Powell v Wiltshire
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Lady Justice Arden,Holman J,LORD JUSTICE LATHAM |
| Judgment Date | 07 May 2004 |
| Neutral Citation | [2004] EWCA Civ 626,[2004] EWCA Civ 534 |
| Docket Number | b2/2002/1040,Case No: B2/2002/1040 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2004 |
[2004] EWCA Civ 534
Lord Justice Latham
Lady Jusice Arden and
Mr Justice Holman
Case No: B2/2002/1040
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
Mr Recorder Maw
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Thomas Keith (for the Bar Pro Bono Unit, assisted by Freshfields Bruckhaus Deringer) for the Appellant
Mr Jeremy Janes (instructed by Jones & Co, Nottingham) for the 2 nd, 3 rd and 4th Respondents
Mr Powell (The First Respondent) appeared in person
This appeal arises out of a tug of war over a light aircraft, a Morian Saulnier MS 893 Rallye aircraft (the Rallye). The appellant, Mr Wiltshire, claims that it is his. Mr Powell, the First Respondent claims that he acquired good title to it having bought it in good faith from Mr Etherington, Mr Heapy and Mr Storey, the 2 nd, 3 rd, and 4 th respondents. They, in turn, say that they bought it in good faith from Christopher Ebbs, who although a central figure in the story, has played no part in this appeal. The unfortunate position which this appeal seeks to resolve is that Mr Wiltshire obtained a judgment on the 21 st November 2000 before HHJ O'Rorke in proceedings simply between him and Mr Ebbs, declaring that he, Mr Wiltshire was the owner of the Rallye; on the 1 st May 2002, Mr Powell obtained a judgment from Mr Recorder Maw which is the subject matter of the present appeal, declaring that he was the owner of the Rallye. Mr Wiltshire appeals to this court on the basis that the issue as to the ownership of the Rallye was determined by the judgment of HHJ O'Rorke, and that Mr Etherington, Mr Heapy and Mr Storey were bound by that judgment and accordingly unable to deny Mr Wiltshire's title before Mr Recorder Maw. As a result, they were not able to pass good title to Mr Powell.
Mr Wiltshire and Mr Ebbs were at one time associated together in a venture known as the Spilsby Soaring Trust, of which Mr Wiltshire was trustee. Its purpose, at least ostensibly, was to enable disabled people to fly. It was for a time registered as a charity; but it was deregistered by the Charity Commissioners before the events with which we are concerned as a result of irregularities, which Mr Wilshire ascribed to dishonesty on the part of Mr Ebbs. It would appear to have been common ground in both sets of proceedings that the trust was the owner of a Piper Cub aeroplane (the Piper) which had been originally bought by Mr Ebbs and subsequently transferred to the Trust. On the 31 st July 1996, the Rallye was bought by Mr Ebbs from Shobden Aircraft Leasing, and was registered with the Civil Aviation Authority in Mr Ebbs' name on the 4 th October 1996. Meanwhile, Mr Ebbs sold the Piper on the 25 th August 1996 to Mr Trute. What happened thereafter was a matter of dispute between Mr Wiltshire and Mr Ebbs. On the 13 th February 1998 Mr Ebbs issued a claim against Mr Wiltshire and the Trust for money which was said to be owing to him for work done, and an injunction and the return of the Rallye of which Mr Wiltshire had by then obtained possession.
On the 17 th April 1998, Mr Wiltshire filed a defence and counterclaim in which he asserted title to the Rallye on behalf of the Trust. He did not, however, seek to obtain an injunction to protect his position until the 24 th August 1998. He considered that his position was protected by an injunction obtained by Mr Ebbs by consent that he, Mr Wiltshire would not deal in any way with the aircraft. He asserts that this was on the basis of an undertaking by Mr Ebbs that he, likewise, would not deal with it. That undertaking was never recorded as part of any Court order.
By then, the Rallye had been sold to Mr Etherington, Mr Heapy and Mr Storey by Mr Ebbs, as evidenced by a document of sale dated the 4 th July 1998, and had been registered with the Civil Aviation Authority in the name of Mr Etherington, Mr Heapy and Mr Storey on the 21 st August 1998. They in turn sold the Rallye to Mr Powell on the 20 th July 2000; and it was registered in his name with the Civil Aviation Authority on the 11 th August 2000.
