(1) ROBOT ARENAS LIMITED (2) MR EDWARD HOPPITT v (1) SIMON WATERF1ELD (2) NEWTON NOTTINGHAM LLP [2010] EWHC 115 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
[2010] EWHC 115 (QB)Case No Case No: 7IP00937 List No: TLQ/10/0016Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
(1) ROBOT ARENAS LIMITED (2) MR EDWARD HOPPITTClaimants(1) SIMON WATERF1ELD (2) NEWTON NOTTINGHAM LLPDefendants
Before
Before MR C. EDELMAN QC (Sitting as a Deputy Judge of the Queen's Bench Division)Mr Evan Ashfield (instructed by Barker Gotelee) for the ClaimantsMr Stephen Beresford (instructed by Freeth Cartwright LLP) for the DefendantsHearing dates: 11th, 12th, 13th, 14th January 2010Date 8 February 2010
[1]Mr C Edelman QC : Introduction This action concerns a claim for damages by the Claimants arising out of the destruction of goods by the First and/or Second Defendants. The Second Defendant counterclaims for mesne profits and/or damages for trespass.[2]The First Claimant, Robot Arenas Limited ("RAL") asserts that it was the owner of certain equipment comprising a tailor-made arena which had been used for a television series known as "Robot Wars". The first series of Robot Wars was in February-March 1998 on BBC and that first series was followed by further series on BBC and then on ITV. There were no further series after the end of 2003 and in early 2004 the owners of the arena ("the Robot Wars Set") Mentorn Limited, a television production company, sold it for the sum of £11,000, inclusive of VAT. The contract for the purchase of the Robot Wars Set was signed by the Second Claimant ("Mr Hoppitt") but it is asserted by the Claimants that either the contract was entered into by Mr Hoppitt on behalf of RAL or that Mr Hoppitt held the Robot Wars Set on trust for RAL.[3]RAL is described in the Particulars of Claim in this action as being the asset holding associate company of Phantom Events Limited ("Phantom") and following the purchase of the Robot Wars Set an attempt was made to hold a world championship Robot Wars event in August 2004 at the location where some of the previous televised Robot Wars events had taken place, namely Hangar 2 at the former RAF base at Newton in Nottinghamshire ("RAF Newton"). For that purpose, a "Licence Agreement" dated 28 July 2004 was signed on behalf of the Secretary of State for Defence and Phantom Events Limited. The agreement covered the use of Hangar 2 between 20-30 August 2004. It also covered the use of Building 29 at RAF Newton between 7 June and 31 August 2004. Building 29 was required for the storage of the Robot Wars Set.[4]The Robot Wars Set was moved into Building 29 but the proposed World Championship Event did not, ultimately, take place with the result that the Robot Wars Set was not assembled or fully assembled in Hangar 2 and all or part of the Set remained in storage in Building 29. There is an issue between the parties as to whether the bulk of the Robot Wars Set was in fact removed from RAF Newton by RAL or Phantom at the end of August 2004 but it is common ground between the parties that equipment associated with the Set remained in Building 29 after the expiry of the "Licence Agreement".[5]The Second Defendant ("NNL") became the owner of RAF Newton on 21 January 2005. The First Defendant ("Mr Waterfield") is a director of and controls NNL. The RAF Newton site purchased by NNL contained a very large number of buildings of varying sizes, a few of which were occupied by tenants. Building 29, however, was sold to NNL with vacant possession.[6]Very shortly after completion of the purchase of RAF Newton, Mr Waterfield drew to the attention of Bruton Knowles, who had acted as agents for "Defence Estates" on behalf of the Secretary of State for Defence in relation to the use and occupation of the buildings at RAF Newton, the fact that there was equipment in Building 29. By 4 March 2005, that equipment had not been removed and on that day, pursuant to instructions given by Mr Waterfield on behalf of NNL, the equipment or virtually all of the equipment was removed from Building 29 and scrapped (there is an issue as to whether or not a small amount of equipment remained in Building 29 after 4 March 2005 but it is in any event common ground that ultimately everything that was in Building 29 was removed and scrapped). The Claimants' claim is for damages for the wrongful destruction of the Robot Wars Set and the quantum of the claim is pleaded as being the replacement value of the Set, which is said to have been £344,650, on the basis that the Set was unique and there was no market from which an alternative set could be acquired. NNL's Counterclaim for use and occupation, as ultimately put at the trial, was for 42 days of use and occupation from 21 January to 4 March 2005. In the event that the Defendants should be held to be liable, the Defendants have also pleaded that the Claimants' loss or damage was caused or contributed to by the negligence of the Claimants and that the Counterclaim ought to be set off against any damages awarded to the Claimants.