England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HIS HONOUR JUDGE NELIGAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th May 2012

Lord Justice Davis:

1. On 20 July 2010 Mr Egonu and a company with which he is closely connected commenced proceedings in the Plymouth County Court against a firm of solicitors called Nash and Co. Those solicitors had been acting for Mr Egonu's former wife in matrimonial proceedings that had been occurring between the couple, the marriage sadly having broken down.
2. On 26 May 2011 District Judge Troman struck out the claim of the claimants which had been prepared by Mr Egonu; there was an appeal and, on 18 August 2011, HHJ Neligan dismissed the appeal. Now Mr Egonu seeks to take the matter to the Court of Appeal. This, of course, would be what is called a second stage appeal, and Mr Egonu appreciates that some important point of principle or other compelling reason ordinarily needs to be shown if a further right of appeal is to be granted.
3. Mr Egonu has addressed me in person. HHJ Neligan in the court below had paid tribute not only to the courtesy but also to the eloquence with which Mr Egonu had advanced his arguments and, if I may say so, I would repeat those comments. He has addressed me fluently, courteously and indeed concisely, which the court always appreciates.
4. The Particulars of Claim, it has to be said, are very tersely pleaded indeed, even making allowance for the fact that Mr Egonu, though plainly a highly educated man, is not himself a lawyer. But there are two aspects of complaint, in effect. First, on the face of the Particulars of Claim he claims against the solicitors for what is described as "conversion of chattels" without the authority or agreement on the part of the claimants, who are said to be the owners of the chattels; and, secondly, it is said there has been racial discrimination against the first claimant.
5. In order to gather a little more about that than appears from the Particulars of Claim, one has to look at the underlying circumstances which, to a considerable extent, are set out in the judgment of HHJ Neligan sought to be appealed. Dealing first with the complaint about racial discrimination, the position seems to be governed by the Race Relations Act 1976, because the events in question as alleged occurred before the Equality Act 2010 came into force. Mr Egonu's complaint is by reference to what is contained in an affidavit made by his former wife dated 17 December 2009 in respect of certain ex parte relief she was seeking in the family court in Plymouth. Amongst other things, there is asserted in this affidavit, as signed by his former wife, that Mr Egonu "is Nigerian"; that in part was used in order to justify a claim for an injunction to prevent removal of the children from the jurisdiction and things like that. Mr Egonu says that is simply a false statement; he is a British citizen, born in the United Kingdom. He told me that his father was indeed Nigerian, but his mother, as he told me, is Welsh, and he himself only lived in Nigeria for a period of three years when he was a small boy. He says that what is stated in this affidavit is a misrepresentation designed to achieve the grant of an injunction which ought not to have been sought.
6. He further states that his former wife has subsequently said in court that she did not want that statement to be made, but her solicitors, that is to say Nash and Co, advised that it should be. Thus it is, and I summarise, he says there has been a breach of the Race Relations Act with regard to him.
7. I have to say, and in agreement with HHJ Neligan, I think there are insuperable obstacles to that particular claim. One can understand Mr Egonu's resentment at what he says is a misleading statement in the affidavit. But the remedy is there in the sense that he can always seek to rebut that, as he did in court proceedings. It is regrettably a common place that allegations are made in many types of litigation which the other side says are plain false or not the whole truth, and the court is well used to dealing with that; but I find it impossible to see that those circumstances bring this matter within the Race Relations Act. Mr Egonu has sought to take me through the provisions of the Act, but the wide general statements are set out in Part 1, and Sections 1 and 2 in particular, do not apply here, nor does this context bring the position within Part 2. The reality is, as I see it, that the Race Relations Act simply does not embrace a situation such as the present kind. Most particularly, although not exhaustively, the Act is dealing with situations of employment and analogous situations, or situations of supplies or sales, but is nothing to do with this particular kind of matter. I think HHJ Neligan was quite right so to hold.
8. There is, however, a further twist in this context, because the statement in question as contained in the affidavit of 17 December 2009 and, as I have said, the proceedings were only issued on 20 July 2010 and beyond the six-month period prescribed by the Act.
9. Mr Egonu has told me that he only became aware of this affidavit in March 2010. I am not quite clear why that should be so, given that one would expect him to have been served very shortly after the 17 December with the documents; but that is what he tells me, and he also tells me that in fact he was abroad for a considerable period of time around then. But, even if one were to accept that, again, as I see it, the strict wording of the relevant provisions in the Act preclude this claim being brought six months after the relevant event, and that event is the making of the statement in the affidavit as filed with the court. Mr Egonu complains that he could not have known that at the time, and he seeks to draw an analogy with personal injuries or latent damage or things like that; however, those provisions are not written in to the Race Relations Act.
10. Accordingly, for either or both of those grounds, the claim, as based under the Race Relations Act, could not succeed, and in my view HHJ Neligan was right so to hold, and there is no realistic argument to the contrary.
11. As to the claim in what Mr Egonu calls conversion -- although nowadays it is more conventionally styled as wrongful interference with goods -- the position again has its origin in the matrimonial proceedings. It appears to be the case that there was an amount of property belonging to Mr Egonu and the company left at the former matrimonial home. An order was made on 25 March whereby Mr Egonu gave an undertaking, amongst other things, not to return to or enter the family home except to collect his belongings, such date to be agreed by appointment, and so on.
12. There was no accord on this; it appears that at one stage Mrs Egonu was proposing to put the various items belonging to Mr Egonu and the company in the garage, which greatly concerned him because he feared that damp and damage would accrue, and this was debated. For her part, Mrs Egonu was reluctant to have him, as it were, combing through their house looking for items which may or not, as she saw it, belong to him. There was then correspondence with Mr Egonu from the solicitors acting for Mrs Egonu. By a letter of 21 April 2010 those solicitors, amongst other things, noted that there could have been no agreement about picking up the remaining personal items from the home, and said this:

"In order to assist both parties we have agreed that our Client can bring the remaining items to our offices at which he has done. This enables you to pick up the items at your convenience either tomorrow…or Friday…

We require you to make an appointment."

13. The letter ends:

"If you are not able to pick up the items this week please let us know before Friday at the time that is convenient next week otherwise we will ask our Client to take the items back to the family home."

14. Mr Egonu then sent a letter, dated 22 April, to those solicitors. Amongst other things, he asked that the items be restored and said:

"… in the event any possessions once retrieved by me are either missing and/or damaged, I will hold your firm liable for any such damage and/or loss …

I attach a letter to the courts and would take this opportunity to state that if you fail to comply with the request to return all belongings to 17 Sea View Terrace, I will commence legal action against your firm…"

There is other communication as well.

15. Since Mr Egonu did not collect the items from the solicitors' offices, they thereafter returned the items to the matrimonial home and, as I understand it, in due course certain items were collected from there.
16. It is in such circumstances that Mr Egonu claims there has been a wrongful interference with his goods on the part of the solicitors. Mr Egonu stresses in particular that it is no essential element of the tort that there was wrongful intent or lack of good faith, or anything of that kind, on behalf of a defendant; a proposition which I accept.
17. Nevertheless, what is absolutely fundamental in a claim of this kind is that there has to be pleaded and proved, using the old fashioned language, an exercise of dominion on the part of the defendant before the tort is satisfied; and, putting it another way, some kind of dealing with the goods in question in a manner which is inconsistent with the claimant's ownership: see Barclays Mercantile Business Finance Ltd v Sibec Developments Ltd [1992] 1 WLR 1253. One only has to look at the case as particularised (which frankly is not very fully particularised) and the underlying reality to see that that cannot possibly be established here. The solicitors were not dealing with these goods in a manner inconsistent with Mr Egonu's ownership, nor were they withholding them from him. On the contrary, on the instructions of their client Mrs Egonu, the goods had been placed at their offices to enable Mr Egonu to look through them and collect them. In other words, they were acknowledging his ownership, and this was simply intended to be a convenient place for him to pick them up. That falls a long way short of even being capable of coming within the ambit of the tort of wrongful interference with goods. In my view, the District Judge and HHJ Neligan were entirely right so to conclude and, again, there is no arguable case to the contrary.
18. I only add that while it would not be an appropriate case to grant permission to appeal at a second stage appeal such as this, I have to say my own view is that this would not even have satisfied the first appeal test. In the result, and notwithstanding all that Mr Egonu has said, I must refuse this application.

Order: Application refused