UK: Arbitration By Battle

Dispute resolution throws up its fair share of aggression. Ever wanted to punch the opposing party in an arbitration? This article looks at whether English law could ever give effect to an agreement to settle a dispute through violence – and how it did historically.

Residual rights and wrongs

Following the Norman conquest, English law recognised a right to trial by battle in certain disputes. The details are of historical interest only, but suffice it to say that some criminal defendants could insist on fighting the person who brought the prosecution, and be treated as acquitted if they won. The underlying rationale for trial by battle was that the 'correct' outcome was pre-ordained by God, albeit that He generally favoured whichever litigant was the more athletic, and the better armed and armoured. 

A residual right to trial by battle persisted until 1819 in what were known as "appeals". These were not appeals in the modern sense. Rather, they were private prosecutions of a defendant who had already been the subject of a public prosecution for, but acquitted of, a crime. In an "appeal of murder", the deceased's next-of-kin would bring the prosecution. The defendant in such a case could sometimes insist that the trial be by way of a fight between him and the prosecuting relative. 

Appeals were rare, and the right to trial by battle would rarely apply. The right was not available when the "appeal" was brought by a woman, a minor, someone over 60 or who was blind or had a sufficient disability. The right was denied to defendants who had attempted to escape from custody, and in cases where the evidence against the accused was thought to be so strong as to 'admit of no denial'.

The girl, the gauntlets and a get-out-of-jail-free card

Both private appeals and trial by battle were abolished in 1819 following the notorious case of Ashford v Thornton. A detailed account of the case and its repercussions can be found in Megarry A New Miscellany-at-Law (2005). Briefly, a young woman called Mary Ashford was seen leaving a dance with Abraham Thornton. The next morning she was found drowned in a pit, with some signs of having been the subject of sexual violence. Thornton was prosecuted for her murder but acquitted, to much public outrage. 

Mary's brother, William, brought an appeal of murder against Thornton. In court, Thornton pleaded not guilty, and invoked the obscure right to trial by battle. He then pulled on a pair of leather gauntlets, and threw a pair to Ashford. The court unanimously held that Thornton was within his rights. Lord Ellenborough said:

"... this is not a case that can admit of no denial or proof to the contrary; under these circumstances, however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be, and therefore we must pronounce our judgment, that the battle must take place."

Ashford declined Thornton's challenge, and so Thornton was acquitted a second time. Parliament promptly passed an Act (59 Geo III Chapter 46) abolishing both private appeals and trial by battle. 

Since Ashford v Thornton, there has been the odd attempt to invoke the right to trial by battle. In 1985 two defendants who were prosecuted in Scotland for armed robbery tried, unsuccessfully, to argue that the 1819 statute did not apply in Scotland. On 16 December 2002 it was reported in the Telegraph that a 60 year old man had sought to invoke a right to trial by battle with "samurai swords, Ghurka knives or heavy hammers" in respect of a £25 fine he had received for a minor motoring offence. To his disappointment, the DVLA declined.

Peers, pistols and prosecutors

It is necessary to say something about the practice of duelling, as distinct from trial by battle. Trial by battle was a public process, sanctioned by law, which operated to determine the legal rights and obligations of the combatants. A participant, provided they acted within the rules, committed no crime if he injured or killed his opponent.

Duelling was a private practice of pre-arranged fights using matching weapons (typically pistols or swords) in accordance with agreed-upon rules. Duelling was highly formalised, and principally practised by the nobility. Unlike trial by battle, duelling did not concern legal rights. Rather, it aimed to resolve questions of 'honour' and avenge perceived sleights.

Duels never seem to have enjoyed any privileged legal status in England. In R v Brown [1994] 1 AC 212 (discussed further below) Lord Mustill refers to a 17th century authority which held it to be well established that someone who killed another in a duel would be guilty of murder. Lord Templeman refers to an 18th Century authority to the effect that "combatants in a duel cannot give consent to one another to take away life". Consent was similarly no defence to a charge of 'maiming' (i.e. injuring someone so as to deprive them of the use of a part of their body which they needed in order to fight). One reason that the victim's consent did not make it lawful to maim or kill him in a duel was that, by maiming or killing him, you deprived the King of the services of an able-bodied citizen for the defence of the realm. 

