to headbutt the steward without his noticing.

[7] In addition to the difficulty with his police statements, Mr Philp also encountered difficulty with some of the CCTV footage from outside the club. He recognised himself leaving the premises at one point, but could not understand why he did not appear to be wearing glasses at the time. His recollection was of having had his glasses on while he watched the incident develop. More seriously, the timing of his exit from the club on the video made it impossible that he could have seen the pursuer approach the club from downhill as he originally claimed in the witness box.

[8] The third and last witness for the pursuer was Gary Inglis, a Detective Sergeant with the Drugs Enforcement Unit of Lothian and Borders Police. He was off duty on the night of the incident, and after having a great deal to drink was refused entry to the club (allegedly without explanation) by Moncrieff and others. Shortly thereafter, he was waiting for friends at the nearby bus stop when he saw an argument develop between the pursuer and Moncrieff at the club door. He then saw Moncrieff manoeuvring the pursuer backwards down the street, holding him by the shoulders, after previously having pushed him away from the door on some three occasions. Moncrieff was considerably taller than the pursuer, and was holding him with outstretched arms. Mr Inglis did not see the pursuer attempt to headbutt or lunge at Moncrieff, but did describe something like a headbutt from Moncrieff which laid the pursuer out cold before he hit the ground. Throughout the incident, Moncrieff was aggressive and fairly vocal, and Mr Inglis saw no action on the part of the pursuer which necessitated his being struck.

[9] In cross-examination, Mr Inglis confirmed that he saw no contact between Moncrieff and the pursuer; acknowledged that after seven or eight pints people might have thought that he himself was "extremely drunk"; but reasserted that he had no recollection of aggression, violence, threats, abuse or squaring up on the part of the pursuer. According to him, what he saw was the pursuer being pushed (not escorted) with outstretched arms across the pavement and down the road, followed by a "very forceful" or "sharp" movement of Moncrieff's head towards the smaller man. He also described Moncrieff shouting, "Back! Back!" as he moved the pursuer across the pavement. At all material times, the pursuer had his hands in his pockets, and gave no sign of looking for a fight or any physical confrontation. Had the pursuer headbutted Moncrieff, he would have expected to see this, but ultimately he denied that any such thing had happened.

[10] In the course of his evidence, Mr Inglis encountered difficulties in connection with the amount which he himself had had to drink and the resentment which he might have felt against Moncrieff and other door staff after being refused entry to the club. Contrary to their evidence, he denied having claimed to be on an undercover mission when attempting to gain entry, or having sat in the bus stop abusing and threatening the door staff before the incident occurred. In acknowledging that the police officers who attended at the locus had declined to take a statement from him, he would not admit that this was because of his drunken state, and furthermore denied that at that stage he had accused the door staff of assaulting the pursuer by jumping up and down on his head. This latter evidence was subsequently contradicted by the police officers concerned, who indicated that Mr Inglis had been regarded as too drunk to give a statement, and that he had indeed made the accusations complained of.

Summary of the evidence for the defenders
[11] Moncrieff was the defenders' principal witness, describing the pursuer as "lippy", aggressive and verbally abusive from the outset, although there were periods when he was laughing and "in good fettle". In particular the pursuer, who was extremely drunk, was shouting and calling him names, and coming up to his face before retreating away again. Thinking that the pursuer was liable to hit him, he put his hands out to stop this, and to keep the pursuer at arm's length in accordance with standard practice. Having tried to persuade the pursuer to go home, he manoeuvred him away towards the nearby taxi rank, where he was certain that taxis were present. His arms were straight out with his hands on the pursuer's shoulders, to stop him falling over. At that stage the pursuer appeared "jovial", but he (Moncrieff) was unwilling to leave him in the street in a drunken state. Suddenly, however, the pursuer stopped and headbutted him. The blow, which he did not see coming, was not hard or major, but although he moved his head back contact was made beneath one eye. Moncrieff then described hitting the pursuer back at once, causing him to fall and hit the ground with a great crack. Hitting the pursuer was more an immediate reaction than anything else. In the blink of an eye he had just defended himself, not wanting to get hit again. He flatly denied having headbutted the pursuer as the witness Inglis claimed. He was left with a bruise under his eye, and in the witness box appeared to indicate his right cheekbone, although three other witnesses described him as having a mark on the left side.