[7]At the trial of this action, the Claimants were represented by Mr Evan Ashfield and the Defendants were represented by Mr Stephen Beresford. The Law[8]This is a case in which, before analysing the facts and evidence, it is necessary to set the legal landscape.[9]On behalf of the Claimants, Mr Ashfield put his case on the basis that NNL had become the involuntary bailee of the equipment in Building 29 and as involuntary bailees were not, in the circumstances, entitled to destroy the equipment with the result that NNL and Mr Waterfield, who gave instructions for the removal and destruction of the equipment, were liable for conversion. On behalf of the Defendants, Mr Beresford asserted that the equipment had been abandoned by the Claimants but that even if it had not been and NNL was accordingly in possession of the Claimants' goods, it was entitled in the circumstances to remove the equipment from Building 29 and destroy it. Such being the cases advanced by the parties, it is necessary to consider when, as a matter of law, goods can be treated as having been abandoned and the circumstances in which someone who is in possession of chattels which in fact belong to a third party is entitled to destroy them.[10]In addition, the Defendants' pleaded defence of contributory negligence raises the question as to the extent to which, if at all, contributory negligence can be relevant as a defence in circumstances where the Claimants' primary case is that the Defendants are liable in conversion.[11]Finally, there are issues as to the approach I should take to the assessment of quantum of the Claimants' claim, in the event that I should hold the Defendants liable.[12]Before I embark on consideration of the issues of law I ought to express my indebtedness to the analysis of the law on abandonment and the rights and duties of unwitting and involuntary bailees contained in the 3 edition of Palmer on Bailment. In large measure, the analysis and conclusions contained in Palmer on Bailment were adopted by Counsel in the submissions before me.

(a) Abandonment

[13]At paragraph 26-0121 of Palmer on Bailment, the meaning of "abandonment" is analysed in the following terms:
"The notion of abandonment may apply in two different senses to objects found by a non-owner: one colloquial and one juristic. In the first sense, a loser may abandon the search for a lost object, whether by reason of other claims on his time, or a belief that the place where the object has been lost is one where others are likely to find it and return it. The loser in that position does not resign any proprietary or possessory claims to the chattel, and when the chattel is found the ordinary rules apply: the law recognises the paramount claim of the owner and, subject to that, normally awards the goods to the person first in possession. The second and more important is that of a divesting abandonment, where the fmder comes upon a chattel that the owner has previously left or cast away with the intention of divesting himself not only of possession but also of ownership."
The Defendants' case on abandonment is and must necessarily be that there has been a divesting abandonment.[14]After a full analysis of the relevant authorities, the conclusion in paragraph 26-030 of Palmer on Bailment as to when chattels will be treated as having been abandoned for the purposes of conversion is expressed in the following terms:
"Despite some surviving doubt, the better opinion appears to be that divesting abandonment is a defence to conversion provided that a party entitled to do so has renounced possession and the immediate right to possession of the chattels in question. Clear evidence both of intention to abandon and of some physical act of relinquishment will be required and, given the element of strict liability in conversion as contrasted with the need for mens rea in crime, it would seem that a mere reasonable belief that abandonment had taken place would not suffice as a defence. ..."
Neither Mr Ashfield nor Mr Beresford sought to challenge this conclusion which is supported by the preceding text (and by the earlier paragraphs 13-044 and 13-045). Accordingly, the test that I will apply for the purposes of ascertaining whether there has been abandonment in this case is whether there has been both an intention to abandon and some physical act of relinquishment.

