Dobson v General Accident Fire and Life Assurance Corporation Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE BINGHAM |
| Judgment Date | 28 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0728-4 |
| Docket Number | 89/0759 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 1989 |
[1989] EWCA Civ J0728-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
(MR RECORDER BULLIMORE)
Royal Courts of Justice
Lord Justice Parker
and
Lord Justice Bingham
89/0759
MR ROBERT F. OWEN, instructed by Messrs Keeble Hawson (Sheffield), appeared for the Appellant (Defendant).
MR NIGEL G. GODSMARK, instructed by Messrs Beresford & Long (Sheffield), appeared for the Respondent (Plaintiff).
The contents of the plaintiff's (respondent's) house were insured by the defendant (appellant) under Part B of their Maxplan Home Insurance Policy against, among other things, "loss or damage caused by theft".
On 19th November 1987 the plaintiff advertised for sale his gold Rolex Oyster wristwatch and a diamond ring, at a total price of £5,950. On 20th November he received a telephone call from a person whose identity he did not then and does not now know. I shall refer to him as "the rogue". He expressed interest in purchasing the two articles at the advertised price. It was provisionally agreed between them that payment would be by a building society cheque, i.e. a cheque drawn by a building society in favour of the plaintiff. This the plaintiff believed would be as good as a banker's draft.
On 21st November the rogue came to the plaintiff's premises and the plaintiff handed over the watch and ring, receiving in return what purported to be a Birmingham and Midland Building Society cheque in the agreed amount of £5,950, for which he gave a receipt. This transaction took place at the weekend. On the Monday he paid the cheque into his bank. A few days later he was informed that the cheque had been stolen and was worthless.
It is common ground between the parties that "theft" in the policy means theft within the meaning of the Theft Act 1968. On the plaintiff presenting a claim under the policy the defendant denied liability on the ground that the circumstances in which the plaintiff lost his watch and ring did not amount to a theft under the Act.
The plaintiff commenced proceedings in the Sheffield County Court on 17th March 1988 to recover the value of the watch and ring.
On 21st September 1988 in the Sheffield County Court Mr J.W.M. Bullimore, sitting as a Recorder, held that the plaintiff's loss was caused by theft and gave judgment for the plaintiff for a total of £5,199.30 inclusive of interest.
The defendant appeals against that judgment. The issue for a determination on the appeal is whether the circumstances constituted a theft of the watch and ring by the rogue. If so, the appeal fails. If not, the appeal succeeds. I state this in unequivocal terms because a further point that the plaintiff was in breach of a policy requirement to take reasonable precautions for the safety of his property, which had been rejected by the Recorder, was rightly not seriously advanced before us.
Section 1(1) of the Theft Act 1968 provides:
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it".
Section 3 of that Act provides:
"3.-(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
"(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property."
The 1968 Act, as Lord Dilhorne said in Reg. v. Lawrence [1972] A. C. 626 at 631, "made radical changes in and greatly simplified the law relating to theft". Prior to that Act the Larceny Act 1916 had provided the definition of theft, then called larceny, in an immensely complex set of provisions. Section 1(1), so far as immediately relevant, provided "A person steals who, without the consent of the owner,…takes and carries away anything capable of being stolen". In Lawrence it was submitted that although the words "without the consent of the owner" were not included in section 1(1) of the Theft Act, that subsection should be read as if they appeared after the word "appropriates". As to this Lord Dilhorne said (page 631): "I see no ground for concluding that the omission of the words 'without the consent of the owner' was inadvertent and not deliberate, and to read the subsection as if they were included is, in my opinion, wholly unwarranted. Parliament by the omission of these words has relieved the prosecution of the burden of establishing that the taking was without the owner's consent. That is no longer an ingredient of the offence." Then a little later (page 632 E–F): "Belief or the absence of belief that the owner had…consented to the appropriation is relevant to the issue of dishonesty, not to the question whether or not there has been an appropriation. That may occur even though the owner has permitted or consented to the property being taken."
This must be read with Lord Dilhorne's agreement (page 632B) with the statement of Megaw, L.J. when delivering the judgment of the Court of Appeal in the same case ( [1971] 1 Q.B. 373 at 376), that the offence involved four elements: "(i) a dishonest (ii) appropriation (iii) of property belonging to another (iv) with the intention of permanently depriving the owner of it." It must also be read with the answers given by the House of Lords to the two questions certified by the Court of Appeal. These were:
(1) Whether section 1(1) of the Theft Act 1968 is to be construed as though it contained the words "without the consent of the owner" or words to that effect.
(2) Whether the provisions of section 15(1) and section 1(1) of the Theft Act are mutually exclusive in that if the facts proved would justify a conviction under section 15(1) there cannot lawfully be a conviction under section 1(1). Both questions were answered in the negative.
Although on this appeal we are concerned directly with the first question only, the second is indirectly also of importance for in the present case the facts proved would clearly justify a conviction under section 15(1). This, however, as a result of the answer given to the second question, may be disregarded.
On the basis of Lawrence the facts of the present case appear to establish that the rogue assumed all the rights of an owner when he took or received the watch and ring from the plaintiff. That he did so dishonestly and with the intention of permanently depriving the plaintiff of it are matters beyond doubt. It was however submitted that the final element was not satisfied because, at the time of appropriation, if there was one, the watch and ring were not property belonging to another. The property had, it was submitted, already passed to the rogue at the time the articles were delivered to him.
This argument is put in two ways. First it is said that there was an agreement of sale over the telephone and accordingly the property passed to the rogue on the 20th. Alternatively it is said that an agreement of sale took place on the 21st prior to the rogue receiving the articles in exchange for the cheque, and accordingly the property again passed to him, before delivery and receipt of the articles.
The argument is founded upon sections 17 and 18 of the Sale of Goods Act 1979. Section 17 provides:
"(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
"(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case."
Section 18 so far as relevant provides:
"Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.
"Rule 1.- Where there is an unconditional contract for the
sale of specific goods in a deliverable state the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed."
Having regard to the terms of the contract, the conduct of the parties and the circumstances of the case, I have no doubt that the property was not intended to pass in this case on contract but only in exchange for a valid building society cheque, but even if it may be regarded as intended to pass in exchange for a false, but believed genuine, building society cheque it will not in my view avail the insurers. A somewhat similar point was taken in Lawrence and was dealt with by Lord Dilhorne at page 632 where he said:
"I now turn to the third element 'property belonging to another.' Mr. Back Q.C., for the appellant, contended that if Mr. Occhi consented to the appellant taking the £6, he consented to the property in the money passing from him to the appellant and that the appellant had not, therefore, appropriated property belonging to another. He argued that the old distinction between the offence of false pretences and larceny had been preserved. I am unable to agree with this. The new offence of obtaining property by deception created by section 15 (1) of the Theft Act also contains the words 'belonging to another.' 'A person who by any...
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