[12] When confronted with the CCTV footage, Moncrieff highlighted three occasions on which the pursuer had leaned his face forward into his own, describing this as quite threatening. He then described having pushed the pursuer away with his arms, to keep him at a safe distance, and said that he imagined having pushed the pursuer out towards the bus stop. Since the pursuer was drunk, abusive and unpredictable, it was important to avoid inflaming the situation. Stewards were not employed to fight third parties, nor to push or strike members of the public, but much depended on how vulnerable one felt in a given situation. He insisted that he was escorting the pursuer to the taxi rank, pushing him backwards with his arms straight out against his shoulders, but was unable to explain why, if the pursuer was then "in good fettle", he was not guiding him forwards. He accepted that he himself was 6 feet 2 inches tall, with the pursuer being perhaps several inches shorter. He had been hit by the pursuer's forehead as the latter jumped or leant forward towards him. He strongly disagreed with the suggestion that the pursuer had not struck him at all, and that he had punched the pursuer without provocation. He denied starting or inflaming the physical confrontation with the pursuer, maintaining that he was able to hold his own with someone of the pursuer's size. After the incident, as the CCTV footage confirmed, he had returned to the club door area, although his recollection was of having sought to help the pursuer as he lay on the ground.

[13] When further questioned on the video footage in cross-examination, Moncrieff accepted that at an earlier stage he had been wearing a dark grey or black Crombie coat, consistent with Mr Philp's recollection. After walking away downhill to Rose Street and coming back again, the pursuer had shown little movement or threatening behaviour over several minutes; the pursuer's hands were in his pockets; and Moncrieff's wife Lisa was plainly unconcerned. As regards the apparent forcible pushes, he insisted that he was merely keeping the pursuer at arm's length. Contrary to his original position, he then described pushing the pursuer backwards towards the bus stop because he was causing trouble at the door, coming into his face, shouting and squaring up. However, he flatly denied that the pursuer's behaviour had got under his skin, that he had forcefully pushed the pursuer off on numerous occasions, that he had hit him without justification, and that he and not the pursuer had been the aggressor. After the incident, he accepted that he and the other door staff had moved the pursuer uphill to the bus stop, mentioning panic at the seriousness of the pursuer's injuries. In asking Mr Philp at the bus stop whether he had seen the pursuer's headbutt, he was "covering his back" as a natural first reaction. The response, however, was that the man confirmed having seen it all and advised him not to worry.

[14] The defenders' second witness was Andrew Wanless, another door steward on the night in question. He described the pursuer as compliant and happy on being ejected for excessive drunkenness, followed by periods of insulting and abusive language towards the door staff. When the pursuer appeared to invade Moncrieff's personal space, the latter had pushed him back, or more accurately moved him back to arm's length as door stewards were taught to do. According to Mr Wanless, the movement of the pursuer away from the door of the club involved a gentle motion by Moncrieff, and the pursuer was then moved away in a gentle fashion down the street. At this point he saw the pursuer headbutt Moncrieff without fully connecting. Although he did not actually see any contact, he saw a movement by the pursuer, followed by Moncrieff's head going back, followed again by an upward movement of Moncrieff's hand. This he interpreted as more an act of defence than of attack, and he confirmed seeing a mark or bruise on Moncrieff's left cheek afterwards. There was, he said, no headbutt by Moncrieff on the pursuer.

[15] More generally, Mr Wanless confirmed that if a problem arose in the street, it would be possible to call for assistance from police or colleagues, or alternatively to take the heat out of the situation by speaking calmly to an abusive individual. So far as the off duty policeman was concerned, Mr Wanless confirmed that he had been very drunk, abusive and threatening. Mr Wanless also spoke to the door staff having done all they could to help the pursuer in the street, and in that context of having decided to move him to a safer area in case people tripped over him.

[16] The next witness was Lee Wilson, the member of the defenders' security staff who escorted the pursuer out of the club at an earlier stage for being excessively drunk. According to him, the pursuer was verbally aggressive, swearing and shouting and asking why he was being put out. Over and above that, Mr Wilson confirmed that he had used a restraint hold which door stewards were taught. This was an effective means of control, and allowed an individual to be moved along in the direction in which he was facing.

[17] The defenders' fourth witness was Lisa Moncrieff, then Moncrieff's girlfriend and now his wife. After describing the off duty policeman as too drunk to be admitted to the club, she said that she had no recollection of his having continued to say or shout anything outside. As regards the pursuer, she recalled his ejection from the premises for being drunk, annoying and abusive. He would call Moncrieff "gobshite", then shake his hand, and then become abusive again. In trying to persuade him to leave, the door stewards had made efforts to find his friends and discover where he was staying. However, the pursuer stayed at the door and would not leave. When in abusive mode, the pursuer kept going right up into Moncrieff's face and swearing at him. The latter therefore moved him away to arm's length more than once, but without success. Moncrieff then tried to walk the pursuer down to the taxi rank, keeping him at arms length, and at this point the pursuer was again "in his face". She saw the pursuer's head "go in", at which point Moncrieff punched him, causing him to fall to the ground with a crack. The pursuer had headbutted Moncrieff on the cheek, and the resulting punch was immediate and without delay, as if Moncrieff had reacted in a fright.