(b) Destruction of goods belonging to another

[15]Ordinarily, if A is in possession of goods belonging to B and A deliberately destroys those goods without B's permission, A will be liable to B for conversion. The position of an involuntary bailee is considered at paragraphs 13-25-13-059 of Palmer on Bailment. Those paragraphs include reference to the statutory procedures for the disposal of uncollected goods under Sections 12 and 13 of and Schedule 1 to the Torts (Interference with Goods) Act 1977 and deal with the possibility of an involuntary bailee being entitled to destroy goods in the event of an emergency or commercial necessity. Ordinarily though, an involuntary bailee is not entitled to destroy goods just because they have become a nuisance to the bailee and the learned authors of Palmer on Bailment described the difficulties of the involuntary bailee's position as remaining "a blot on the law" (paragraph 13-026) and as giving rise to a situation "in which the common law is incapable of supplying a satisfactory solution" (paragraph 13-050).[16]However, Mr Beresford did not seek to justify the Defendants' destruction of the equipment by reference to the general position of an involuntary bailee but rather he relied on what was said by Staughton J. in AVX Limited v. EGM Solders Limited, The Times, 7 July 1982. That authority is dealt with in Palmer on Bailment under the general heading of "Duties of the Unwitting Possessor" at paragraphs 6-004-6-022. The position in that case is summarised in paragraph 6-020 of Palmer on Bailment in the following terms:
"... The position of the possessor who erroneously believes that he is the owner of the chattel was examined by Staughton J. in AVX Limited v. EGM Solders Limited. There, the plaintiffs had rejected a consignment of solder spheres which had been supplied to them by the defendants. It was agreed that the spheres should be returned to the defendants and the plaintiffs engaged, for this purpose, carriers named Sayer. The plaintiffs delivered to Sayer not only a box containing the rejected spheres but 21 other boxes containing various capacitors. These capacitors were the property of AVX and were to be transported by Sayer to AVX's distribution centre at Aldershot. They were, of course, sharply distinguishable in appearance from the rejected spheres, which were individually "miniscule"
. Regrettably, Sayer made out a delivery order which, in addition to other inaccuracies, stated that all of the packages were to be delivered to the defendants, EGM. Their driver carried out this instruction and the goods were received in due course at EGM's premises. EGM's staff assuming that all 22 boxes contained rejected and defective goods, instructed two of their employees to scrap the entire consignment. They did this by emptying them into rubbish skips. In the case of the capacitors, this involved unreeling and severing the paper strips upon which the goods were packaged. The result was to render AVX's goods practically valueless for commercial purposes. Whereas they might with great effort, have been separated and retrieved from the skips, the task would have remained of regrouping them into their different categories, and this was "vastly more difficult". The case could therefore be regarded, for practical purposes, as one where the unwitting possessor had deliberately (albeit bona fide) destroyed the goods."[17]Staughton J. held the Defendants liable for the loss on the basis that an "unconscious bailee" in the position of the Defendants owed a duty "before dealing with the goods" to "use what is in all the circumstances of the case a sufficient standard of care to ascertain that they are truly his own goods". He held that the Defendants had broken that duty and were accordingly liable for their destruction of the Plaintiffs' goods.[18]The learned authors of Palmer on Bailment seek to explain this decision as being to the effect that a possessor who should reasonably have been alerted by the condition of the goods or the circumstances of his reception of them to the fact that they were not his own should be characterised not as a mere "unconscious" bailee but as an informed and involuntary bailee, thereby owing a duty not wilfully to destroy the goods, save in exceptional circumstances. Specifically, as regards liability in conversion, the learned authors of Palmer on Bailment, whilst acknowledging the difficulty of the question, state as follows:
"... on balance we submit that a possessor who is wholly and blamelessly unaware of the fact that goods in his possession belong to another should not be liable for intentionally destroying those goods. To phrase the matter another way, his liability for conversion by destruction should be conditional, like the involuntary bailee's liability for conversion by mis-delivery, upon his failure to establish that, in performing the act, he exercised reasonable care. That obligation would be broken if the possessor should reasonably have become aware of the true ownership of the goods when he committed the act of destruction, but it is difficult to see how it could be broken otherwise. It may, of course, be objected that this approach creates an irrational distinction between conversion by destruction and conversion by subsequent sale. Against this, it can only be pleaded that the solution proposed offers a roughly equitable distribution of rights and immunities, which enable the original circumstances of the Defendant's possession to be brought into account as a mitigation of his duty without excessively prejudicing the owner's interests."
