Date: Tue, 18 Nov 2008 22:41

From: Neil Foster

Subject: Interference with property

Dear Colleagues

Thanks for this Martin, a great addition to the list of Scots legal terms I didn't previously know (and I also love "vitiously"). While we are discussing possible lacunae in English law, is it possible that an action in detinue might have been available in The Van Gogh (why shouldn't a cruise ship have the privilege of having a case named after it?) if the English hadn't gone and abolished it a few years ago in the Torts (Interference with Goods) Act 1977?

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Martin Hogg 19/11/08 3:07 >>>

Not that this would have helped the disgruntled English proprietor, but had these facts occurred in Scotland I think an action of 'spuilzie' (pronounced 'spool-ee', a wonderful Scots word) would have been available to the dispossessed owner of the ship. This action is part of property law, and so any solution to the problem  would not lie in delict/tort. By virtue of the law of spuilzie, a lawful possessor of moveable property who is vitiously dispossessed of his possession may maintain the action and so claim (1) the immediate return of the property and (2) so-called 'violent profits' (i.e. punitive damages) for the period of wrongful dispossession. The crucial question might be does 'detaining' the boat amount to 'dispossession'. I think it arguably would in Scotland  - it certainly would under the South African law (where the relevant action is the 'mandement van spolie') where dispossession can be constituted by any action which prevents the lawful possessor from dealing with the property.

As I say, this is only of marginal interest for English lawyers, but, if the argument in favour of spuilzie is correct, perhaps the decision in Club Cruise Entertainment highlights the need for a similar remedy in English Law? 

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