Shirlun & Anor v London Borough of Lambeth

In a conversion claim arising from the unlawful removal and destruction of vehicles, damages must reflect the vehicles’ real value, even where valuation evidence is limited. Nominal damages are exceptional and should not replace a realistic assessment where the property had substantial value to the claimant. The appellate court should be slow to second-guess a trial judge’s broad valuation after hearing the evidence, provided the judge has made a genuine attempt to assess the loss. Expenditure reasonably incurred to recover converted property may be claimed as mitigation of the conversion loss. It is not transformed into consequential loss merely because it was incurred after the taking, and the doctrine of ex turpi causa did not bar that recovery. Joint activity between public authorities does not by itself make them joint tortfeasors.

Lambeth brought proceedings on a dishonoured cheque. The claimant counterclaimed in conversion, alleging that Lambeth and the police had removed and destroyed vehicles used in his car-repair business. The trial judge found Lambeth liable for converting 18 vehicles, awarded £100 per vehicle, and rejected claims concerning nine vehicles removed by the police and wider consequential losses. He also made no order as to costs up to Lambeth’s payment in, followed by an order for Lambeth’s costs.

The claimant appealed on three grounds: liability for the nine police-removed vehicles, recovery of sums paid to recover other vehicles, and the valuation of the 18 vehicles. Lambeth cross-appealed against the award as excessive. The central issues were whether the police and Lambeth were joint tortfeasors, whether recovery payments were recoverable in conversion, and whether the valuation was permissible.

1. Disposition. The appeal was allowed on ground 2 only. The appeal on liability for vehicles 1–9, the challenge to valuation, and the appeal concerning costs were dismissed. Lambeth’s cross-appeal was also dismissed.
2. Police-removed vehicles. Evidence showed cooperation between the police and Lambeth in a joint operation, but the nine vehicles were removed, stored and dealt with solely by the police. Cooperation in addressing abandoned or unroadworthy vehicles did not make Lambeth a joint tortfeasor. There was insufficient evidence that Lambeth participated in the conversions, for example by labelling the vehicles before the police removed them.
3. Recovery payments. Sums paid to recover converted vehicles were properly recoverable as part of the loss caused by the conversion. They were costs of remedying the unlawful taking, not a separate claim for consequential loss. The doctrine of ex turpi causa, applied by the judge to the claimant’s much larger lost-opportunity claim by reference to Cross v Kirby, did not apply to these payments. The fact that the claimant had not separately itemised them did not defeat the claim, since they fell within the conversion claim.
4. Valuation. Nominal damages were inappropriate. They are exceptional, whereas the evidence established that the vehicles had real value, including value arising from the claimant’s particular expertise. The trial judge was entitled to make a broad, rough-and-ready assessment on limited evidence and to exclude value attributable to work not yet performed. The appellate court should not second-guess that assessment after a multi-day trial, and £100 per vehicle was upheld.
5. Convention point and costs. Just compensation under Article 1 of the First Protocol to the European Convention on Human Rights and the Human Rights Act added nothing where the claimant was fully compensated under the English tort of conversion. Permission to amend the notice of appeal was refused. The trial costs order was within the judge’s discretion. On the appeal, costs followed the claimant’s failure to beat Lambeth’s Part 36 offer, subject to the agreed set-off of the claimant’s litigant-in-person costs up to 6 April 2005.

• Court of Appeal (Civil Division). Appeal from the Central London Civil Justice Centre before HHJ Collins CBE. The court allowed the appeal on ground 2 only, dismissed the remaining grounds and Lambeth’s cross-appeal, refused permission to amend the notice of appeal, and made no further costs order.