Though this was the law, practice differed. Millingen in his History of Duelling (1841) cites several examples of cases where juries acquitted those charged with murder in the course of duels.

Legal reforms aimed at stamping out the practice by extending liability beyond the duellists to include seconds, supporters, onlookers and doctors who attended to treat the injured. The resulting 'joint enterprise' doctrine is now to be found in section 8 of the Accessories and Abettors Act 1961 (as amended):

"Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender."

If D assists or encourages P to commit a crime, and knows of the essential elements of the offence, D is guilty of the offence in the same way as P. If P and D participate together in one crime, and in the course of it P commits a second crime which D had foreseen P might commit, D is guilty of that second crime in the same way as P.

By way of an aside, the joint enterprise doctrine finds an important modern application in prosecuting gang crime. An example is the murder of Sofyen Belamouadden at Victoria Station in 2010 (see Odegbune & Ors. v R. [2013] EWCA Crim 711). The case has some parallels with historical duels over matters of honour, as it was a murder which took place in the course of a pre-arranged encounter arising out of a feud said to have had its origins in "an incident at a party in relation to a girl".

By the 1840s, public attitudes to duelling were changing. Something of a watershed was the trial of the Earl of Cardigan in 1841 (the Earl was later to lead the notorious charge of the light brigade a the battle of Balaclava). The Earl, a Lieutenant General, allegedly killed a much more junior army officer in a duel, declaring, upon his arrest "I have hit my man". Queen Victoria reportedly said at the time that she hoped the Earl "would get off easily". As an Earl, Cardigan was entitled to be tried by a jury of his peers which, at the time, meant all 120 members of the House of Lords. They unanimously acquitted the Earl on the dubious ground that the indictment alleged that he had murdered one "Harvey Garnett Phipps Tucket" but the prosecution had only adduced evidence to show he had killed someone called "Captain Harvey Tucket", and had given no evidence of the deceased's middle names. The case caused public outrage, it being suggested that the prosecutor had conspired to allow the Earl this loophole. The Times said of the case that "in England there is one law for the rich and another for the poor".

Arms, armour and ADR

The right to trial by battle is no longer available in the criminal context, but it is conceivable that some enterprising parties to a suitable civil dispute might try to use trial by battle as a form of alternative dispute resolution, to save themselves the time and expense of a court case. One can imagine feuding neighbours who thought they were physically well matched and wanted an opportunity to vent some of their enmity while also resolving (say) a boundary dispute without the delay and expense of recourse to the courts.

Under the Arbitration Act 1996 (the "1996 Act"), an "arbitration agreement" is "an agreement to submit to arbitration present or future disputes" (section 6). Provided such agreement is in writing (section 5), it enjoys a special status. Court proceedings brought in respect of a matter which is the subject of an arbitration agreement are required to be stayed (section 9). Subject to certain safeguards, awards rendered pursuant to arbitration agreements can be enforced in the courts (section 66). 

Most civil disputes are capable of being determined by arbitration. There are some disputes (for example, regarding the grant of divorces and the custody of children) which English law does not allow to be referred to arbitration.

The 1996 Act states:

"1 General principles.

The provisions of this Part are founded on the following principles, and shall be construed accordingly—

(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;

(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;


"6 Definition of arbitration agreement.

(1) In this Part an "arbitration agreement" means an agreement to submit to arbitration present or future disputes (whether they are contractual or not)."

"34 Procedural and evidential matters.

(1) It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.


"46 Rules applicable to substance of dispute.

(1) The arbitral tribunal shall decide the dispute—

(a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or

(b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal."

"52 Form of award.

(1) The parties are free to agree on the form of an award.

(2) If or to the extent that there is no such agreement, the following provisions apply.


(4) The award shall contain the reasons for the award unless ... the parties have agreed to dispense with reasons."

"66 Enforcement of the award.

(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.


(3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award."

"68 Challenging the award: serious irregularity.

(1) A party to arbitral proceedings may ... apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. ...

