Date: Wed, 19 Nov 2008 14:12

From: Lionel Smith

Subject: Interference with property

My own reaction is that it's not quite as obvious as this.

If a guy is about to get into his car, that is parked on the street, and I, being a total stranger with no rights in the car or the land, and no public authority, say to him, 'you are not allowed to drive that car away', is that a trespass or other tortious interference with goods? Surely people have to be a little more robust in the assertion of their rights than that.

I think any wrong in the Club Cruise case must arise out of the falseness of the assertion of authority. It makes me think of breach of warranty of authority, although I think the normal measure of recovery for that wrong is for the plaintiff to be put in the position he or she would have been in had the defendant held the authority claimed, which does not seem to help much in this case.

Lionel

On 19/11/08 8:16 AM, "Simon Douglas" wrote:

The case should be a straight forward application of trespass to goods. An intentional interference with another's goods is at the heart of the actions of conversion, detinue and trespass. However, the common law has always distinguished between greater interferences, which have the effect of excluding others, from lesser interferences – the former being actionable in conversion, the latter in trespass.

The case cannot be a conversion as the defendants did not completely exclude others from the control of the ship. They only said that it could not leave the port. The case is exactly the same as England v Cowley. Being a non-excluding interference, trespass should be the relevant action.

The only bar to an action in trespass is this silly old requirement for a 'direct' or 'immediate' touching or application of force, which the defendant did not do. Had the chattel torts developed rationally then trespass would not be defined as a 'direct interference' with goods, but an 'intentional interference' with goods. The only question then would be whether or not the defendant had 'intentionally exercised control' over the ship, and it would not matter whether such control was effected by physical touching or otherwise. The 'lacuna', therefore, is created by the 'directness' requirement.

Interestingly, trespass to goods appears to be the only tort remaining which still insists on the direct application of physical force: it is possible to commit trespass to the person without touching (assault) and interfere with someone's land without touching (nuisance). Further, the converse requirement of 'indirect' application of force in negligence was abandoned long ago (1833). I doubted that 'directness' still had any role in trespass and the last trespass to goods claim (that I can find) which was rejected simply because there was no physical touching of the chattel was the 1842 case of Hartley v Moxham. So on the whole, it is remarkable that a judge in 2008 would still attach any significance to the fact that the defendant did not physically touch the claimant's ship even though he has so obviously interfered with it. 

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