Tavoulareas v Lau and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Scott Baker,Lord Justice Wilson |
| Judgment Date | 24 April 2007 |
| Neutral Citation | [2007] EWCA Civ 474 |
| Docket Number | Case No: B2/2006/1908, B2/2006/1908(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 24 April 2007 |
[2007] EWCA Civ 474
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND CITY OF LONDON COUNTY COURT
(HIS HONOUR JUDGE SIMPSON)
(LOWER COURT No. 5CL13267)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Scott Baker and
Lord Justice Wilson
Case No: B2/2006/1908, B2/2006/1908(A)
MR T MARLAND (instructed by Messrs Howes & Keates) appeared on behalf of the Appellant.
MR P LETMAN (instructed by Messrs Rice-Jones & Smiths) appeared on behalf of the Respondents.
This litigation fills me with despair. It is a claim brought on 12 April 2005 by Mr Peter Tavoulareas, the appellant, against Mr and Mrs Lau, which as amended seeks an order for the delivery up of twelve paintings by an artist named Nicholas Moore and three photographic works by a Mr Antonio. Alternatively, the full payment of £23,556, said to be the value of this artwork.
Much of the background is undisputed. The appellant, a wealthy man or, his counsel would say, a once wealthy man, decided to invest in a restaurant in Dean Street, Soho, called the Blues Bistro and Bar. The respondents are the lessors of the premises. In addition to his substantial shareholding in the company DEF Restaurants Limited (“DEF”), he provided some of his personal collection of artwork, including some Picasso ceramics and Murano glasswork, and the artwork in dispute, for all of that to be displayed in the restaurant, adding to the attractiveness of its ambience.
By July 2004 the business had failed. On 6 July Howes and Keates (solicitors for the appellant) wrote to Rice-Jones (solicitors for the respondents), stating that they acted “for the majority shareholder” but going on to say that there were items in the premises “which belonged to DEF and must be kept safely and returned to our client”. It was therefore an equivocal letter. Rice-Jones replied that they had advised their client that:
“your client's property at the premises”
“should not be removed and indeed that an inventory should be prepared of what is on the premises”.
The next day the company was wound up and Kingston Smith appointed the liquidators. The parties engaged in some negotiation to enable the business to continue at the premises, but this broke down and on 14 January 2005 the appellant called for the return of his personal property in terms I shall have to set out more fully in due time.
Four paintings were returned to his agent, who called by arrangement to collect the artwork, but the agent was not permitted to remove any more. Proceedings were threatened in February and, after the respondent's solicitors had indicated that the respondent had no knowledge of the whereabouts of any property allegedly belonging to the appellant, these proceedings were commenced. A year later in April 2006, the respondents openly offered to return some of the artwork and in time nine of the works were returned to the claimant. Assuming that those items had been wrongfully converted, the claim for damages—for example, for physical damage suffered whilst wrongfully detained—is vague in the amount of damages; probably of no great significance. The value of the missing five paintings is pleaded to be some £6,000.
The first extraordinary aspect of this bitterly-fought litigation is that the claimant has spent some £60,000 on it to date, the defendants £25,000; £85,000 in all, over a claim worth at most £23,500. Now, litigation must be fun if the parties are prepared to spend that much on a rollercoaster ride to judgment without pausing, either of them, to suggest that mediation would be a more sensible way to resolve their differences.
I am sorry to say that the second extraordinary feature of the case is the perfunctory judgment under appeal. By paragraph 8 of that judgment HHJ Simpson, sitting in the Mayor's and City of London County Court, had concluded:
“In my judgment, the defendants have not converted any of the pictures placed with their solicitors for safekeeping as mentioned above. They were justified in retaining them until the liquidator's disclaimer because until that point they could not be satisfied as to ownership. The suggestion that enquiry should have been made earlier was not put to Mr or Mrs Lau in cross examination, neither does the point that they could have interpleaded.”
By paragraph 14 he had concluded that:
“In the circumstances I cannot be satisfied that the set of lino cuts and two other paintings were at the premises nine years after it is alleged they were supplied. Accordingly on this part of the case the claimant fails also. If you were wrong about that and it was necessary to consider the question of valuation.”
