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Andrew Tettenborn
Thu, 16 Nov 2006 11:51:46


The jurisdiction to order return is clearly discretionary. Whether there's much future in drawing a parallel with specific performance I'm more doubtful, however. My own suspicion is that the owner faces less of a hurdle. A couple of points come to mind:

1. At times courts seem to look to whether the plaintiff would suffer hardship if he didn't get his thing back, which seems more generous. So Perry got their steel from British Rail in Howard E Perry [1980] 2 All ER 579: whether they'd have got specific performance to tell BR to carry it or a seller to deliver it looks more doubtful. Again the owner of a batch of Rover cars got specific delivery simply because they weren't making them any more (see Pendragon plc v Walon Ltd [2005] EWHC 1082 (QB)): I doubt if he's have got specific performance against a seller. Conversely in SM v Bronx [1975] 1 Lloyd’s Rep 465 the buyer of a machine tool that took months to make to order didn't get specific performance: but it seems pretty inconceivable that they wouldn't have got specific restitution if it had been their machine wrongfully in the defendants' hands.

2. In the nature of things specific restitution tends to be less intrusive. We don't like telling a defendant to actually do something or go to prison: but specific restitution merely involves telling the defendant to acquiesce in the plaintiff's taking his thing (note that generally plaintiff bears collection costs and trouble).

Perhaps the better parallel is with the injunction, which is easier to get than specific performance (and, at least in practice, available as of course in many situations, such as breach of restrictive covenants or noncompete clauses).

best wishes to all


-------- Original Message --------
Subject: [RDG] RDG U2
Date: Thu, 16 Nov 2006 10:37:33 +0000
From: Andrew Burrows
Reply-To: Andrew Burrows
Organization: St Hugh's College

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 Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England

Tel: 01392-263189 / +44-392-263189 (outside UK)
Cellphone: 07870-130528 / +44-7870-130528 (outside UK)
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Exeter Law School homepage: http://www.law.ex.ac.uk
My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml

LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906).

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