Tort of Conversion

Sarah Green is a CUF Lecturer and Fellow and Tutor in Law of St Hilda's College, Oxford. John Randall MA (Cantab), QC is a Barrister at St Philips Chambers, Birmingham, principally practising in chancery and commercial law. He is a Bencher of Lincoln's Inn, and sits as a Recorder and Deputy High Court Judge. He is a Visiting Fellow at the Faculty of Law of the University of New South Wales in Sydney.

... a much welcome addition to the existing literature [which is] full of novel insights into the tort. ...the book should become the first port of call for anyone trying to answer a remedial question in the tort. Simon Douglas The Law Quarterly Review Volume 127, October 2011 To write a book which will be of as much interest and help to practical lawyers and judges as to academic lawyers and students is a real achievement. That is all the more true when, as here, the subject matter of the book is deceptively simple on its face, but turns out on examination to be technical and complex. Sarah Green, with her distinguished academic experience, and John Randall, with his justifiably formidable reputation at the Bar, have produced a book which reflects the strengths of both the academic legal world and the practical legal world, while avoiding the weaknesses of either. All lawyers, and their clients and students, have much to thank them for. From the Foreword, David Neuberger, House of Lords, May 2009 This fairly slim volume, written jointly by a practitioner on one side and an academic on the other, is a highly informative and workmanlike guide to the theory behind it, its development, and its contemporary ins and outs. Overall, this is an excellent little reference book which ought to be on the shelves of any member of the Bar. Not only does it provide a fully-comprehensive academic introduction to a little-known tort. Buy this book: or at the very least, make sure your chambers library gets a copy. Or even two: you never know when someone else in chambers might also have a conversion problem on his hands. Andrew Tettenborn The Barrister Issue 45 No practitioner using this book should now be confused as to which tort may be invoked and where, or as to what remedies will be available in any given circumstances. Furthermore, the detailed index and meticulous cross-referencing, both within and between chapters, should help ensure that anyone using this book for practical purposes will not overlook anything of significance. Their eminently sensible approach has the distinct advantage of enabling them to tackle a range of related questions that have dogged academics and courts elsewhere in the Common law world for years ... on each of these issues ... the authors' answers are both elegant and lawyerly. The elegance derives from their concise and systematic approach, while the lawyerliness inheres in the careful supporting of arguments by reference to a range of persuasive judgements in other common law jurisdictions. For all that it may be a fairly slender volume, The Tort of Conversion is packed with learning, containing as it does mini-theses on the true gist of conversion, the nature of property and the legal meaning of possession. Throughout ... the arguments are supported by a wealth of references to primary and secondary legal sources, both ancient and modern, domestic and comparative. It may be a very long time before we can disagree conclusively with Sir John Salmond's famous observation that "conversion is a region still darkened with the mists of legal formalism, through which no man will find his way" ... But if a way out of this juridical quagmire is ever to be forged, Green and Randall, in this superb volume, must be acknowledged to have taken the critical first steps. John Murphy Cambridge Law Journal Volume 69, Part 2 Green and Randall's thoughtful book is a most welcome addition to the conversion scholarship, and is the first modern English treatise on the tort. The authors have successfully negotiated a difficult path to ensure that the work will be of interest and us to both scholars and practitioners. As the first modern sustained treatise on conversion it will no doubt be highly influential upon its future development. The work is thought provoking, does not shy away from controversies and is an academic challenge to those with conflicting conceptions of the tort. Phillip Morgan Legal Studies Volume 30, No 3, Sep 2010 It is at once informative and thought-provoking. It deserves to be read seriously by practitioners and by academics working in property law. D. Fox The Journal of Business Law Issue 2, 2011

