From: Matthew Hoyle <MHoyle@oeclaw.co.uk>

Sent: Monday 9 June 2025 14:44

To: ODG

Subject: Bailee's powers of sale

Dear all

Readers with an interest in the property torts and bailees rights and duties may be interested in today's High Court judgment in Credit Agricole [2025] EWHC 1346 (Ch). The Claimant bank (or its predecessors) had taken deposit of items between 1900 and 1994. It wanted to cease to hold the items, but the owners of 14 of the boxes could not be identified despite significant efforts since 2019. The bank therefore brought proceedings seeking to establish a right to sell the items.

There were earlier proceedings before Morgan J ([2021] 1 WLR 3834) where he had permitted the bank to inspect the contents under CPR Part 25. These proceedings were for final orders permitting sale. As a result of the approach taken by Morgan J in 2021, Richard Smith J divided between those items deposited post-1978 and pre-1978, because s.12 and 13 of the Torts (Interference With Goods) Act 1977 created a statutory regime for a bailee to sell property, but only prospectively from the Act coming into force in 1978.

Ultimately, the judge made an order for sale of the post-1978 items, and made a declaration that the bank had an implied contractual immunity from suit in respect of the pre-1978 items.

Lots of interesting  discussion as to whether a bailee had any power of sale pre-1978, and the extent and nature potential defences that a bailee might raise where property is abandoned in their possession and they dispose of it. In particular, the judge concluded that the bailor exercising an implied power of sale would have an immunity from suit rather than an entitlement to sell (at [73])

Quite how declarations can be made against persons (or their heirs) who might very well not be in the jurisdiction and have never been served with a claim form and may never be, is another question. I do wonder whether courts making orders based on Wolverhampton v London Gypsies and Travellers (whatever the merits and demerits of that case) (see [2025] EWHC 1346 (Ch) at [18]) have overlooked that anyone who breaches the orders made in that case will necessarily be present in the jurisdiction at the time. That is very different to binding persons outside the jurisdiction to a judgment.

Best,

Matthew

Matthew Hoyle Barrister www.oeclaw.co.uk

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