Tappenden v Artus
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK |
| Judgment Date | 11 July 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0711-2 |
| Date | 11 July 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J0711-2
Lord Justice Willmer
Lord Justice Danckwerts and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
From Judge Buckee Southand County Court.
Mr ROLF E. HAMMERTON (instructed by Messrs Waterhouse & Co., Agents for Messrs F. D. Todwan & Sons, Rayleigh, Essex) appeared on behalf of the second Defendants (Appellants).
Mr HUGH H. V. FOREES (instructed by Messrs Wood, Son & Lier, Southend-on-sea) appeared on behalf of the Plaintiff (Respondent)
Lord Justice Diplock will deliver the Judgment of the court.
This is an appeal from a Judgment of Judge Bucks giving Judgment for the plaintiffs in an action for detirme of a motor vehicle, a Bedford Dermobile, the property of the plaintiffs, which the defendants refused to deliver to the plaintiffs in purported exercise of an artificer's lien for repairs which they had done to it.
The case raises an important question of common law as to the circumstances in which an artificer's lion may be Asserted against the owner of a vehicle whose bailes has headed ever p of the vehicle to an artificer for the purpose of effecting repairs necessary to render the vehicle radworthy. we are indebted to counsel on both sides for their able argument.
The facts as found by the learned County Court Judge can be stated briefly. She plaintiff (to when we shall refer as "the bailer") is a motor dealer who had in stock on the 30th August 191 a Bedford van. Mr Artus (to whom we shall refer as "the bail") entered into negotiations with the bailor with a view to purchasing the van upon hire purchase terms at a cash price of £00. the bailer was unable immediately to raise the amount of the initial payment of £40, being the minimum initial payment required by She Hire Purchase and Credit Sales (Control) Order 1960, which was then in force. The bailer was willing to mate an allowance of £18 in respect of another vehicle belonging to the bailer, to be given in part exchange. She difficulty arose in connection with the required balance of £6.
The bailer required the van immediately for use for the purposes of his business, which apparently consisted or organising Bingo sions at cinemas in Remford, and it was agreed between his and the bailer that, pending completion of the hire purchase agreement, the bailer should let the bailer use the van on condition that he licensed and insured it. As the tyres of the van were worn, the bailer also gave to the bailer express permission to put other tyres on the van. She bailee in fact took out a road fund license for the vehicle for four months in his own name at a cost of £6.10s., and obtained a temporary insurance cover for fourteen days from the 31st August 1961 on comprehensive terms in his own name as assured at the cost of £9. She bailer made sure (presumably by inspecting these documents) that this was done before he parted with the possession of the van to the bailee.
On the 1st or 2nd September 1961 the van, while in the possession of the bailer, broke down on the Southnd arterial read. Nothing is known of the circumstances of this breakdown, for the bailer, though a defendant, did not appear, nor has he appeared on the appeal. What is known is that very shortly after the breakdown, having apparently seen given a lift by a passing motorist, he sailed at the promises of the appellant (whom I will call "the artificer") who carried on business as a motor machanie on the arterial road at some distance from where the breakdown had taken place.
The bailee informed the artificer of the breakdown, and instructed him to tow the car to the artificer's garage and execute the necessary repairs. It does not appear that the artificer made any inquiries as to the ownership of the van, nor did he see the road fond license or certificate of insurance. He did not even see the bailee in actual possession of the van; he simply assumed that the bailee was the owner. The repairs were duly executed, and an invoice there for was rendered to the bailee, but no payment was received from the ballee.
Shortly after the breakdown, when the van was already in the possession of the artificer, the bailer sought out the bailee and withdrew his permission to the bailee to retain possession of the van. Whether he was entitled to terminate the bailment at that date does not matter. The bail told him that the van was with a friend for repairs, but refused to let his know where it was. It was not until some four to six weeks later (by which time the bailer was dearly entitled to determine the bailment) that the bailer discovered the whereabouts of the van at the artificer's garage and demanded its return.
