This
matter had been dealt with by His Honour Judge Lynch on the 12 November, 1993.
The
Plaintiff is a senior agricultural specialist and is working at the premises of
the American Embassy at Ballsbridge, Dublin. In May, 1992 he purchased a Volvo
440 motor vehicle, registration number 91 D 20565, from Huet Motors (Dublin)
Limited for the price of £10,250. He arranged his own financing and as far
as Huet Motors (Dublin) Limited were concerned it was in fact a cash
transaction.
A
receiver was appointed to Huet Motors (Dublin) Limited on the 29 July, 1992 and
a liquidator was appointed to that company on the 17 August, 1992.
The
Plaintiff, on the date of purchase was the only person in possession of the
vehicle, registered it in his name and comprehensively insured it in his own
name with the New PMPA Insurance Company. On purchasing the car he registered
his address at that time on the registration book. However, on retaxing the car
in July/August, 1992, he was in the process of moving house and in the
circumstances he requested that the book be returned to him c/o the American
Embassy, as he feared it might be lost. The Embassy address was entered on the
registration book.
Early
on the morning of Friday, the 27 August, 1993, he received a telephone call at
the Embassy of the United States of America, from a Garda Andy Keegan, of
Donnybrook Garda Station, who advised him that he, the guard, had been informed
by the Defendant that it was their intention to repossess the said vehicle from
where it was parked, on the corner of Eglington Road and Clyde Road, adjacent
to the Embassy. The Plaintiff looked out the window and found that the car had
already been removed. He had no knowledge whatsoever that the Defendant claimed
ownership of the vehicle and during the fifteen months when the vehicle was in
his possession at no time did the Defendant, its servants or agents or the
receiver, or liquidator of Huet Motors (Dublin) Limited contact him in relation
to the motor vehicle.
The
Circuit Court granted an interim injunction in the particular circumstances of
this case to restrain the Defendant from disposing of the vehicle. The
Plaintiff says that the repossession from adjacent to his place of work, was in
a manner which brought it to the attention of his superiors, and that he was
anxious to be in a position to show his workmates and his superiors that he had
the same car. The Defendant made no effort to contact the Plaintiff. Prior to
his purchasing it, it was openly for sale at the premises of Huet Motors
(Dublin) Limited. That company was registered as the previous owners but the
Defendant made no effort at that time to assert their ownership of the vehicle
or to prohibit the sale of same by the said Huet Motors (Dublin) Limited. The
registration book and the certificate of motor insurance were produced to the
Court. The Defendant, by a letter of the 27 August, 1993, states:-
"The
car in question is subject to a lease agreement in favour of ICC Finance
Limited and in accordance with the terms thereof the title vests in ICC Finance
Limited. Accordingly your client is not entitled to the return of the vehicle.
The vendor to him, Huet Motors (Dublin) Limited, had no authority or title to
sell".
There
is also a receipt dated the 22 May, 1992 stating that the sum of £10,250
was received from Mr Michael Hanley by Huet Motors. The Plaintiff's case is
based on two Affidavits by the Plaintiff, with exhibits and the Defendant's
case is dependant on two Affidavits sworn by their credit control manager,
Edward Kingston, together with exhibits.
It
would appear that ICC Finance Limited purchased the Volvo 440 motor vehicle
from Huet Motors (Dublin) Limited for the sum of £12,260, inclusive of VAT
on the 23 May, 1991. It was then leased for a fixed three month period from the
24 May, 1991 to Tipperary Rent-a-Car Limited. That purchase and lease were
entered into with a further agreement between the ICC Finance and Huet Motors
(Dublin) Limited that at the end of the aforesaid three month lease period,
Huet Motors (Dublin) Limited would repurchase the vehicle at an agreed price of
£9,305.78 exclusive of VAT. This arrangement was one of seventeen similar
company arrangements in respect of other vehicles which ICC Finance Limited and
Huet Motors (Dublin) Limited entered into in or about the month of May, 1991.
These lease/rental agreements were registered with the Irish Credit Bureau.
