Wednesday, February 21, 2007


Tuesday 20 February 2007

We began by discussing the questions on negligence and occupiers’ liability that I had set before the half-term break, before we moved on to the tort of CONVERSION.

Conversion is an act of wilful interference without lawful justification with any chattel inconsistent with the right of another, whereby that other is deprived of the use and possession of it. It is based upon a legal fiction in that the original allegation (once called ‘trover’) was that the defendant had found the thing and wrongly converted it to his own use

It covers rights of ownership rather than possession, and may overlap with trespass, for example where goods are seized (trespass) and later wilfully destroyed (conversion).

Liability in conversion is strict. An honest but mistaken belief of the defendant that he had the right to deal with the goods is no defence. In the example of the auctioneer above, even if the auctioneer genuinely believes that the thief is the true owner, this would provide him with no defence.

Conversion may be committed in numerous ways of which the most common are:

(1) Conversion by taking - unlawfully taking a chattel out of anyone else’s possession with the intention of exercising a permanent or temporary dominion over it. Mere taking without such intention is trespass to goods. “If I snatch your hat with intent to steal or destroy it I am liable for conversion and trespass, but if I do so to throw it at someone, it is trespass only”: Price v Hellyer [1828].

(2) Conversion by detention - unlawfully keeping a thing with the intention of doing so adversely to the true owner. The usual form is where a person comes by a thing lawfully, for example as a finder or bailee but then refuses to hand it over to the true owner. Merely retaining such a thing without the intention is not sufficient to constitute the tort. The usual form of proving the tort is to show a demand by the claimant for the return of the goods and a refusal by the defendant to comply.

(3) Conversion by wrongful delivery - wrongfully delivering a person’s goods to some other person so as to deprive the owner of title to them because that other person destroys or further disposes of them.

(4) Conversion by wrongful disposition - depriving a person of his goods by giving some other person lawful title to them without lawful justification. This form of tort applies to those cases where a person in possession of goods to which he has no title can still effectively, although wrongfully, dispose of them in such a way that he passes a good title to someone else. The dealing with the goods is a conversion. The easiest example is selling a car on hire purchase before all the payments have beenmade.

(5) Conversion by wrongful destruction - without lawful justification, wilfully consumes or otherwise destroys a chattel belonging to another person. Examples are destroying someone else’s property by burning it or throwing it in the sea so it cannot be found, eating it, or changing its character, for example by weaving thread into cloth. Damage to goods which falls short of destruction is likely to be actionable as trespass only.

(6) Conversion of documents or token - e.g. the misuse of a cheque.

Of more interest is the rule concerning a FINDER. Where goods are found and the true owner cannot be discovered the finder has good title against the whole world except for the true owner and can therefore maintain an action in conversion if his title is denied.

Armory v Delamirie (1721): a chimney sweep found a jewel and recovered in conversion against a goldsmith who took it for valuation and refused to return it. The finder’s title is based on de facto possession. There will be some situations where another person may have acquired a prior possessory title, for example the occupier of the land where the goods have been found.

Where the goods are found on land, who has the better title, the occupier of land or the finder? The principles were laid down in Parker v British Airways Board (1982) where a gold bracelet was found in the VIP lounge at Heathrow airport. The occupier will have better title if

In Parker the “finder” did establish an entitlement superior to that of British Airways.

“Treasure” is now defined in s1 TREASURE ACT 1996. The intention of Parliament is to bring all finds of historical significance under this statutory code, which replaces the common law rules of “treasure trove” but the definition of “treasure” is complicated and may prove difficult to apply with certainty. Anything which previously came within the definition of treasure trove is now treasure but many more objects and artefacts have been brought within the statutory code. The technicality that “treasure” (as with treasure trove before it) belongs to the Crown is preserved but the disposition of objects found will lie with the Heritage Minister. Anyone finding an object which he believes, or has reasonable grounds to believe, to be treasure must notify the Coroner within 14 days and the Secretary of State may determine a reward. A code of practice is being prepared.

s8 of the 1977 Act provides a defence of Jus tertii: in an action for wrongful interference with goods a defendant may plead this as a defence – showing that some third person has a better title than the claimant. The effect of the section is to enable all parties with any claim to the goods to be joined in the same action so that justice may be done.

For example, A retains and refuses to give up goods claimed by B because he believes that C is the true owner and if he were to hand them over to B, he might be liable for an action in conversion by C. If B sues A, then A can plead jus tertii and have C added as a party to the action.

s3(2) provides the following remedies:

We then began a new tort whose origins go back for centuries, that of DEFAMATION. Defamation is the tort that protects reputation, and has been mentioned in Shakespeare:
He that steals my purse steals trash; its something, nothing,
But he that filches from my good name
Robs me of that which not enriches him,
And make me poor indeed. " Shakespeare, Othello act 3, sc. 3
It is divided for our purposes into:

A statement is defamatory if it tends to:

  1. Expose him to hatred, contempt or ridicule; or

  2. Cause him to be shunned or avoided; or

  3. Lower him in the estimation of right thinking members of society generally; or

  4. Disparage him in his business, trade, office or profession.

Note that it doesn’t have to do any of these things, only tend to do so.

Once a claimant has established:

the burden of proof lies on the defendant to establish his innocence or rely on one of the defences available.

Defamation is most unusual in that, although a civil action, a jury will decide on liability, and the amount of the award. This has led to some very odd result.

Sutcliffe v Pressdram (1990) – the Court of Appeal held that the award of £600,000 was substantially in excess of what could be considered a reasonable sum to compensate the claimant and a retrial was ordered on the issue of damages only. The damages were reduced to £60,000. The case involved an allegation by Private Eye that Sonia Sutcliffe, wife of the Yorkshire Ripper, must have been aware of what he had been doing.

Rantzen v MGN (1993) – the Court of Appeal substituted an award of £110,000 for the jury’s assessment of £250,000.

We will continue with this next week.

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