The artificer, who had executed repairs to the clutch, the grearbox and the brakes of the van at a charge of £40 odd, refused to deliver up the van to the bailer except en payment of this sum in reliance upon his artificer's lion. On the 6th December 19 the bailer started proceedings in the Seuthend County Court against the bailee and artificer, claiming return of the van and damages for its detention.
The only defense with which we are concerned is this appeal is that of the artificer, who relied upon his common law lion. The question of law is whether upon the facts which we have stated the artificer was entitled to assert his common law lion Against the true owner of the van, the bailer. The County Court Judge held that he was not so satisfied.
The common law law of an artificer is of very ancient origin, dating from a time when remedies by action upon contracts not under seal were still at an early and imperfect stage of development; see the old authorities cited by Lord Ellnborough (chief Justice) in ( Chase v. Westmore 1816 volume Maule & , page 180) Because it arises in consequence of a contract, it is tempting to a twentith century lawyer to think of a common law lion as possessing the characteristics of a contractual right, express or implied, created by mutual agreement between the parties to the contract. But this would be to mistake its legal nature Like a right of action for damages, it is a remedy for breach of contract which the common law confer upon an artificer to whom the possession of goods is lawfully given for the purpose of his doing work upon them in consideration of a money payment. If, pursuant to the contract, the artificer does the work, he is entitled to retain possession of the goods so long as his charges, whether agreed is advance or (if not so agreed) payable upon a quantum mruit, are satisfied. The remedy can be excluded by the terms of the contract made with the artificer either expressly or by necessary implication from other terms which are inconsistent with the exercise of a possessry lions ( Forth v. Simpson 1849 volume 13 Queen's Beach cases, page 380), in the same way as the common law remedy in damages for breach of contract may be excluded or modified by the terms of the contract itself. But this does not mean that the remedy of lion, any more than the remedy in damages, is the result of an implied term in the contract to which we say conveniently call The MOORCOCK criteria relevant to implying terms in a contract apply. The test whether or not the remedy exists is not whether Or act its existence isnecessary to give business efficacy to the contract. Judged by this test these would in modern time never be an artificer's lion.
The common law remedy of a pssessery lion, like other primitive remedies such as abatement of nuisance, self-defence or ejection of trespassers to land, is one of self-help. It is a remedy in fom exercisable upon the goods, and its exercise requires no intervention or the courts, for it is exercisable only by an artificer who has actual possession of the goods subject to the lion. Since, however, the remedy is the exercise of a right to continue an existing actual possession of the goods, it necessarily involves a right of possession adverse to the right of the person who, but for the lion, would be entitled to immediate possession of the goods. A common law lion, although not enforceable by action, thus affords a defense to an action for recovery of the goods by a person who, but for the lion, would be entitled to immediate possession.
Since a common law lion is a right to continue an existing actual possession of goods (that is to say, to refuse to put an end o a bailment) it can only be exercised by an artificer if his possession was lawful at the time at which the lion first attached. o entitle him to exercise a right of possession under his common law lion adverse to the owner of the goods, he must show that his possession under the original delivery of the goods to him was lawful ( Limited v. Motors Limited 194 King's Bench Division, page ) – and continued to be lawful until souse work was done by his upon the goods. Where, therefore, as in the present case, possession of the goods was originally given to the artificer not by the owner himself, but by a bail of the owner, the test whether the artificer can rely upon his common law lion as a defence in an action for detinue brought against him by the owner is whether the owner authorised (or is stopped as against the artificer from denying that he authorised) the bail to give possession of the goods to the artificer. This, it seems to us, is the test which, after some vacillation, is laid down by the modern authorities. It is as a result of applying this test that the cases which have been cited tous fall upon one side or other of the line. where the owner of goods has specifically authorised his baill to give possession of them to an artificer for the latter to do work upon them, no question arises. She cases are thus concerned with...
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