[19]In AVX v. EGM Solders, the position was that the goods destroyed were goods which the defendants mistakenly believed were goods which they were entitled to receive and destroy. The position that arises in this case is different in that NNL did not come into possession of the goods in Building 29 as a result of being given them but merely found the goods in the building when the property was acquired. The circumstances of this case do not fall within the category of "lost" goods as the issue for NNL was whether or not the goods that were found in Building 29 had been abandoned. If goods are abandoned on the land of a property owner, the property owner is entitled to dispose of them. If the goods have not in fact been abandoned by the true owner, the result is that the person on whose property the goods are found is in fact a possessor of someone else's goods. It does not seem to me that, in principle, the approach to the liability of a possessor of goods in such circumstances ought to be any different from that of a possessor in a situation such as that which arose in AVX v. EGM Solders . On that basis, the possessor's liability for conversion by destruction should be conditional upon his failure to establish that he was not aware and should not reasonably have become aware of the true ownership of the goods when he committed the act of destruction.[20]There is still, though, the question of the status of the person who has found goods on his property which he might or might not belong to someone else, from the date of discovery of the goods until the conclusion of the reasonable enquiries (whether as a result of the collection of or a claim to the goods or the lapse of a reasonable period of time without the goods having been collected or claimed). The premise of this situation arising is that the possessor is and is reasonably in a state of uncertainty as to whether or not the goods in question have been abandoned and so it would be inappropriate to classify such a person as being an involuntary bailee at that stage. The more appropriate classification of such a person, in my judgement, is that of an "unconscious" bailee but to treat such a person as not being immune from liability in conversion if he deliberately destroys or disposes of the goods prior to becoming reasonably entitled to treat the goods as having been abandoned (i.e. as being at this stage in the same position as an involuntary bailee).[21]Applying the approach outlined above, whether and for how long someone remains an unwitting possessor/unconscious bailee and what enquiries, if any, such a person ought reasonably to make will depend on the circumstances of each particular case. For example, upon the purchase of a house and garden with vacant possession, the purchaser may find a rusty bicycle at the back of the garden. The true position might be that the vendors had forgotten about the bicycle but had not abandoned it, notwithstanding its dilapidated condition. The purchaser would therefore in fact be an unwitting possessor/unconscious bailee but might reasonably be entitled to conclude, from the condition and location of the bicycle that it had been abandoned by the vendors and could be thrown away without making any prior enquiry of the vendors. At the other extreme, the purchaser might find something of obvious value that had been left on the premises. In the course of submissions, the example of finding that a vintage Rolls Royce had been left in the garage was cited but perhaps a more realistic example is finding apiece of jewellery at the back of a cupboard. The purchaser, on finding that piece of jewellery, would not need to make any enquiries to reach the conclusion that the piece of jewellery had been left behind by mistake and would immediately become an involuntary bailee of the piece of jewellery.[22]In between those two examples, however, lie a multitude of factual scenarios. If the circumstances ought to put the purchaser on notice that the property might not have been abandoned, an enquiry of the vendor or the vendor's agents or solicitors as to whether the property had been abandoned would be appropriate and, of course, if the presence of the property is causing inconvenience to the purchaser, the purchaser would be entitled to make the enquiry by way of a complaint as to the failure to give vacant possession. Whether the purchaser is obliged to wait for a response to the enquiry before doing anything with the property would depend upon the circumstances. The more valuable (whether in monetary terms or as a personal item) the property might possibly be, the more the purchaser might reasonably be required to await a response before treating the property as if it had been abandoned. The less valuable the property appears to be, and in particular if its continued presence on the property is causing inconvenience to the purchaser, the more reasonable it might be for the purchaser to treat the property as having been abandoned if it has not been collected or claimed within a reasonable period of time. I have used an example of residential premises but of course in the case of commercial premises the variety of circumstances that might arise is almost limitless. Although at least, in the case of commercial premises, there would be a diminished prospect of finding property which was merely of personal, sentimental value.[23]Neither Mr Beresford nor Mr Ashfield sought to challenge any of the analysis in Palmer on Bailment, for the good, practical reason that they both recognised, rightly, that in reality this case was primarily going to turn on my conclusion as to what it was that remained in Building 29 in early March 2005 and was destroyed on the instructions of the Defendants. Mr Beresford, realistically, recognised that if what was in the building comprised the full Robot Wars Set, unless he could prove abandonment, he would be in difficulty in challenging a conclusion that the Defendants should reasonably have been alerted to the fact that the equipment was not something which the Defendants could treat as if it was their own. On the other hand, if, as was the Defendants' case, a substantial proportion of the Robot Wars Set had been removed in late August 2004 leaving only a limited quantity of equipment in Building 29, the Claimants' claim, even if successful, could not be proved to be for more than a relatively nominal amount. Accordingly, for the purposes of this Judgment I will proceed on the basis of the analysis contained in Palmer on Bailment, although I would add that having read the section entitled "Duties of the Unwitting Possessor", the approach suggested by the learned authors would seem to me to be an appropriate one in the light of the authorities and to do justice as between the true owner of the goods and the unwitting possessor.