(2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant—


(g) ... the award or the way in which it was procured being contrary to public policy;


We will assume a dispute arises between two parties which is, in principle, capable of being referred to arbitration. The parties define in writing exactly what the "Dispute" between them is, and then agree something like:

"The Dispute shall be resolved by arbitration before a single arbitrator who shall be [identify arbitrator or method of their appointment]. Each Party shall compete with the other in a match (the "Match") at a time, date and place to be determined by the arbitrator, and solely in accordance with [rules] (the "Rules"). The arbitrator shall act as referee during the Match, shall finally determine the winner of the Match in accordance with those rules and shall issue an award, resolving all the issues in the dispute in favour of the Party who is determined to have won the Match." 

There are, of course, a great many combat sports – boxing, judo, wrestling, mixed martial arts ("MMA") and fencing to name just a few. Parties could conceivably agree to use the rules from any one of these, or construct their own rules. For those who wanted an authentic medieval flavour, there are rules for competition using period arms and armour. A recent BBC article with pictures from the "International Medieval Combat Federation World Championships" can be found at

We will assume that our warring neighbours agree to an MMA match. There is no unified rule set or governing body for MMA. Different promotions use slightly different rules, though all have common elements. Rather than a roped ring, matches are fought in a matted circular, octagonal or hexagonal cage of plastic-coated chain link fencing with padded posts. Competitors in professional matches typically wear 4oz gloves. The main ways to win are by knock-out or by submission. Unlike a boxer, a competitor is not limited to punching but can also use kicks, knees and elbows and can grapple, applying joint locks and chokes. As an example, the rules used in the UKMMA promotion can be found at: Many promotions also feature bouts fought under 'amateur' or 'semi-pro' rules, which variously exclude some of the more dangerous techniques and/or require competitors to wear larger gloves, and sometimes other protective equipment.

Proxies and public policy

Our warring neighbours agree to resolve their dispute as described and hold their match. One is declared the winner, and the arbitrator issues an award in their favour. The losing party seeks to resist enforcement.

It might be argued that a court should not enforce any agreement to determine parties' rights and obligations by reference to a proxy measure which does not entail any evaluation of the merits of the underlying dispute (e.g. a coin toss, a race or a chess game). The argument would be that obtaining an award in this way made it "contrary to public policy", because it somehow 'cheapened' or 'trivialised' justice and the judicial process, or resulted in awards which were divorced from people's real rights.

A difficulty with such an argument is that English law will enforce an agreement to pay out a bet on the outcome of a game of chance (see section 355 Gambling Act 2005) and will enforce a unilateral offer to pay the winner of an open contest. In both cases the outcome of the game is recognised as effective to determine the parties' respective rights and obligations. Consider the following scenario:

A and B are party to a dispute wherein A claims to be entitled to be paid £100 and B denies that claim. A and B agree to refer that dispute to arbitration, with the arbitrator to determine the dispute based solely on his tossing a coin, with B to pay A £100 if the coin comes up heads and A is to give up his claim to £100 if the coin comes up tails. The coin comes up heads. A obtains an arbitration award for £100. 

B would have to argue that it was contrary to public policy to obtain an award in such a way. It is, however, very hard to discern any principled distinction between that scenario and the following, which results in an identical award, which would undoubtedly be enforceable:

A and B enter a contract (bet) whereby B agrees to pay A £100 if a coin comes up heads and A agrees to pay B £100 if the coin comes up tails. A and B agree that any dispute arising under the contract is to be referred to arbitration. The coin comes up heads but B fails to pay, claiming that the coin came up tails. A brings an arbitration claim, and the arbitrator finds that the coin came up heads. A obtains an arbitration award for £100. 

Section 46 of the 1996 Act provides that a tribunal can decide a dispute according to "other considerations" agreed by the parties, besides considerations of law. The 1996 Act does not impose any express requirement that these "other considerations" should, nonetheless, at a minimum, involve an evaluation of the merits of each party's position and a reasoned decision on the merits of that dispute. On the contrary, section 52 allows parties to agree that the tribunal need give no reasons for its decision.

Public policy is evidently not in favour of having disputes resolved exclusively by way of formal proceedings and reasoned decisions on the merits. English law readily recognises and gives effect to compromise agreements, and various rules of English court procedure (most notably Part 36 of the Civil Procedure Rules) are aimed at encouraging such compromises. Any time a case settles, it will have been resolved without any third party evaluation of the merits of the dispute, or reasoned decision. Consider:

A and B are party to a dispute wherein A claims to be entitled to be paid £100 and B denies that claim. A and B enter a contract, agreeing that the dispute is fully and finally settled. The settlement agreement provides that B will pay A £100 if a coin comes up heads.

