Trespass to Goods
Cases
King v. Walsh
[1932] I.R. 80
KENNEDY C.J. :
The claim in this action was for the return of a certain motor car, or for its value and damages for its detention. The action was tried by O’Byrne J. without a jury on the 6th February, 1931, when the learned Judge gave judgment for the defendant and dismissed the action with costs. The plaintiff has appealed against the order and judgment given for the defendant, and asks that judgment be entered for him or for a new trial.
The plaintiff, who carries on business under the well known trade name of “R. E. Grady,” deals in motor cars, and last year had for sale a second-hand Armstrong-Siddeley touring car of a recent model. The defendant, a member of the Bar, saw the car and was disposed to buy it. About the 20th of August last, the plaintiff allowed the defendant to take the car for a week’s trial. The defendant extended the trial to the 2nd September, when he returned the car. He explained the delay by illness, and no claim arises in this action on foot of detention upon that occasion. The defendant stated that he was satisfied by the trial and had decided to buy the car. The bargain was made on the 2nd September, when the price was fixed at £220, and an agreement was concluded for the purchase on the terms of:(1), the payment of a deposit of a sum of £100 on the 10th of September; (2), the payment of the balance of the price by six or twelve monthly instalments, as the defendant should decide; (3), the transaction to be carried out by means of a hire purchase agreement. The arrangement was confirmed by letter of the 2nd September, 1930, from the plaintiff to the defendant. On the same day (2nd September, 1930), the defendant signed a proposal form for carrying out the hire purchase agreement, and handed it to the plaintiff.
The proposal signed by the defendant was in the form of an application to a Guarantee Corporation to enter into an agreement on the following lines. The Corporation was to buy the car from the plaintiff at the agreed price of £220, and then to let it on hire to the defendant with an option to purchase by six monthly payments to be made by way of rental on hire.
The arrangement having been confirmed by the plaintiff by letter, and the defendant having signed the proposal form, the plaintiff immediately got the car into order, and on the 6th September the defendant went to the plaintiff’s place of business and, having promised to bring or send the deposit of £100 on the following Wednesday, the 10th September, was permitted by the plaintiff to take the car, in which, on the same day, he drove down to the County Kerry, where he stayed until Sunday, the 14th September, when he drove to Thurles and remained there for a week, and then returned to Dublin, where he arrived late on the evening of the 22nd September.
He failed to perform his promise to pay the deposit of £100 according to his agreement with the plaintiff.
On Saturday, the 13th September, the plaintiff (having ascertained the defendant’s address in Kerry) wrote him at that address a letter expressing surprise that he had not heard from the defendant with reference to the deposit
“at foot of your purchase,” which was to have been paid on the 10th September, and requesting that a cheque for the amount be sent him “without further delay.” This letter did not contain a request for the return of the car. The defendant stated in his evidence that this letter was posted on from Kerry, and he did not get it until his return to Dublin on the 22nd September. On the 15th September, the plaintiff not having received a reply to his letter of the 13th (though he could not have expected a reply on that day) instructed his solicitor, Mr. Lane Joynt, and Mr. Joynt wrote the letter of the 15th September and delivered it by hand at the defendant’s residence in Dublin. In that letter Mr. Joynt called on the defendant to return the car to the plaintiff by noon on the following day, the 16th September, or pay the £100 deposit, and to call at the same time and complete the hire purchase agreement, failing which a writ would be issued. Knowing that the defendant was in the country, the plaintiff and his solicitor must be taken to have known that the requirement of that letter could not be complied with. The defendant said he did not get this letter until his return to Dublin on the evening of the 22nd September, and the trial Judge so found as a fact and the finding has not been questioned.
The originating summons in the action was issued on the 18th September.
On the morning of the 23rd September, the defendant met the plaintiff in the street. The defendant, instead of an apologetic attitude for his default in respect of the deposit, appears to have taken up the attitude of the aggrieved party and complained of the action of the plaintiff in putting the matter in the hands of his solicitor and, without making any offer to pay the deposit or carry out his agreement, brought the car back later in the day and left it at the plaintiff’s place of business. The plaintiff alleges that it had been driven about 2,000 miles and had been somewhat damaged.
On the 24th September Mr. Joynt wrote to the defendant asking him to call at his office for the purpose of being served with the originating summons, which had been issued on the 18th September, and also invited the defendant to make a “reasonable offer of settlement for the detention and depreciation of the car.” On the 25th September the defendant saw the plaintiff and reopened the matter, handing him a post-dated cheque for the deposit which the plaintiff said he would submit to his solicitor. On the following day the cheque was returned to the defendant by Mr. Joynt in a covering letter making certain stipulations as to the basis on which the purchase would now be carried out and asking for settlement of the claim for damages for detention. No compromise was made, and the originating summons was served on the 1st of October.
The learned trial Judge, upon the evidence which I have summarised, found that the letters of the 13th and 15th of September did not reach the defendant until the night of the 22nd of September, and that the defendant returned the car to the plaintiff within about half an hour after the interview on the morning of the 23rd September, findings which have not been questioned, and he held that the defendant removed the car on the 6th of September with the consent and approval of the plaintiff, and that the defendant returned the car at the first reasonable opportunity after the plaintiff’s demand for such return reached him. So finding, he was not satisfied that the defendant had at any time wrongfully detained the car against the will of the plaintiff.
In my opinion, no tenable case has been made against the decision of the learned trial Judge. It is not open to question that when the defendant took the car on the 6th September he did so in pursuance of an agreement with the plaintiff to enter into a hire purchase contract for the ultimate acquisition of the car. He was therefore in lawful possession of the car with the consent of the plaintiff pursuant to the agreement. That lawful possession could have been ended and converted into an unjust detention by termination of the agreement by rescission or otherwise followed by a demand for a return of the car refused by the defendant. It is clear, particularly from the letters of the 2nd and 13th of September, and the oral evidence, that the date named for payment of the deposit, the 10th of September, was not made, either originally or afterwards, of the essence of the contract, nor was it stipulated that, failing payment of the deposit, the car was to be returned on that day. If there had been such a stipulation for the return of the car, I should have invited discussion of the question whether a specific demand and refusal other than the bringing of the action would have been necessary to sustain an action of detinue, a question which I reserve for some future occasion when it arises. See Hern and Stub’s Case (1). But on the facts of the present case, the possession continued lawful after the 10th of September under the still subsisting agreement, until the position should be altered by some effective, lawful act, coupled with a demand for its return: Cullen, Allen & Co. v. Barclay (2).
Assuming that the letter of the 15th of September was, in terms, such a demand as would satisfy the legal requirement for the purpose of making the possession of the car by the defendant an unlawful detention, it has been argued on the authority of the Nisi Prius ruling in Logan v.Houlditch (1), that the demand was well and sufficiently made in law by leaving the letter of the 15th of September at the Dublin residence of the defendant, notwithstanding that the plaintiff and his solicitor knew that he was not in residence there at the time but was travelling in the country. I cannot accept it that such delivery of the letter at the defendant’s flat was as a matter of law the making of a demand upon the defendant, until such date as it is shown that the letter actually reached him. If the case cited decided any such thing (I do not think it did) I should refuse to follow it, as against justice and reason.
In my opinion the originating summons was precipitatedly issued. It raised one specific cause of action which, and no other, has been fought out, and that cause of action was in my opinion unsustainable.
I regret the result because I believe that the plaintiff has a grievance for which there was legal redress if he had sought it. But this appeal must be dismissed with costs.
FITZGIBBON J. :
This action was brought to recover damages for the detention of a motor car, and O’Byrne J., who tried the action, dismissed it, because he “was not satisfied that the defendant had at any time wrongfully detained the car against the will of the plaintiff.”
There is no dispute about the facts. The plaintiff is an agent for the sale of motor cars, carrying on business under the old and well-known name of Robert E. Grady, in Dawson Street. In August, 1930, he had a secondhand Armstrong-Siddley car for sale, and the defendant entered into negotiations for purchasing it. On August 20th or 21st the defendant was permitted to take the car on a week’s free trial, and on August 29th the defendant wrote to the plaintiff from Duncannon, Co. Waterford, where he was then stayingwith the car”I have decided to buy her. I think she is all you represent her to be. I cannot, however, give you £225 for her or anything approaching that figure. However, we can discuss this when I return.” On September 2nd the defendant called at the plaintiff’s establishment, and signed a proposal for the purchase of the car for £220 on the hire purchase system, to be discharged by a deposit of £100 down and the balance by “six months extended payments.” The proposal provided for “immediate delivery.” The plaintiff overhauled the car, insured it, and put on a new tyre, the expenses of which came, with the insurance, during the”week’s free trial,” to about £10. On the 6th of September the defendant was permitted by the plaintiff to remove the car, on an undertakingwhich was not keptto bring or send the deposit of £100 on the following Wednesday, September 10th. The plaintiff, who was anxious about his deposit, called at the defendant’s Dublin address, and learned that the defendant was out of town. On Saturday, September 13th, he wrote to the address in Kerry which had been given to him as that which would find the defendant. In that letter he expressed surprise that the deposit had not been paid by the defendant in accordance with his agreement, and requested a cheque without further delay. No reply was received, and the defendant says that this letter arrived at Waterville after his departure, and that he did not get it until his return to Dublin on September 22nd. On September 15th the plaintiff consulted his solicitor, Mr. Lane Joynt, who wrote on his behalf a formal demand for the return of the car by noon on the following day, or in the alternative payment of the £100 deposit, and intimating that in the event of default a writ would be issued. As no reply was received, the summons was issued on September 18th. The defendant’s story, which O’Byrne J. believed, is that he arrived home late on September 22nd, having driven down to Waterville from Dublin on September 6th, spent the period from September 6th to September 14th at Waterville, and the period from September 14th to September 22nd in meandering home to Dublin via Adare and Thurles. On arrival at his home he says that he found the plaintiff’s letter of September 13th and the solicitor’s letter of the 15th, and that the latter contained the first intimation to him of a demand for the return of the car. On the morning of September 23rd, he met the plaintiff in the street, when he says he was on his way to call upon him. He returned the car that day. He did not pay or offer to pay the deposit. On September 24th plaintiff’s solicitor wrote suggesting that the defendant should call at his office in order to avoid the necessity for public service of the writ, and saying that any reasonable offer of settlement would be placed before the plaintiff. The defendant did not reply to this letter, but for the second time went direct to the plaintiff behind the back of his solicitor, and handed him a post-dated cheque for £110,with an offer to enter into a formal hire purchase agreement. The plaintiff declined to accept the cheque and returned it on the advice of his solicitor, Mr. Lane Joynt, who made a counter offer on behalf of his client which was not accepted, and the action proceeded.
O’Byrne J. found as facts:
“1. That during the entire of the first period (viz., from August 20th or 21st to September 2nd) the defendant had possession of the car with the consent and approval of the plaintiff.
2. That the defendant removed the car on the second occasion with the consent and approval of the plaintiff.
3. That the defendant returned the car on this occasion at the first reasonable opportunity after the plaintiff’s demand for such return reached him.”
The first two findings are based on the express statements of the plaintiff himself, and there is not a shadow of a suggestion to the contrary. The third finding is based upon the evidence of the defendant, which was believed by the learned Judge, and must be accepted by this Court as there is no evidence to contradict it.
