Harry Gordon Cressman and Barbara Gordon Cressman (Personal Representatives of Thomas Ashley Cressman (Deceased) v Coy of Kensington (SALES) Ltd v Randall McDonald [CA (Civil), 05/02/2004]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mance,Mr Justice Wilson,Lord Justice Thorpe |
| Judgment Date | 05 February 2004 |
| Neutral Citation | [2004] EWCA Civ 47 |
| Docket Number | Case No: B2/2003/0885 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2004 |
[2004] EWCA Civ 47
Lord Justice Thorpe
Lord Justice Mance and
Mr. Justice Wilson
Case No: B2/2003/0885
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HH JUDGE SIMPSON
(MAYOR'S AND CITY OF LONDON COURT)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Joshua Swirsky (instructed by S. Newman & Co.) for the Appellant
Mr James Purchas (instructed by Wilmot & Co.) for the Respondent
Introduction
This is a case about a personalised (or "cherished") car registration number, TAC 1, with a value, as found by the judge, of £15,000. The Part 20 defendant, Mr McDonald, appeals in respect of a judgment for that sum given against him by HHJ Simpson in the Mayor's and City of London Court on 3 rd April 2003. The judgment was in favour of the defendant (the Part 20 claimant), Coys of Kensington (Sales) Limited ("Coys"), who recovered the sum in two parts and on two bases: (i) £1,391.88 pursuant to a claim assigned to Coys by the original claimants in the action, Mr and Mrs Cressman, and (ii) £13,608.12 by way of contribution under the Civil Liability (Contribution) Act 1978. Coys also recovered their costs of the Part 20 claim from Mr McDonald on an indemnity basis.
The late Mr T. A. Cressman owned a Mercedes 280SL car carrying the registration TAC 1. Mr and Mrs Cressman are his executors. Coys are car auctioneers. Mr Cressman, no doubt for Mrs Cressman also, instructed Coys on or about 17 th November 2000 to sell the car without its personalised registration mark. Mr McDonald was the successful bidder when Coys auctioned the car on 11 th December 2000. These proceedings arise from Coys' failure to retain the mark, when the car was paid for by and delivered to Mr McDonald on 12 th December 2000, and from Mr McDonald's subsequent refusal to re-transfer the mark.
The status of registration marks
A registration mark is assigned by the Secretary of State to any vehicle registered in the United Kingdom under s.21 of the Vehicle Excise and Registration Act 1994 ("the 1994 Act"), and features on its number plate. Specific marks can therefore have significant value to vehicle owners. A vehicle owner wishing to have one may be prepared to pay, and a vehicle owner having one may be able to realise, substantial sums. The legal machinery by which a vehicle owner may either (a) make an immediate transfer of a mark to another vehicle or (b) hold a mark back with a view to having it assigned to another vehicle at a later date is contained in ss.23–27 of the 1994 Act and The Retention of Registration Marks Regulations 1993 SI No. 987 as amended by The Retention of Registration Marks (Amendment) Regulations 1994 SI No. 2976. Different forms have evolved to cover situations (a) and (b), but both situations fall within the Regulations.
S.23 of the 1994 Act provides
'23.—(1) Where the Secretary of State registers a vehicle under section 21(1) he shall assign to the vehicle a mark (a "registration mark") indicating the registered number of the vehicle.
(2) The Secretary of State may, in such circumstances as he may determine—
(a) assign a registration mark to a vehicle to which another registration mark has previously been assigned,
(b) assign to a vehicle (whether on its first registration or later) a registration mark previously assigned to another vehicle,
(c) (whether or not in connection with an assignment within paragraph (a) or (b)) withdraw any registration mark for the time being assigned to a vehicle, ….."
The 1993 Regulations (as amended) provide inter alia:
Rights of retention
3. Subject to the following provisions of these Regulations, a person in whose name a vehicle which is recorded as being a registered vehicle in the G.B. records [is registered 1] may be granted by the Secretary of State a right to have the registration mark for the time being assigned to that vehicle assigned to some other vehicle registered—
(a) in that person's name; or
(b) in the name of some other person nominated by him in accordance with regulation 4A.
Application for a right of retention
4.—(1) An application for the grant of a right of retention shall be made to the Secretary of State and shall be accompanied by—
(a) the registration document issued under the 1971 Act in respect of the vehicle;
(b) a vehicle licence for the time being in force issued in respect of the vehicle under the 1994 Act, or a valid application for such a licence;
(c) such of the following documents as relate to the vehicle—
(i) if the vehicle is one in respect of which a test certificate is required under section 45 of the 1988 Act, the test certificate in force under that section,
……..
(d) payment of the sum specified in regulation 7(a); and
(e) payment of the sum referred to in regulation 7(b).
(2) The applicant shall, if required to do so by the Secretary of State, make the vehicle available for inspection at a place designated by the Secretary of State.
(3) In this regulation "the vehicle" means the vehicle to which the registration mark is for the time being assigned.
Nominations
4A. (1) The nomination of a nominated person may be made either-
(a) in the application for the grant of a right of retention; or
(b) after the grant of a right of retention (but before the right is exercised) if the Secretary of State accepts an application by the grantee in relation to which the conditions specified in paragraph (3) are fulfilled.
……
Refusal of applications
6. The Secretary of State may refuse an application for the grant of a right of retention, or for an extension of the period in which a right of retention may be exercised, or for the assignment of a registration mark under a right of retention, if it appears to him that there are special reasons for doing so.