He concluded in paragraph 15 that he preferred the expert evidence attended by the defendants and so he concluded in paragraph 18:
“Accordingly if there had been a conversion I would have assessed damages at £100 in respect of damage to the pictures. There is no pleaded claim and no evidence as to the condition of the pictures reflected anything other than fair wear and tear. There is certainly no clear evidence they have deteriorated while in the possession of the defendants.”
And so, in the result expressed in paragraph 19, he dismissed the claim with costs on 7 August 2006, those costs to be paid he ordered on an indemnity basis. The claimant appeals with permission granted by Sir Henry Brooke, who observed that:
“It is puzzling that the judge made no reference to the dealings between the parties prior to the issue of the proceedings.”
I must now deal with the facts in a little more detail. The story unfolds as follows. On 26 November 2004 the liquidator reporting to creditors for the purposes of the creditors meeting stated that:
“The only known asset is the lease.”
One can, I think, fairly assume that he would have the company accounts which would have included fixed assets or plant, et cetera. Where any paintings owned by the company might have found mention, there seems to have been none. Nonetheless, he did add at page 218 of the bundle 1:
“I am currently in the process of reviewing documents in my possession for any further potential assets.”
Mr Marland, who appears before us as below for the appellant, comments that this is not laying claim to anything.
On 14 January 2005, the appellant's solicitors wrote an important letter saying this (page 236):
“He would, however, like his paintings (his personal property) to be removed from the premises as soon as possible. You will remember that it was agreed last July. You will remember that this was agreed last July but because the matter then proceeded the removal was delayed.
“My client informs me that he spoke to Mrs Lau about the matter this Monday. She indicated that she would like to keep them showing temporarily in the case that my client's group did not succeed as they would make the site more visually attractive.
“My client is prepared to allow the paintings to remain for the time being, although at the Lau's risk, as long as this personal property (i.e., the paintings) is returned before 1 st March 2005 as they are due to be shipped back to the States at that time. Would you please confirm that these arrangements are agreed on this basis.”
It is an important letter because this agreement and this letter as evidencing it are a key allegation in the claim that was eventually brought. It is noticeable also that there was no denial of that meeting or the arrangements that were referred to in that letter.
The only response if it was one is dated 14 February and that said, disingenuously to say the least of it, at page 239:
“My understanding was that any paintings belonging to Peter Tavoulareas had been removed.”
It is the appellant's case that he came to an arrangement with Mr Lau for his agent, a Mr Kiki of Jansen, to collect the artwork on his behalf. Mr Jansen duly attended at the restaurant premises on 26 or 27 January. There is some dispute as to what happened. Jansen's evidence was that Mr Lau insisted he could take only four paintings as chosen by Mr Lau; he, Mr Jansen, was not allowed to take what he wanted to take and he came prepared to take the lot. Mr Lau's evidence is confused and difficult to understand as I think Mr Letman, who appears here as below, has to acknowledge. He said he expected the appellant personally to attend, not an agent, and so he disputed his authority. Yet this did not prevent him handing over four paintings. His explanation for allowing no more to be agreed was his concern that there was not much room in Mr Jansen's van for the remainder of the collection to be taken away safely.
The fact is that he refused to permit the removal of the other paintings. When cross-examined about this he said among other things this (page 277, 4.17):
“Mr Marland: But you telephoned him to tell him to come and collect them did you not?
“Che Ching Lau: That was from more of a moral point of view.
“Mr Marland: You maintain that you still did not believe that they were his yet you invited him to come and collect them; that is hardly moral is it Mr Lau?
“Che Ching Lau: I still consider this very moral because I am being in the restaurant business for about 20 years and I know what sort of value the paintings will be because in the restaurant you have all the smoke and steam and all these time ageing factors. The paintings themselves shouldn't be worth much. It was only from this point of view that I ask him to collect it.
Later (page 277, 18.19) there was this exchange in the cross-examination:
“Q: And yet you telephoned Mr...
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