I regard it as absolutely settled law, accepted as such for some centuries, that to sustain a claim for damages for the mere detention of a personal chattel which has come lawfully into the possession of the defendant by delivery or bailment, there must have been a demand for it by the plaintiff from the defendant, and a refusal by the defendant to deliver or to redeliver it. Cullen, Allen & Co. v. Barclay (1) in our former Court of Appeal declares this law in the most unmistakable language. “An action of detinue does not lie against a bailee of goods until demand made by the bailor, after the determination of the bailment and before action brought.” That was an action for detinue of 450 sacks. There were alternative claims in contract, but the jury found against one alleged contract, and that damages in respect of another were covered by a sum paid into Court, and the case is reported solely upon the question of the necessity for a demand before action brought. The defendant alleged that no demand had been made upon him until the writ was issued and that he then tendered the sacks to the plaintiff. Dowse B., who tried the case, refused a direction, the jury found that the defendants had detained the sacks, and Dowse B. entered judgment for the plaintiffs, reserving liberty to the defendant to move to have the verdict entered for him on the whole case, if the Court should be of opinion that he should have directed a verdict for the defendant upon the count in detinue. A conditional order was obtained, the cause shown by the plaintiffs was allowed by the Common Pleas Division, whose reasons for doing so were not forthcoming in the Court of Appeal, and the defendant appealed. The Court of Appeal, Sir Edward Sullivan M.R. and Deasy and FitzGibbon LL.JJ., by a unanimous judgment, reversed the order appealed from, and entered verdict and judgment for the defendant upon the ground stated concisely in the head note which I have quoted. “We are of opinion,” said Sir Edward Sullivan (1),”that the defendant is right in his contention, as we think that a demand of the sacks before action was necessary, and that there was no evidence of any such demand. The nature of an action of detinue, as it rests upon the authorities, is clear enough.” “When the defendant failed to perform his contract, it is difficult to see how he at once became a wrongdoer in reference to the detention of the sacks, which he never was asked to send back. Assuming that an action of contract could have been maintained for not delivering the sacks, with or without the potatoes in them, that is no reason in law for making the mere omission to send back the sacks a tortious act, when no request had ever been made for their delivery” (2).Deasy L.J. s.(3):”I do not think there is any evidence in the case of a demand of a return of the bags; and I think such a demand was necessary, in order to sustain the count in detinue.” FitzGibbon L.J. (4):”There being no count in contract, can the count in detinue be supported on the evidence? I think that this question can be tested by ascertaining the mode of pleading in the old action of detinue in cases of special bailments. If a count alleging a special bailment of goods, to be re-delivered on a certain day, would be sufficient as a count in detinue, if it merely alleged that that day had passed, and that the goods had not been redelivered on the appointed day, the count here would be a sufficient statement of the cause of action existing on the facts; but if it was formerly necessary, in such a count, further to allege that, after the day named, a demand of the goods had been made, and if without such a demand there would not have been an unjust detainer of the goods, as distinguished from a breach of the contract to return them, here also a demand was necessary. Now, from the case referred to by the Master of the Rolls, which is to be found in Brownlow’s Entries, p. 186, it appears that a demand after the time fixed by the terms of the bailment is necessary. It is apparent, I think, from that case that though a plaintiff could bring his action for breach of contract without any demand, he could not bring an action of detinue until, by a demand of, and a refusal or neglect to return, the goods, the breach of contract was turned into a wrongful detainer.”
That was no new law, nor was it a fortuitous rediscovery in 1881 of a principle which had lain concealed in Brownlow’s Entries since 1654. Not only in other compilations of Entries, but in the precedents of Declarations in Detinue sur bailment framed by the predecessors of Messrs. Bullen and Leake, Wentworth, “On Pleading,”vol. 7, p. 635, Chitty, “On Pleading” (5th edn.), vol. 2, pp. 593-4, and others, are to be found averments to the effect that: “the defendant hath not as yet delivered the said goods or any of them to the plaintiff although he was afterwards, to wit on, etc., at, etc. [venue] aforesaidrequested by the said plaintiff so to do but hath hithertowholly refused, so to do and hath detained and still doth detain,” etc.; and in the chapter on Forms of Action, (vol. i., chap. 2, § iv., p. 141), Mr. Chitty says: “In the case of a special bailment, it is proper to declare, at least in one count, on the bailment, and to lay a special request.” It was decided by Willes C.J. in Kettle v. Bromsall (1), “A declaration in detinue should state a request on the defendant by the plaintiff to deliver,” etc., and Sergeant Williams in his note to Wilbraham v. Snow (2) says (referring, it is true, to the date at which he wrote), “it is a common learning that when the goods came into the defendant’s possession by delivery or finding, the plaintiff must demand them, and the defendant refuse to deliver them up, in order to constitute a conversion.”
These obsolete technicalities need no longer be observed in pleading, but they are of vital importance, as showing what facts must be proved to sustain the action. See, for instance, the observations of Collins L.J. in Turner v.Stallibrass (3). The modern license which permits claims to be put forward in loose statements in popular language has not altered the essentials necessary to create a legal liability, or abolished the necessity of proving the facts which constitute the cause of action; and there is a note to the declaration in Chitty to which I have already referred, vol. ii., p. 595, which might have proved useful in the present case, if anyone had consulted it. “When a defendant has in his possession personal property, formerly of the plaintiff, and it be doubtful whether a contract by the defendant for the purchase thereof can be proved, it is advisable to insert a count in debt for goods sold, and another count in detinue for the chattel,in order that the plaintiff may recover on one ground or the other; and many other cases may occur, in which this joinder of action may be advisable.”
In 1911 the Court of Appeal in England, in Clayton v.Le Roy (1)an action for detinue of a watchaffirmed the law in terms indistinguishable from those employed thirty years previously by our own Court of Appeal in Cullen, Allen & Co. v. Barclay (2). Fletcher Moulton L.J. (3),after stating that the point “may seem a very technical one,” gives his reasons for holding that it is a point of substance, that there must be “some definite act or deliberate withholding as necessary preliminaries to the arising of this cause of action.” “The plaintiff must establish that at the moment of the issue of the writ he was in a position to bring an action of detinue; in other words, that there had been a wrongful denial of the plaintiff’s title to the watch” (4). “The mere fact that there was evidence pro and con on such a point would not be enough; it is necessary to find as a fact that there was a demand and refusal before the issue of the writ. If there is evidence of a demand and refusal, the tribunal may, of course, conclude that there was one in fact.” Farwell L.J., after declining to interfere with the decision on market overt which Scrutton J. had decided against the defendant, said (5):”The other question is one of considerable interest, and, upon the authorities which have been cited to us, I think that certain propositions are indisputable. Whether an action is one of detinue or trover, proof that the detention is wrongful and amounts to a conversion forms the gist of the action; there must be an element of wrong; the mere fact of possession of the article is not enough to support the action,” and then he quotes Bramwell B. in Burroughes v. Bayne (6): “‘The result is you must in all cases look to see, not whether there has been what may be called a withholding of the property, but a withholding of it in such a way as that it may be said to be a conversion to a man’s own use.'” Vaughan Williams L.J. dissented, not as to any of the “indisputable propositions,” but because he held that the facts proved amounted to a refusal by the defendant to deliver up to the plaintiff a chattel which the plaintiff had demanded of him.
I have dealt with this question at, I fear, undue length, because there appeared to be some tendency on the part of the plaintiff to challenge what appears to me to be established law of great importanceas shown by Fletcher Moulton L.J. in Clayton v. Le Roy (1)to commercial interests.
Mr. Rearden, admitting the necessity for a demand and refusal to constitute his client’s cause of action, relied upon Mr. Lane Joynt’s letter of September 15th, as a demand. I think that, notwithstanding the alternative which it offered, it was, in form, a sufficient demand. But in my opinion a demand, to be effective, must be brought to the knowledge of the person of whom it is made. I cannot accept Mr. Rearden’s contention that the demand was made when the letter containing it was dropped into the post, or when it was delivered at the defendant’s residence in Dublin when he was in Kerry. Mr. Rearden cited a case of Logan v. Houlditch (2) in support of his argument. That was a nisi prius decision of Lord Kenyon, and it must never be forgotten that such rulings are only upon the admissibility of evidence, and do not amount to decisions as to the effect to be given to the evidence when admitted. In that case a demand for the return of the chattel in respect of which detinue was brought, had been served at the house of the defendants, of whom there were two. There was a dispute whether it had in fact been actually served on one of the defendants in person. Lord Kenyon ruled that service of a written demand at the defendant’s residence was evidence of the making of a demand. He did not decide the fact, but left the evidence to the jury. I see no reason to question the ruling. In the present case, I should have been prepared to tell a jury that proof of delivery of Mr. Lane Joynt’s letter at the defendant’s residence was prima facie evidence, upon which, if uncontradicted, they could find that a demand for the return of the car had been made. But when the defendant swears, and is believed, that he was absent from home without any knowledge of, or intention to avoid, a demand for the return of the car, and that it came to his knowledge for the first time at 10 or 11 p.m. on September 22nd, I think that no demand was in fact made until then. I think that the finding of O’Byrne J. that the defendant returned the car at the first reasonable opportunity after the plaintiff’s demand for such return reached him, is borne out by the evidence, and accordingly that he was right in holding that there was no wrongful detention. There could be no wrongful detention or withholding until the defendant was aware of the demand, and, as the demand was not brought to the knowledge of the defendant until after the issue of the writ, the cause of action was not complete, for want of a refusal by the defendant, when the writ was issued.
No case was made that the defendant was keeping out of the way to avoid service of a notice demanding the return of the car, and there was no application to amend the pleadings by alleging that possession of the car had been obtained by a fraudulent pretence of intention to purchase it. The car was in fact returned and accepted by the plaintiff, and his claim is, not for use or hirage of the car, nor for damages for breach of contract to purchase the car, or to redeliver the car or pay £100 on a named day, September 10th, but solely for wrongful detention after demand made.
In my opinion the evidence does not establish a demand in fact before action brought, and negatives a refusal to redeliver before the writ was issued, and for these reasons I think that the decision of O’Byrne J. was right, and that this appeal should be dismissed.
MURNAGHAN J. :
Mr. Rearden does not dispute the proposition that, in an action of detinue, the plaintiff must prove a demand and a refusal before the issue of the writ. In Clements v.Flight (1) Pollock C.B., speaking of detention, says: “And this is the meaning ascribed to the word in Bulstrode, 308, by Haughton J., who says, that request and refusal,contradixit et adhuc contradicit, is the point in an action of detinue, but not in trover, in which conversion is the point, and request and refusal evidence only.” In conformity with this the Court of Appeal in Ireland in Cullen, Allen & Co. v. Barclay (2) laid down that, where goods were delivered to a bailee, detinue did not lie until after a demand made upon the bailee after the determination of the bailment.
The demand in the present case was made by letter, dated September 15th, addressed to the defendant’s residence in Dublin, although it was known that the defendant was absent, and was, or had been, a few days previously in Kerry. Mr. Justice O’Byrne held that the defendant complied with the demand in a reasonable time by delivering the car on September 23rd, as the letter did not in fact reach him until September 22nd.
The plaintiff’s argument is that the demand was made prior to September 18th, when the summons was issued, and that there was detention after that date. It is sought to support this contention by alleging a rule of law that a demand is sufficient if made by letter at the defendant’s residence, and for this counsel cited Logan v. Houlditch (1).I approach this case bearing in mind the words of Denman C.J. in Small v. Nairne (2). These are his words:”I am tempted to remark, for the benefit of the profession, that Espinasse’s reports, in days nearer their own time, when their want of accuracy was better known than it is now, were never quoted without doubt and hesitation; and a special reason was often given as an apology for citing that particular case. Now they are often cited as if counsel thought them of equal authority with Lord Coke’s reports.” The case, as reported, may be explained as meaning no more than this: that a letter delivered to a person’s residence must be assumed to have reached him in ordinary course unless the contrary is shown. In the present case the Judge expressly accepted the defendant’s evidence that he did not receive the demand until after the summons was issued, and that he complied with the demand within a reasonable time.
In my opinion the appeal must be dismissed.
Webb v. Ireland
[1987] IESC 2; [1988] IR 353; [1988] ILRM 565
Supreme Court
Finlay C.J. (Henchy and Griffin JJ concurring)
1. This is an appeal brought by the defendants against the order of the High Court made on 10 December 1986 directing the return to the plaintiffs of certain valuable antique articles constituting what has become known as the Derrynaflan Hoard upon payment of £25,800 by the plaintiffs to the defendants, or in the alternative at the option of the plaintiffs an order that the plaintiffs do recover against the defendants the sum of £5,510,200 .
2. The Derrynaflan Hoard consists of a chalice, silver paten, silver and bronze paten stand, gilt bronze strainer and a bronze basin. It has been described as one of the most significant discoveries ever made of Christian art. The chalice is believed to date from the ninth century and the entire find constitutes an immensely important contribution to knowledge.
3. The plaintiffs, who are father and son, on 17 February 1980 went to a place near Killenaule in County Tipperary, known as Derrynaflan which consisted of an island of pasture land surrounded by a very large area of bog. It contains the remains of a church and other buildings which formed part of an abbey and also a tomb which is supposed to be that of the Guban Saor. Buildings described as Derrynaflan Abbey or Guban’s Church and Grave were the subject matter of a Preservation Order made by the Minister for Finance under s. 8 of the National Monuments Act 1930, which order was made on 8 June 1935.
4. The lands known as Derrynaflan were at the time of the finding of the hoard jointly owned in unequal shares by a Mr. Denis O’Brien and a Mr. John O’Leary.
5. Each of the plaintiffs had with him a metal detector and the purpose of their visit to these lands which they reached by travelling on a raised road going through the bog was to search for metal objects which might be buried in the lands. They did not seek any permission from the owners of the lands before entering on them. After a relatively short time searching with the metal detectors one of the plaintiffs got a positive reaction and upon digging into the bottom of a bank close to the abbey and buildings with a small hand trowel the plaintiffs succeeded in unearthing the objects which constitute the hoard. They brought these objects back to their house in Clonmel and having consulted an archaeologist as to their importance and also having received the advice of their solicitor, Mr. Binchy, the first-named plaintiff delivered the articles the following day to the National Museum, bringing with him a letter written by his solicitor in the following terms:
18th February 1980
Dear Sir,
6. We have been consulted by Mr. Michael T. S. Webb with reference to certain articles which he and his son, Mr. Michael Webb, Junior, found on the 17th February 1980. These articles appear to be a chalice, tray and screener and it is possible that they may constitute treasure trove. Our client has been advised that these articles should with the minimum possible delay and handling be delivered to the care and custody of experts who have the facilities for examination and preserving same. We have accordingly advised our client that he should deliver these articles to your care for the present and pending determination of the legal, ownership or status thereof; and also of course subject to any rights to payment or reward which our client and his son have.