At
the end of the three month leasing period with Tipperary Rent-a-Car Limited,
the vehicle was not bought back as agreed by Huet Motors (Dublin) Limited.
Instead a new contract was entered into between ICC Finance Limited and another
company by the name of Fleetlink Limited, which was an associate company of,
and wholly owned by, Huet Motors (Dublin) Limited. The agreement with Fleetlink
Limited was for a lease of the aforesaid vehicle for a fixed period of twelve
months from the 28 January, 1992 and again there was an agreement with Huet
Motors (Dublin) Limited that it would buy back the aforesaid vehicle at a fixed
price of £6,665.20 exclusive of VAT at the end of the lease period.
The
tax book of the vehicle was initially retained by ICC Finance. However, a Mr
McCarthy, who was both a director of Huet Motors (Dublin) Limited and Fleetlink
Limited, requested the tax book so as to tax the vehicle. The tax book was
given to him for the purpose of having the vehicle taxed. Fleetlink Limited is
a company which leased vehicles and hired vehicles for short periods to third
parties. It was not in the business of retailing cars to the public. Huet
Motors (Dublin) Limited went into liquidation and the liquidator advised the
Defendant company of the names and address of the persons whom he believed were
in possession of the various vehicles, the property of the Defendant company.
Appropriate enquiries were made and it was discovered that the persons whose
names were furnished either were not in possession of the vehicle or were not
resident at the address given and supplied by the liquidator. It has been the
experience of the Defendant company that where a person is notified that the
Defendant company wants the vehicle in question returned because of failure to
pay the rentals, or for some other breach of the agreement between the
Defendant company and a lessee, invariably the vehicle is not returned and it
becomes very difficult for the Defendant company to obtain possession of the
vehicle. Because of this experience the Defendant company has adopted the
practice of repossessing the vehicles which it owns and at the same time
advising the local gardai, where the vehicle is repossessed, of such
repossession. That was the practice adopted in this case. The Defendant company
did not consent to Fleetlink Limited parting with possession of the said
vehicles to anyone, not alone Huet Motors (Dublin) Limited, for the purpose of
selling same to an innocent third party. The Defendants say they did not intend
to cause any embarrassment to the Plaintiff and if in fact they did, they are
prepared to write to his employers or superiors advising them of the
circumstances surrounding the matter and the reason for the Defendant company
repossessing the vehicle. It is accepted by the Defendant company totally, that
the Plaintiff herein was, and is, an unfortunate and innocent party, and a
party who acted in good faith in the purchase of the vehicle in question from
Huet Motors (Dublin) Limited.
It
seems clear that both parties here acted in good faith and were innocent of any
wrongdoing, although the Defendant, with its experience, might be regarded as
acting in a fairly cavalier manner. As a result of discovery it would appear
that there was a series of post-dated cheques paid to the Defendant that were
drawn on the account of Huet Motors (Dublin) Limited, and not on the account of
Fleetlink Limited, during the time when the alleged lease to them was in
existence. It is reasonable to assume that the Defendant knew that the vehicle
was in the possession of Huet Motors (Dublin) Limited or leased to them. When I
said that the behaviour of the Defendant was a little cavalier, I do think that
it might have checked the corporation file. The Court is satisfied that the
vehicle was at all relevant times in the possession of Huet Motors (Dublin)
Limited, who was a mercantile agent. It would appear that it was indulging in
leasing, at least on one occasion, to a wholly owned subsidiary to provide a
system of cash flow. Huet Motors (Dublin) Limited was in possession of the
vehicle and in possession of the tax book. Although in fact they did not have a
legal title by virtue of the provisions of Section 25 of the Sale of Goods Act,
1893 and of the Factors Acts (and particularly
S 2(1) of the
Factors Act,
1889), they could and did give a good title to the vehicle.
Section
25(1) of the Sale of Goods Act, 1893 provides:-
"Where
a person having sold continues or is in possession of the goods . . . the
delivery or transfer by that person . . . of the goods . . . under any sale,
pledge or other disposition thereof to any person receiving the same in good
faith and without notice of the previous sale shall have the same effect as if
the person making the delivery or transfer were expressly authorised by the
owner of the goods to make the sale."