The trial of the proceedings between Mr Ebbs and Mr Wiltshire commenced before HHJ O'Rorke on the 17 th August 2000. The judge heard evidence for two days from Mr Ebbs, Mr Heapy, Mr Wiltshire's wife and two other witnesses called by him. It was adjourned part heard to the 23 rd September. On that day the trial was further adjourned. Mr Ebbs did not appear but had told the court the previous week that he was intending to file his own petition for bankruptcy. The court was further informed on the day of the hearing that Mr Ebbs had been involved in a traffic accident. The final hearing date was fixed for the 21 st October 2000. Mr Ebbs once again did not attend; and there was confirmation that a bankruptcy order had been made against him on the 20 th October 2000. The judge decided to conclude the trial. Although Mr Wiltshire had not given evidence, he had set out his account in the questions that he had put to Mr Ebbs and the other witnesses. Accordingly the judge asked him to confirm those matters on oath and treated the questions as his evidence. The judge then gave judgment dismissing Mr Ebb's claim and giving judgment for Mr Wiltshire on his counter-claim, and in particular his claim to the Rallye. He expressed his findings as follows:
"Furthermore, the curious transactions in respect of these aeroplanes do not reflect well upon Mr Ebbs and I am entirely satisfied on the evidence that I have heard thus far, even without requiring further evidence from Mr Wiltshire, that at the material time the Piper Cub was sold without the necessary authority of the Spilsby Soaring Trust; secondly that Mr Wiltshire accepted the de facto position and accepted the purchase of the Rallye G-AVVJ in substitution of it; and, further, that on or about 24 th July 1998, Mr Ebbs again without authority and possibly dishonestly, sold or transferred, or purported to sell or transfer, that Rallye to a syndicate consisting of three persons: Paul Etherington, Derek Heapy, who was a witness in the case, and one Peter Storey. I am quite satisfied that that was done in the full knowledge that injunctive proceedings had already been started, if abortedly, in the County Court and had been transferred to the High Court, and that was a sale made to defeat any order freezing its disposal. The order which was made was too late.
….
I do not see why in these circumstances Mr Wiltshire, as trustee of the Spilsbury Soaring Trust, should not be able to pursue that aeroplane and take such steps as he may against the current possessor of it for its return, for it seems to me, in the circumstances, no title could have passed to the trio purported to buy it from Mr Ebbs or to any person whom that trio purported to pass on that aircraft. I should say here that those gentlemen clearly knew the background of the dispute to the ownership of the Rallye."
Accordingly he gave judgment for Mr Wiltshire, as I have said, and made an order declaring that the Rallye was at all material times the property of Mr Wiltshire as trustee of the Spilsbury Soaring Trust. He further ordered that Mr Ebbs return the Rallye aircraft by 12 noon on the 28 th November 2000 and in default pay damages assessed at £12,000.
Armed with this judgment Mr Wiltshire set about trying to recover possession of the Rallye. Knowing that it had been sold to Mr Powell, he answered an advertisement placed by Mr Powell in a magazine offering his and the Rallye's services to tow gliders. As a result Mr Powell flew the Rallye to the airfield designated by Mr Wiltshire. Mr Wiltshire invited Mr Powell to lunch. He had made arrangements that whilst Mr Powell was away from the aircraft, it should be disabled. He then detained the aircraft despite Mr Powell's requests for its return. Mr Powell then commenced the proceedings with which we are concerned which were originally against Mr Wiltshire alone claiming a declaration that he, Mr Powell, was the true owner of the Rallye, and requiring the return of the aircraft or its value, namely £16,000. Mr Powell then managed to retake possession of the Rallye.
In his defence, Mr Wiltshire asserted his title to the aircraft based upon the judgment of HHJ O'Rorke and counterclaimed, in his turn, for the return of the aircraft. Mr Powell then amended his claim to add Mr Etherington, Mr Heapy and Mr Storey. Against them he claimed damages and an indemnity were it to be found that they had no title to the Rallye. Mr Etherington, Mr Heapy and Mr Storey asserted that they had good title on the basis that they had purchased it from Mr Ebbs, who had good title, and in any event had purchased it in good faith in July 199In Part 20 proceedings, Mr Etherington, Mr Heapy and Mr Storey sought a declaration against Mr Wilshire that they had good and valid title to the aircraft or alternatively, against Mr Ebbs that they were entitled to an indemnity if he had not been in a position to pass good title.
The Recorder heard evidence from all the parties except Mr Ebbs who did not appear, and was not represented. It is clear that he considered that Mr Powell had purchased the Rallye in good faith without any knowledge that there were problems about its ownership. He was satisfied that Mr Etherington, Mr Heapy and Mr Storey had purchased the aircraft in July 1998. He rejected Mr Wiltshire's assertion that the sale was a sham. He was however unconvinced that at the time of...
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