7.4. Protection of possession

Possession 283

particularly in the case of goods, the main mechanism for dealing with complaints about infringements of property rights is the law of tort. So, for example, although property law provides a direct action for the recovery of possession of land, there is no equivalent action for the recovery of goods. Instead, if your complaint is that someone has wrongfully deprived you of your goods, you will have to rely on the specialised tort of conversion (considered further below). Similarly, a complaint about damage to goods or an interference with their use and enjoyment will have to be dealt with by the tort of trespass to goods (or possibly negligence). Even in relation to land, tort law has a significant role to play in the protection of property rights. As we have said, a complaint that someone is wrongfully in possession of your land will be dealt with by a straightforward property action for the recovery of possession. If, however, your complaint is of damage to land, or any other interference with the exercise of property rights over it or your use and enjoyment of it, again you will usually have to rely on tort law – this time on nuisance (considered in Chapter 6) or trespass to land – although there may be other avenues to pursue if you can demonstrate a proprietary relationship between yourself and the defendant, such as a leasehold relationship.

In Extract 7.2 below, Weir considers the problems caused by this reliance on tort law for the protection of property rights. As he explains, some of the practical difficulties have now been removed, or at least ameliorated, by the Torts (Interference with Goods) Act 1977. In particular, the Act gives the court a general jurisdiction to make an order for the delivery of goods in any action for wrongful interference with goods (the generic term used in the 1977 Act for all the torts protecting property rights in goods). This removes a significant failing in the previous law. As we see below, a person complaining of wrongfully withheld goods usually has to rely on the tort of conversion, and the only remedy for conversion used to be damages: the court had no power to order the return of the goods themselves. This was unobjectionable in the case of most fungible goods where the complainant was likely to be interested only in the financial loss suffered, but was obviously inadequate where, for whatever reason, the complainant valued the thing as thing rather than as wealth, to adopt the terminology Bernard Rudden uses in ‘Things as Thing and Things as Wealth’ (Extract 2.3 above). Section 2(2) of the 1977 Act now gives the court power to make such an order instead of or as well as ordering damages.

However, as Weir points out, despite the changes made by the 1977 Act, the basic problem remains that tort law is in many respects an inappropriate mechanism for dealing with protection of property rights. In particular, in tort law the emphasis is on the commission of a wrong by the defendant, and this gives rise to significant complications in many areas of the law relating to goods, and to unnecessary differences between rules applicable to land and those applicable to goods. So, for example, the rules applicable in deciding when, if at all, the owner of lost goods loses his title to them (noted briefly in Chapter 10) are not only complex in themselves but wholly different from those applicable where a person has lost possession of land.