NOTES OF CASES

AuthorN. E. Palmer
DOIhttp://doi.org/10.1111/j.1468-2230.1981.tb01626.x
Publication Date01 Jan 1981
NOTES
OF
CASES
CONVERSION
OFF
THE
RAILS:
HOWARD
E.
PERRY
&
Co.
Lm.
v.
BRITISH
RAILWAYS
BOARD
THE
first reported decision under the Torts (Interference with Goods)
Act 1977,’ raises
a
novel question in the law of conversion and
illustrates the use of proprietary remedies to recover goods immobi-
lised by industrial action?
The case arose during the recent I.S.T.C. strike. The defendants
were bailees for carriage of the plaintiffs’ steel. They refused to allow
the plaintiffs to collect it from the B.R. depots at Wolverhampton and
Brierley Hill. Their refusal was prompted by three developments in
the dispute
:
the expansion of industrial action to the private sector;
a
letter by Mr. Weighell of the
NUR
instructing
his
members “to
refuse to transport all steel, regardless of its origin
”;
and a clear
intimation, given to the defendants by the
NUR
and other representa-
tives of their employees, that they would
object
’’
both to loading
the steel on to the plaintiffs’ own vehicles and to allowing the
plaintiffs’ employees to enter the depots and load the steel them-
selves. The defendants stressed that their denial of access arose
solely from their fears of industrial disruption. They fully conceded
the plaintiffs’ entitlement to the steel.
The plaintiffs sued to retrieve it. Alleging conversion by the
defendants within section
1
(a)
of the 1977 Act, they claimed an order
for delivery and damages under section
3
(2)
(a)
and an interlocutory
order for delivery under R.S.C., Ord. 29,
r.
2A made by S.I. 1978
No.
579 pursuant to section
4
(2)
of
the Act. Despite the terms of
motion, they sought no more than the right to remove the steel them-
selves and to transport
it
to their own premi~es.~
No
demand was
made for assistance in the collection, other than admission of the
plaintiffs.
The defence proceeded on three grounds. First that the refusal of
access did not constitute
a
tort; secondly that an interlocutory order
under rule 2A required that the goods detained be in imminent
danger of loss or destruction; thirdly that the character of the goods
and the prevailing industrial circumstances required the court to
exercise its discretion against such an order. Megarry
V.-C.
rejected
each contention and awarded the orders sought.5
1
[I9801 2
All
E.R.
579.
Noted
in
(1978)
41
M.L.R.
713.
Unreported
cases
where reference was made
to
the Act are
Roandale
V.
Mefropolifan Police Commissioner
[I9791
C.L.Y.
518
(upheld
by
C.A.
on
different grounds Jan.
1979);
Anderson and Anderson
v.
Emlangm
[I9801
C.L.Y.
12A;
cf.
the unreported N.Z. decision
in
Property Life Insurance Ltd.
v.
Edgar
(1980)
(Mahon J.).
3
For
an earlier, unsuccessful attempt see
Harold Stephen
&
Co.
Lid.
v.
Post
Ofice
119771
W.L.R.
1172; (1978)
41
M.L.R.
629.
4
[I9801 2
All
E.R.
579, 581-582.
For
the exact
form
of
the
order see
ibid.
at
p.
588.
In
the event, the plaintiffs’
drivers refused
to
collect the steel.
87
88
THE MODERN LAW REVIEW
[Vol.
44
The first defence relied heavily upon the abolition of detinue by
section
2
(1) of the Act. Disquiet had already been expressed that
this
reduced the area of tortious misconduct towards goods,6 although
some authors believed that the change made
no
difference.‘ The
defendants argued thus.
No
wrong can qualify as
a
wrongful inter-
ference with goods under section
1
unless it gives rise to an action in
tort.
No
order can be made under sections
3
or
4
unless there has
been a wrongful interference within section
1.
Detinue is abolished
by section
2
(l),
and only that aspect of
it
which involves the
loss
or
destruction of goods arising from a bailee’s breach of duty towards
his bailor is explicitly preserved as tortious by section
2
(2).
The
defendants contended that the only Common Law tort they had
committed was detinue by adverse detention; a limb of the tort which
was never wholly assimilated under conversion at Common Law.
Their refusal was not a conversion, for three reasons: they had
acknowledged throughout the plaintiff
s’
title and right to possession
of the steel; they were detaining only for a short (albeit indefinite)
period, and in a manner which involved
no
arrogation to themselves
of the use or enjoyment of the goods; and their detention was
prompted by a genuine and reasonable fear of industrial reprisals.
These considerations, according tcr the defendants, disclosed a deten-
tion that at
Common
Law sounded in detinue alone. In
1978’
such conduct ceased to be tortious and neither section
3
nor section
4
applied.
The defendants failed, because Megarry
V.-C.
was able to discover
a
clear case of conversion.”
In
his view, this was a plain and
unjustified detention, consciously adverse to
the
plaintiffs’ acknow-
ledged possessory rights, which was calculated to endure for an indefi-
nite period and thus indefinitely deprived the plaintiffs of the posses-
sion and use of their steel.
“The defendants are denying the plaintiffs most of the rights
of ownership, including the right to possession, for a period which
is plainly indefinite.
.
.
.
A denial of possession to the plaintiffs
does not cease to be a denial by being accompanied by a state-
ment that the plaintiffs are entitled to [that] possession.
. .
.
This
is
no
brief withholding made merely in order that the defendants
may verify the plaintiffs’ title
.
.
.
or for some other purpose to
confirm that delivery of the steel would be proper. This is a
withholding despite the plain right of the plaintiffs to the owner-
ship and possession of the steel,
on
the grounds that the
defendants fear unpleasant consequences if they do not deny the
plaintiffs what they are entitled to.’’
lo
Further, Megarry V.-C. held that the restriction
of
rule
2A
to cases of
threatened loss or destruction was unwarranted, and he instanced a
6
Palmer,
Builment
(1979)
pp.
1018-1019.
7
e.g.
Lawson,
Remedies
of
English
Law
(2nd ed.),
pp.
123-124; Weir,
Cusebook
on
Tort
(4th ed.),
pp.
401-402.
8
s.
2 came
into
force
on
June
1, 1978
:
S.I.
1978
No.
627.
9
[1980] 2
AU
E.R.
579, 583.
10
Ibid.
at
pp.
583-584.

To continue reading

Request your trial