[18] Like her husband, she was unable to explain why the pursuer was being moved backwards, rather than forwards, down the street. Contrary to Moncrieff's evidence, she denied that the pursuer was jovial or pleasant at that stage. However, she insisted that she had seen the pursuer's head go forward towards her husband's cheek, although she did not see any contact made, and disputed that the latter had struck the pursuer without provocation. She thought that the punch had been thrown by her husband with his right hand, but was unable to say where it had landed, apart from speculating that, because the pursuer's nose was later bleeding, it might have landed there. Mrs Moncrieff also confirmed the presence of a bruise on her husband's left cheekbone after the event, and recalled that when the police and ambulance arrived the off duty policeman was shouting and behaving in an annoying manner. Mrs Moncrieff was unable to say whether there was a taxi at the rank, but agreed that the pursuer would have had to be moved across Rose Street to reach it. She disputed that, at the door of the club, her husband had shoved the pursuer away, describing him as having moved the pursuer to arm's length several times in a non-aggressive manner.

[19] Sergeant Bootland was the defenders' penultimate witness, speaking to what he and a police colleague found on arrival at the locus. The pursuer was injured and smelling of alcohol. Moncrieff claimed to have been headbutted, and to have retaliated and punched the pursuer once. Moncrieff had a mark under the left eye which was consistent with that account. According to Sergeant Bootland's colleague, Mr Philp had concurred with Moncrieff's account. Mr Inglis, however, was drunk and claiming that Moncrieff had assaulted the pursuer by punching and kicking him on the ground. Because he was so drunk, no statement was taken from him. Subsequently, the CCTV footage was recovered. Sergeant Bootland identified this, and confirmed that the marked timing was one hour slow. Sergeant Bootland had had no later involvement, knowing nothing of Mr Philp's second police statement. In addition, he was unaware of any police car having been waved down as some of the door staff had claimed. If this had happened, he said, he would have known.

[20] The defenders' final witness was the second police officer, Sergeant Barclay, who confirmed the terms of Mr Philp's original statement at the locus. At the time, the door stewards were indeed in close proximity, but Mr Philp was not under any duress. Mr Philp had probably responded to his own request for witnesses on arrival. Apart from certain duties at the hospital, Sergeant Barclay had had no further involvement with the case, although he could confirm that police enquiries took some time to complete and that Mr Philp had been asked back to clarify his original statement. As regards Mr Inglis, Sergeant Barclay also confirmed that no statement had been taken from him because he was drunk.

The disputed issues
[21] On Record, the defenders admit that Moncrieff punched the pursuer, and that the latter fell to the ground. Furthermore, at paragraph 1 of the joint minute No.16 of process, it is agreed that as a result of the incident the pursuer struck his head on the pavement and sustained injuries including diffuse brain damage. Against that background, counsel for the defenders (correctly in my view) acknowledged that the onus of establishing a defence to the pursuer's claim of damages rested on his clients. On their behalf he went on to make three primary submissions, namely (i) that since Moncrieff had lawfully acted in self-defence in the face of a vicious attack by the pursuer, he had committed no criminal act and the defenders must be assoilzied; (ii) that should the plea of self-defence be unsuccessful, application of the maxim ex turpi causa non oritur actio should bar the pursuer's right of action on public policy grounds; and (iii) that in the event of the foregoing submissions being rejected, the pursuer's damages should be appropriately reduced on the ground of provocation. For his part, senior counsel for the pursuer maintained that all of these lines of defence were ill-founded. In particular he submitted that, in the circumstances of this case, there could be no question of the defenders being exonerated altogether. At worst for the pursuer, therefore, it would be open to the court to reduce his damages to a modest degree on the ground of provocation.

[22] In the paragraphs which follow, I propose to deal in turn with each of the foregoing disputed lines of defence.

Self-defence
[23] On the matter of self-defence, the law was not materially in dispute between the parties. The question in all cases was whether a person could be said to have taken reasonably necessary defensive action in the face of an attack then imminent or in progress. For that purpose it would be sufficient if the person concerned genuinely believed himself to be under attack; an individual's response to attack should not be judged too finely, with due allowance being made for the heat of the moment; and (c) only "cruel excess" in such response would be sufficient to overcome the plea.