Again, it is very hard to say why this compromise agreement should be enforceable, where the arbitration agreement having equivalent effect should not. For these reasons, and while there is no direct authority on the point, it seems unlikely that an agreement to have an arbitrator determine a dispute according to a proxy measure is, for that reason alone, liable to be denied enforcement as "contrary to public policy".

Illegality and intentionally inflicted injury

Returning to our warring neighbours and their agreement for trial by combat, the losing party would have to argue that there is something about arbitration by combat – as distinct from arbitration by way of a coin toss, a race or a chess game – which is contrary to public policy.

The simplest way to argue that arbitration by combat was contrary to public policy would be if it could be shown that, by participating in the "Match", and trying to win according to the "Rules", the parties would necessarily be committing a criminal offence. 

Historically, trial by combat entailed a fight to the death. Today (as noted above in relation to duelling) anyone of sound mind who participated in a pre-arranged fight with the aim of killing their opponent would undoubtedly be guilty of murder (if they succeeded) or attempted murder (if they failed). In particular:

(a) even if the victim could properly be characterised as having 'consented' to (the risk of) their own death, consent is not a defence to murder;

(b) the use of reasonable force necessary in self-defence is capable of being a defence to murder, but would not arise in the case of a pre-arranged fight to the death, since the use of force was not necessary (the killer participated through choice).

Parties who agreed to take part in a fight to the death but then backed out, and anyone who agreed to referee such a fight and to issue an arbitration award according to the outcome, would arguably be guilty of conspiracy to murder. 

There can therefore be no doubt that an award rendered pursuant to an agreement for a fight to the death could be successfully challenged under section 68 of the 1996 Act, on the grounds that the award, or the way that it was obtained, was contrary to public policy.

There are, however, many forms of combat, where the aim is not to kill one's opponent. The pre-eminent example is boxing. In R v Brown, Lord Mustill described a boxer's aims as follows:

"... each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin ..."

Depending on the injury that resulted, it might be thought that anyone who acted in such a way would be guilty of one or more of the following offences:

(a) Common assault contrary to section 39 of the Criminal Justice Act 1988. This requires that the defendant intentionally or recklessly cause another to apprehend the immediate infliction of unlawful force, or intentionally or recklessly applies unlawful force to another. There is no requirement that any injury result.

(b) Assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861. This offence is the same as common assault, save that an injury which is more than 'transient or trifling' is required.

(c) Wounding/inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. These offences variously require that the defendant wound (meaning breaking the continuity of both outer layers of skin), or cause grievous bodily harm (meaning 'really serious harm'), to another, and that the defendant have either intended or foreseen that the act might cause some harm. Note that one cannot attempt to commit the section 20 offence, since it requires that an injury be caused which was more severe than that which was intended.

(d) Wounding/causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. This offence requires that D act so as to wound another or cause grievous bodily harm to another, and that D have intended to cause grievous bodily harm.

(e) Murder. This offence requires that D cause the death of another, and that D have either intended to cause their death or intended to cause grievous bodily harm. The boxer whose opponent dies will not have intended their death (the intent will have been to render the opponent unconscious) but will arguably have intended grievous bodily harm. Note that a boxer could not commit attempted murder (since that requires an intent to kill).

What is the boxer's defence to such a charge? It seems well established that it is not a crime to kill or intentionally severely injure another person in the course of a boxing bout, though the rule is not to be found in any act of Parliament. Rather, it seems to be a rule of common law, or custom.

In 1994, the lawfulness of boxing was discussed by the House of Lords in Brown, and their Lordships all seem to have assumed that boxing was lawful. Their Lordships comments on the issue are obiter since the case did not actually concern the lawfulness of boxing. Brown was an appeal against convictions for: (i) assaults occasioning actual bodily harm contrary to section 47 of the 1861 Act; and (ii) wounding, contrary to section 20 of the 1861 Act. In Lord Templeman's words:

"The incidents which led to each conviction occurred in the course of consensual sado-masochistic homosexual encounters"

These incidents are described at some length in the judgment, making it one of the more memorable cases which students of English law will have been required to study. The issue was whether consent was a defence to the charges. It was held, by a majority of 3 to 2 that someone who caused actual or grievous bodily harm or a wound without good reason could not rely on consent as a defence. Sado-masochism was not a good reason. 