I
am impressed by the reasoning of the English Court of Appeal in Worcester Works
Finance Limited v Cooden Engineering Company Limited [1971] 3 ALL ER 708.
In
the circumstances I am satisfied that the learned Circuit Court Judge was
correct in the decision he reached. It does seem to me that the Defendant here
could have retained the tax book and indeed been registered. I assume that it
was not registered, because, it does not like to admit to an ultimate purchaser
that there have been several registered owners.
I
was referred to Staffs Motor Guarantee Limited v British Wagon Company Limited
[1934] 2 KB 305; and Astley Industrial Trusts Limited v Miller (Oakes third
party) [1968] ALL ER 36 and Chalmers "Sale of Goods" 18th edition at p 295.
While clearly the ICC Finance was not involved in any fraudulent transaction,
it was, as I have found, cavalier in its approach and it, I have no doubt, has
caused much strain and distress to the Plaintiff.
While
the Staffs Motor Guarantee Limited v British Wagon Company Limited would seem
to support some of the Defendant's submissions, I would prefer the reasoning in
the Worcester Works Finance Limited v Cooden Engineering Company Limited,
[1971] 3 ALL ER 708.
The
Civil Bill claims, inter alia, mandatory injunction directing the Defendant to
deliver up possession of the said motor vehicle to the Plaintiff.
The
Plaintiff makes a bald claim for damages but does not indicate whether this
should be negligence, conversion or detinue. Each of these would be a separate
head of damage and should be specifically pleaded. What is one to make of the
bald claim for "damages"? The only plea in the endorsement of claim which would
help to answer this question is in paragraph 5. It sets out that the Defendant
has converted the said motor vehicle to its own use. Therefore, this case
should be decided on the basis of a claim for conversion, not a claim in
detinue (which entitles one to the return of the vehicle and damages) or a
claim in negligence.
I
would wish to be addressed on what losses, if any, should be awarded as damages
in a claim based on tort of conversion. I would refer to McGreggor on damages
14th ed paras 1087 -- 1089 and particularly to the quotation from Denning LJ
(as he then was) where he says:-
"It
is an action against him because he has had the benefit of the goods. It
resembles, therefore, an action for restitution rather than an action of tort.
But it is unnecessary to place it in any formal category".
The
author goes on to say that:-
"Looked
at from this angle the Plaintiff could always recover beyond his proved loss to
the extent of the benefit conferred on the Defendant by his use of the goods
but it would seem that for Denning LJ this same result could have been arrived
at in an action of conversion as much as in one of detinue."
In
England detinue is gone by statute.
Detinue
can include damages from the moment of detention to return of the chattel and
special damages (Bullen and Leake, 10th Edition, p 317). Damages must be
assessed at the date of judgment, not at the date of refusal which is a normal
proof of detinue (see Rosenthal v Alderton & Sons Limited, 1946 KB 374, CV
Stacks v Mikloo, [1948] 2 KB 23 and MacMahon and Binchy Law of Torts, 2nd ed p
531).
I
find the proposition by Denning LJ of subsuming these two distinct torts into a
claim for restitution very attractive. It seems to me that the trial Judge
should look at all aspects of the case and decide the relevant periods and the
nature of damage having regard to all the particular circumstances of each
individual case. The matter should be clarified by statute.
Proceedings
had been instituted by the Plaintiff against the Defendant for defamation. I
was asked to postpone making any Order until that matter had been determined. I
had indicated that I would not make any Order until I had been fully addressed
on the nature of the claim mentioned in the Civil Bill and what were the
appropriate parameters of such a claim which I believed to be based on
conversion. I was open, of course, to argument because in fact detinue
constitutes negligence. When the defamation action came to Court it was
settled. And that included damages arising in the present case. The Plaintiff
is in fact in possession of the vehicle. In the circumstances and by consent I
am dismissing the appeal and awarding the Plaintiff costs in both Courts, with
a certificate for Senior Counsel for the appeal.
