The 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.

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