[24] In this context, counsel for the defenders referred me to both Scottish and English authorities. In Cross v Kirkby (Court of Appeal, 18 February 2000, unreported), Judge L.J. confirmed that the plea of self-defence was available to "...the victim of violence... genuinely believing that the violence would be likely to continue until brought to an end...". According to their Lordships of the Privy Council in Palmer v The Queen 1971 A.C. 814, the question was whether the response was proportionate "...to the necessities of the situation". A plea of self-defence would not, in other words, be open in the face of an attack which was relatively minor, in the sense of being insufficiently serious and dangerous to place the individual in a situation of immediate peril or crisis. On the other hand, where an individual had only done, honestly and instinctively, what he thought was necessary at the time, that might be a factor militating in favour of the plea. Moore v MacDougall 1989 S.C.C.R. 659 illustrated the principle that an excessive reaction to violence (there the use of scissors to stab the complainer twice in response to an attack by punching) would preclude exoneration on the ground of self-defence. And in Burns v H.M.A. 1995 S.C.C.R. 532, (a case on which both parties sought to rely) the court confirmed that even a person guilty of starting a fight could legitimately plead self-defence if, in the course of that fight, the tables were turned to such a degree that he ended up having to defend or protect himself against a serious attack.

[25] On the evidence, according to counsel for the defenders, Moncrieff had reacted immediately, and in the agony of the moment, to being headbutted by the pursuer. This was the only basis on which the plea of self-defence was advanced. A single punch could in no way be described as a disproportionate or excessive response to that attack. There was nothing else in Moncrieff's prior conduct which could adversely affect his position. Accordingly the requirements for a successful plea of self-defence had been made out. Interestingly, the issue of Moncrieff's response had not been seriously tested or explored in evidence on the pursuer's behalf, because the pursuer's position in this action was that he had not headbutted Moncrieff at all. In these various respects, it was submitted, the court should have no difficulty in accepting the evidence of the three door stewards as credible and reliable, especially where supported by the CCTV footage and by the independent evidence of Sergeant Barclay confirming the injury to Moncrieff's cheekbone. Any inconsistencies in the evidence of the defenders' witnesses were minor and on peripheral matters, and could not detract from their substantial agreement on the central disputed issues. By contrast, the pursuer's witnesses Philp and Inglis were "hopeless". Both were significantly under the influence of drink at the material time, Inglis to such an extent that police officers declined to take any statement from him. Philp had inexplicably changed his story after giving an immediate statement to police officers at the locus which substantially agreed with the door stewards' account. In addition, Inglis was actuated by resentment after being refused entry to the Club, and contrary to his denials in the witness box it was clear that he had been abusive and threatening towards the door staff and had made false accusations against Moncrieff when the police arrived.

[26] In seeking to rebut the plea of self-defence, senior counsel for the pursuer maintained that, on a consideration of the whole evidence, the defenders had failed to prove the alleged headbutt by the pursuer. Failing that, any such headbutt was minor and ineffectual, occurring in the context of violent and aggressive conduct by Moncrieff himself, and could not be held to justify the throwing of the punch by which the pursuer's injuries were caused. In the circumstances, there had been no necessity for Moncrieff to act as he did, and the defenders' plea should be rejected. In this context, senior counsel characterised the account given by the defenders' principal witnesses as contradictory and intrinsically improbable, maintaining that they had sought to "sanitise" an ugly incident in which Moncrieff had been at fault. Unlike that of the pursuer's witnesses, their evidence could not be regarded as independent; in significant respects it was contradicted by the CCTV footage; and in all the circumstances it should be rejected as incredible and unreliable.

[27] After carefully considering the evidence and submissions on this branch of the case, I have reached the conclusion that the defenders' plea of self-defence is ill-founded and must be repelled. Beginning with the period of activity immediately outside the door of the club, the CCTV footage (Production 7/5) seems to me to support the pursuer's position in two critical respects. In the first place, it shows that over a period of at least twelve minutes (from corrected time 01.24am to 01.36am) the pursuer gave absolutely no hint of wishing to confront the door staff physically. As all the witnesses confirmed, he was intermittently argumentative and abusive, and on two or more occasions the video shows him jutting his face and upper body forward so that he and Moncrieff were "in each other's face" as they argued. On the other hand, the pursuer made no effort to push his way back inside the premises; he offered no physical violence at any stage; and his behaviour remained unchanged despite being forcibly pushed away from the club door on some three occasions. His hands remained firmly in his trouser pockets throughout, and in my view it was a serious exaggeration for the door staff to claim that at any point the pursuer "squared up" to Moncrieff. A man with his hands in his pockets cannot reasonably be described as "squaring up" to anyone, and I do not accept that this is what was happening. Secondly, the CCTV footage shows Moncrieff on some three occasions pushing the pursuer in the chest with such force as to throw him backwards away from the door area and completely off camera. This was directly at odds with the evidence of the door staff to the effect that Moncrieff had merely held the pursuer at arm's length as a routine precaution. In these two principal respects, the CCTV footage in my opinion provides graphic support for the evidence of the pursuer's witnesses Philp and Inglis, while at the same time raising serious questions as to the credibility and reliability of the door stewards' account.