• 1 Introduction 2 The History of Conversion INTRODUCTION AND CONTEXT THE MEDIEVAL ANCESTORS OF CONVERSION Appeal of Robbery or Larceny Trespass de bonis asportatis Replevin Detinue Detinue sur bailment The Plea of devenerunt ad manus Detinue sur trover The Shortcomings of Detinue sur trover THE EMERGENCE OF TROVER 1. Possessed of the Goods of his Own Property 2. Loss and 3. Finding 4. Delivery Up Requested but Refused 5. Conversion to Own Use (Causing Loss) Conclusion THE HEGEMONY OF TROVER Trover takes the Ground of Trespass Trover takes the Ground of Detinue Residual Categories Conclusion THE RECOGNITION OF CONVERSION CONVERSION IN THE NINETEENTH CENTURY Statutory Reforms A New Legal Fiction-the Conversion of Choses in Action Evidenced by Converted Documents Affirmation of Strict Liability The Common Law (Still) Presents Great Difficulties CONVERSION IN THE TWENTIETH CENTURY Obscurities Remain Expansion of the New Legal Fiction Financing of and Title to Motor Cars The Report of the Law Reform Committee Statutory Intervention CONCLUSIONS 3 What is a Conversion? NAME INTERESTS PROTECTED THE RELATIONSHIP BETWEEN THE WRONGFUL INTERFERENCE TORTS Trespass Reversionary Injury THE IMPORTANCE OF POSSESSION A Peculiar Notion of Possession? RELATIONSHIP TO VINDICATIO THE GIST OF CONVERSION CONVERSION IN THE CONTEXT OF THE PROPERTY TORTS Nature of the Interference Degree and Extent of the Interference THE REQUISITE CONDUCT OF THE DEFENDANT Actions of the Defendant: Use and Possession Intention Innocent Converters THE THREE ELEMENTS OF CONVERSION 1. A Claimant who has the Superior Possessory Right 2. A Deprivation of the Claimant's Full Benefit of that Right 3. An Assumption by the Defendant of that Right AN EXCEPTION TO THESE PRINCIPLES: STATUTORY CONVERSION 4 Title to Sue THE NATURE OF THE PROBLEM RELATIVITY OF TITLE WHY THE COMMON LAW PROTECTS THE POSSESSION OF WRONGDOERS LEGAL POSSESSION WHAT IS ACTUAL POSSESSION? Jus Tertii WHY ACTUAL POSSESSION CAN BE SUFFICIENT BAILMENT FINDERS THE SIGNIFICANCE OF LEGAL POSSESSION WHAT AMOUNTS TO A SUFFICIENT PROPRIETARY RIGHT? EQUITABLE RIGHTS AND CONVERSION CONCLUSIONS 5 The Subject Matter of Conversion PROPERTY AND POSSESSION MEANINGFUL INDICIA OF POSSESSION Cognitive Indicia MONEY PARTS OR PRODUCTS OF THE HUMAN BODY DIGITIZED PRODUCTS Manual Indicia i Excludability and movability ii Excludability and exclusive access iii Exhaustibility Policy Implications INTANGIBLE PROPERTY Manual Indicia i Excludability ii. Exhaustibility COPYRIGHT INFORMATION Manual Indicia i. Excludability ii. Exhaustibility THE LAW OF THEFT THE IMPORTANCE OF EFFECTIVE PROTECTION OF PROPERTY INTERESTS 6 Conversion and the Economic Torts THE NEED TO EXAMINE THEIR RELATIONSHIP BACKGROUND-THE FRAMEWORK OF TORTIOUS LIABILITY THE PLACE OF CONTRACTUAL RIGHTS AND OTHER INTANGIBLE PROPERTY PROPERTY TORTS Trespass to goods Conversion Nuisance ECONOMIC TORTS Lumley v Gye-Procuring or Inducing a Breach of Contract Causing Loss by Unlawful Means Lawful and Unlawful Means Conspiracies Conclusion COMPARISON OF LUMLEY v GYE AND CONVERSION The Gist of these Torts The Nature of the Interference Required The Right to Claim The Permissible Subject Matter of a Claim The Mental Element Required The Remedies Available CONCLUSIONS 7 Damages and Other Remedies INTRODUCTION THE MEASURE OF DAMAGES FOR CONVERSION (a) The Basic Rule (b) Time of Valuation Rising Market Value Falling Market Value (c) Absence of a Market (d) Presumptions as to Value (e) Special Rules Assets Severed from Land Improvements Title Deeds Negotiable Instruments, Securities and Like Documents Other Documents of Some Evidential Status Claimant with a Limited Interest (f) Where the Goods are Returned-'Temporary Deprivation' (g) Consequential Loss Post-Conversion Increases in Value User Damages Costs of Mitigation, and Loss of Business and/or Profits Miscellaneous Foreseeability and Remoteness Causation of Consequential Loss CAUSATION EXTINCTION OF TITLE THE DUTY TO MITIGATE CONTRIBUTORY NEGLIGENCE OTHER REMEDIES (a) Final Orders for Delivery Up: Section 3(1)(a) of the 1977 Act (b) Alternative Final Orders at the Defendant's Election: Section 3(1)(b) (c) Interlocutory Orders for Delivery Up: Section 4 (d) Recaption (e) 'Waiver of Tort' (f) An Equitable Claim to Converted Assets and their Proceeds of Sale? CONCLUSIONS 8 Conclusion