One of the cases considered by their Lordships was Attorney General's Reference (No.6 of 1980) [1981] QB 715. Two youths had fought following an argument. In the leading judgment, Lane CJ said:

"We think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then, if the victim consents, the assailant is not guilty. But the cases show that the courts will make an exception to this principle where the public interest requires"

"... it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason ..."

"Nothing which we have said is intended to cast doubt on the accepted legality of properly conducted ... sports, ... These apparent exceptions can be justified ... as needed in the public interest."

In Brown, Lord Slynn (in the minority) said of this:

"I am not satisfied that fighting in private is to be treated always and necessarily as so much contrary to the public interest that consent cannot be a defence. In any event I think that the question of consent in regard to a fight needs special consideration. If someone is attacked and fights back he is not to be taken as consenting in any real sense. He fights to defend himself. If two people agree to fight to settle a quarrel the persons fighting may accept the risk of being hurt; they do not consent to serious hurt, on the contrary the whole object of the fight is to avoid being hurt and to hurt the opponent. It seems to me that the notion of "consent" fits ill into the situation where there is a fight. It is also very strange that a fight in private between two youths where one may, at most, get a bloody nose should be unlawful, whereas a boxing match where one heavyweight fighter seeks to knock out his opponent and possibly do him very serious damage should be lawful."

Lord Templeman (in the majority) said:

"Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities."

His Lordship made no attempt to define the precise extent of, or the rationale for, the exception with respect to "violent sports including boxing".

Lord Mustill (in the minority) spoke of:

"... the failure of any attempt to deduce why professional boxing appears to be immune from prosecution."


"It is in my judgment best to regard [the apparent immunity of boxing from criminal process] as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it."

In Criminal Law: Consent and Offences Against the Person (Consultation Paper) [1994] EWLC C134 the Law Commission described boxing as an "anomaly":

"... boxing, ... is (nearly) unique in making the intentional infliction of serious injury not only something that is permitted within the rules, but in reality the essence of the sport."

"The only explanation of injury and death continuing to be caused in boxing with complete impunity, at least as far as the criminal law is concerned, is that the immunity of boxing from the reach of the criminal law is now so firmly embedded in the law that only special legislation can change the position."

Under the heading "other violent sports" the Law Commission report states:

"It has been pointed out that some forms of martial arts recently introduced into this country, including Thai boxing, kick boxing, and full contact karate, may be equally or more dangerous than (traditional) boxing. Under the present law ... serious injuries deliberately inflicted during such contests would appear, in the absence of an express exemption such as is enjoyed by boxing, to be plainly criminal. The legal status of these sports is thus at present controversial, and we would welcome further comment and information about these activities. At the moment we are minded to think that they, like boxing, should be the subject of special consideration by Parliament."

The only authority cited by the Law Commission as evidence of an "express exemption" for boxing is the obiter passage from the minority judgment of Lord Mustill in R v Brown which has been quoted above. In the twenty years since the Law Commission's report, neither boxing, nor any other martial art, has received "special consideration by Parliament" save, indirectly, in respect to licensing legislation, which is discussed briefly below.

In 2000, the lawfulness of boxing was touched upon by the Court of Appeal in the civil case of Watson v British Boxing Board of Control Limited [2000] EWCA Civ 2116. This arose out of a bout in London on 21 September 1991, in accordance with the rules of the British Boxing Board of Control, where Michael Watson fought Chris Eubank for the WBO Super Middleweight title. Watson suffered permanent brain damage, and brought a claim against the Board (not Eubank), alleging that the Board had a duty to take reasonable steps to minimise the risks inherent in the sport, specifically that the Board's rules should have provided for better medical facilities to be available at the ringside. Watson succeeded in his claim.

For our purposes, what is interesting about the case is that, as in Brown, the court and the parties in Watson were prepared to assume (again, obiter) that boxing was lawful, saying:

"Attempts have been made, within Parliament and outside, to bring about the banning of the sport of boxing. They have not succeeded. Boxing could not, however, have survived as a legal sport without strict regulation, one aim of which is to limit the injuries inflicted in the ring. That regulation has been provided by the Board."

