Date: Wed, 19 Nov 2008 09:24

From: Ben McFarlane

Subject: Interference with property

The approach of Flaux J to conversion seems reasonable to me. There is a distinction between (i) interfering with B's thing; and (ii) interfering with B's use of a thing. The former can be a breach of a duty owed by the rest of the world to B; the latter merely interferes with B's liberty to make use of a thing, and is not necessarily a breach of a duty owed to B. If deliberate interferences with liberties to use a thing count as conversion, its scope would be very wide: as shown by the example of terrorists blowing up the entrance to a harbour and so “converting” the vessels therein. In most cases, of course, interfering with a liberty to use a thing involves interfering with that thing, and so the distinction is hidden. And in practice, of course, the distinction may not always be easy to draw, e.g. if A takes a key and throws it away, knowing it is the key to the lock of B's locked bike, does A convert the bike? But I think the distinction still exists.

I wonder if The Van Gogh is a bit like OBG. Loss is caused to a claimant because of a purported but invalid exercise of a statutory power. As a result, it is tempting to extend the boundaries of an existing private law concept to provide some redress. But the risk, exemplified I think by the minority in the House of Lords in OBG, is that we illegitimately extend that private law concept to fill a “gap” caused by the fact that the remedy provided by statute in the event of the invalid exercise of the power is not regarded by us as adequate (even if Parliament presumably did regard it as adequate).

Ben McFarlane

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From: Neil Foster 
Sent: 18 November 2008 22:41
To: Martin Hogg 
Subject: RE: 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?

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