(c) Contributory Negligence

[24]Section 11(1) of the Torts (Interference with Goods) Act 1977 provides as follows:
"Contributory negligence is no defence in proceedings founded on conversion, or on intention of trespass to goods."
[25]Mr Beresford sought to get round that sub-section by contending that the case was pleaded against both Defendants in negligence as well as in conversion, the true basis of liability, if it existed, was in negligence and that if Mr Waterfield was to be liable, his liability would be in negligence. Mr Beresford relied on the suggestion by Tuckey L.J. in Marcq v. Christie Manson & Woods Limited [2004] QB 286 (at paragraphs 51-52) that in AVX v EGM Solders "there would have been no difficulty in establishing negligence without invoking any relationship of bailor and bailee". There is also support for Mr Beresford's approach to be found in paragraph 607 of Vol. 45(2) of Halsbury's Laws of England (4 th Ed, Reissue), to which he referred, and which suggests that the liability of an unwitting bailee would be in negligence and not in conversion. However, it seems to me that on the basis of the analysis in Palmer on Bailment, if the circumstances were such as to alert the Defendants to the fact that what was in Building 29 could not be treated as if it belonged to NNL, NNL would thereupon become or fall to be treated as being in the same position as an involuntary bailee and if NNL destroyed the goods, it would ordinarily be liable in conversion. Whether Mr Waterfield, as the person who gave instructions for the destruction of the goods, could be liable for conversion when it was not him but his company that would, on this hypothesis, be the involuntary bailee, was not explored in submissions before me and is probably academic in the light of the fact that, if NNL is liable, it will be liable in conversion for which no defence of contributory negligence is available, and there is nothing to suggest that NNL would be unable to satisfy any judgment.[26]If the status of NNL when it destroyed the goods was that of an "unconscious" bailee and NNL had not yet become entitled to treat the goods as having been abandoned because the enquiry into the goods ought reasonably to have been treated as ongoing, it would, likewise, seem to me to be artificial to treat the liability of NNL for the destruction of the goods as being a liability in negligence when the negligence does not relate to the care of the goods but to the establishment of whether they have or have not been abandoned. The natural basis of liability in such circumstances would be in conversion on the grounds that NNL was not at that time entitled to treat the goods as if they belonged to NNL.

(d) Damages

[27]The Claimants claim the replacement cost of the equipment destroyed by the Defendants and Mr Ashfield submitted that that was the appropriate approach to adopt to the assessment of damages in this case in the light of the decision of the Court of Appeal in Dominium Mosaics & Tile Co Limited v. Trafalgar Trucking Co Limited [1990] 2 All ER 246. Mr Ashfield also relied on paragraph 1108 in Vol. 12.1 of Halsbury's Laws of England (4 th Ed., Reissue), which includes the following statement:
"Where, by reason of a bailee's actual or presumed fault, a bailor cannot recover the value of goods lost or destroyed, the highest possible value is presumed against the bailee."