"Since 1929 the Board has been and continues to be the sole controlling body regulating professional boxing in the United Kingdom. There is no statutory basis for this. The Board's authority is essentially based upon the consent of the boxing world."

"No one can take part, in any capacity, in professional boxing in this Country who is not licensed by the Board ..."

I do not understand the court in Watson to have meant that (professional) boxing is lawful only if performed in accordance with the Board's Rules, under a license issued by the Board, but not otherwise. If that were the case, it would amount to the imposition of a compulsory licensing regime by the courts, without statute. No such requirement was mentioned either by their Lordships in Brown, or by the Law Commission. A better understanding of Watson is simply as a possible explanation for why boxing has not been made the subject of statutory regulation – it is because, in practice, it is largely already the subject of (adequate) private regulation.

It seems clear that if our feuding neighbours (who are, in any case, amateurs) had agreed to settle their dispute by way of a boxing match and then competed according to those rules, they would not be committing any crime. It will be recalled that our warring neighbours, however, had agreed to an MMA match.

There is no direct authority, but there are reasons for thinking that MMA is (to use Lord Templeman's phrase) likely to be one of the "other violent sports" which enjoys the same immunity as boxing.

The Licensing Act 2003 defines certain "licensable activities", including "the provision of regulated entertainment". It sets out a regime whereby such activities are required to be authorised by relevant authorities (usually local councils) and section 136 makes it an offence to carry on a licensable activity other than in accordance with such an authorisation. Originally, "licensable activities" were defined as including "a boxing or wrestling entertainment". 

In 2013, the definition was amended to provide that: "a boxing or wrestling entertainment is any contest exhibition or display of boxing or wrestling or which combines boxing or wrestling with one or more martial arts" (Licensing Act 2003 (Descriptions of Entertainment) Amendment Order 2013). Guidance published by the Departure for Culture Media and Sport at the time ("Deregulating Entertainment Licensing Questions and Answers 2013") makes clear that this was intended to ensure licensing requirements would extend to "cage fighting and mixed martial arts".

The Licensing Act 2003 has no direct application to a private 'arbitration by combat'. A match under our hypothetical arbitration agreement is a private affair, and is not "entertainment". Note also that section 136 expressly provides that the person who "boxes or wrestles in a boxing or wrestling entertainment" does not thereby commit an offence under that section – the legislation is aimed at venues and promoters, not competitors.

The amendment is, however, symptomatic of MMA having become a mainstream sport, in a way that was not the case 20 years ago, at the time of Brown and the Law Commission consultation. Licences are regularly granted for MMA fights which draw large audiences at venues in the UK. Matches are held at town halls and private clubs, but also at high profile venues such as the Wembley and O2 Arenas. In order to enter the UK, competitors and their coaching and support staff from outside the EEA will have been granted either Tier 5 (temporary Worker – Creative and Sporting) or Sports Visitor visas on the basis that they intend to participate in an MMA match. High street bookmakers take bets on these matches, which are regularly broadcast on UK television. Almost every high street newsagent will carry 2 or 3 magazines dedicated to MMA. For good or ill, MMA, like boxing, is undoubtedly a widely tolerated activity, which Parliament has expressly provided can be the subject of licensing by local authorities.

That being the case, it would be surprising if it were to be held that those who competed in MMA matches, and acted only within the rules, and by extension MMA trainers, promoters, referees, doctors, venue owners, venue staff and audiences, were all guilty of offences. Add to this that it is difficult to draw any principled distinction between MMA and boxing. The only distinction lies in the fact that there is a much better established, de facto private licensing regime for boxing. But if this were a reason for treating boxing as lawful and MMA as unlawful it would, as already noted, amount to imposition of a compulsory licensing regime by the courts, and without statute.

Sports, torts and courts

An entirely separate, issue is that of civil liability. If one neighbour, acting within the rules, kills or injures the other, he may not face any criminal liability, but what if his opponent brings a civil claim to try and recover damages for the injury?

Any such claim would be for the tort of trespass to the person. This comes in two forms: assault (acts creating a fear in another of immediate unlawful violence) and battery (force causing direct and immediate injury to another). They are "intentional torts" in the sense that the defendant must intend to do that which causes the damage. They are actionable per se, that is, without the need to prove damage.

