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The remedy in conversion: confusing property and obligation

Published online by Cambridge University Press:  02 January 2018

Nick Curwen
Nick Curwen*
Affiliation:
Southampton Solent University
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Abstract

Where a defendant wrongfully detains the claimant’s goods the standard remedy in conversion permits the defendant to pay the value of the goods to the claimant instead of returning the goods. This amounts to legally sanctioned compulsory purchase. It will be argued that such a remedy is both muddled and unfair. It is muddled because it confuses a proprietary claim with a claim in tort. The action exists in a state of arrested development, never having advanced in step with the action of ejectment, which long ago ensured that wrongfully detained land could be recovered. It is unfair because it sanctions the purchase of the claimant’s goods against their will without any overriding public interest justification. The remedy in conversion needs to be unravelled to produce two distinct actions. One would be a true proprietary action that guarantees the recovery of wrongfully detained goods; the other would be a claim in tort providing personal remedies for wrongful interferences with title to goods. This can be achieved by reviving detinue but confining its ambit to the recovery of goods, leaving conversion to act as a tort.

Type
Research Article
Information
Legal Studies , Volume 26 , Issue 4 , December 2006 , pp. 570 - 583
Copyright
Copyright © Society of Legal Scholars 2006

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References

1. See the Torts (Interference with Goods) Act 1977, s 3.

2. Tony Weir argues that a rational legal system requires that proprietary claims and claims in tort be treated separately. See his book A Casebook on Tort (London: Sweet & Maxwell, 10th edn, 2004) pp 483–487.

3. Pollock, F and Maitland, FW The History of English Law vol 2 (Oxford: Oxford University Press, 2nd edn, 1898; reissued 1968) p 178.Google Scholar

4. See Milsom, SFC Historical Foundations of the Common Law (London: Butterworths, 2nd edn, 1981) pp 262–275.Google Scholar

5. See Holdsworth, Sir W A History of English Law vol 1 (London: Sweet & Maxwell, 7th edn, 1956) pp 305–308.Google Scholar

6. Simpson, AWB The introduction of the action on the case for conversion’ (1959) 75 LQR 364.Google Scholar

7. (1614) 2 Bulst 306.

8. Simpson refers to this development as based upon an ‘extraordinary dogma’ and ‘an absurd affectation’; above n 6, p 379.

9. See Macclesfield v Davies (1814) 3 Ves & B 16.

10. See Duke of Somerset v Cookson (1735) 3 P Wms 390.

11. See Lowther v Lowther (1806) 13 Ves 95.

12. See North v Great Northern Railway (1860) 2 Giff 64 and Howard E Perry & Co Ltd v British Railways Board[1980] 1 WLR 1375.

13. See Common Law Procedure Act 1854, s 78.

14. See Hollins v Fowler (1875) LR 7 HL 757 and Consolidated Co v Curtis & Son [1892] 1 QB 495.

15. For criticism of the over-compensation effect, see A Tettenborn ‘Damages in conversion – the exception or the anomaly?’[1993] CLJ 128 and the same author’s contribution, ‘Conversion, tort and restitution’ in Palmer, N and McKendrick, E (eds) Interests in Goods (London: LLP Profession Publishing, 2nd edn, 1998)Google Scholarch 32.

16. Milsom, above n 4, p 6.

17. The rare circumstances in which a mandatory restorative injunction will be granted were explained in Redland Bricks v Morris [1970] AC 652.

18. See Torts (Interference with Goods) Act, s 5(1).

19. [1991] 2 All ER 133.

20. Ibid, at 142.

21. [2002] 2 AC 883 at 1089–1094.

22. For a general account of the history of ejectment, see Holdsworth, Sir W A History of English Law vol 7 (London: Sweet & Maxwell, 2nd edn, 1937) pp 4–23.Google Scholar

23. See Re Montagu’s Settlement Trusts [1987] Ch 264.

24. A beneficiary cannot bring a common law action, such as conversion, in support of an equitable interest; see MCC Proceeds Inc v Lehman Bros (Europe) [1998] 4 All ER 657.

25. (1841) 4 Beav 115. This case established that if all the beneficiaries are of full age and capacity and absolutely entitled to an interest in possession, then they can call upon the trustees to convey the legal title to them.

26. Bernard Rudden draws a similar distinction in his article ‘Things as thing and things as wealth’ (1994) 14 OJLS 81.

27. Equity (Oxford: Oxford University Press, 2003) pp 21–22.

28. Ibid, pp 155–156.

29. Professor Worthington argues that thieves and innocent purchasers should be treated differently and she is in favour of requiring thieves to return stolen goods whether the action is at common law or in equity: ibid, pp 158–159.

30. Ibid, p 157.

31. Ibid, pp 158–159.

32. See Human Rights Act 1998, s 1.

33. [2001] 1 P & CR 34.

34. Ibid, at 455.

35. [2003] UKHL 40, [2004] 1 AC 816.

36. Ibid, at 873.

37. [2005] EWHC 817 (Ch), [2005] 3 WLR 554.

38. (1986) 8 EHRR 123.

39. Ibid, at 140.

40. See Leigh v Jack(1879) 5 ExD 264.

41. His decision on this point was in effect upheld by the European Court of Human Rights in JA Pye v United Kingdom (Application No 44302/02) (unreported) 15 November 2005.

42. Cmnd 4774.

43. Ibid, para 10.

44. Ibid, para 11.

45. See Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557 at 601 per Lord Rodger of Earlsferry.

46. ‘The problem of a law of property in goods’ (1949) 12 MLR 424.

47. Ibid, at 424.

48. In support of fault-based liability, see Tettenborn’s article ‘Conversion, tort and restitution’, above n 15.

49. At this point in the original text there is a footnote reference to Consolidated Co v Curtis & Son [1892] 1 QB 495.

50. Milsom, above n 4, p 379.