[28]Mr Beresford relied on Voaden v. Champion [2002] EWCA Civ 89 ; [2002] 1 Lloyd's Rep 623 . In that case, at paragraphs 62-92, Rix LJ reviewed the authorities on the approach to be taken to the assessment of damages in circumstances where the replacement cost is claimed and is said by the defendant to represent more than the loss sustained by the claimant. In his conclusion on the approach to damages, with which Hale and Schiemann LJJ agreed, Rix LJ emphasised that where in the case of a second-hand chattel there is no market to replace what has been lost, the proper approach would appear from the authorities to be to make a fact specific review of what the claimant has lost and then attempt to put a financial figure on it as best one can. He also drew attention to passages in the relevant authorities which emphasised that damages ought to be reasonable as between claimant and defendant. Amongst the passages that he cited were the following: (i) From the judgment of Gorell Barnes J. in The Harmonides [1903] P 1 at 6:
"So that the real test, where there is no market is, as counsel on both sides agree, what is the value to the owners as a going concern, at the time the vessel was sunk? You cannot get at this with any great certainty, for you cannot get at it from the market value. Possibly, for such a ship at such a time there would be no buyers and she would have to be sold for old iron. You cannot deal with it like an ordinary commodity being sold every day. You must look at it and see what is the loss to the owners. It has been pointed out that you may look at the original cost, plus the money expended on her, and so forth. That is of assistance, but it is not complete assistance, because it is a rough, and ready method. You may look and see also how the ship is paying. That, however, is not a complete test, because you cannot be sure that the way she has been paying will continue. But one tiling is absolutely certain - you cannot say the test is per market value." (ii) From the judgment of Stocker L.J. in The Dominium Mosaics case at 255j-256a: "
The cases cited seem to me clearly to point the distinction between a situation in which the proper and reasonable compensation for the plaintiff is diminution of the value of the building destroyed as damages on the one hand or reinstatement on the other, a distinction which, in most cases, will depend on whether or not the building destroyed is a profit-making asset. Since in almost any other case if the plaintiff recovers as damages the diminution in value he will have been restored to his original position, reinstatement, or its equivalent, is only appropriate where such is the only reasonable method of compensating a plaintiff for future loss of profits derived from the asset destroyed." (iii) From the judgment speech of Lord Jauncey in Ruxley Electronics & Construction Limited v. Forsyth [1996] AC 344 at 357E:
"Damages are designed to compensate for an established loss and not to provide a gratuitous benefit to the aggrieved party from which it follows that the reasonableness of an award of damages is to be linked directly to the loss sustained. If it is unreasonable in a particular case to award the cost of reinstatement it must be because the loss sustained does not extend to the need to reinstate." (iv) From the speech of Lord Lloyd in Ruxley Electronics at 367B: "... the cost of reinstatement is not the appropriate measure of damages if the expenditure would be out of all proportion to the benefit to be obtained, and, secondly, the appropriate measure of damages in such a case is the difference in value even though it would result in a nominal award." (v) From the speech of Lord Lloyd in Ruxley Electronics at 371G-372B, in which passage he approved the decision in Sealace Shipping Co Limited v. Oceanvoice Limited [1991] 1Lloyd's Rep 120 in the following terms: "
I have confined my citation of authority to building cases, since that is the subject matter of the present dispute. But the principle that a plaintiff cannot always insist on being placed in the same psychical position as if the contract had been performed, where to do so would be unreasonable, is not confined to building cases. In Sealace Shipping Company Limited v. Oceanvoice Limited [1991] 1 Lloyd's Rep 120, there was a contract for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for second-hand propellers. So the only way of providing a spare propeller would have been to commission the manufacture of a new propeller at great expense. The arbitrator held that this would be unreasonable. Instead he awarded the scrap value of the propeller, since that was all the buyer had actually lost by reason of the seller's breach. The arbitrator's decision was upheld in the Court of Appeal. Neill L.J. said, at p. 125:
"I can only read this award as meaning that he asked the question: what did these buyers really suffer as a result of the non-delivery of this spare propeller with this vessel? and he gave the answer: they lost its scrap value which in circumstances was the only value which it had for them.""
