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Eoin O'Dell
Wed, 15 Nov 2006 17:36:34


Hi all,

I think I remember that Peter Birks liked to point out that it was one of the oddities of the common law's protection of personal property that it has no simple direct action by which to order personal property of one person in the hands of another to be returned - it has no simple vindicatio, an action in which a claimant can vindicate his or her rights to personal property in the hands of another. I hope that I am right in this (both in that Peter Birks used to say it, and that it's true, because I've relied on this in print, and in this paragraph, and it would be embarrassing - to say the least - to be wrong!). Of course, there are all sorts of ways in which an order for return might be made: under a (statutory) discretion as a remedy for a tort of trespass to goods; under a trust discovered on the facts, and so on. But if this is so, then I am set to wonder, if none of these alternative routes is available (for whatever reasons), and a claimant does have title to personal property in the hands of a defendant, is the claimant stymied in his or her attempts to recover the property and remitted to personal claims (such as in tort or restitution) instead?

These musings - and, in particular the basic query at the end of that paragraph - were prompted today by reports that U2 had recovered personal items from a stylist. She had helped to create their image, including one of Bono's iconic hat styles, and had retained some of the relevant props, including the hat.

When she later sought to auction the items (at Christies, rather than on eBay), the group sought their return. In an action in the Circuit Court earlier in the year, the group successfully sought the return of the property. The case turned on whether they had in effect allowed her to retain them, and the court found as a fact that they did not; and then - it seems from the media reports - simply ordered their return. Today, on appeal, the High Court has sustained that finding. There are no electronic reports of either judgment yet (and probably won't be of the Circuit Court decision, but there probably will be of the High Court decision in due course), but for some media coverage, see, for example:

<http://www.rte.ie/news/2006/1115/u2.html> (High Court, today)
<http://www.rte.ie/news/2005/0705/u2.html> (Circuit Court, last July)

From the media reports, at least, it was intuitively obvious to both courts that if she did not have title to the items, she must return them; yet if my memory of Peter Birks' point is right, though intuitively obvious, the courts were wrong in that belief.

Can anyone shed light on this for me?



Dr Eoin O'Dell
Fellow & Senior Lecturer
School of Law
Trinity College
Dublin 2
ph: +353-1-896 1178
fax: +353-1-677 0449
mobile: +353-87-2021120

blog: http://www.cearta.ie
web: http://www.eoinodell.com


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