7. Yours faithfully
O’BRIEN & BINCHY
8. The articles were received by Dr. Breandán Ó Ríordáin, the Director of the National Museum, who immediately recognised their general value and importance and it was established at the trial that Dr. Ó Ríordáin told Mr. Webb that he thought that the articles making up the hoard were treasure trove but that with regard to that aspect of the matter he would have to be guided by the Attorney General’s advice. He also told Mr. Webb that he (Mr. Webb) would be honourably treated.
9. Shortly afterwards the first-named plaintiff met officials of the museum and pointed out the precise place where the hoard had been found by him and his son.
…
17. It is next necessary to consider the issue as to whether even assuming that the title of the plaintiffs to the goods is not an implied term in this bailment, the State is by reason of the bailment estopped from asserting its own title to the goods which it claims it derived from the landowners, O’Brien and O’Leary.
18. The decision of the learned trial judge in this context was again based largely on the decision in Rogers Sons & Co v. Lambert & Co and also in Biddle v. Bond (1865) 6 B & S 225 which is cited with approval in that case. There can be no doubt that Rogers Sons & Co v. Lambert & Co is a clear authority for the proposition that if a bailee seeks to refuse the return of goods, asserting the right of a third party to the possession and ownership of them, that he can only do so expressly on behalf of and with the authority of the third party, and that having asserted such a right he must prove it. The decision, however, does not appear to me to exclude or indeed to deal at all with the situation where a bailee asserts not the right of a third party to the goods but his own title to them, even if it has been acquired subsequent to the original bailment. The facts of Rogers Sons & Co v.Lambert & Co where the plaintiffs had purchased copper from the defendants and paid for it and whereby the defendants expressly undertook to warehouse the copper and upon payment of the proper warehousing charges to deliver it to the plaintiffs or their order, made it, of course, quite unnecessary to consider any assertion by the defendants of a title in themselves to the copper. In considering the nature of jus tertii which can be asserted by a bailee Lopes LJ at p. 328 of the report quotes with approval from the decision in Biddle v. Bond where Blackburn J delivering the judgment of the Court of the Queen’s Bench said:-
19. We think that the true ground on which a bailee may set up the jus tertii is that indicated in Shelbury v. Scotsford, viz., that the estoppel ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount.
20. In my view, the true legal position which arises where a bailee asserts and establishes a title in himself to the goods is that he establishes the termination of the bailment and that by reason of that termination any estoppel which would otherwise arise between a bailee and a bailor ceases to operate. Such a view of the law appears to be logical and, in my view, appears also to yield a just result for there could be significant injustice if a bailee having lawfully and properly acquired a title to the goods which had been bailed with him were obliged to return them to the bailor by virtue of an estoppel and presumably left to the remedy of a subsequent second action for the delivery back of the goods to himself again. I, therefore, conclude that it is necessary in this appeal to determine the question as to whether by virtue of the contracts and conveyances made between the State acting through the Minister for Education and the owners of the land the State had, by the time of the institution of these proceedings acquired a title to these articles as against the plaintiffs.
21. The defendants assert a title to the goods derived through the landowners, Messrs. O’Brien and O’Leary, on two separate grounds. Firstly, they allege that the landowner had a title to any chattel found in the land against any finder of it, under any circumstances. Secondly, they allege that the plaintiffs, having found the chattels and obtained possession of them by an act of trespass as found by the learned trial judge, namely, the digging in the land, and/or being guilty, as it is alleged, of an offence under s. 14 of the National Monuments Act 1930, cannot derive any lawful title to the goods thus acquired.
22. In the submissions before this Court it was suggested on behalf of the defendants that an offence against s. 26 of the National Monuments Act 1930 may also have been committed and it was in addition suggested that
the taking away of the goods from the lands might have constituted the offence of larceny. Neither of these two allegations was pleaded at any time in the action, even after a very late amendment was granted of the defence, and, in my view, neither is substantiated or proved by any evidence in the action and I would unreservedly reject both of these allegations.
the following conclusions.
53. I agree with the view reached by the learned trial judge in this case that on the authority of Byrne v. Ireland no royal prerogative in existence prior to the enactment of the Constitution of 1922 was by virtue of the provisions of that Constitution vested in the Irish Free State. I agree with the judgment of Walsh J in Byrne v. Ireland which was expressly concurred in by a majority of the court that the provisions of Article 2 of the Constitution of 1922 declaring the Irish Free State to be a Sovereign State and the provisions of Article 51 of the same Constitution expressly vesting in the King certain executive functions, being the executive functions of the Irish Free State, are inconsistent with the transference to that State of any royal prerogative. As is also set out in the decision in Byrne v. Ireland it must follow from this conclusion that the royal prerogatives were not prerogatives exercisable in Saorstát Éireann immediately before 11 December 1936 and were therefore not captured by Article 49.1 of the Constitution.
54. It was contended on this appeal that it was possible to distinguish between a prerogative of immunity from suit, which was the subject matter of the decision in Byrne v. Ireland and which could be traced to the royal dignity of the King and a prerogative of treasure trove which it was stated could be traced or related not to the dignity of his person but to his position as sovereign or ruler. Such a distinction does not alter the view which I have expressed with regard to the effect of the provisions of the Constitution of 1922, and appears to me to ignore the essential point which is that by virtue of the provisions of the Constitution of 1922 what was being created was a brand new sovereign State and that the function, power or position of the King in that sovereign State was such only as was vested in him by that Constitution and by the State created by it.
55. With regard to the second submission made by the defendants concerning the question of the prerogative of treasure trove, I have come to the following conclusions.
Article 5 of the Constitution declares that ‘Ireland is a Sovereign, Independent, Democratic State’.
56. Article 10.1 of the Constitution provides as follows:-
57. All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.
58. Article 10.3 provides as follows:-
59. Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property.
60. I am satisfied that the phrase ‘all royalties’ contained in Article 10.1 of the Constitution, construed in the light of Article 5, must be widely construed and must include one of the definitions of royalty to be found in the Shorter Oxford English Dictionary, namely, the sovereignty or sovereign rule of a State.
61. It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern States, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow that a necessary ingredient of sovereignty in a modern State and certainly in this State, having regard to the terms of the Constitution, with an emphasis on its historical origins and a constant concern for the common good is and should be an ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.
62. The existence of such a general ingredient of the sovereignty of the State, does, however, seem to me to lead to the conclusion that the much more limited right of the prerogative of treasure trove known to the common law should be upheld not as a right derived from the Crown but rather as an inherent attribute of the sovereignty of the State which was recognised and declared by Article 11 of the 1922 Constitution.
63. For the purpose of determining the issues in this case, therefore, I would conclude that there does exist in the State a right or prerogative of treasure trove, the characteristics of which are the characteristics of the prerogative of treasure trove at common law which I have already outlined in this judgment as they stood in 1922.
64. As I have already indicated, it would appear that the characteristics of the right to prerogative of treasure trove at common law included the practice of rewarding a diligent and honest finder who revealed his find and yielded the object of it to the Crown. This practice is, however, apparently established as one of grace only and not conferring a legal right enforceable by the courts.
65. The plaintiffs’ alternative claim for the enforcement by this Court of a right of reward in respect of so much of the hoard as constituted treasure trove is based on an assertion that a combination of the practices both of the British Treasury prior to 1922 and of the State through the agency of the National Museum since that time and the particular conversations and conduct of the officials of the National Museum acting as agents for the State after the finding of this hoard gave to the plaintiffs a ‘legitimate expectation’ of the making to them of a substantial reward by the State which they are entitled to enforce in the courts.
66. In support of the assertion that they are entitled to rely on a ‘legitimate expectation’ the plaintiffs point to the evidence which was adduced, some of it undoubtedly being hearsay but apparently without objection, as to the rewards which had been paid in the past by the Museum in respect of the finding of antique objects and in respect of interdepartmental or administrative minutes and decisions made with regard to the general
approach to such rewards. In particular, of course, they rely on the statement already noted in this judgment and accepted by the learned trial judge, made by the Director of the National Museum at the very first interview with the first-named plaintiff that he would be treated honourably.
67. It would appear that the doctrine of ‘legitimate expectation’ sometimes described as ‘reasonable expectation’, has not in those terms been the subject matter of any decision of our courts. However, the doctrine connoted by such expressions is but an aspect of the well-recognised equitable concept of promissory estoppel (which has been frequently applied in our courts), whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promisor. The nature and extent of that doctrine in circumstances such as those of this case has been expressed as follows by Lord Denning in Amalgamated Investment & Property & Co Ltd v. Texas Commerce Investment Bank Ltd [1982] QB 84, 122:-
68. When the parties to a transaction proceed on the basis that an underlying assumption – either of fact or of law – and whether due to misrepresentation or mistakes makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.
69. Applying the law as there stated, which seems to me to accord with fundamental equitable principles, I am satisfied that the unqualified assurance given to the first-named plaintiff by the Director of the National Museum that he (Mr. Webb) would be honourably treated was an integral part of the transaction under which the hoard was deposited in the Museum and accepted on behalf of the State, and that the State cannot now go back on the assurance. It must be given effect to in the form of a monetary award of an amount which is reasonable in the light of all the relevant circumstances.
70. It is not necessary to rule on the submission made on behalf of the plaintiffs that, regardless of any specific assurance given on behalf of the State, the plaintiffs are entitled as of right, as finders, to appropriate monetary payment for the treasure trove acquired by the State. As I have indicated, the right to treasure trove asserted by the State in this case is essentially the right vested in the State by reason of its sovereign nature bearing the characteristics attached to it by the common law prior to 1922. Prior to 1922 it appears to have been the practice in this country to give monetary rewards to finders of treasure trove. The defendants contend that such rewards were mere honoraria given as a matter of grace and not on foot of any legal liability to give them. The plaintiffs on the other hand contend that the giving of rewards to finders of treasure trove was so well-established and regular that the expectation of a reward in this case was so well-founded that the courts should give effect to it.
71. It is not necessary for the resolution of this case to choose between those two submissions. In my opinion the plaintiffs’ claim for compensation rests solidly on the fact that the assurance given to Mr. Webb that he would be honourably treated (which should be held to mean that he would be reasonably rewarded) was an integral part of the transaction whereby he deposited the hoard in the National Museum. It would be inequitable and unjust if the State were to be allowed to repudiate that assurance and give only a meagre and disproportionate award. For the State to avoid giving the plaintiffs a reasonable reward would not be to treat them honourably.
72. Evidence of the amounts paid in respect of previous finds of valuable antiques tendered in the High Court does not appear to me to assist in any particular way as to the appropriate amount which should be paid in this case for no distinction seems to have been made in those circumstances between objects of antique or historical value which were gold and silver and those which were not. In particular, the only comparable object which was found and brought into the possession of the National Museum would appear to be the Ardagh Chalice and certainly the evidence tendered with regard to the amounts paid to various people in respect of that find would indicate a total absence of relationship between its true commercial or market value and the amounts paid.
73. Having reached the conclusion, however, as I have done in this judgment, that treasure trove is a royalty or franchise vested in the State by virtue of its sovereign nature and having reached the further conclusion that there is associated with that a right of the plaintiffs in the particular circumstances of this case to a reasonable reward, I find that I am dealing with a situation in which a finder has got a right to a reward for which the law has not yet provided a precise method of assessment.
74. Whilst I have already decided that the fact that the finding of them arose from an act of trespass, namely, the digging in the land to enter which they had an implied licence would, apart from other considerations, defeat any right they had to the possession of the objects as between them and the owners of the land, I do not consider that the extent and the nature of the trespass in this case, having regard in particular to the subsequent conduct of the plaintiffs with regard to the hoard, could or should, as a matter of public policy, disentitle them to a reasonable reward. In particular, the statement upon which they rely which was in my view properly made, by the Director of the National Museum, after he had been made aware of the circumstances of the finding of this hoard, would be inconsistent with any such loss of rights.
75. It is not possible at this stage and in the absence of specific legislation to set out in any exhaustive detail the factors which might or should, as a matter of policy cover the assessment of what is a proper or reasonable reward for the finding of objects of treasure trove. As I have already indicated, evidence with regard to past payments made for antiquities are of little value, having particular regard to the fact that there is a great
absence in most of the cases of evidence with regard to the nature of the contents of such antiquities or to any independent assessment of their value.
