Robot Arenas Ltd and Another v Wakefield and Another
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 2010 |
| Neutral Citation | [2010] EWHC 115 (QB) |
| Docket Number | Case No: 7IP00937 List No: TLQ/10/0016 |
| Court | Queen's Bench Division |
| Date | 08 February 2010 |
[2010] EWHC 115 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Before Mr C. Edelman QC
(Sitting as a Deputy Judge of the QUEEN'S Bench Division)
Case No: 7IP00937 List No: TLQ/10/0016
Mr Evan Ashfield (instructed by Barker Gotelee) for the Claimants
Mr Stephen Beresford (instructed by Freeth Cartwright LLP) for the Defendants
Hearing dates: 11th, 12th, 13th, 14th January 2010
Mr C Edelman QC:
Introduction
This action concerns a claim for damages by the Claimants arising out of the destruction of goods by the First and/or Second Defendants. The Second Defendant counterclaims for mesne profits and/or damages for trespass.
The First Claimant, Robot Arenas Limited (“RAL”) asserts that it was the owner of certain equipment comprising a tailor-made arena which had been used for a television series known as “Robot Wars”. The first series of Robot Wars was in February-March 1998 on BBC and that first series was followed by further series on BBC and then on ITV. There were no further series after the end of 2003 and in early 2004 the owners of the arena (“the Robot Wars Set”) Mentorn Limited, a television production company, sold it for the sum of £11,000, inclusive of VAT. The contract for the purchase of the Robot Wars Set was signed by the Second Claimant (“Mr Hoppitt”) but it is asserted by the Claimants that either the contract was entered into by Mr Hoppitt on behalf of RAL or that Mr Hoppitt held the Robot Wars Set on trust for RAL.
RAL is described in the Particulars of Claim in this action as being the asset holding associate company of Phantom Events Limited (“Phantom”) and following the purchase of the Robot Wars Set an attempt was made to hold a world championship Robot Wars event in August 2004 at the location where some of the previous televised Robot Wars events had taken place, namely Hangar 2 at the former RAF base at Newton in Nottinghamshire (“RAF Newton”). For that purpose, a “Licence Agreement” dated 28 July 2004 was signed on behalf of the Secretary of State for Defence and Phantom Events Limited. The agreement covered the use of Hangar 2 between 20–30 August 2004. It also covered the use of Building 29 at RAF Newton between 7 June and 31 August 2004. Building 29 was required for the storage of the Robot Wars Set.
The Robot Wars Set was moved into Building 29 but the proposed World Championship Event did not, ultimately, take place with the result that the Robot Wars Set was not assembled or fully assembled in Hangar 2 and all or part of the Set remained in storage in Building 29. There is an issue between the parties as to whether the bulk of the Robot Wars Set was in fact removed from RAF Newton by RAL or Phantom at the end of August 2004 but it is common ground between the parties that equipment associated with the Set remained in Building 29 after the expiry of the “Licence Agreement”.
The Second Defendant (“NNL”) became the owner of RAF Newton on 21 January 2005. The First Defendant (“Mr Waterfield”) is a director of and controls NNL. The RAF Newton site purchased by NNL contained a very large number of buildings of varying sizes, a few of which were occupied by tenants. Building 29, however, was sold to NNL with vacant possession.
Very shortly after completion of the purchase of RAF Newton, Mr Waterfield drew to the attention of Bruton Knowles, who had acted as agents for “Defence Estates” on behalf of the Secretary of State for Defence in relation to the use and occupation of the buildings at RAF Newton, the fact that there was equipment in Building 29. By 4 March 2005, that equipment had not been removed and on that day, pursuant to instructions given by Mr Waterfield on behalf of NNL, the equipment or virtually all of the equipment was removed from Building 29 and scrapped (there is an issue as to whether or not a small amount of equipment remained in Building 29 after 4 March 2005 but it is in any event common ground that ultimately everything that was in Building 29 was removed and scrapped). The Claimants' claim is for damages for the wrongful destruction of the Robot Wars Set and the quantum of the claim is pleaded as being the replacement value of the Set, which is said to have been £344,650, on the basis that the Set was unique and there was no market from which an alternative set could be acquired. NNl's Counterclaim for use and occupation, as ultimately put at the trial, was for 42 days of use and occupation from 21 January to 4 March 2005. In the event that the Defendants should be held to be liable, the Defendants have also pleaded that the Claimants' loss or damage was caused or contributed to by the negligence of the Claimants and that the Counterclaim ought to be set off against any damages awarded to the Claimants.
