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Sender:
Andrew Burrows
Date:
Thu, 16 Nov 2006 10:37:33
Re:
U2

 

I agree with what Lionel Smith and Andrew Tettenborn have so elegantly said. But one point that has always puzzled me on this - and for which I would be very grateful for views - is the extent to which for wrongful interference with goods the owner needs to show that damages are inadequate. My understanding is that, in order to be granted delivery up (which is the remedy we are talking about) the law does require a dispossessed 'owner' to show that damages are inadequate. And furthermore that the adequacy hurdle is a substantial one, similar to that applying to specific performance: see eg Cohen v Roche [1927] 1 KB 169. If this is correct we do still have the astonishing position in England that, if someone steals and keeps my goods, a court will not order them to be returned to me (in a tort action for conversion) unless I can establish that damages are inadequate eg because the goods are unique. I consider this point in the 3rd ed of my Remedies book at pp 578-581. Of course, there would appear to have been no problem for U2 on this because the goods were presumably 'unique'.

 

Andrew Burrows
St Hugh's College,
Oxford


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