[28] It is unfortunate that the final stages of the incident, in the course of which the pursuer was punched, occurred outwith the field of view of the CCTV camera by the door of the club. For a number of reasons, however, I am satisfied that the defenders' plea of self-defence has not been made out. To begin with, as regards the general context in which the punch was thrown, I have no hesitation in accepting the evidence of Philp and Inglis to the effect that, after being forcibly pushed away from the club door on several occasions, the pursuer was physically frogmarched backwards a short distance down the street by Moncrieff. These witnesses' description of this manoeuvre was generally consistent, and was later substantially confirmed by the defenders' eye-witnesses including Moncrieff himself. The latter was propelling the pursuer backwards with arms outstretched, and gripping the pursuer in the region of his shoulders. Significantly, at one point of his evidence, Moncrieff himself described having gripped the pursuer sufficiently "...to stop him falling over".

[29] The main evidential conflicts concerned the nature of this frogmarching exercise, and the manner in which it came to an end. The pursuer's witnesses characterised the manoeuvre as aggression on the part of Moncrieff, following immediately upon his three violent attempts to push the pursuer away from the area of the club door. The defenders' witnesses, on the other hand, characterised it as gentle guidance of the pursuer, ostensibly for his own welfare, towards the taxi rank close to the junction between Frederick Street and Princes Street. In my opinion, the picture which the defenders' witnesses tried to paint here was intrinsically improbable, and I reject it on a number of grounds. Such a picture would represent a dramatic change from Moncrieff's behaviour and attitude seconds earlier at the club door. No-one was able to explain why Moncrieff should have been frogmarching the pursuer backwards if, as he claimed, he was gently helping him in the direction of a taxi. In accordance with common experience in the early hours of a weekend morning, the witness Philp asserted that there were no taxis at the rank at the material time, and I am inclined to believe him on this in circumstances where he was apparently talking to two girls who were waiting outside the club for the arrival of a taxi which they had ordered by telephone. In addition, while Moncrieff began by maintaining that the pursuer was then in a happy frame of mind, this was directly contradicted, not only by his wife, but also by his own later evidence in cross-examination that he had decided to move the pursuer physically away from the Club door because the latter was causing trouble there, coming into his face, shouting and squaring up. All in all, the impression conveyed to me is of escalating physical aggression on the part of Moncrieff in response to what must admittedly have been persistent annoyance and verbal abuse from the pursuer himself.

[30] On the matter of the alleged headbutt, I am on balance inclined to accept that in the course of being physically manhandled down the street the pursuer's head must have come into contact with Moncrieff's cheekbone, thereby causing the mark which various witnesses (including Sergeant Bootland) described seeing. However, I am not persuaded that this was a headbutting assault so serious as to justify Moncrieff in throwing a heavy punch in self-defence. Even Moncrieff himself acknowledged that the alleged headbutt was not hard or major; Wanless stated that it did not fully connect and that he did not actually see any contact; no-one described the mark on Moncrieff's check as serious; and in the witness box Moncrieff appeared to indicate that the mark was on his right cheek, whereas all of the other witnesses thought that it was on the other side. More importantly, it has to be remembered that at the material time Moncrieff was entirely sober and the pursuer extremely drunk; Moncrieff was plainly the bigger and stronger man; the pursuer was downhill of Moncrieff as he was manhandled away from the club; and essentially Moncrieff was in control of the situation, agreeing in his evidence that he could hold his own with someone of the pursuer's size.

