Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Dear all,

It seems to me that this U2 case is just like Moffatt v Kazana, except that it's not money. Now I've come to think about it seriously it seems to me Moffatt v Kazana never really bore the weight that Peter, and Andy Burrows, put on it. English law clearly has a tort action - conversion - in these cases, and since conversion is as ferocious as it is, any claimant with any sense will always rely on it, and that might involve a return of the cap.

As Lionel says that's not the same as a vindicatio. Saying "You have interfered with my right to possess the cap, please pay me damages, and/or give it back under the Torts (Interference with Goods) Act" is not the same as "That's mine."

Part of this revolves around what we mean by "That's mine" in English law.

Bill Swadling talks about title at this point, and would I think declare that because U2 still have "best" title to the cap the stylist is not enriched therefore no unjust enrichment, but merely conversion. I would prefer to say that she has title, but not as good as the title asserted against her. After all even thieves have title. She is enriched but not unjustly, and Moffatt v Kazana will not bear the weight put on it to prove the contrary.

So we are back to the question whether English law (or even Irish) has a vindicatio or just conversion. Now you could separate the questions in Q1 and Q2 as Lionel did and say that here we have an order for return as a remedy for conversion. However, if that is a common law remedy I'm not sure I see any substantive difference between that and saying we have an action for the direct enforcement of the group's better title (better right to possess). And it seems to me that Moffatt v Kazana is as consistent with a direct enforcement of title in the tin of money as it is with conversion and it matters not that different £10 notes are given back (although I'm happy to concede to Bill that it is perfectly consistent with the action's being conversion). That being so, money had and received probably does have the effect (in some cases) that Lionel ascribes to it.

Duncan

Dr Duncan Sheehan
Senior Lecturer in Law
Director of Admissions
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

-----Original Message-----
From: Eoin O'Dell
Sent: Wednesday, November 15, 2006 5:37 PM
Subject: [RDG] U2

Hi all,

I think I remember that Peter Birks liked to point out that it was one of the oddities of the common law's protection of personal property that it has no simple direct action by which to order personal property of one person in the hands of another to be returned - it has no simple vindicatio, an action in which a claimant can vindicate his or her rights to personal property in the hands of another. I hope that I am right in this (both in that Peter Birks used to say it, and that it's true, because I've relied on this in print, and in this paragraph, and it would be embarrassing - to say the least - to be wrong!). Of course, there are all sorts of ways in which an order for return might be made: under a (statutory) discretion as a remedy for a tort of trespass to goods; under a trust discovered on the facts, and so on. But if this is so, then I am set to wonder, if none of these alternative routes is available (for whatever reasons), and a claimant does have title to personal property in the hands of a defendant, is the claimant stymied in his or her attempts to recover the property and remitted to personal claims (such as in tort or restitution) instead?

These musings - and, in particular the basic query at the end of that paragraph - were prompted today by reports that U2 had recovered personal items from a stylist. She had helped to create their image, including one of Bono's iconic hat styles, and had retained some of the relevant props, including the hat.

When she later sought to auction the items (at Christies, rather than on eBay), the group sought their return. In an action in the Circuit Court earlier in the year, the group successfully sought the return of the property. The case turned on whether they had in effect allowed her to retain them, and the court found as a fact that they did not; and then - it seems from the media reports - simply ordered their return. Today, on appeal, the High Court has sustained that finding. There are no electronic reports of either judgment yet (and probably won't be of the Circuit Court decision, but there probably will be of the High Court decision in due course), but for some media coverage, see, for example:

<http://www.rte.ie/news/2006/1115/u2.html> (High Court, today)
<http://www.rte.ie/news/2005/0705/u2.html> (Circuit Court, last July)

From the media reports, at least, it was intuitively obvious to both courts that if she did not have title to the items, she must return them; yet if my memory of Peter Birks' point is right, though intuitively obvious, the courts were wrong in that belief.

Can anyone shed light on this for me?