Myck Djurberg v Thames Properties (Hampton) Limited & Ors

A lien is possessory and lasts only while the lienholder retains, or can retain, the goods. Removal of the goods destroys it. A maritime lien is distinct from a contractual lien, and unpaid mooring charges are not shown to fall within the recognised maritime liens. The statutory power under the Harbour Docks and Piers Clauses Act 1847 is unavailable unless the Act has been incorporated and does not apply to ordinary mooring charges. A contractual lien may nevertheless give title to sue in conversion. Conversion is generally strict, so lack of knowledge and reliance on the owner’s instructions do not necessarily provide a defence. A claim should not be summarily struck out without observing procedural safeguards, especially where the claimant is unrepresented.

The appellant claimed that unpaid mooring charges gave him a maritime or contractual lien over a houseboat and that the respondents had wrongfully interfered with it by arranging its removal. He sought an interim injunction requiring the boat’s return.

Mellor J refused the injunction and struck out the entire action for failure to disclose a cause of action: [2023] EWHC 1625 (Ch). Permission to appeal was limited to whether the pleaded facts disclosed an arguable claim for conversion or trespass to goods. The central issues were whether the alleged lien could confer sufficient possessory title, whether the respondents could rely on their lack of knowledge or the owners’ instructions, and whether the strike-out procedure was lawfully followed.

Appeal allowed. The High Court had wrongly struck out the claim at an early stage. The appeal was determined on the permitted ground concerning arguable interference with goods.

1. Nature of the alleged lien. A common-law lien is a right to retain goods until the secured claim is satisfied. It depends on possession and is lost when the goods are removed, as explained in Great Eastern Railway Co v Lord’s Trustee [1908] 2 KB 54. A maritime lien is a distinct category. The recognised categories do not include unpaid mooring charges. Section 45 of the Harbour Docks and Piers Clauses Act 1847 concerns rates payable in respect of goods and, in any event, the Act applies only where incorporated by a later Act.
2. Contractual lien and conversion. A lien may be created by contract. If the appellant could establish the relevant licence, unpaid fees, and proper assertion of the lien, his asserted actual possession could give him title to sue in conversion. That principle was illustrated by Legg v Evans (1840) 6 M & W 36 and applied in the reasoning of Court Enforcement Services Ltd v Marston Legal Services Ltd [2020] EWCA Civ 588, [2021] QB 129.
3. Third-party conduct. Conversion is generally actionable regardless of the defendant’s knowledge: Marfani and Co Ltd v Midland Bank Ltd [1968] 1 WLR 956. If the appellant had a right against the owner to retain the boat, a third party acting on the owner’s instructions could not acquire a better right merely by moving it.
4. Procedure and further matters. Strike-out under CPR rule 3.4(2)(a) depends on the statement of case, not its evidential merits. The informal request to strike out was not made by proper application notice and the prescribed notice safeguards were not observed. The court also had to take account of the appellant’s status as a litigant in person. The claim required amendment to plead the contract, the unpaid fees, and the claimed rights over the land. The possible vesting of any monetary claim or lien in the appellant’s trustee in bankruptcy was not explored. A properly constituted summary judgment application remained possible.

• Court of Appeal (Civil Division): allowed the appeal on the sole permitted ground, holding that an arguable claim for interference with goods had been disclosed.
• High Court of Justice, Chancery Division: Mellor J refused an interim injunction and struck out the whole action for failure to disclose a cause of action: [2023] EWHC 1625 (Ch).