At the trial of this action, the Claimants were represented by Mr Evan Ashfield and the Defendants were represented by Mr Stephen Beresford.
The Law
This is a case in which, before analysing the facts and evidence, it is necessary to set the legal landscape.
On behalf of the Claimants, Mr Ashfield put his case on the basis that NNL had become the involuntary bailee of the equipment in Building 29 and as involuntary bailees were not, in the circumstances, entitled to destroy the equipment with the result that NNL and Mr Waterfield, who gave instructions for the removal and destruction of the equipment, were liable for conversion. On behalf of the Defendants, Mr Beresford asserted that the equipment had been abandoned by the Claimants but that even if it had not been and NNL was accordingly in possession of the Claimants' goods, it was entitled in the circumstances to remove the equipment from Building 29 and destroy it. Such being the cases advanced by the parties, it is necessary to consider when, as a matter of law, goods can be treated as having been abandoned and the circumstances in which someone who is in possession of chattels which in fact belong to a third party is entitled to destroy them.
In addition, the Defendants' pleaded defence of contributory negligence raises the question as to the extent to which, if at all, contributory negligence can be relevant as a defence in circumstances where the Claimants' primary case is that the Defendants are liable in conversion.
Finally, there are issues as to the approach I should take to the assessment of quantum of the Claimants' claim, in the event that I should hold the Defendants liable.
Before I embark on consideration of the issues of law I ought to express my indebtedness to the analysis of the law on abandonment and the rights and duties of unwitting and involuntary bailees contained in the 3 edition of Palmer on Bailment. In large measure, the analysis and conclusions contained in Palmer on Bailment were adopted by Counsel in the submissions before me.
(a) Abandonment
At paragraph 26–0121 of Palmer on Bailment, the meaning of “abandonment” is analysed in the following terms:
“The notion of abandonment may apply in two different senses to objects found by a non-owner: one colloquial and one juristic. In the first sense, a loser may abandon the search for a lost object, whether by reason of other claims on his time, or a belief that the place where the object has been lost is one where others are likely to find it and return it. The loser in that position does not resign any proprietary or possessory claims to the chattel, and when the chattel is found the ordinary rules apply: the law recognises the paramount claim of the owner and, subject to that, normally awards the goods to the person first in possession.
The second and more important is that of a divesting abandonment, where the fmder comes upon a chattel that the owner has previously left or cast away with the intention of divesting himself not only of possession but also of ownership.”
The Defendants' case on abandonment is and must necessarily be that there has been a divesting abandonment.
After a full analysis of the relevant authorities, the conclusion in paragraph 26–030 of Palmer on Bailment as to when chattels will be treated as having been abandoned for the purposes of conversion is expressed in the following terms:
“Despite some surviving doubt, the better opinion appears to be that divesting abandonment is a defence to conversion provided that a party entitled to do so has renounced possession and the immediate right to possession of the chattels in question. Clear evidence both of intention to abandon and of some physical act of relinquishment will be required and, given the element of strict liability in conversion as contrasted with the need for mens rea in crime, it would seem that a mere reasonable belief that abandonment had taken place would not suffice as a defence. …”
Neither Mr Ashfield nor Mr Beresford sought to challenge this conclusion which is supported by the preceding text (and by the earlier paragraphs 13–044 and 13–045). Accordingly, the test that I will apply for the purposes of ascertaining whether there has been abandonment in this case is whether there has been both an intention to abandon and some physical act of relinquishment.
(b) Destruction of goods belonging to another
Ordinarily, if A is in possession of goods belonging to B and A deliberately destroys those goods without 'B's permission, A will be liable to B for conversion. The position of an involuntary bailee is considered at paragraphs 13–25–13–059 of Palmer on Bailment. Those paragraphs include reference to the statutory procedures for the disposal of uncollected goods under Sections 12 and 13 of and Schedule 1 to the Torts (Interference with Goods) Act 1977 and deal with the possibility of an...
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