76. It would appear to me that factors which would be certainly of relevance are the general value and importance of the objects found; the circumstances of their finding; and the nature and extent of rewards granted in other instances of treasure trove. Lastly, and of very considerable importance, is the attitude and conduct of the finders of the objects after they have been found and the alacrity with which their finding is disclosed and their possession is surrendered to the appropriate authorities. Consideration must also, in my view, be given to a situation where objects are found by an act of trespass, even though that may be not of any flagrant type and even though that may not, as on the facts of this case, disentitle the finders to their reward.
77. It appears to me that on the evidence which is before this Court and which was before the High Court, coupled with the finding by which this Court is bound, with regard to the market value of the objects found, that this Court is in as good a position as would be the High Court to assess a reasonable reward, having regard to the considerations which I have above outlined. In those circumstances, in litigation which has not in the courts had anything like a lengthy history but which being brought to the courts was delayed from the time of the finding of these objects, I think it is proper that this Court should itself assess the appropriate reward.
78. Having regard to all the considerations which I have set out above, I would assess a sum of £50,000 as a reward to the finders of this hoard to be divided equally between the two plaintiffs.
79. I do not intend to imply by anything contained in this judgment that the right or prerogative of treasure trove which I find to be vested in the State may not be enlarged or varied by legislation.
80. Indeed, the circumstances of this case may be thought to point to the necessity for such legislation. The right to treasure trove with which I have been dealing in this judgment is but an outmoded remnant of the mediaeval prerogatives which were vested at common law in the monarch. As such, its characteristics which restrict the nature of the articles to which it applies; the circumstances to be inferred as to the hiding or concealment of those objects and the vagueness as to the respective rights of the State and the finder may indicate that a variation and extension of the State’s rights in regard to ownerless articles of national importance which have been found may be called for.
81. It may be thought proper, for instance, to provide that all (or specified kinds of) articles or items of archaeological, historical, antiquarian or cultural value or interest should when apparently ownerless on being discovered or brought to light be deemed to vest in the State subject to the claim if established of the true owner. Such a provision might well abolish both any distinction between objects made of different materials and any request for evidence that the objects had been hidden for safe keeping. In ordinary cases it would probably be desirable to have a system of reward so as to encourage finders to deliver up articles or items so found. It may be thought proper that any such system of reward should be counterbalanced by penalties applicable to improper excavation of such articles or to their concealment when found.
82. However, what precise changes should be made in the law is something outside the jurisdiction of this Court and is exclusively a matter of legislative policy.
83. I would allow this appeal by setting aside the order appealed against and substituting for it an order
(a) Dismissing the plaintiffs’ claim against the State, that they (the plaintiffs) are entitled to the return of the Derrynaflan Hoard.
(b) Declaring the State to be the owner of the hoard subject to the rights of any person capable of proving ‘true ownership’.
(c) Ordering the State to pay to each of the plaintiffs as finders of the hoard a sum of £25,000 as a reward.
Mc Carthy J.
The Right Itself
117. Despite the authority cited by the Chief Justice, which, in this context, was not considered by the trial judge, who held against the State on estoppel No. 1, I am far from satisfied that ownership of land necessarily carries with it either ownership or a right to possession or other right in respect of chattels found in or over the land as against the claim of a finder. By definition, the owner, until the find, is unaware of the presence of the chattels; if the owner is a purchaser, he has bought and the vendor has sold for a price that takes no account of the chattels; these circumstances are quite apart from the problems that arise from the possible existence of a series of superior or inferior titles to the land, which term must, for this purpose, include real property of any kind. In this regard I find most persuasive the judgment of Whitehouse J, giving the judgment of the Supreme Judicial Court of Maine in Weeks v. Hackett (1908) 71 Atl. Rep. 858 where English and American authorities up to that date (1908) were cited. In Armory v. Delamarie 1 Strange 505 , a chimneysweeper’s boy found a jewel (presumably in a chimney) and brought it to the defendant who was a goldsmith to know what it was; the goldsmith gave it to his apprentice who, under pretence of weighing it, took out the stones, and called to the goldsmith to let him know it came to three halfpence, where upon the goldsmith offered the boy the money; he refused to take it and insisted on having it back whereupon he got the socket without the stones. Pratt CJ ruled:-
1. That the finder of a jewel, though he does not by such finding acquire an absolute property of ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.
2. That the action well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect.
3. As to the value of the jewel several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth; and the Chief Justice directed the jury that unless the defendant did produce the jewel and show it not to be of the finest water they should presume the strongest against him and make the value of the best jewels the measure of their damages; which they accordingly did.
In Parker v. British Airways Board [1982] 1 All ER 834, Donaldson LJ cited Armory’s case at 837 stating that the rule as stated by Pratt CJ must be right as a general proposition and proceed to qualify it, particularly in the case of the trespassing finder. He said:-
The person vis-à-vis whom he is a trespasser has a better title. The fundamental basis of this is clearly public policy. Wrongdoers should not benefit from their wrong-doing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce the free-for-all situation to which I have already referred, in that anyone could take the article from the trespassing finder. Accordingly, the common law has been obliged to give rights to someone else, the owner ex hypothesi being unknown. The obvious candidate is the occupier of the property on which the finder was trespassing. Curiously enough, it is difficult to find any case in which the rule is stated in this simple form, but I have no doubt that this is the law.
118. Public policy is an unruly horse; it is a form of judicial policy making, in this instance to be used to establish a right in someone who was unaware of the subject matter of that right until it was brought to his attention by the person who is to be denied that right. Because of the view I take on what I regard as the most fundamental issue in this appeal, I do not find it necessary to express any concluded view; I do not accept that the defendants have established a right consequent on the transaction of 7 July 1981.
Article 10
119. In the defence it is contended that the Derrynaflan Hoard is treasure trove and as such the property of the State. Blayney J, relying upon the judgment of Walsh J in Byrne v. Ireland [1972] I.R. 241 concluded that what had been the royal prerogative of treasure trove was not carried over by Article 49.1 of the Constitution. In their notice of appeal the defendants challenged the judge’s conclusion in:-
8. Holding that all royal prerogatives which had been part of the common law of Ireland ceased to be part of the law of Saorstát Éireann on the enactment of the Constitution of Saorstát Éireann, 1922.
9. Holding that the royal prerogative of treasure trove was not part of the law of Saorstát Éireann and was not carried over by Article 49.1 of the Constitution of Ireland and is not part of the law of Ireland.
10. Failing to distinguish the royal prerogative of treasure trove from the royal prerogative of immunity from suit.
11. Failing to hold that all or some of the articles which constitute the Hoard constitute treasure trove and are the property of the State.
120. Section C of the appellants’ written submissions dealt with whether the Hoard is the property of the State as treasure trove. Nowhere in the submission is there a reference to Article 10 of the Constitution or Article 11 of the Constitution of Saorstát Éireann. It appears to have been during the argument in this Court that for the first time the question arose as to whether or not the State might claim title to the chattels by virtue of Article 10. The Chief Justice recites this argument as:-
121. Firstly, it is contended that the prerogative of treasure trove was a royalty or franchise within the territory of the Irish Free State and that as such it was expressly vested in the Irish Free State by the provisions of Article 11 of the Constitution of the Irish Free State (the 1922 Constitution). That being so, it is argued, that the provisions of Article 49.1 of the Constitution vest that prerogative in the People and the provisions of Article 49.2 provide that it shall be exercised by or on the authority of the Government.
122. The second and quite alternative ground on which it is alleged the prerogative of treasure trove has survived into the law of Ireland is an assertion that as part of the wider and more general right of bona vacantia it is an inherent and necessary attribute of a sovereign state and that since this State is by virtue of Article 5 of the Constitution declared to be a sovereign State that it must follow that it is entitled to the prerogative of treasure trove.
123. The Chief Justice rejects the first but upholds the second submission that a necessary ingredient of sovereignty in a modern state and certainly in this State having regard to the terms of the Constitution is and should be ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. With this view I fully agree. Like Walsh J, I do not subscribe to the view that Article 10 of the Constitution covers the matter; I am content to found in my view upon the attributes of sovereignty possessed by the State derived from the People and identified by Article 5. What were formerly the subject of the royal prerogative as treasure trove or bona vacantia do not appear to me to fall within the term ‘natural resources’ or ‘royalties and franchises’; whether or not the subjection to all estates and interests for the time being lawfully vested in any person or body qualified both natural resources and royalties and franchises, by definition such estate or interest cannot be identified. The further sections of Article 10, in my view, lend force to the conclusion that the Article is concerned essentially with what is covered by ‘all natural resources’ and the royalties and franchises affecting or derived from them and not otherwise. For my part, I would not seek to indicate to the Oireachtas how the power to make arrangements for the disposal of or other use of such chattels should be exercised.
Reward
124. Whilst it may be contended that the plaintiffs were merely complying with law when they brought the Hoard to the attention of the National Museum, in my view, for the reasons that are set out in the judgment of the Chief Justice, they were entitled to rely on a legitimate expectation that the State would make to them a substantial reward and that they are entitled to enforce this in the courts. In this area of the case, indeed, I believe that public policy plays a significant role. Whatever criticism may be made of the plaintiffs in the use of metal detectors or for the fact that they dug below the surface in order to retrieve the Hoard, their subsequent conduct and attitude has been entirely praiseworthy; I would wish that I could say the same of those responsible for the assessing of the offer of £10,000 made to the plaintiffs, when the owners of the land ignorant of the existence of the treasure until found by the plaintiff and who had done nothing whatever save own the land, were each paid the sum of £25,000 from the same source.
125. I would allow this appeal accordingly and concur in the order proposed.
White v Withers LLP & Anor
[2009] EWCA Civ 1122
“Wrongful interference with goods” is the generic name now given to a series of torts including conversion of goods and trespass to goods: see the definition in section 1 of the Torts (Interference with Goods) Act 1977. These torts are different. Thus, as we shall see, A may commit trespass to goods by removing them from the claimant’s possession and if he then passes the documents to B who takes possession with the intention of asserting some right or dominion over them or dealing with them in a manner inconsistent with the right of the true owner, then B may be guilty of conversion. Assuming for the moment that B is not himself guilty of trespass, he may be liable for A’s acts if he is a joint and several tortfeasor. Thus, to quote Clerk and Lindsell on Torts 19th edition at 4-04:
“Where one person instigates another to commit a tort they are joint tortfeasors; so are persons whose respective shares in the commission of a tort are done in furtherance of a common design. “All persons in trespass who aid or counsel, direct or join, are joint trespassers.’ [per Tindal C.J. in Petrie v Lamont (1842) CAR. Marsh. 93 at 96].”
So the first question is whether or not the claim sufficiently pleads a case of joint and several responsibility and if so whether there is no real prospect of it succeeding. Paragraph 5 of the claim (set out in paragraph [16] above ) directly alleges that Mr Dearle told Mrs White to take the claimant’s mail. Paragraph 9 of the claim expressly pleads joint and several liability. In response to a request for clarification and further information, the claimant made clear that he was still pursuing the allegation that the first and second defendants told the third defendant to take the claimant’s mail. The claim cannot be struck out for any failure to plead the cause of action.
The judge, however, summarily dismissed that part of the claim. He concluded in paragraph 15 of his judgment set out at [22] above that the evidence was all one way and that both solicitor and his client denied giving advice or encouragement to the interception of the claimant’s mail. That ignores, however, what the claimant said his wife had told him. The claimant may well have an uphill battle in proving his case. But is it a fanciful assertion? Sadly Mr Dearle is shown on the papers before us not to be entirely reliable in the way he has presented his evidence (which is a long way short of saying he is not to be believed). He has made mistakes. In responding to the claimant’s request for further information the defendants pleaded that they came into possession of the Hildebrand documents on various dates between August and December 2007 and those facts were stated by Mr Dearle to be true. In his witness statement of 11th November 2008 he had to correct that. He acknowledged that documents were received between July 2006 and December 2007. In his witness statement of 1st October 2008 Mr Dearle set out the advice he gave to the effect that Mrs White was only entitled to take copies of documents that she found in the matrimonial home provided she did not break into any of the claimant’s property in order to obtain access. He attached his attendance note of 3rd May 2007 “which records the advice that I gave her”. Subject to claims of professional privilege, Mr Dearle may legitimately be asked what advice, if any, he gave prior to or at least on receipt of documents which may have come in on different occasions between July 2006 and December 2007. On those facts there is, it seems to me, a case for the defendants to answer and the claimant’s sworn assertion that his wife informed him that she had been told to take his documents cannot be summarily dismissed. I repeat that the claimant may well not succeed in establishing that case on the balance of probabilities but that is a far cry from shutting him out from his right to a fair trial of the issue.