[31] At one point, indeed, I was unconvinced that anything amounting to a headbutt by the pursuer had occurred at all. Neither of the independent witnesses Philp and Inglis saw anything of that kind. Moreover, the idea of a true headbutt by a smaller man who was being held at arm's length seemed improbable, especially where he was downhill of Moncrieff and apparently still had his hands in his trouser pockets. However, the mark on Moncrieff's cheekbone was confirmed from various sources, and it is perhaps not too difficult to imagine how, if at any stage Moncrieff had released his grip on the pursuer's shoulders, the latter might again have "...gone into Moncrieff's face" to abuse him and on this occasion made some degree of contact. That said, however, the defenders have failed to persuade me that, on the evidence, the pursuer's movement was in the nature of a deliberate assault on Moncrieff with evil intent. I cannot altogether exclude such a possibility, since many people would object strongly to being manhandled backwards down a street, perhaps even to the extent of retaliating physically if the opportunity arose. However, in present circumstances, it seems at least equally likely that the contact between the pursuer's head and Moncrieff's cheek occurred unintentionally in the course of further verbal abuse in which (on Mrs Moncrieff's evidence) the pursuer was "...in (her husband's) face". Throughout this lamentable incident, there was no convincing evidence of the pursuer doing anything physically aggressive towards Moncrieff, and while his hands remained in his pockets I find it difficult to accept or envisage the sudden and dramatic change in his behaviour for which the defenders contended.

[32] Even if I had held it proved that the pursuer deliberately, and with evil intent, headbutted Moncrieff in the latter stages of the incident, I would still have declined to hold that the subsequent punch was lawfully justified in self-defence. At worst, in my opinion, any headbutt by the pursuer was minor and ineffectual, and an incidental reaction to the physical violence by Moncrieff which started outside the door of the club and continued as he frogmarched the pursuer backwards down the street. Moncrieff was by far the bigger man; he was sober and generally in control of the pursuer, who was very drunk and still had his hands in his pockets; and even if Moncrieff had feared a further blow (for which fear no real basis was advanced in evidence), I consider that he could easily have regained his arm's-length hold on the pursuer, or alternatively walked away or summoned assistance. I am therefore unable to accept that there was any attack on Moncrieff sufficiently serious to justify the throwing of a heavy punch which rendered the pursuer unconscious before he even hit the ground.

[33] Accordingly, in my view, the defenders have failed to make out the requirements for a successful plea of self-defence in this case. Even if (contrary to my opinion) Moncrieff was in fact responding to a deliberate headbutt by the pursuer, I am not persuaded that such response can properly be characterised as defensive; alternative avoiding action was readily available to Moncrieff at the time; and in the circumstances I consider that the severe punch delivered to a very drunk man under his control amounted to "cruel excess".

[34] In reaching these conclusions I am conscious of the fact that nearly 6 years have elapsed since the incident occurred, and that witnesses' detailed recollection of events and sequences must inevitably have been affected to some degree by the passage of time. In addition, the critical part of the incident was over in a matter of seconds; the pursuer's witnesses, although independent, were admittedly under the influence of drink on the night in question; and the defenders' key witnesses were not independent in the sense that they were all directly involved in the incident as door stewards, and one of them is now Moncrieff's wife. I have therefore tried to avoid attaching undue significance to the precise minutiae of what witnesses bore to recall, and have instead sought to concentrate on the broader picture emerging from the evidence as a whole, including in particular the revealing CCTV footage without which the various evidential conflicts would have been rather harder to resolve.

[35] For instance, in preferring the evidence of Philp and Inglis to that of the defenders' main witnesses, I have had regard to the extent to which their account was confirmed by the CCTV footage. In addition, as regards Philp, I have considered whether it is inherently more probable that, having told the complete truth to the police on the night, he should without apparent reason have furnished them with a lengthy false account on the following day, or whether the more likely explanation is that, for whatever reason, his first statement to the police was indeed nonsense, and that he swiftly told the truth as soon as the police asked for clarification. In my judgment the latter is by far the more plausible explanation, and it is significant that since then Mr Philp has twice given evidence on oath to the same effect. In the witness box, he appeared to me to give his evidence in a measured and responsible way, acknowledging the difficulties posed by drink and by his first police statement, and conceding inter alia that there would have been parts of the incident that he did not actually see.

[36] Owing to the degree of his drunkenness on the night in question, and the apparent resentment which he then bore towards the defenders' door staff, Inglis was a rather less impressive witness. I simply did not believe his evidence of having seen Moncrieff headbutt the pursuer, and would have been reluctant to accept his uncorroborated evidence on any material matter. However, as regards events outside the club door, his evidence was substantially consistent with the CCTV footage, and in describing the pursuer as being manhandled backwards down the street his evidence did not materially differ from that of Mr Philp or from that of the defenders' door staff.

Ex turpi causa non oritur actio
[37] In a careful and well-presented submission, counsel for the defenders maintained that even if his clients' plea of self-defence was rejected, they were still entitled to be assoilzied by application of the maxim ex turpi causa non oritur actio. This reflected an established judicial determination both north and south of the border, on public policy grounds, to deny any civil recovery to a party whose claim was, in substance, founded on his own illegal or immoral conduct. While every case must be judged on its own particular facts and circumstances, the maxim had frequently been applied to claims of damages for common law negligence and also for deliberate assault. By way of illustration, some claimants had failed on the ground that their injuries were a direct result of active participation in a common criminal enterprise. Others had failed where, individually or with others, they had deliberately embarked on a course of serious criminal violence before "getting more than they bargained for" at the hands of the intended victim.

