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Editorial Committee of the Cambridge Law Journal

Review
Reviewed Work(s): The Tort of Conversion by Sarah Green and John Randall
Review by: John Murphy
Source: The Cambridge Law Journal, Vol. 69, No. 2 (July 2010), pp. 415-417
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
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C.L.J. Book Reviews 415

Bogdanor's background as a p
brings into the interplay of po
context within which the con
conclusions are bold and althou
the context of the HRA and
this is a compelling book on
parliamentary sovereignty is "
constitution" (p. 23), and has
powers as the new pillar of the
Reform Act 2005, and a rev
the HRA 1998. Bogdanor arg
Parliament has been limited,
strengthened" (p. 284). The r
constitutional changes has mea
propriately called an elective d
needs of Britain in the 21st cen

Yvonne Tew

The Tort of Conversion. By Sarah Green and John Randall. [Oxford:


Hart Publishing. 2009. xxv and 239 pp. Hardback £55.00. ISBN
9781841138336.]

Monographs about tort law seem never to have been in short supply.
Occasionally, authors produce theoretical books that deal with the subject as a
whole. Yet much more common are those that examine some particular aspect
or area of tort law, such as negligence, nuisance, product liability, defamation,
or the economic torts. Until recently, one such book has been conspicuous by
its absence; but Sarah Green and John Randall have now plugged that gap by
rising to arguably the most unenviable challenge in tort law scholarship and
writing The Tort of Conversion.
Their opening claim, that such a book is "long overdue" (p. 1) would
scarcely be doubted by academics or practitioners. But can just one book meet
the needs of both? After all, most practitioners are likely to want a reliable,
comprehensive, expository guide to the law (with occasional critique of con-
troversial or errant judgments) while academics interested in conversion are
more likely to be drawn to the fascinating peculiarities of the this tort's evol-
ution, or its strict liability basis and quasi-proprietary nature (which together
pose interesting questions for much modern tort theory). Happily, Green and
Randall's splendid book caters splendidly for both (even if a widespread under-
graduate readership might be a little too much to hope for given the relative
infrequency with which conversion is taught these days).
For the practitioner there is detailed analysis of all the leading cases (and
many others besides), methodical navigation through the remedies maze
created by the Torts (Interference with Goods Act) 1977, and a clear descrip-
tion of the connections and distinctions between this tort and both the econ-
omic torts (in chapter 6) and the other modern chattel torts (in chapter 3).
There is also a scrupulous exposition of who may possess title to sue together
with an account of the relativity of title in English law (in chapter 4).
Accordingly, no practitioner using this book should now be confused as to

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416 The Cambridge Law Journal [20 1 0]

which tort may be invoked and where, or as to what remedie


in any given circumstances. Furthermore, the detailed inde
cross-referencing, both within and between chapters, should
anyone using this book for practical purposes will not over
significance.
For the academic, things are even better. In part, this is because chapter 2 -
in an object lesson in legal history - supplies a thoroughgoing analysis of the
tort's genesis and evolution. But by far the most theoretically engaging chapter
is chapter 5 which deals with the subject matter of conversion. The burden of
the chapter is to unpick and answer the difficult question concerning the kinds
of property to which this tort can applied and which divided the House of
Lords 3 to 2 in OBG v. Allan [2007] UKHL 21 . The majority in that case based
their answer on the fact that conversion emerged from the ancient action for
trover - which was premised on a notional losing and finding of personal
property. As such, they thought, it would be inapt to extend conversion to
intangible forms of property which, of course, cannot be lost and found in
any meaningful sense. By contrast, Lord Nicholls and Baroness Hale (in the
minority) preferred a more progressive approach, according to which intan-
gible property would be protected by conversion on the basis that intangible
property is no less worthy of tort law's protection than tangible forms of
wealth.
In addressing the self-same question, Green and Randall take as their
starting point neither the practical dictates of the modern commercial world
nor the (highly questionable) appropriateness of keeping the tort tethered to an
outlived legal fiction which insists on the capacity for a thing to be lost and
found. Rather, they begin by from the definition of conversion proffered in
chapter 3, and which they carefully teased out of the leading cases: that con-
version is a tort which "protects the current superior possessory interest in
personal property" (p. 46). From this premise, they then simply address the two
material questions posed by this definition: namely, whether various kinds of
intangible and quasi-intangible assets are capable of being (i) aptly described as
property and (ii) possessed in a legally meaningful way. On this approach, they
are able to reach the same conclusion as the minority in OBG, but without
flying so overtly in the face of existing authority. By showing that what the
ancient cases materially reveal is the capacity for possessory rights to exist in a
thing, rather than the ability of that thing to be lost and found, they do no
violence to the existing body of case law.
Furthermore, their eminently sensible approach has the distinct advantage
of enabling them to tackle a range of related questions that have dogged
academics and courts elsewhere in the Common law world for years, such as
whether money, digitised products (such as software) and body parts can
properly be made the object on action for conversion. On each of these issues -
as well as the one concerning intangible property - the authors' answers are
both elegant and lawyerly. The elegance derives from their concise systematic
approach, while the lawyerliness inheres in the careful supporting of arguments
by reference to a range of persuasive judgments in other common law
jurisdictions.
Of course, there will be those conservatively minded "purists" to whom this
chapter will appear heretical. They will no doubt advert to what was actually
decided in relation to intangible property in OBG v. Allen and (in line with the
majority) possibly also argue that using conversion to protect intangible
property is like using chopsticks to eat soup. They may even say that some of

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C.L.J. Book Reviews 417

the questions - which have ne


answered by the authors on a
Randall were surely wise not
unresolved matters. Despite it
important modern-day tort as
Airways litigation amply demo
for its provision of a carefully
table questions for the future.
Like the authors of all the b
not have had the final word o
good thing. For too long and
looked. But now there is a book
slender volume, The Tort of Co
does mini-theses on the true gi
legal meaning of possession. Th
the nature of property - the ar
to primary and secondary leg
and comparative. There are, in
fairly make of this book witho
an objective review of this boo
ferent book that one would have written oneself. That said, there was one
striking oddity that should perhaps be noted. It was that, although the book
contained specific discussion of the overwhelmingly irrelevant partial defence
of contributory negligence to which there is only one very minor exception
(p. 206), there was no equivalent detailed guide to the complex rules on limi-
tation of actions in cases of conversion set out in sections 3, 4 and (in the case of
concealed fraud) 32 of the Limitation Act 1980. But this was just one blip in an
otherwise comprehensive and eminently readable account of the law of con-
version.
It may be a very long time before we can disagree conclusively with Sir John
Salmond's famous observation that "conversion is a region still darkened with
the mists of legal formalism, through which no man will find his way" or Baron
Bram well's quip that "no one can undertake to define what a conversion is".
But if a way out of this juridical quagmire is ever to be forged, Green and
Randall, in this superb volume, must be acknowledged to have taken the
critical first steps.

John Murphy

Between complexity of Law and Lack of Order. Philosophy of Law in the


Era of Globalization. Edited by Bartosz Wojciechowski, Marek Zirk-
Sadowski and Mariusz Golecki. [Torun: Adam Marszalek. 2009. 430 pp.
Hardback 48 zl. ISBN 9788376114095.]

Multicentrism as an Emerging Paradigm in Legal Theory. Edited by


Bartosz Wojciechowski, Marek Zirk-Sadowski and Mariusz Golecki.
[Frankfurt am Main: Peter Lang. 2009. 309 pp. Hardback £46.90. ISBN
9783631595633.]

Given the comprehensive body of literature on globalisation which has


appeared over the last two decades, together with the frequent claim that

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