Trespass to goods
Trespass to goods is an ancient tort. Clerk & Lindsell at 17-123 describes the nature of trespass to goods in these terms:
“The action of trespass to goods, de bonis asportatis, has always been concerned with the direct, immediate interference with the claimant’s possession of a chattel. Though the reference to asportation suggests perhaps what is the most common feature of this form of trespass that is, the taking away or removal out of the claimant’s possession, the wrong of trespass includes any unpermitted contact with or impact on another’s chattel. The interference must, it seems, be of a direct nature and involve some kind of physical contact or affectation. “Thus, to lock the room in which the claimant has his goods is not a trespass to them”. [Hartley v Moxham (1842) 3 Q.B. 701]. But a mere touching is enough for liability, at least if damage is caused.”
Counsel’s researches have produced little modern authority. Mr Crystal relies on the dictum of Lord Diplock in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, 1011 that “the act of handling a man’s goods without his permission is prima facie tortious.” In Bentley v Gaisford [1997] Q.B. 627, 635 Sir Richard Scott V-Cobserved in a passage in his judgment which may be obiter but nonetheless persuasive:
“The clandestine removal or some other unauthorised handling of the documents would, however, constitute a tortious interference with the solicitor’s possession of the documents and, accordingly, would constitute a trespass to goods for which damages could be claimed.”
Mr Sherborne draws attention to this passage in the judgment of Atkin L.J. in Sanderson v Marsden and Jones (1922) 10 Lloyds Rep. 467, 472:
“… an act of conversion differs from a mere trespass in as much as the former must amount to a deprivation of possession to such an extent as to be inconsistent with the right of an owner and evidence and intention to deprive him of that right, whereas the latter includes every direct forcible injury or act disturbing the position of the owner, however slight the act may be.”
It is not in dispute that the original documents are chattels. And it is not in dispute that Mrs White removed them and that (perhaps with the exception of the P&O contract where the solicitors seem to have received a facsimile copy, not the original document) she passed all that she had taken into the possession of her solicitors. The claim sufficiently pleads the taking or interception by Mrs White and the receipt by the solicitors. So is that enough? In my judgment a good cause of action is sufficiently pleaded at least in respect of the claim against Mrs White. Hers was a direct and immediate interference with the claimant’s possession of the documents. It does not seem to me to matter whether she “took” documents which the husband had left “lying around” or whether he “intercepted” them before the husband had had the chance to receive them into his actual possession. It is a classic case of asportation. If the case of joint and several responsibility is established, the solicitors will also be liable for her tortious conduct.
The position of the defendants standing alone is more complicated. Mr Sherborne relies on Clerk & Lindsell 17-128to the effect that
“Though the right to possession, without actual possession, may enable a claimant in conversion to maintain a claim, in trespass the claimant must be in possession at the time of the interference.”
He submits accordingly that because possession had passed from Mr White to Mrs White when she removed the documents, the documents were no longer in his possession at the vital moment when she passed them to the defendants and they began to handle them.
There seems little readily available learning on this question which I confess I have found to be difficult. The authority cited by Clerk & Lindsell is Ward v Macauley (1791) 4 T.R. 489 at 490 where Lord Kenyon C.J. said:
“The distinction between actions of trespass and trover is well settled: the former is founded on possession: the latter on property. Here the plaintiff had no possession; his remedy was by an action of trover founded on his property in the goods taken.”
Although not in our bundle of authorities, I have looked at that case. The plaintiff was the landlord of a house let furnished to Lord Montford. An execution was issued against Lord Montford under which the defendant, the Sheriff of Middlesex, seized part of the furniture, notwithstanding that the officer had noticed that it was the property of the plaintiff. He brought an action of trespass to goods. It is, in my judgment, important to observe that he had let Lord Montford into possession as his tenant with exclusive right to the use of the furniture and thus he no longer had any immediate right to possession himself, nor any actual possession. Similarly the bailor may have no right of action in trespass. That case provides no answer to the case where possession is not surrendered voluntarily but wrongfully usurped as when the possessor of goods is deprived of his possession without his consent and by a trespass for which there is no justification.
No authority was cited to us on this point. I note in Halsbury’s Laws of England 4th Edition Reissue vol. 35, para 1216 that:
“The right to have legal and de facto possession is a normal but not necessary incident of ownership. Such a right may exist with, or apart from, de facto or legal possession, and in different persons at the same time in virtue of different proprietary rights. Thus, when an owner has been wrongfully dispossessed of his goods by theft, or has lost them, he retains the right to possess them; but, where he has bailed them for a term or by way of pledge, this right is temporarily suspended. Similarly, an executor immediately on the testator’s death and before probate has constructive possession of the testator’s goods.
Where de facto possession is undermined, as, for example, where it is equally consistent with the facts that possession may be in one person or another, legal possession attaches to the right to possess.”
It seems to me to be arguable that when Mrs White removed Mr White’s documents she may have assumed actual possession of them but the right to legal possession remained in Mr White. The great treatise on the subject is Wright and Pollock’s Possession in the Common Law which I have not researched and insufficient argument has been addressed to us for me to be able confidently to express a view on the nature of the possession required to found the claim, “possession” being a word of notoriously ambiguous meaning. If it is established that the defendants took possession from Mrs White knowing that she was a trespasser, then their taking possession and handling the documents may be as trespassory as hers. For present purposes it may not in any event be necessary to determine this question finally. Too much depends upon the facts as they emerge at the trial and the precise findings of the judge and, because the answers are not clear cut, summary judgment is an inappropriate vehicle for determining the issue. I would certainly not be prepared to strike the claim out at this stage.
In conclusion on this aspect, I am clear that there is a good cause of action maintained against Mrs White and that the cause of action against the defendants cannot be struck out as having no real prospect of success. Even if the claim against Withers and Mr Dearle cannot be directly established, it may be that they are liable as joint and several tortfeasors with Mrs White.
The claim in conversion
Here there is good modern authority. In Kuwait Airways Corp v Iraqi Airways Co. (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883, Lord Nicholls established these propositions.
“39. … I need not repeat the journey through the textbooks and authorities on which your Lordships were taken. Conversion of goods can occur in so many different circumstances that framing a precise definition of universal application is well nigh impossible. In general, the basic features of the tort are threefold. First, the defendant’s conduct was inconsistent with the rights of the owner (or other person entitled to possession). Second, the conduct was deliberate, not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. The contrast is with lesser acts of interference. If these cause damage they may give rise to claims for trespass or in negligence, but they do not constitute conversion.
40. The judicially approved description of the tort in Clerk & Lindsell encapsulates, in different language, these basic ingredients. The flaw in IAC’s argument lies in its failure to appreciate what is meant in this context by ‘depriving’ the owner of possession. This is not to be understood as meaning that the wrongdoer must himself actually take the goods from the possession of the owner. This will often be the case, but not always. It is not so in a case of successive conversions. For the purposes of this tort an owner is equally deprived of possession when he is excluded from possession, or possession is withheld from him by the wrongdoer.
41. Whether the owner is excluded from possession may sometimes depend upon whether the wrongdoer exercised dominion over the goods. Then the intention with which acts were done may be material. The ferryman who turned the plaintiff’s horses off the Birkenhead to Liverpool ferry was guilty of conversion if he intended to exercise dominion over them, but not otherwise: see Fouldes v Willoughby (1841) 8 M & W 540.
42. Similarly, mere unauthorised retention of another’s goods is not conversion of them. Mere possession of another’s goods without title is not necessarily inconsistent with the rights of the owner. To constitute conversion detention must be adverse to the owner, excluding him from the goods. It must be accompanied by an intention to keep the goods. Whether the existence of this intention can properly be inferred depends on the circumstances of the case. A demand and refusal to deliver up the goods are the usual way of proving an intention to keep goods adverse to the owner, but this is not the only way.”
In the context of this case it is important to note that it is a tort of strict liability. In a classic statement, Diplock L.J. said in Marfani & Co Ltd v Midland Bank Ltd [1968] 1 W.L.R. 956, 970/1:
“At common law, one’s duty to one’s neighbour who is the owner, or entitled to possession, of any goods is to refrain from doing any voluntary act in relation to his goods which is a usurpation of his proprietary or possessory rights in them. Subject to some exceptions which are irrelevant for the purposes of the present case, it matters not that the doer of the act of usurpation did not know, and could not by the exercise of any reasonable care have known, of his neighbour’s interest in the goods. The duty is absolute; he acts at his peril.”
See, to similar effect, Lord Hoffmann in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, paragraph [95]. Here it is beyond dispute that each of the defendants knew full well that they were dealing with the claimant’s documents.
The claim includes allegations of the defendants’ using the documents and the response to the request for further information refers to the “receipt and custody of each document inevitably involving copying” and “reading and noting the contents of the documents”. Mr Sherborne submits that that is insufficient to establish the exercise of dominion over the documents. I do not agree. What is required is some conduct inconsistent with the rights of the owner. The owner can control who reads his documents or who copies them and keeps them. Here the case against the defendants is that they have done that without the claimant’s knowledge or consent, they have acted inconsistently with the rights of the owner. In my judgment the claim does disclose a good cause of action.
Are the Hildebrand rules a good defence as giving a lawful excuse or legitimate justification or as being in the public interest?
On the facts which seem to be beyond dispute, some of the claimant’s documents were intercepted and many, if not all were retained by Withers for months. To that extent at least the Hildebrand rules as I summarised them at [37] above were not complied with and Hildebrand can afford the defendants no defence. Although, therefore, it may not strictly be necessary to determine these issues, it may assist the court to express some tentative views in the event that it is found that some documents were taken, copied but returned forthwith in a manner compliant with Hildebrand.
Lawful excuse: self-help: The Hildebrand rules stem from acts of self-help. Self-help cannot of itself be a good defence. There are alternative means of obtaining protection which would not necessitate the wrongful interference with another’s goods. The court can grant orders for the detention, custody or preservation or for the inspection of relevant property. Within limits – see T v T set out at [33] above – the Family Division tolerates self-help as a way of ensuring that evidence can be placed before the court of the true financial position so that the court can discharge its duty under section 25 of the Matrimonial Proceedings Act 1973. At its heart the question is one of the admissibility of evidence if it is wrongfully obtained. A similar dilemma faces other divisions of the High Court: see for example Jones v University of Warwick [2003] EWCA Civ 151 where the issue was whether, and if so when, a defendant to a personal injury claim is entitled to use as evidence a video of the claimant which was obtained by filming the claimant in her home without her knowledge after the person taking the film had obtained access to her home by deception. This called for a balance between conflicting public interests, the right to a fair trial and the invasion of privacy after the trespass to the claimant’s home. Admitting the evidence, Lord Phillips of Worth Matravers added, “…it is appropriate to make clear that the conduct of the insurers was improper and not justified.” It is, therefore, one thing to balance wrong-doing against the interests of justice in order to ensure a proper fair trial but quite another to admit self-help as a defence to the tortious activity in so garnering that evidence.
In that regard the bounds of self-help are narrow indeed. In Southwark LBC v Williams [1971] 1 Ch. 734, Lord Denning M.R. said at p. 744:
“If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine they were in need or would invent a need, so as to gain entry. The plea would be an excuse for all sorts of wrongdoing. So the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good.”
Edmund Davies L.J. said at p. 745:
“But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions and that is that the law regards with the deepest suspicion any remedies of self-help and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear – necessity can very easily become simply a mask for anarchy.”
Public interest: Nor is there much scope for public interest serving as a defence to trespass: see Monsanto v Tilley & ors [2000] Env LR 313 where it did not avail the environmental group who entered on the land and uprooted genetically modified crops. Here there is no public interest in taking another’s documents: the public interest in so far as it prevails, is in the need for a fair trial of the ancillary relief claim with all relevant facts before the court and this could be achieved by resort either to the court’s search and seizure warrants or to a Hildebrand plea to admit the documents in evidence no matter how they were procured. The Matrimonial Causes Act 1973 can be invoked to justify admitting the evidence contained in the documents: but one cannot construe the Act as authorising the commission of the torts of trespass or conversion. Thus it seems to me to resort to self-help is to take a risk.
Legitimate justification: If, as I hold, the removal, use and retention of documents can amount to the tort of interference with property and as such be a civil wrong, then the justification for the wife’s actions, namely, to prevent the husband’s wrongfully withholding them, cannot be legitimate. In the words of the old adage: “Two wrongs don’t make a right”. At most the Hildebrand rules, and the extent to which they are observed or broken, may have an impact upon damages and therefore upon whether or not the court should allow a civil claim to go to trial. That is essentially an abuse of process argument with which I will deal shortly. But first I must deal with a tricky point.
The de minimis non curat lex argument: This gives rise to a question that does trouble me, but which was not addressed in argument in any detail (if at all), namely whether an action will lie when minimal, trivial or insignificant harm has been done to the right of the claimant in all the circumstances of the case, e.g. where a wife removes a document, copies it on a machine in the home, then immediately replaces it, or where she takes it to her solicitors who copy it and it is then returned forthwith. What is the legal position where the interference is de minimis? Clerk & Lindsell say this at 17-123:
“This does not mean, however, that all intentional touching of another’s goods should amount to trespass. On the contrary, the theatre-goer who moves someone else’s coat in the cloakroom in order to retrieve his own should not be liable in trespass, nor should the pedestrian who brushes past a car parked in a crowded street, perhaps breaking off an ornamental mascot in the process. It is submitted that an analogy should be drawn here with trespass to the person where Goff L.J. has said that there is not trespass where the actor has not in the circumstances “gone beyond generally acceptable standards of conduct”. The theatre-goer and the pedestrian have not; and that is the ground on which they ought to be excused.”