[38] Illustrations of cases in the first general category included Lindsay v Poole 1984 S.L.T. 269, Weir v Wyper 1992 S.L.T. 579 and Duncan v Ross Harper & Murphy 1993 S.L.T. 105. The plea was rejected on the facts in Currie v Clamp's Executor 2002 S.L.T. 196, and in Winnik v Dick 1984 S.C. 48 the Second Division similarly held that, on the evidence, the plea could not succeed. According to the defenders' counsel, these cases showed, not only that there was scope for the application of the maxim as part of the law of Scotland, but also that English authorities were considered relevant in that context.

[39] In the second category, Murphy v Culhane 1977 Q.B. 94 was a case in which the defendant pled guilty to manslaughter after fatally striking the deceased Timothy Murphy with a plank. However, Murphy and others had previously set out to attack the defendant and do him serious criminal violence, and the fatal blow was struck in the course of the resulting battle. The Court of Appeal held that the defendant was potentially entitled to rely on the maxim and remitted it for trial. In Clunis v Camden and Islington Health Authority 1998 Q.B. 979, the plaintiff had stabbed a man to death after being released from a mental hospital. The maxim was held to bar his subsequent claim against the hospital authority for the penal consequences of that crime. The Court of Appeal held that the maxim could apply in any case where the plaintiff founded on an illegal act in putting forward his claim, but recognised that many summary offences would not be sufficiently serious to warrant invocation of the maxim.

[40] Cross v Kirkby, supra, was another case in which the maxim was held to apply. There a hunt saboteur violently attacked a farmer over whose land a hunt was riding. He was armed with a baseball bat, but in the course of the struggle he was disarmed and struck once with his own bat on the side of the head, causing injury. His subsequent claim for damages was rejected on public policy grounds, and the circumstances in which the maxim might properly be invoked were considered in some detail by the court. Judge L.J. stated the principle in the following terms:-

"... 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."

As Bingham L.J. (as he then was) expressed it in Saunders v Edwards 1987 1 W.L.R. 1116,

"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."

[41] By contrast, Lane v Holloway 1968 1 Q.B. 279 was a case in which the defendant's attempt to rely on the maxim was rejected. In that case the elderly claimant behaved in an abusive and unpleasant way outside the defendant's house. The defendant, a much younger man, left his home to beat him up and teach him a lesson. The elderly claimant initially threw a feeble punch, but was then subjected to a sustained assault and severely injured. As Beldam L.J. later explained in Cross v Kirkby, supra,

"The case was ... 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."

[42] In reliance on these authorities, counsel maintained that the circumstances of the present case were extremely stark, falling at the upper end of the spectrum illustrated by the decisions in Murphy, Cross and Lane. Moncrieff had been subjected to long-term abuse by the pursuer, followed by a vicious attack in the form of a headbutt. This had directly brought about Moncrieff's reaction, and in the circumstances application of the maxim was more than justified. Admittedly, each case depended on its own facts and circumstances, but to award the pursuer damages here would be to condone his own breach of the peace and the assault which he committed on Moncrieff.

[43] In response, junior counsel for the pursuer contended that in the absence of direct authority the maxim should not be held to apply in Scotland in a case of this kind. All of the Scottish cases cited by the defenders concerned rights of action tainted by joint participation in some common criminal purpose. There was no reason to apply the maxim in cases of assault, where the well-established pleas of self-defence and provocation were available, and moreover the court should be very slow, on public policy grounds, to deprive anyone of a valuable claim by reference to an alleged criminal act of which he had been neither charged nor convicted. In any event, counsel argued, it was not appropriate to apply the maxim in the circumstances of this case. As the English cases demonstrated, the maxim was available only in the context of serious and extreme criminal activity. Murphy, Clunis and Cross all involved criminal conduct of the most serious kind, and only the case of Lane (where the plea failed) came close to the trivial and unpremeditated conduct on which the defenders here sought to rely. Such conduct, it was submitted, plainly fell far short of what might be required for forfeiture of a valuable cause of action.

