General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARSON,LORD JUSTICE DIPLOCK |
| Judgment Date | 01 April 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0401-1 |
| Date | 01 April 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J0401-1
Lord Justice Pearson
and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
(From: Master
Mr. JOHN DEBY (instructed by Messrs. Adam Shale & Garle) appeared on behalf of the Appellants (Plaintiffs).
Mr. BASIL WEBB (instructed by Mr. Clive Lipman, Ilford, Essex) appeared on behalf of the Respondents (Defendants).
This case relates to a mobile crane, which the plaintiff in November, 1958, let on a hire purchase agreement to a company called All Star Cars Limited. The cash price was £1,000; the hire purchase price was £1,120; All Star Cars Limited paid a deposit of £300 and by September, 1959, had paid instalments amounting to £377. 2s. 6d., so that the remainder of the hire purchase price was £442. 17s. 6d. In breach of the hire purchase agreement All Star Cars Limited purported to sell the crane to a man called Gooch, and afterwards in the year 1960 Gooch purported to sell it to Romford Scrap and Salvage Company Limited for £200. Then Romford Scrap and Salvage Company Limited instructed the defendants to do certain repairs to the crane, and delivered it to them for that purpose. The repairs seem to have been carried out, and the defendants' account dated the 24th October, 1960, and addressed to Romford Scrap and Salvage Company Limited was for an amount of £488, including £250 for a 5LW Gardiner engine. The plaintiffs, who had lost trace of the crane, found where it was, and their managing director, Mr. Saunders, went to see it in April, 1961. I will refer later to his evidence about the condition of the crane.
On the 8th May, 1961, there was a letter from the plaintiffs' solicitors to the defendants sayings "Lear Sirs, Re Thorneycroft Crane OMF 347. I am instructed by my clients, General and Finance Facilities Limited that you are in possession of the above mobile crane. This crane is owned by my clients who let it on hire purchp se to All Star Cars Limited who later disposed of the crane in breach of their hire purchase agreement. This crane subsequently came into the possession of Romford Scrap and Salvage Company Limited who of course had no rights to the crane at all who sent it to you for repairs. My clients wish to repossess the crane at present at your premises and request that you treat this letter as a demand that you deliver up the said crane to them or their representative forthwith failing which proceedings will be instituted against you for its return".
The reply to that, dated 15th May, was in these terms: "With reference to your letter concerning the above we must point out that we have a lien on this vehicle as already noted to your client, General and Finance Facilities Limited, and when this is discharged we will willingly deliver up the vehicle". The lien, however, was not effective against the plaintiffs.
On the 2nd June, 1961, the plaintiffs issued their writ in this action claiming: (l) The return of the crane or £2,000 its value; (2) Damages for conversion? (3) Loss of hire for the crane for 33 weeks from the 15th Kay, 1961, until the 12th January, 1962, at £40 per week - £1,320. That was a grossly inflated and exorbitant claim. In this appeal plaintiffs' counsel has said that they only desire to recover the £442. 17s.6d which would make up the full hire purchase price.
On the 1st September, 1961, the plaintiffs' solicitors wrote a letter to the defendants' solicitors, setting out a great many defects in the crane.
The plaintiffs made an application under Order 14 for leave to sign final judgment, and Master Diamond granted leave, and the judgment signed on the 13th April, 1962, was "that the plaintiff do have return of the Mobile Crane OMF 347 or recover against the defendants its value and damages to be assessed".
The wording of the judgment is not so clear as the wording of Order 13 Rule 6 (2) of the Rules of the Supreme Court, which as against a defendant who has failed to enter an appearance entitles the plaintiff to "enter interlocutory judgment against him for the return of the goods or their value to be assessed, damages to be assessed and costs". Nevertheless I think this judgment must have the same effect of requiring both the value of the goods and the damages to be assessed, because the value is unascertained until it is assessed. The difficulty which has arisen is that in form at any rate there has only been an assessment of damages and not an assessment of the value of the goods. The Order of Master Clayton, so far as material for the present purpose, was in these terms. It is dated 20th July, 1962.
"Upon hearing counsel for the plaintiffs and defendants upon the plaintiffs' application to assess the amount of damages pursuant to the judgment of Blaster Diamond dated 13th April, 1962, It is ordered that the amount of damages he assessed at £150".
We have been informed that after the learned Master had made his assessment and the parties and their counsel had retired and considered it, they returned to him and asked for some elucidation. There seems to be no written record of what was said, but the recollection of defendants' counsel, who was there at the time, is that plaintiffs' then counsel asked whether the plaintiffs were to have the crane returned to them and the learned Master said "No". We cannot be sure of the exact words, but it seems clear that was the effect of what was said.
Plaintiffs' counsel sought to attack the assessment mainly on the following groundss (l) that there should have been separate figures for the value of the goods and for the damages, so as to enable the plaintiffs, if they preferred the return of the goods to payment of the assessed value, to apply for a writ of delivery 5 (2) that the assessment of the damages should have included a reasonable hiring rent for the crane on the ground that the defendants had made use of it after the demand and refusal in May, 1961 (reliance being placed on Strand electric and Engineering Co. Ltd. v. Burford Entertainments Ltd. (1952 2 Queen's Bench page 246)); (3) that the assessment of the damages should have included a sum in respect of the depreciation of the crane after the demand and refusal in May, 1961; and (4) that on any basis the assessment of £150 was too low.
I will deal first with grounds (2), (3) and (4). Ground (2) fails, because there was, so far as appears from the notes, no evidence that the defendants had made any use of the crane after May, 1961, or indeed at any time. Ground (3) is right in principle, because, if the crane has depreciated after the wrongful refusal to return it, the plaintiffs have lost the difference between the value of the crane at the time when itshould have been returned and its diminished value at the date of assessment. The plaintiffs should have (a) the return of the crane or payment of its value as assessed and (b) damages for the depreciation, if any, which has occurred since May, 1961. We do not know for certain what the learned Master's figure of £150 includes. There was a conflict of evidence as to the value of the crane at several dates. The defendants' witnesses put the value at £350 in May, 1961, and at £300 in July, 1962. The plaintiffs' witness, their managing director, considered that the crane was worth only scrap value in July, 1961, and early in 1962 and in April and May, 1962. He had said that it was in working order in April, 1961. Without knowing exactly what the learned Piaster had in mind, I can only say it has not been established that he took any wrong view as to value. It is not unfair to bear in mind that the plaintiffs in their Statement of Claim had claimed £2,000 for the value of the crane and £1,320 for loss of hire. On the evidence that was an absurd claim.
On the other hand the first ground of appeal, namely that there should have been separate figures for the value of the goods and for the damages, is in my view correct. The judgment of 13th April, 1962, being a judgment in detinue for the return of the goods or their value, and for damages, did not divest the plaintiffs of their ownerships Rosenthal v. Alderton & Sons Ltd. (1946 1 King's Bench, pages 374, 377, 378). They were entitled to have the value of the goods assessed,...
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