[29]Mr Ashfield submitted that as he was not claiming for loss of profits from the use of the Robot Wars Set, the question as to whether or not the Robot Wars Set would have been put to profitable use was not relevant to the recoverability of the replacement cost. I reject that submission. In the context of commercial goods, the purpose of which is to earn profit, the assessment of what the Claimant has lost and of the damages that would be reasonable as between the Claimant and the Defendant must take into account the commercial usefulness of the goods to the Claimant. If the reality is that what was destroyed was commercially useless to the Claimant, that cannot be ignored in the assessment of damages. Indeed, it would indicate that in financial terms the Claimant's loss was nominal only (e.g. scrap value) and that to award more than such a nominal value would be unreasonable as between the Claimant and Defendants.[30]I also reject the submission that the principle cited in paragraph 1108 of Vol. 12(1) of Halsbury's Laws is applicable to the question of whether the replacement cost ought to be awarded. That principle is applicable where the value of the goods lost or destroyed as a result of the bailee's actual or presumed fault cannot reasonably be ascertained. In such circumstances, "justice" as between the bailor and bailee dictates that from the range of possible assessments of the value of the goods, the value most favourable to the bailor should be presumed. Where, however, the Court is able to reach a decision on the correct approach to valuation of the goods lost or destroyed, it would not be just to apply a presumption which gives rise to a higher sum of damages being awarded. Justice in such cases requires the Court's assessment of the damages to be applied. The Witnesses[31]The Claimants called the following witnesses:(i) Mr Hoppitt: He is and was a Director of RAL. He is an IT engineer working for BT. He captained "Team Storm" in the Robot Wars television series and his team ultimately became world champions. He was described by Mr Stuart (see below) as having the technical knowledge and enthusiasm necessary to promote the Robot Wars concept.(ii) Mr Stuart: He is and was the Managing Director of RAL and the owner of the only issued share in RAL. He is and was also the Managing Director and sole shareholder of Phantom Events and Phantom Media. He described himself in evidence as having a strong media and business background, in contrast to Mr Hoppitt. He described his expertise as being management and media.(iii) In addition, a statement from a Mr Gray was served by the Claimants but the Defendants did not seek to cross-examine him. He had been employed as a Production Manager for the live Robot Wars tour prior to the sale by Mentorn of the Robot Wars Set and was employed by Phantom Events to perform the same role after the sale. His statement deals with the equipment which was taken to Building 29 at RAF Newton in about June 2004.[32]On the Defendants' side the following witnesses were called: i. Mr Waterfield, who appears to have been the moving force behind NNL for all purposes relevant to this action; ii. Mr Hughes, a Director of Hughes Property Services Limited, and who, on behalf of the company, was responsible for arranging for the clearance of building at RAF Newton on Mr Waterfield's instructions; iii. Mr Weston, a Chartered Surveyor and Member of the Royal Institution of Chartered Surveyors who at all times material to this action was a salaried partner in the firm of Bruton Knowles; iv. Mr Bailey, a Chartered Surveyor and Member of the Royal Institution of Chartered Surveyors who was at all times material to this action a surveyor with Bruton Knowles and a colleague of Mr Weston (Mr Bailey is now a partner in the firm of Bruton Knowles); v. Mr Duncan, a Chartered Surveyor and Fellow of the Royal Institution of Chartered Surveyors who at all times material to this action was a partner in the firm of Donaldsons, who were instructed by Defence Estates to act as agent in relation to the disposal of RAF Newton; vi. Mr Pezaro, who is and was at all times material to this action employed as a supervising security guard at RAF Newton.

(a) The Acquisition of the Robot Wars Set

[33]The documentary evidence that I have shows that by February 2004 there were serious negotiations in relation to the purchase of the Robot Wars Set. The documents reveal that at that time the Set was stored at an address in or near Slough in Berkshire. Mr Hoppitt was negotiating in his own name "c/o Team Storm" but by the end of February Mr Stuart had entered into the negotiations through Phantom Media. A draft contract was issued by Mentorn but on 2 April 2004, Mr Stuart, again through Phantom Media, sent an email which included the following passage:
"Everything is fine except the contract and Invoice should be made out to Ed hoppitt (sic) c/o Robot Arenas Limited ... (same address), this should have been made clear to you by Ed but obviously wasn't - obviously this will need to be amended, sorry for the inconvenience."