One defence to a claim in tort is that of volenti non fit injuria ('to he who consents there can be no injury'). Is volenti non fit injuria a defence to a deliberate tort of assault or battery?

In Brown, their Lordships had been concerned with the question of whether consent was a defence when the crime resulted in a sufficiently serious injury. In the civil context, the severity of injury is not the issue. Volenti is capable of being a defence irrespective of the severity of the harm. See, for example, Geary v JD Wetherspoon [2011] EWHC 1506 (QB) where a woman who fell while sliding down bannisters in a pub and suffered a spinal injury resulting in complete tetraplegia failed in her claim for negligence on the ground that she had voluntarily accepted the obvious risk inherent in the drop to the marble floor below.

Blake v Galloway [2004] EWCA Civ 814 concerned an informal game in which a group of youths threw pieces of bark at each other. One of the participants suffered an eye injury, and sought to claim compensation. The defendant argued (successfully) that the claimant had consented to the risk of injury when he chose to participate. The Court of Appeal accepted the following passage from Clerk & Lindsell on Torts (18th Edition) as an accurate statement of the law:

"The claimant cannot claim compensation for the consequences of an act which he has freely invited, or in respect of which he has assumed the risk. The footballer cannot allege that a legitimate tackle is a battery. Thus, when the defendant maintains that the claimant consented to the force used against him, the key question becomes whether that consent extended to the degree or type of force employed against him. The claimant's consent need not be specific to the alleged act of battery. He may be volenti to the general harm envisaged in a fight or in a sport."

As such, a competitor in a boxing or MMA match is unlikely to succeed in a claim to compensation for an injury which they sustained as a result of an act of their opponent which was within the rules.

Even where a competitor in a sporting contest does something which is not in accordance with the rules, there would seem to be a high threshold for liability. Condon v Basi [1985] 1 WLR 866 was one of a number of cases arising out of foul tackles in football matches. The court cited, with approval, an Australia decision that:

"the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the 'rules of the game'"

In other words, a technical breach of the rules is not sufficient to establish liability. In Caldwell v Fitzgerald & others [2001] EWCA Civ 1054 (a claim by a jockey unseated as a result of manoeuvres by fellow jockeys) the judge at first instance had said that "in practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that in point of fact amounts to reckless disregard for the fellow contestant's safety". On appeal it was said that:

"... there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required."

In mainstream MMA, there remains the possibility of a claim by an injured competitor against a promoter, as distinct from against a competitor. For example an athlete might claim to have been injured because, in breach of a duty of care, a promoter did not provide adequate ringside medical assistance (as in Watson) or used a cage which was in some way defective, or if a referee failed to intervene to stop a match when a competitor could not defend themselves.

Future fights

The discussion above has concerned an agreement to 'arbitrate by combat' a dispute which has already arisen and been defined. It is necessary to say something briefly about the arbitration of future disputes, which have not yet arisen. Most conventional arbitrations arise under agreements of that kind – an agreement to refer 'any dispute arising under this contract' to arbitration.

Such an agreement to refer future disputes to arbitration by combat is very problematic. It is hard to see how one could prevent either Party making a completely spurious claim with no legal merit whatever. Party A might make an entirely unfounded claim to be owed £1 trillion under a low value contract. Party B would deny it (and make an equally spurious £1 trillion counterclaim) but would have to fight A to resolve the issue. Whomever lost would be ruined. 

It might be that one could construct some kind of contractual safeguard to exclude completely spurious, opportunistic claims. For example, one could draft a clause so as to require that a suitable expert determine that there is at least a prima facie case on the merits before it could be referred to arbitration by combat.

Any attempt to use arbitration by combat to resolve disputes in a business context would also require that careful thought be given to the question of 'champions'. A company cannot, itself, participate in a fight, and could only do so via an agent. If the aim is to resolve a dispute cheaply and quickly, it would make sense to impose some limit on who could be used as a champion. Would the parties be allowed to use professionals? Would any cap be imposed on how much could be paid to any champion?

If anyone would like to try and resolve a commercial dispute by combat, we will be happy to investigate, think further on these issues, and advise accordingly!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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