[44] In my opinion the maxim ex turpi causa non oritur actio has no application in the circumstances of the present case. In reaching this conclusion, I emphatically reject the attempt by junior counsel for the pursuer to persuade me that, under the law of Scotland, the maxim is not available in cases where the pursuer has been guilty of some form of assault. It may be that the recent decisions to which I was referred all concern joint participation by the pursuer in some common criminal enterprise with the defender, but I am not at all confident that the defenders' citation of authority in this area was complete. For instance, this court is familiar with cases in which conviction of the pursuer for assault amounting to culpable homicide has been held, on public policy grounds, to bar claims arising on the death of the deceased:- cf. Burns v Secretary of State for Social Services, 1985 SC 143; Patterson, Petitioner, 1986 SLT 121. More importantly, I was not referred to any Scottish case in which the court suggested that joint participation in a criminal enterprise was the only situation in which the maxim might be applied so as to defeat a delictual claim. This is hardly surprising, because the maxim expresses a broad principle of the common law by which serious abuses of process may be checked, and I can see no obvious reason why the categories of case in which the court may deem such action appropriate should ever be regarded as closed. I am therefore not prepared to countenance the pursuer's suggested limitation on the powers of the court in this connection.

[45] However, for reasons similar to those which have led me to reject the defenders' plea of self-defence, I do not consider that it would be appropriate to apply the maxim ex turpi causa non oritur actio in this instance. In particular, I have declined to hold it proved that the pursuer deliberately and with evil intent headbutted Moncrieff in the moments before the punch in question was delivered. On that basis, the pursuer stands exonerated of any unlawful act capable of bringing the maxim into play, and it is relevant to note that no criminal charge was ever laid against him in that context. Even if I were wrong on that score, however, it seems to me that any headbutt by the pursuer was minor and incidental to the continuing physical confrontation for which Moncrieff must bear primary responsibility. It was in no way comparable to the serious criminal violence which was in issue in the cases of Murphy, Clunis and Cross. In addition, it was not a considered or premeditated act of a kind liable to give rise to public concern, but merely the reaction of a very drunk man on the spur of the moment. Perhaps the closest of the authorities to which I was referred is Lane, where the court refused to apply the maxim on account of the relatively trivial nature of any illegality on the part of the plaintiff. In all the circumstances, I am unable to accept that there are any considerations of public policy sufficient to deprive the present pursuer of a valuable cause of action in respect of serious injuries sustained.

Provocation

[46] Before me, parties were agreed that the effect of provocation on the part of the pursuer would be to reduce his damages by an appropriate percentage. It was not suggested that provocation, whatever its nature or degree, could or should have any more serious impact upon the pursuer's claim. For the defenders, counsel founded on the prolonged period of drunken and foul-mouthed abuse which Moncrieff had had to endure from the pursuer, coupled with the pursuer repeatedly being "in his face" and ultimately injuring him with a headbutt. This was, counsel submitted, more vicious than a punch, with the result that any legal requirement for Moncrieff's response to be proportionate was amply met. On that approach, counsel invited me to restrict the pursuer's damages to a nominal £10,000 or, at worst, to reduce such damages by 90%. Failing that, in the event of the alleged headbutt not being proved, counsel suggested that a 25% reduction in damages would be appropriate. For his part, senior counsel for the pursuer sought to draw a similar distinction between, on the one hand, purely verbal provocation and, on the other, provocation including the alleged headbutt. On that basis, he suggested deductions from damages of up to 10% and 30-33% respectively. On no view, according to him, should the pursuer be held to bear a greater proportion of blame for what happened than Moncrieff.

[47] In my judgment it is not possible to draw a clear distinction between verbal and physical provocation in the circumstances of this case. On the whole evidence, including the CCTV footage, there can be no doubt that over a substantial period the pursuer persistently behaved in an annoying and abusive way towards Moncrieff, and that by repeatedly coming "into his face" he created a real risk of physical contact between the two men with the possibility of injury. In the face of such provocation I am prepared to accept that even a trained door steward such as Moncrieff might understandably suffer some temporary loss of his normal degree of self-control, especially at the point where the pursuer's movements brought his head into contact with Moncrieff's face. On the other hand, for the reasons discussed earlier in this opinion, I am satisfied that the major share of responsibility for what subsequently happened must remain with Moncrieff. Taking a broad view of this matter, I hold that an appropriate deduction from the pursuer's damages would be 20%.

Conclusion

[48] For all of the foregoing reasons, I now sustain the pursuer's first plea-in-law, repel the defenders' pleas 1 to 6 inclusive, and find the pursuer entitled to damages. However, I also sustain the seventh plea-in-law for the defenders, to the effect of reducing such damages by 20%, and accordingly grant decree in the pursuer's favour in the sum of £219,200 (being 80% of the agreed value of the claim on a full-liability basis), together with interest thereon at 8 per cent per year from 31 January 2006 until payment.