Payments on application for rights of retention
7. In respect of an application for a right of retention there shall be payable a fee made up as follows—
(a) £25, and
(b) a sum equal to the amount of the charge which could have been made pursuant to section 25(1) of the 1994 Act for an assignment of the registration mark to which the application relates if the assignment had been made on the date on which the application was made.
……
Retention documents
9.—(1) If the Secretary of State decides to grant a right of retention he shall issue to the grantee a retention document. That document shall state—
(a) the date of the grant;
(b) the name and address of the grantee and, where appropriate, the name of the nominated person;
……
(d) the registration mark in respect of which the grant has been made; and
(e) the type of vehicle to which the registration mark was assigned at the time of the grant.
…..
Exercise of a right of retention
10.—(1) A right of retention shall be exercisable on only one occasion.
(2) Subject to the provisions of regulation 11, a right of retention shall be exercisable by the grantee—
(a) surrendering to the Secretary of State, for retention by him, the retention document;
(b) surrendering to the Secretary of State, for replacement by him;
(i) the registration document issued under the 1994 Act in which the name and address of the grantee or, where appropriate, the nominated person, are stated as the owner of the vehicle within the Registration and Licensing Regulations, and
(ii) the vehicle licence in force under the 1994 Act, or a valid application for such a licence; and
(c) sending to the Secretary of State, for endorsement and return, such of the following documents as relate to the vehicle in respect of which the grantee proposes to exercise the right of retention—
(i) if the vehicle is one in respect of which a test certificate is required under section 45 of the 1988 Act, the test certificate in force under that section;
…..
(3) In this regulation "the vehicle" means the vehicle to which the grantee proposes that the registration mark shall be assigned."
The facts in detail
Under Regulations 3 and 4, if a seller is to sell a car but retain the right under the legislative scheme to its personalised registration mark, the seller needs to apply for and obtain a right of retention while still owner of the car. Coys failed to do this on behalf of the Cressmans. On 8 th December 2000 they sent to the DVLA a defective application for retention, which the DVLA rejected and returned on 14 th December 2000. Meanwhile on 11 th December 2000, Coys had auctioned the car. Mr McDonald bid by telephone and it was knocked down to him for £17,250.00 plus a buyer's premium of £3,040.31 inclusive of VAT. However, Coys had made clear prior to the auction that the vehicle was being sold without its existing registration number. Mr McDonald had prior to the auction carefully inspected the car. He admitted that he observed that the car had no number plates. The judge found, contrary to Mr McDonald's case, that the windscreen also bore a notice dated 10 th December 2000 which stated:
"Please note that this vehicle's registration number has been removed and an age related number will be issued by the DVLA shortly."
The judge therefore held that, when Mr McDonald bid by telephone:
"because …. he had seen the sticker, or should have, he knew that he was not going to get the original mark, but he was going to get a replacement".
So, the judge held:
'…. it was an express term of the contract that the buyer at auction would not get the old mark and number plate".
On 12 th December 2000, Mr McDonald paid for and, under the relevant auction conditions, obtained title to the car. He collected it by trailer, still without any number plate, and unusable for this reason (and it appears probably also on...
To continue reading
Request your trial
- Dream Property Sdn Bhd v Atlas Housing Sdn Bhd
-
Littlewoods Ltd and Others (Respondents/Claimants) v The Commissioners for HM Revenue and Customs
...it seems hard to justify a departure from market value, if he chooses not to return it—as in Cressman v Coys of Kensington (Sales) Ltd [2004] 1 WLR 2775. On the other hand, in some other circumstances, most obviously the classic case of an unreturnable benefit being conferred on a defendan......
-
Charter Plc v City Index Ltd (Gawler and Others, Part 20 defendants)
...leading modern cases: Dubai Aluminium v Salaam [2003] 2 AC 366 (see judgment para 37 for the facts); Cressman v Coys of Kensington [2004] 1 WLR 2775 (also referred to, variously, as McDonald or Coys) (see judgment para 40); and Niru Battery v Milestone Trading Ltd (No 2) [2004] 2 Ll.L.R. 31......
-
Petromec Inc. v Petroleo Brasileiro S.A. Petrobras and Others
...June 2000) cited in Civil Procedure Vol. 1 at para. 52.8.2, and were recently applied in this Court in McDonald v. Coys of Kensington [2004] EWCA Civ. 47: "….. a party cannot ….. normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before......
-
Concurrent Duties
...UKSC 50; [2014] AC 983. On ‘free acceptance’ and ‘readily returnable’ benefits, seeCressman vCoys of Kensington (Sales) Ltd [2004] EWCA Civ 47; [2004] 1 WLR 2775.95 This scenar io is loosely based on AIB vMark Redler n 3 above, discussed in the text to nn138-160, below.96 Henderson n 21 abov......
-
Incapacity, non est factum and unjust enrichment.
...Artists' Management Pty Ltd [1993] 2 VR 221, 261-5 (Byrne J). In relation to goods, see, eg, Cressman v Coys of Kensington (Sales) Ltd [2004] 1 WLR 2775, 2791-2 (Mance LJ). In relation to the use of money (interest), see, eg, Sempra Metals Ltd v Inland Revenue Commissioners [2008] 1 AC (44)......
-
In Defence of Quasi‐Contract
...in the text goods can be handled differentlybecause they can be returned in kind. See McDonald vCoys of Kensington [2004] EWCA Civ 47,[2004] 1 WLR 2775.In this respect they are closer to money than to services.This was recognisedin more recent editions of Goff and Jones. See Lord Goff of Ch......