That dictum of Robert Goff L.J. appears in Collins v Wilcock [1984] 1 W.L.R. 1172, 1178, a case in the Divisional Court where the defendant woman police officer had had taken hold of a suspect’s arm to restrain her. His Lordship held:
“Although such cases [jostling which is inevitable from one’s presence in a busy street] are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.”
That was referred to in Wilson v Pringle [1987] QB 237 where Croom-Johnson L.J., giving the judgment of the Court of Appeal, said at p. 252/3:
“Robert Goff L.J.’s judgment is illustrative of the considerations which underlie such an action, but it is not practicable to define battery in terms of “physical contact which is not generally acceptable in the ordinary conduct of daily life.”
In our view, the authorities lead one to the conclusion that in battery there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching. That still leaves unanswered the question “when is a touching to be called hostile?” Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact. “
Quite how that translates to trespass to goods is uncertain.
Nor is the position with regard to conversion any clearer. Paragraph 17-11 in Clerk & Lindsell states that:
“A mere transitory exercise of dominion, such as unlawfully “borrowing” or using goods, may still amount to conversion. If a man takes my horse and rides it and then redelivers it to me nevertheless I may have an action against him, for this is a conversion, and the redelivery is no bar to the action but shall be merely a mitigation of damages.”
On the other hand Fleming’s Law of Torts, 8th edition, refers to Fouldes v Willoughby (1841) M&W 540 where the plaintiff, after embarking his horses on the ferry, got involved in a dispute with the boatman. The latter requested him to get off and remove his horses but when the passenger refused to comply he put them ashore himself. They were conveyed to an hotel kept by the defendant’s brother. The plaintiff again declined to leave the boat and was then carried across the river. It was held that the defendant by merely turning out the horses had not committed a conversion. The commentary suggests that:
“The wrong was not so serious as to make it proper to require him to pay the full value. His possession was for a short time only, no damage was done to the horses and, far from disputing the owner’s title, his conduct throughout emphasised that he did not want any part of them. On the other hand, had the horses been destroyed, lost or injured, he would surely have been treated as a converter. “The controlling factor therefore seems to be not necessarily the defendant’s act viewed in isolation, but whether it has resulted in a substantial interference with the owner’s rights so serious as to warrant a false sale. Hence, a particular type of intermeddling is probably not, under any and all circumstances, necessarily a conversion. What may be decisive are such additional factors as the extent and duration of the interference, the harm done to the chattel and, not least, the defendant’s intent”, citing Prosser, Nature of Conversion, 42 Corn L.R. 168 (1957).”
There is a great deal of common sense in those observations and I can well understand why they could be applied in the circumstances I am postulating. However, others read Fouldes differently and see it as a case turning simply on whether or not there was an interference with dominion. I am inclined to agree with that view since it more accurately reflects the judgment of Lord Abinger C.B.:
“The judge was wrong to direct the jury that the simple fact of putting the horses on shore amounted to conversion. He should have added that it was for them to consider what was the intention of the defendant in so doing. If the object, and whether rightly or wrongfully entertained is immaterial, simply was to induce the plaintiff to go on shore himself and the defendant, in furtherance of that object did the act in question, it was not exercising over the horses any right inconsistent with, or adverse to, the rights which the plaintiff had in them.”
What conclusions am I to draw from that? It seems to me to still be moot whether or not a slight interference will amount to either trespass or conversion. Common sense suggests that minor infractions especially in this fraught field of divorce should not lead to claims in tort being brought where the action would not be censured by the Family Division judge if it were considered to be, adapting the approach of Robert Goff L.J. in Collins v Wilcock, “acceptable in the ordinary conduct of everyday life [in the Divorce Courts].” Minor misconduct may be best regulated by the Family Division and should not become the source of satellite litigation in the Queen’s Bench Division. The final determination of the question of liability in tort for a minor trespass or conversion must depend upon the facts and circumstances of the particular case and it is, I am rather relieved to say, not a matter which it is appropriate for us to decide on an application to strike out a claim. It must await a decision at a trial when the facts are clear.
If such a trivial claim is brought, it is difficult to see anything more than nominal damages being suffered and I would encourage and expect such a claim to be struck out for being an abuse of the process.
Where does that leave the Hildebrand rules? The deviousness of one of the parties and the need for the court to have full and frank disclosure to fulfil the court’s statutory duty will justify the admitting the documents in evidence but, subject to the possibility of de minimis infractions being overlooked for the reasons I have just discussed above, it cannot justify or excuse the commission of the wrongful interference with property. Nothing in this judgment is intended to cast doubt upon the Family Division’s practice to admit all relevant evidence in the search for truth or to impose sanctions where there has been improper conduct.
Calor Gas Ltd v Homebase Ltd
[2007] EWHC 1173 (Ch)
Hederson J
Wrongful interference with goods
Against this background, Calor’s primary submission is that this is a plain and obvious case of wrongful interference by Homebase with Calor’s goods, and Homebasehas no arguable defence to the action. An injunction should therefore be granted as of course to restrain the conduct complained of.
On the facts, submits Mr Turner QC, Calor retains the property in its cylinders, for good business reasons, and has made an express agreement with end users in the Form 167 that they are not to part with possession or control of the cylinders other than to a Calor outlet. Homebase ceased to be a Calor outlet on 23 February 2007. Furthermore, Calor has at all material times had a right to immediate possession of the cylinders by virtue of conditions 3 and 5 in the Form 167. Homebase is well aware of these matters, and has been specifically warned by Calor on several occasions not to receive or handle its cylinders after the termination date. Nevertheless, Homebase has made a deliberate choice to deal with the cylinders in a manner which is inconsistent with, and denies, Calor’s rights. Instead of the customer either arranging for collection of the cylinder by Calor, by calling the specified telephone number, or taking it to a Calor centre, dealer or stockist, the customer accepts Homebase’s express offer to take possession of the empty cylinder if that is “convenient”. Furthermore, the offer by Homebase is in practice part and parcel of a “swap” transaction under which the customer is allowed to buy a new BP cylinder at a reduced price.
On the law, Mr Turner submits that Homebase is clearly liable both for conversion of the cylinders and for trespass to Calor’s goods. Taking conversion first, it is well established that a person has title to sue for conversion where, at the time of the conversion, he had either actual possession of the property in question or the immediate right to possess it: see Clerk & Lindsell on Torts, nineteenth edition, para 17-40. As to the substance of the tort, Mr Turner relies on Clerk & Lindsell, paras 17-09 and 17-10, and the principle that any unauthorised receipt or dealing with a person’s goods with the intention of asserting some right or dominion over them, or in a manner inconsistent with the right of the true owner, will prima facie constitute conversion. He relies in particular on Lancashire and Yorkshire Railway v MacNicoll (1919) 88 LJKB 601 where Atkin J referred at 610 to conversion as:
“dealing with goods in a manner inconsistent with the rights of the true owner … provided that it is also established that there is an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right.”
So far as trespass is concerned, Mr Turner again relies on Calor’s right to immediate possession of the cylinders as giving Calor the necessary title to sue, at any rate once the customer has given up possession of the cylinder to Homebase and the bailment of the cylinder to him is at an end. It is true that, whereas as action in conversion is founded on property, an action in trespass is founded on possession: see Clerk & Lindsell at para 17-128. However, there are various exceptions to this rule, one of which is that, where a bailment is determinable at will, the bailor retains sufficient possession to enable him to sue third parties: ibid, citing Nicolls v Bastard (1835) 2 C.M. & R. 659. Mr Turner also referred me to the speech of Earl Jowitt in USA and Republic of France v Dollfus Mieg [1952] AC 582 at 605, where he said:
“Under English law, where there is a simple contract of bailment at will the possession of the goods bailed passes to the bailee. The bailor has in such a case the right to immediate possession, and by reason of this right can exercise those possessory remedies which are available to the possessor. The person having the right to immediate possession is, however, frequently referred to in English law as being the “possessor” – in truth the English law has never worked out a completely logical and exhaustive definition of “possession”. “
The circumstances of the present case, submits Mr Turner, are that Homebase is not a mere passive and unwilling recipient of Calor cylinders. On the contrary, Homebasehas made a clear business decision to continue receiving and handling Calor cylinders against the wishes of the owner of the property. The case is therefore materially identical to the decision of Mr Justice Walton in Calor Gas Limited v DIY Motor Caravan Centre Ltd and another (25 January 1985, unreported). That case also involved a former Calor dealer, which sought to argue, after termination, that it could lawfully receive Calor cylinders as agent for the end user, for the sole purpose of returning them forthwith to Calor. Mr Justice Walton rejected that argument as an artifice.
Having pointed out on page 2 of the transcript that the effect of Form 167 is that the cylinders remain the property of Calor at all times, and that the real dispute between the parties related to the retention of customers, Walton J stated the question before him on page 7 as follows:
“Now the question is, in spite of the fact that the [Form 167] says that when the customer wishes to terminate his authority he must return the cylinder to a Calorcentre, dealer or stockist, is he entitled to disregard those provisions entirely and return it to a person who is not, although he has once been, a Calor centre, dealer or stockist? I would have thought, put in that way, there can only be one answer to the question, namely No. The whole idea of the relevant clause is that you must go back to somebody who has a connection with Calor, and you must not go with your Calor cylinder to somebody who has not a connection with Calor. But then the matter becomes more complicated because, although under the terms and conditions of the agreement the customer has to remain in full possession, and so on and so forth, of the cylinder, it is I think quite obvious that there could be no objection in law to the customer returning the cylinder via other persons …”
Having given some examples of circumstances in which it would be clearly be reasonable for a customer to return a cylinder by entrusting it to a carrier, or an agent, the learned judge went on to consider whether it was possible for the customer to appoint the former Calor dealer or stockist as his agent for the return of the cylinder. He said:
“Of course, that has a great deal of artificiality in it because it is quite clear that the former dealer is not in the business of carriage or haulage as such at all. It is also quite clear in the real world that what has happened has not been that the customer has, at any rate in the first instance, been wanting to terminate his agreement. In the real world what has happened is that, wanting a fresh supply of Calor gas, he has been cajoled, to use a neutral word, into an exchange. He has not of his own motion gone to the defendants and said “Please will you act as my agents for returning the cylinder to Calor Gas Ltd?” The suggestion is quite absurd. What he has done is to go to the defendants and say “Please will you supply me with some Calor Gas?” and the defendants have said “Oh no, we are very sorry we cannot do that but what we can do is to take in your cylinder, which will enable us to repay you whatever amount of your payment is due to come back and we will then supply you with something else”. So the whole thing is totally unreal.”
Walton J then went on to refer to the decision of the Court of Appeal in Calor Gas Limited v Manchester Bottled Gas (24 July 1984, unreported). He pointed out that the Court of Appeal recognised in that case that the rights of the defendant to have and return the cylinders must depend upon the rights of the customer, the so-called “jus tertii”, and that it was incumbent on the defendant to establish that right. Having cited a passage from the judgment of the Court of Appeal, Walton J continued on page 11 of the transcript as follows:
“The plaintiffs, say the Court of Appeal, own these cylinders. As owners they have the right to say what is to happen to them and to forbid people from handling them unless they, that is Calor, have in some way given up that right. It is for the defendants to show that they have. In my opinion it is impossible to say that the terms of the agreement entitle the customer to deliver the cylinder to the defendants when the plaintiffs do not wish it and also to enable the defendants, who know that the plaintiffs do not wish it, to rely upon such jus tertii, i.e. the right of the customer to send the containers back through third parties. So it is therefore as plain as a pikestaff that what the Court of Appeal are there saying is that if Calor Gas said to a person who has been its stockist, or its dealer, or has run a centre on its behalf “We do not wish you to handle these cylinders”, then that is an end of the matter, that person may not handle them. … The thing is really unarguable. “
On behalf of Homebase, Mr Tritton accepts that Homebase ceased to be an authorised Calor outlet on 23 February 2007. He also accepts that a right to immediate possession of goods is sufficient to give a claimant title to sue in conversion. However, he submits that both on the facts and as a matter of law it is at least properly arguable that Homebase is guilty of neither conversion nor trespass, so the question of interim relief should not be decided without going on to consider the balance of convenience, which he says comes down clearly against the grant of an injunction.
