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PERSONAL CLAIMS AND REMEDIES

This section is concerned with those cases where the claimant seeks to secure a personal restitutionary remedy in circumstances in which it is an essential element of the claim that he or she has a legal or equitable proprietary interest in the property which the defendant had received, and sometimes continues to retain.

(A) PERSONAL CLAIMS AND REMEDIES AT LAW

Where the claimant can establish that he or she had a legal interest in the property that was received by the defendant, the claimant may be able to recover the value of the property received by the defendant in three different situations.

(i) Conversion

Although the Common Law lacks any general proprietary remedy to enable the claimant to recover property from the defendant, restitutionary remedies may be available for the tort of conversion, which involves the wrongful taking, keeping or disposing of another’s goods. Although nominally tortious this has been recognized as a remedy to protect the ownership of goods.[1] Interference with a possessory title is sufficient, even if possession had been obtained unlawfully.[2] It is not, however, possibly to convert intangible property,[3] because such property cannot be possessed. If the claimant wishes to recover damages for the tort of conversion it is necessary to show that he or she has a legal proprietary interest in property and that property, or its substitute, was converted by the defendant acting in some way which is inconsistent with the claimant’s proprietary rights. Although the remedy which is awarded will typically be compensatory damages, the claimant may wish to waive the tort and bring a restitutionary claim to recover the value of the property which the defendant had converted.69

  • [1] Allan [2007] UKHL 21, [2008] AC 1, [308] (Baroness Hale).
  • [2] Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 387, [2001] 1 WLR 1437. See DFox, ‘Enforcing a Possessory Title to a Stolen Car’ (2002) 61 CLJ 27.
  • [3] OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1, [102]-[106] (Lord Hoffmann); Armstrong GmbH vWinnington Networks [2012] EWHC 10 (Ch), [2013] Ch 156, [45] (Stephen Morris QC). See generally S
 
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