Date: Wed, 19 Nov 2008 13:16

From: Simon Douglas

Subject: Interference with property

The case should be a straight forward application of trespass to goods. An intentional interference with another's goods is at the heart of the actions of conversion, detinue and trespass. However, the common law has always distinguished between greater interferences, which have the effect of excluding others, from lesser interferences – the former being actionable in conversion, the latter in trespass.

The case cannot be a conversion as the defendants did not completely exclude others from the control of the ship. They only said that it could not leave the port. The case is exactly the same as England v Cowley. Being a non-excluding interference, trespass should be the relevant action.

The only bar to an action in trespass is this silly old requirement for a 'direct' or 'immediate' touching or application of force, which the defendant did not do. Had the chattel torts developed rationally then trespass would not be defined as a 'direct interference' with goods, but an 'intentional interference' with goods. The only question then would be whether or not the defendant had 'intentionally exercised control' over the ship, and it would not matter whether such control was effected by physical touching or otherwise. The 'lacuna', therefore, is created by the 'directness' requirement.

Interestingly, trespass to goods appears to be the only tort remaining which still insists on the direct application of physical force: it is possible to commit trespass to the person without touching (assault) and interfere with someone's land without touching (nuisance). Further, the converse requirement of 'indirect' application of force in negligence was abandoned long ago (1833). I doubted that 'directness' still had any role in trespass and the last trespass to goods claim (that I can find) which was rejected simply because there was no physical touching of the chattel was the 1842 case of Hartley v Moxham. So on the whole, it is remarkable that a judge in 2008 would still attach any significance to the fact that the defendant did not physically touch the claimant's ship even though he has so obviously interfered with it. 

Simon Douglas
Corpus Christi College, Oxford

-----Original Message-----
From: Robert Stevens 
Sent: 19 November 2008 12:00
To: Sarah Green
Cc: Andrew Tettenborn; Andrew Botterell 
Subject: RE: interference with property

Sarah: conversion doesn't require an unlawful act of dispossession, but it does require that you intend to exercise a liberty with respect to the thing that you don't have. In both Howard E Perry v BRB and Oakley v Lyster the plaintiff's goods were (lawfully) on the defendant's premises, and the defendant was denying the plaintiff access to them: which the defendant had no right to do. This interfered with the plaintiff's right to possess. That is a long way from this case where there is no denial by the defendant of the plaintiff's right to possession.

Michael asked "Having allowed me onto your land to play with the football, how did you stop me just picking up the ball and marching off your land?"

It would be a trespass to walk off the land with the ball. The football owner has a (bare) licence to enter the land, but it is subject to the condition that he doesn't leave the land with the ball. If he does, he falls outside of the terms of the licence and commits trespass. If there was a passing judge, you could get an injunction.

Adam: that is an interesting suggestion, and the closest I can come to imposing liability, but I am not convinced. In Welton the result would have been precisely the same if the advice had come from a lay person "if you want to comply with the health and safety rules you must do X, Y and Z". But for the absence of consideration, there would have been a contract. We cannot say that in this case. The authorities weren't gratuitously undertaking to do anything, whether provide advice or anything else. They just refused a licence, when as a matter of public law they should not have done.

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