In support of his submissions on conversion and trespass to goods, Mr Tritton makes a number of points which I would summarise as follows:
(1) Conversion requires at least an intention to exert dominion over the goods on a temporary basis (see Clerk & Lindsell, paras 17-09 and 17-10). The mere unpermitted keeping of another’s chattel is not a conversion of it: see Clerk & Lindsell at para 17-22 and Barclays Mercantile Business Finance Ltd v Sibec Ltd [1992] 1WLR 1253 at 1257-8 per Millett J. In particular, Millett J said at 1258A:
“Such an act [i.e. an overt act of withholding possession of the chattel from the true owner] may consist of a refusal to deliver up the chattel on demand but it may be demonstrated by other conduct, for example, by asserting a lien. Some positive act of withholding, however, is required; so that absent any positive conduct on the part of the defendant, the plaintiff can establish a cause of action in conversion only by making a demand.”
See too 1258G-H, where Millett J said that an overt act of withholding goods from the true owner is a condition precedent to the tort of conversion.
(2) In the present case, Homebase is doing no more than taking possession of the empty Calor cylinders and then storing them so that Calor can collect them. Homebase makes no use of the cylinders. Far from there being any assertion of dominion or refusal to surrender the goods, Homebase is actively encouraging Calor to pick the cylinders up as regularly as it can.
(3) In any event, on the true construction of the Form 167 it is at least arguable that Calor had no right to immediate possession of the cylinders during the currency of the agreement, and although it may have acquired such a right after the customer has handed over the cylinder to Homebase (assuming that to be a breach of the Form 167 agreement), Calor cannot rely on the handing over and acceptance of the cylinder by Homebase as an act of conversion because the right to immediate possession arose only on completion of that transaction.
(4) The handing over of the cylinder to Homebase for return to Calor is, at least arguably, a reasonable method for the customer to adopt in order to fulfil his obligations under condition 7 of the Form 167. If that is right, there would be no breach of contract between the customer and Calor when the cylinder is handed over, and Homebase would be entitled to rely on the customer’s right to return the cylinder in this way as a defence to any claim for wrongful interference with Calor’sgoods.
(5) The decisions of the Court of Appeal in the Manchester Bottled Gas case, and of Walton J in the DIY Motor Caravan case, turned on their particular facts and in particular reflected the fact that there were strong grounds for believing the defendants to be rogues. By contrast, Homebase is a large and respectable company which has traded successfully with Calor, and without giving any grounds for complaint until the present dispute, for some eleven years. Furthermore, in neither case did the court examine the legal grounds for holding that the defendant had wrongfully interfered with Calor’s cylinders because such interference was effectively conceded subject to the limited points which were dealt with by the Court of Appeal and Walton J.
(6) With regard to trespass, the correct proposition, at least arguably, is that a bailor only retains sufficient possession to enable him to sue third parties where the bailment is not only determinable at will but also gratuitous. In support of this proposition Mr Tritton relies on Nicolls v Bastard, loc.cit, and also on a passage in the speech of Lord Porter in Dollfus Mieg, loc.cit, at 611 where after referring to certain authorities as establishing the proposition that “where the bailor can at any moment demand the return of the object bailed, he still has possession”, he then said:
“In each of the authorities referred to the right of the bailor is limited to a case of gratuitous bailment, a requisite which, in my opinion, is fulfilled in the present case. The bank held the bars, without any right of lien, at the will of the Commission.”
Mr Tritton advanced these submissions with skill and vigour, but I am unpersuaded by them. I agree with Mr Turner that this is a plain case of wrongful interference by Homebase with Calor’s cylinders. I will now give my reasons for reaching this conclusion.
I begin with the terms of the Form 167 agreement. In agreement with Mr Tritton, I consider it to be well arguable that Calor’s rights over the cylinders in the first part of condition 5 (that is to say, the right to inspect or test the cylinders at any time, and to remove and replace them if they are defective, or for any other reason) do not amount to a right of immediate possession sufficient to ground a claim in conversion. Calor’s right to take possession of the cylinders is limited, and may only be exercised for certain specified purposes (inspection, testing, or removal and replacement). Subject to Calor’s limited rights, the customer has exclusive possession of the cylinder as bailee. However, the second part of condition 5 then goes on to provide that Calor may repossess the cylinder immediately “in any case of breach of the agreement”. Accordingly, if a breach has taken place, it follows in my view that Calor thereupon acquires an immediate and unqualified right to possession of the cylinder. Such an immediate and unqualified right would in my judgment clearly be sufficient to ground a claim by Calor in conversion.
I would add that, even if condition 5 did not make express provision in these terms, the same result would follow from application of the well-established principle that a breach of the contract of bailment by the bailee terminates the bailment and leads to the revival of the bailor’s right to immediate possession, thereby entitling him to maintain an action for conversion: see Halsbury’s Laws of England, vol 3(1), fourth edition, 2005 Re-issue, para 88 and Transcontainer Express Ltd v Custodian Security Ltd [1988] 1 Lloyd’s LR 128 at 137 per Slade LJ (where he said that the essential feature of this line of cases is that there has been conduct on the part of the bailee repudiating the contract).
Accordingly, the next question is whether the handing over of the cylinder by the customer to Homebase is a breach of the Form 167 agreement. In my judgment I am bound by the decision of the Court of Appeal in Manchester Bottled Gas to hold that it is. As I have already pointed out, the Court of Appeal accepted that condition 7 must be read as enabling the customer to return the cylinder by means that are reasonable in the context of the whole agreement. However, the Court went on to say on page 7 of the transcript:
“The plaintiffs owned these cylinders. As owners they have the right to say what is to happen to them and to forbid people from handling them unless they have in some way given up that right. It is for the defendants to show that they have. In [our] opinion it is impossible to say that the term[s] of the agreement entitle the customer to deliver the cylinder to the defendants when the plaintiffs do not wish it and also to enable the defendants, who know that the plaintiffs do not wish it, to rely upon such just tertii.”
In my judgment the above reasoning is directly applicable to the facts of the present case. Calor has expressly and repeatedly forbidden Homebase from handling its cylinders after the termination date, and has consistently maintained this position since the start of the dispute. Furthermore, Homebase has instructed its staff to inform any customer who brings in a Calor cylinder that “Homebase is no longer an authorised Calor outlet and, as such, is not authorised to accept Calor cylinders”. In those circumstances, it is in my view impossible to read condition 7 as entitling the customer to deliver the cylinder using Homebase as his agent, and equally impossible for Homebase to rely on the customer’s right to return the cylinder by means that are reasonable in the context of the whole agreement. In the light of Calor’s express prohibition, Homebase’s offer to accept and return the cylinder on behalf of the customer can in my judgment only be regarded as a wholly unreasonable method to adopt for that purpose, whatever attractions it may have as a matter of practical convenience. The customer will therefore be in breach of the agreement when he hands over the cylinder to Homebase, and Calor’s right to immediate and unqualified possession of the cylinder will immediately revive.
I am prepared to accept in favour of Homebase that it is at least arguable that the mere act of handing over and receiving the cylinder cannot itself be treated as an act of conversion, because it is only on completion of that act that the customer will have breached his contract and Calor’s right to immediate possession will have arisen. However, I am unable to accept the proposition that Homebase’s subsequent retention and storage of the cylinder, in the teeth of Calor’s express prohibition, can be equated with a mere unpermitted keeping of a chattel which does not sound in conversion. When Homebase staff take the cylinder and place it, without authority, in a cage for safe-keeping, and when they telephone Calor to request its collection, purportedly acting on behalf of the customer who had no right to return the cylinder in this way, and when arrangements are subsequently made for Calor to collect the cylinder, it seems clear to me that Homebase is exercising temporary dominion over the cylinder and dealing with it in a way which is inconsistent with Calor’s rights. The position might arguably be different if Homebase took immediate steps to deliver every cylinder, at its own expense, to an authorised Calor outlet, but that is not what happens. Homebase retains the cylinder in its own safe custody, although expressly forbidden to do so, until Calor decides to come and collect it. If, as Millett J said in Barclays Mercantile v Sibec Ltd, loc.cit., at 1258A and G, it is necessary to find an overt act of withholding goods from the true owner, I would describe Homebase’s deliberate act of placing the cylinder in a cage when it knows it does not have Calor’s authority to do so as constituting just such an act.
Turning now to trespass, I agree with Mr Tritton that the starting point is that trespass is founded on possession, not property. However, I cannot see how this proposition assists Homebase. The handing over of the cylinder in breach of contract terminates the bailment of the cylinder to the customer, and leaves Calor with both ownership of the cylinder (which it has always had) and with the right to immediate possession of it (which it has now regained). There is no longer any bailment of the cylinder in existence, whether gratuitous or otherwise. Accordingly Calor is free to exercise its possessory remedies, which include a claim for trespass. The position is a fortiori that which would obtain if a bailment at will were still subsisting, and when according to Earl Jowitt in Dollfus Mieg the bailor would still be entitled to exercise his possessory remedies. There may be some room for doubt whether that is still an accurate statement of the law: see Halsbury’s Laws, vol 3(1), para 88, where it is said that “the preferable modern view appears to be that the bailee has possession even under bailment at will”, and the cases cited in footnote 10. However, it is unnecessary for me to examine or resolve this doubt, because as I have said the bailment is simply at an end once the cylinder has been handed over. For the same reason, it is unnecessary for me to consider whether Lord Porter was intending to lay down a further requirement when he said in Dollfus Mieg at 611 that in each of the authorities referred to the right of the bailor was limited to a case of gratuitous bailment.
Once it is clearly established (as in my view it is) that Calor’s immediate right to possession upon termination of the bailment entitles it to sue for trespass to the cylinders, it cannot in my judgment be seriously argued that the acts of Homebase in handling and storing the cylinders, in defiance of Calor’s wishes, do not constitute an actionable interference with the cylinders. Even if no damage has been caused to them, the English authorities clearly support the proposition that a direct and deliberate interference with goods is trespass even if no damage ensues. There may be a limited exception to this principle when the action complained of has not in the circumstances gone beyond generally acceptable standards of conduct: see Clerk & Lindsell, para 17-123. However, I am unable to see how Homebase could hope to succeed in relying on this exception, assuming it to exist, when Homebase has deliberately flouted the clearly expressed wishes of Calor in handling and storing the cylinders.
Conclusions
The conclusion which I have reached makes it unnecessary for me to consider Calor’s alternative claim based on alleged interference by Homebase with Calor’scontractual relations with its customers. My conclusion also makes it unnecessary, and indeed inappropriate, for me to go on to consider where the balance of convenience would lie if Homebase had satisfied me that it had an arguable defence to Calor’s claims in conversion and trespass. As Balcombe LJ said in Patel v Smith Ltd [1987] 1WLR 853 at 861C:
“If there is no arguable case, as I believe there is not, then questions of balance of convenience, status quo and damages being an adequate remedy do not arise. Prima facie the plaintiffs are entitled to an injunction …”
See too Snell’s Equity, thirty first edition, para 16-24 at pp.409-10.
For the reasons which I have given, I consider that Calor is clearly entitled to the interim injunction which it seeks.
Spencer v S Franses Ltd
[2011] EWHC 1269
Thirlwall J
Did the Defendant have a common law right to enquire as to title?
Conclusion
The Defendant did not have a common law right to enquire as to title. Even if it did, the right was not exercised within a reasonable time.
Discussion and Reasons
It was Mr McLinden’s primary submission in closing that a bailee has no right to make reasonable inquiries as to title where the immediate Claimant is the bailor of the possessor. He refined that submission to include the following: “at least in the absence of a positive demand from a third party.” The submission was accompanied by a comprehensive and impressive analysis of the authorities and writings on bailment, a subject I have not found easy.
The primary submission took Mr. Legge by surprise since it represented a shift from the Claimant’s position in opening. I allowed Mr Legge to reply at some length in oral submissions. It was the Defendant’s case, essentially, that because as at early 2009 the Defendant was on notice as to the rights of third parties it had a common law right to enquire as to title, subject to a requirement that the right should be exercised within a reasonable period. Mr Legge submitted that the Defendant had exercised its right accordingly in early 2009.
Mr McLinden’s secondary submission was that if the Defendant had a right to make enquiries as to title the right had to be exercised in good faith and within a reasonable time (see Tavoulareas v Lau [2007] EWCA Civ 474). The Defendant, he submitted, was not acting in good faith and failed to exercise its right in anything like a reasonable time.
There are thus 3 questions: first, is there a common law right? If there is did the Defendant exercise it in good faith and did he exercise within a reasonable time? As is plain from the rest of my judgment I am satisfied that the Defendant was acting in good faith. I turn then to the other two questions.
Common law right
In closing submissions Mr McLinden went back to first principles. He relied on the following statement of the position in Bridge Personal Property Law (3 ed) at 29:
“Commerce…would become paralysed if the care and deliberation taken when investigating title to land were also taken when chattels are bought and sold. This is why the owner of a chattel may be described as the person with the best possessory interest in it. The affinity between possession and ownership has long been recognized by the law.”
