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IN THE SUPREME COURT OF JUDICATURE LTA 96/5763/G

Royal Courts of Justice

Strand

London WC2

Friday, 28th February 1997

B e f o r e :

LORD JUSTICE BROOKE

and

LORD JUSTICE WALLER

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JOHN AIREY Plaintiff/Applicant

-v-

COMPUTER SERVICES Defendants/Respondents

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Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited

180 Fleet Street London EC4A 2HD

Tel: 0171 831 3183 Fax: 0171 831 8838

(Official Shorthand Writers to the Court)

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The Applicant Plaintiff Mr. J. Airey appeared in person.

The Respondent Defendants did not appear and were not represented.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Friday, 28th February 1997

LORD JUSTICE BROOKE: I will ask Lord Justice Waller to give the first judgment.

LORD JUSTICE WALLER: This is an application for leave to appeal a decision of His Honour Judge Hammerton.

Essentially, the background is that Mr. Airey took his computer to be repaired on 20th February 1995. He says that the defendants, who are Computer Services (a Mr. Kianzad), agreed to fit a new hard disk for £230. He says that when he collected it and took it home he found that the disk was faulty, and he therefore took the computer back on 20th March. The defendants then agreed to install a further hard disk, this time of a slightly greater capacity, 170 Mb, but they said they would need a further £25 plus VAT to do so. It also appears that, before collection of the computer, certain cheques of Mr. Airey were not met.

When Mr. Airey called to collect the computer he was told that, because of the absence of the original set-up disks or some other reason, no more than a 60 Mb capacity could be obtained from the hard disk. Various efforts were made, it would seem, to try to resolve the problem, but no solution could be found. What seems to have happened at that stage is that Mr. Airey said that at least he would like to take the computer away, formatted up to 60 Mb, and he would try to fix the computer himself or obtain further set-up disks.

What the defendants said was that at first Mr. Airey was happy - and I think Mr. Airey does not really now dispute this - to pay that extra £29 (which is the £25 plus VAT) and any outstanding cheques, but at this stage the defendants declined to take a cheque from him, his Switch card did not work, and he went away to get some cash. What the defendants said was that, while he was away getting the cash, Mr. Airey changed his mind and said that he wanted the computer back and he did not want to pay the £29. An impasse was, therefore, reached.

It is unnecessary to go into the details thereafter, save to say that Mr. Airey then commenced proceedings for the return of his computer and his money. There was a decision of the Arbitrator, which effectively decided that the Computer Services version of events was the correct one and that Mr. Airey owed the £29. The matter then came before the Circuit Judge, Judge Hammerton. He reviewed the matter and said that it was essentially a question of fact for the Arbitrator, and so he dismissed Mr. Airey's claim.

But the unfortunate thing is that, albeit there had been a finding that Mr. Airey owed the £29, no one resolved what was to happen in relation to the computer. This was Mr. Airey's computer and, essentially, he would have an entitlement to have it returned to him, subject to any possible lien that the defendants could exercise in relation to it. It seems that at one stage the defendants were suggesting (and it may be that they are still suggesting) that they are entitled to exercise a lien not just in relation to the £29 odd, but in relation to storage for the computer since they have held on to it. Unless there was an arrangement of which I am at present unaware, the law in relation to lien is that you are entitled to exercise a lien in respect of your charges, but you do not have a right to charge storage thereafter. The relevant paragraph is paragraph 544 of Halsbury's Laws of England, Volume 28, which states:

"The holder of property the subject of a lien is not normally permitted to make any claim for the use of the place in which the property is detained, or otherwise for keeping it, and it makes no difference that, by advertisement or otherwise, he notifies the owner that such a claim will be made unless the goods are removed and such expenses paid on or before a stated time."

So normally the person exercising a lien is exercising that lien in relation to the charges that are due to him and he has no other rights.

The other unfortunate aspect is that Mr. Airey, if only he had been aware (and I make no criticism of him at all in this regard) of the Rules of Court, could actually have got this aspect sorted out many months ago, and certainly at the time when he commenced proceedings in the County Court. The Court has always recognised how inconvenient it can be if someone exercises a lien but the party against whom the lien has been exercised actually disputes the entitlement to the sum in respect of which a lien is claimed. So there is a Rule of Court, which is Order 30, rule 6 of the County Court Rules, which enables a party (in this case, Mr. Airey) to apply to pay into court the sum over which a lien has been claimed pending resolution of whether there is any entitlement to the money claimed. So Mr. Airey would have been entitled, many months ago now, to pay the £29 pound into court and get his computer back.

The question is what now should be done. As I see it at present, if Mr. Airey is prepared to pay the £29, there is absolutely no reason why he should not have his computer back, the defendants having no right to storage charges. One way that that might be done is to say that the parties should take this back to the County Court and try to do this all under the County Court Rules. That would put the parties to further trouble and expense and there might even be raised at that stage the question whether this had not already been resolved in some way by the decision of the Arbitrator and the Judge, albeit that they have not dealt with it directly.

So the alternative to ensure that matters are properly sorted out, in case this is an issue which ought still to come to the Court of Appeal, would be for this application for leave to be adjourned (and I would adjourn it for a sensible period, for the reasons I am going to give in a moment) to the beginning of next term and for notice to be given to the other side. The matter can then come back here in order to ensure that things are resolved without any technical points being taken one way or another.

The reason why it seems to me that a reasonable time should be given is because, clearly, the sum involved here is £29. The sooner the matter can be resolved without further trouble or cost the better. This matter does not need to trouble this Court at all if the defendants can be persuaded that in fact they have no right to storage charges; they simply have the right to receive the £29 or £30; and, once having received that, they have an obligation to hand back the computer. Thus, of course, the first thing to do is for Mr. Airey, perhaps with the assistance of the paragraph from Halsbury's, to go along, or perhaps do it by post initially, and explain that that appears to him to be the position and, hopefully, that will resolve matters. But obviously one stresses that there is no way that he should get into any scrap with the defendants at this stage, because if the defendants were to say that they want to argue either that storage charges are something that they are entitled to exercise a lien over or if they want to say that there is some other basis on which they will not hand over the computer, then the matter should come back before this Court at the beginning of next term in order to see exactly where the issues lie. But one does express the hope that the matter can now be resolved amicably.

The order I propose is that this matter be adjourned, as I say.

LORD JUSTICE BROOKE: I agree.

Order: application adjourned.