Mr McLinden reminded me of the decision of the Court of Appeal in Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437 where the police were obliged to return to a car thief a stolen car because the true owner had not been found and the thief had greater title to the car than anyone but the true owner In giving the judgment of the Court Lightman J said at [31]:
In my view on a review of the authorities, (save so far as legislation otherwise provides) as a matter of principle and authority possession means the same thing and is entitled to the same legal protection whether or not it has been obtained lawfully or by theft or by other unlawful means. It vests in the possessor a possessory title which is good against the world save as against anyone setting up or claiming under a better title. In the case of a theft the title is frail, and of likely limited value (see e.g. Rowland v Divall [1923] 2 KB 500, [1923] All ER Rep 270), but none the less remains a title to which the law affords protection.
Mr Legge did not disagree with the statement in Bridge on the judgment in Costello but he submits that the law recognises the right to enquire in some situations.
As invited by Mr McLinden I adopt as my starting point the opinion of Lord Diplock in China Pacific S A v Food Corporation of India (The Winson) [1982] AC 939 “It follows from the existence of the legal relationship of bailor and bailee as a matter of general principle of the law of bailment …that as between the cargo owner and the salvors the latter as bailees were estopped from denying the title to the goods of the former as their bailor, including as an incident of that title its right to possession.” – Lord Diplock described this as “hornbook law”.
Both parties took me to the decision of the House of Lords in Hollins v Fowler (1875) L.R.7H.L. 757, Mr McLinden relies on the following at 765:
‘If the refusal is by a person who does not know the Plaintiff’s title, and having a bona fide doubt as to the title to the goods, detains them for a reasonable time, for clearing up that doubt, it is not a conversion’. In this case the Defendant knew the Claimant was the bailor, therefore he could not say he did not know the Claimant’s title. But Mr Legge points to the speech of Blackburn J in the same case:
“I cannot find it anywhere distinctly laid down, but I submit to your Lordships that on principle, one who deals with goods at the request of the person who has the actual custody of them in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession”. There is force in Mr Legge’s argument that the reference to a “bona fide belief” implies that in the absence of such a belief different consequences may flow. Accordingly, Mr Legge submits there cannot be an absolute prohibition on a bailee making inquiries as to the bailor’s title.
I was taken by both parties to a number of cases where the courts have decided that a bailee is entitled to make inquiries into the title of the person seeking to recover them. As Mr McLinden pointed out in each case the person seeking to recover the item from the bailee was not the bailor himself. I adopt Mr McLinden’s analysis of those authorities which was as follows.
In Vaughan v Watt 151 E.R. 506; (1840) 6 M. & W. 492, a pawnbroker received goods from A and issued a receipt (which would allow their recovery on payment of the appropriate charge). A then returned on two separate occasions to the pawnbroker and obtained duplicate copies of the receipt, claiming that she had lost the original and first copy respectively. A third party, B (who was A’s husband but did not identify himself as so), subsequently appeared with a copy of receipt, tendered the amount owing and demanded the goods. The pawnbroker refused to release the goods on the basis that he was unsure whether B was entitled to the goods in the circumstances. He was entitled to do so.
In Pillott v Wilkinson 159 E.R. 564; (1864) 3 Hurl. & C. 345 C had bought goods in the possession of a warehouse owner from a third party vendor. The warehouse owner had been told by the sheriff not to dispose of any of the third party vendor’s goods so that he could satisfy debts owed by the vendor. When C demanded the goods that were stored at the warehouse, D who was unsure if he was allowed to release them asked for time to consult his Attorney. He was entitled to do so.
In Clayton v Le Roy [1911] 2 KB 1031 a watch that had been stolen from C and subsequently purchased by B was sent to the Defendant jewellers to be valued. D recognised the watch as one that C had said had been stolen from him, and he contacted C and B to ask them what they wanted him to do. A representative from C’s solicitors went to D and demanded that D hand the watch over. D refused. The majority in the Court of Appeal held that D was entitled to do this, because he was entitled to take reasonable time to find out whether C was in fact entitled to claim the watch. Fletcher Moulton LJ said at 1051:
‘The authorities show clearly, as one would expect, that a man does not act unlawfully in refusing to deliver up property immediately upon demand made. He is entitled to take adequate time to inquire into the rights of the Claimant.’
Vaughan Williams LJ said at 1055
‘A man may not assert any other person’s title, but he may nevertheless do an act which is inconsistent with the dominion of the true owner. Very often such an act may be justified, as, for instance, if the thing is detained for the purpose of making a reasonable inquiry about the title.’
The majority emphasised that the Defendant had been entitled to retain the watch because:
‘The man sent to demand the watch was a solicitor’s clerk, a stranger to the Defendant, who produced no written authority to receive it. I cannot conceive any one in the position of the Defendant being so foolish as to hand over a watch to a man whom he had never seen before and who presented no credentials in writing’ (per Farwell LJ, at 1053) and
‘the question as to title was one which might most properly be a subject for inquiry; the moment had not then arrived for the Defendant’s final decision’ (per Fletcher Moulton LJ, at 1052).
Both parties sought to derive support from the writings of Professor Palmer (who pleaded the case on behalf of the Defendant) – see Palmer on Bailment (3rd Ed 2009). Both were able to do so because Professor Palmer sets out the arguments, and identifies the dilemmas and difficulties on both sides. I note the following at 1-085:
Where the possessor was already the bailee of the Claimant, and has therefore ostensibly undertaken not to deny the Claimant’s title, it is arguably in conflict with that undertaking for the possessor to insist on delaying the return of the chattel to the Claimant until the possessor has had a reasonable period in which to investigate the Claimant-bailor’s title. If the bailee is forbidden to contest his bailor’s title in any event, it would seem otiose and contrary to the terms of the bailment, if not downright mischievous, to allow him time to investigate that title… Arguably a distinction must be drawn for this purpose between a bailee who receives a positive demand from a third party (who should be entitled to a reasonable time for inquiry following the Claimant-bailor’s demand for the return of the goods) and a bailee who receives no positive demand but merely suspects the existence of some ulterior interest (who should not be entitled to a reasonable time for inquiry but should comply immediately with a demand that he return the goods to his bailor).
Alternatively, Professor Palmer argues, since the bailee can invoke Section 8 of the Torts (Interference with Goods) Act 1977 he does not need the privilege of reasonable inquiry. Mr McLinden submits that this is correct. The proper course of the Defendant was to plead rule 19.5(a), as it eventually did.
Professor Palmer’s helpful and erudite text identifies the problems. It does not however answer the questions in this case.
It was Mr Legge’s submission that in considering whether or not the Defendant bailee was entitled to investigate the title of the Claimant bailor the court should have regard to the Defendant’s understanding of its potential exposure to a claim in conversion or negligence to the true owner. I am not sure that adds anything to his proposition that where the Defendant has notice of the true owner’s title he is entitled to make enquiries, the proposition he derives from Hollins v Fowler. The reason for the enquiries is to protect the bailee against a potential claim from the true owner. The desire to protect its reputation would not entitle the Defendant to make enquiries – see Howard E Perry & Co Ltd v British Railway Board [1980] 1 WLR 1375, 1381.
Although Mr Legge suggests that constructive notice would suffice the authorities to which he refers me suggest that what was required in the sale cases is actual notice. In Marcq Christie Manson and Woods Ltd [2004] 4 All ER 1005 notice meant actual knowledge of facts indicating that the bailor was not in fact the owner. In the absence of notice the auctioneer bailee was under no duty to make inquiries as to title. At first instance Jack J stated that it was for the true owner to establish that the bailee had notice.
Mr Legge referred me to two other first instance decisions involving auctioneers, Kurtha v Marks [2008] EWHC 336 (at para 140) and De Preval v Adrian Alan (unreported) 24.1.97. I was not much assisted by those authorities, in both of which the auctioneer had been engaged in the sale of the items to a third party. In this case there was no question of a sale or other disposal to a third party. The man with possessory title simply wanted his property back.
As to notice Mr Legge relies on the position as the Defendant knew it in March 2009. He points to the following:-
i) There was no bill of sale.
ii) The “Piers Haussen” receipt showed an entity with better title than the Claimant.
iii) Mr Spencer’s account of finding the Henry Moore bronze was inconsistent with the article in the New York Daily News article and with most of the papers filed in the New York Court, all of which attributed the find to Mrs McGrath of whom the Defendant had not previously heard.
iv) The receipt
a) was not signed by both Guardians
b) did not describe the items. Mr Legge submits that even without any question of fabrication, the receipt left open the possibility that the sale would be challenged by Tedeschi, the second Guardian. It relied on the Claimant to establish that it applied to the embroideries
c) The fact that the signature of John Nevin on the Nevin receipt did not include his middle name or initial (which (put at its lowest) he appears nearly always to have used) raised the possibility that the signature was forged.
v) Charlie Hill indicated that the Berkeley Safe Deposit letter raised grounds for suspicion. The inference I am asked to draw from that is, I think, that the embroideries may have been in the safe deposit box and not in the flat at all. In the fevered atmosphere of early March 2009 that may have seemed likely. It is not an inference I have drawn.
To those concerns I add the fact that the Claimant once again refused to provide an indemnity to the Defendant in respect of the embroideries. I have no doubt that this troubled Mr Franses.
I remind myself that as at January 2009, had its charges been paid the Defendant would have returned the embroideries notwithstanding any doubts it had about title.
Conclusion
I am not satisfied that a bailee who receives a demand from a bailor for the return of his goods can never have a right to a reasonable period to inquire into title when he is on notice that the bailor does not have good title. However I am not persuaded that the Defendant had that right in this case. If I am wrong about that I am satisfied that the Defendant did not exercise his right within a reasonable time.
I draw together the following matters:-
i) The Piers Haussen Trust receipt constituted clear actual notice that Mr Spencer may not be the owner of the embroideries. That is why Ms Swirski was so concerned to read it in February 2009. It was that document that caused the Defendant to begin the inquiries in New York, as Mr Franses says in his third witness statement. I am satisfied that is correct. None of the other private doubts and concerns were sufficient to cause the Defendant to do anything to research title. That is why it was prepared to return the embroideries as late as January 2009.
ii) The Claimant handed over the Piers Haussen receipt in 2003. He had his own reasons for doing so, but the issue of title was clear on the face of the document. Whilst I accept Mr Franses did not pay any attention to it that was not as a result of anything the Claimant did.
iii) Had the Google search been carried out in 2003 (which it could have been) it would have revealed the New York Daily News Article in the same way as the search in 2009. All the other New York information would then have been instantly available, as it was in 2009. The Defendant is not entitled in my judgment to rely on the cumulative effect in 2009 of lots of discoveries when all of them could have been made years earlier.
iv) Whilst the refusal of the indemnity in 2009 further worried Mr Franses, an indemnity had been refused on several occasions over several years.
v) The Claimant had sought the return of the embroideries on more than one occasion before 2005 so the Defendant had been alerted to that possibility.
Conclusion
My analysis of the authorities leads me to conclude that the principle underpinning such right as the authorities may allow is an acceptance that a bailee should have a reasonable opportunity to protect himself from a claim by the rightful owner.
In all of the authorities where a bailee has been permitted to rely on the right to make reasonable inquiries right is said to arise when the demand is made and time runs from that date. In this case the demand relied on by the Claimant was in March 2009, and the Defendant submits that the period runs from that date, although the Defendant has acknowledged throughout that the first demand was 2005. In none of the reported cases where a right has been found to exist has the period before inquiry been prolonged, still less 5 ½ years.
In this case the length of time the embroideries were in the Defendant’s custody coupled with what the Defendant knew throughout the period gave the Defendant ample opportunity to inquire into the Claimant’s title long before the demand in March 2009. Inquiry during that period would have led to the Defendant obtaining much earlier the information it obtained in 2009. Those facts taken in conjunction with the availability of Rule 19.5a satisfy me that the underpinning principle justifying the right that I have set out in paragraph 301 above has no application here. Indeed, on closer analysis I consider this to be the ratio of the decision in Tavoulareas v Lau [2007] EWCA Civ 474 (see paragraph 39) although the Claimant relies on it as authority for the proposition that any inquiry should be carried out within a reasonable time.
In the end it matters not; having spent many years making no inquiries, notwithstanding what it knew, the Defendant had no right to start doing so in March 2009. Alternatively the requirement that the right be exercised within a reasonable time is of no avail to the Defendant; when 51/2 years had already elapsed during which sufficient information to put it on inquiry was known to it, and all relevant information could have been known to it, no further time was reasonable. It comes to the same thing.
I should add that Mr Legge submitted that the “reasonable time” for investigation cannot have started while either the Defendant had a lien or it reasonably assumed that it had a lien. I reject that submission. The purpose of a lien is to protect the financial interest of the bailee. It has nothing to do with bailor’s title. It is always liable to be discharged by the tender of the sum owed. It would not be reasonable in my judgment for a bailee to delay investigating title about which it had doubts until such time as a lien were discharged.