Mentorn agreed to re-issue the contract and did so in accordance with Mr Stuart's request. The re-issued contract bore a date of 2 April 2004.[34]Mentorn have produced their copy of the agreement which is in the form of a letter addressed to "Ed Hoppitt c/o Robot Arenas Limited" and which is signed by Mr Hoppitt with a date of 14 April 2004 below his name and signature. The Claimants have produced their copy of the contract which differs from the copy produced by Mentorn in that immediately below Mr Hoppitt's signature the following has been added:
"f.a.o.b.o. ROBOT ARENAS LTD"
. The evidence before me from Mr Hoppitt and Mr Stuart was that that addition was made by Mr Stuart. I have to say that I simply do not understand the explanation given to me for the difference between the version of the agreement produced by Mentorn and the version disclosed by the Claimants. Mr Hoppitt suggested that the first version signed by him without the added words did not arrive at Mentorn and that he therefore signed a second version and gave it to Mr Stuart to check that the form of agreement was the same as the one Mr Hoppitt had originally signed, with Mr Stuart then making the addition quoted above. However, this is not consistent with Mentorn now producing the first version, which is said to have gone astray, and not producing the second version which is supposed to have replaced the first. Furthermore, the Claimants have only disclosed one letter, being a letter dated 15 April 2004 from Phantom Media to Mentorn, enclosing a copy of the executed contract. If Mr Hoppitt's explanation for the existence of the two different versions of the agreement had been true, one would have expected there to be two such letters.[35]For the reasons given below, the question whether the addition made by Mr Stuart was on the contract received by Mentorn does not affect the conclusion as to whether the contract was between Mr Hoppitt and Mentorn or RAL and Mentorn, which is an issue on the pleadings. However, the unsatisfactory explanation for the difference between the two versions of the agreement before me is one of the factors that has caused me to conclude that the evidence of Mr Hoppitt and Mr Stuart is unreliable.[36]RAL was incorporated on 5 April 2004 and a question has arisen in this action as to whether RAL or Mr Hoppitt own the Robot Wars Set. If Mr Hoppitt entered into the contract with Mentorn prior to the incorporation of RAL, Section 51 of the Companies Act 2006 would result in the contract being between Mr Hoppitt personally and Mentorn even if Mr Hoppitt purported to be acting on behalf of the unformed company. There would, however, remain the possibility that Mr Hoppitt held the Robot Wars Set on a constructive trust for RAL once it had been incorporated. These questions do not arise though, because the contract was not signed by Mr Hoppitt until 14 April 2004, after the incorporation of RAL, and it is apparent from the documents (even without the addition on the version of the agreement disclosed by the Claimants) that it was made known to Mentorn and Mentorn agreed that Mr Hoppitt should be treated as acting on behalf of RAL. Although the use of "c/o Robot Arenas Limited" may not be entirely apposite to denote an agency, I am satisfied that this is the effect that the parties would, in the circumstances, have understood that designation to have. The contract therefore came into being on the acceptance by Mr Hoppitt on behalf of RAL of the terms offered by Mentorn, which was effected by his signature of the document on 14 April 2004 and the sending of the executed contract to Mentorn on 15 th April 2004, after the incorporation of RAL.[37]The VAT inclusive price of £11,000 (equivalent to £9,361.70 plus VAT of £1,638.30), was in fact paid by Phantom Media and was treated as a loan by Phantom Media to RAL.

(b) The Proposed World Championship Event in August 2004

[38]By a letter dated 30 April 2004 from RAL to Phantom Events, RAL agreed to hire the Robot Wars Set to Phantom Events at RAF Newton for the period from 20-29 August 2004 for the sum of £11,000. It is self-evident from that document and Mr Hoppitt accepted that the object was to bring RAL back to a zero balance sheet position after this first event.[39]Negotiations between Mr Stuart and Mr Weston for the use of Hangar 2 and Building 29 at RAF Newton had commenced by 6 May 2004 and were ultimately enshrined in the Licence Agreement dated 28 July 2004 between the Secretary of State for Defence and Phantom Events. This provided for use of Building 29 from 7 June - 31 August 2004 and Hangar 2 from 20-31 August 2004 for the fee of £9,270 payable in advance, with a right to extend the period for up to an additional 10 days at a charge of £420 per half day. No evidence has been produced by the Claimants to prove that they ever made any payment under the Licence Agreement and I am not satisfied that the Claimants ever did make any such payment. Although the Licence Agreement refers to an Advance Payment of £9,270, by the time the Agreement was entered into, the Robot Wars Set had already been moved into Building 29, having been transported there in June 2004, as described in the witness statement of Mr Gray.[40]A further unsatisfactory aspect of the Claimant's case is that Mr Hoppitt emphasised how substantial the Set was, asserting that it took 5 large articulated lorries to carry the Set to RAF Newton in June 2004, and yet no documentary evidence of any kind has been produced showing the making of any such arrangements or any payment of transportation charges.[41]In mid August 2004, there were some email exchanges between Mr Stuart and Mr Weston about reducing the period of hire of the Hangar. In one of those emails, dated 11 August 2004, Mr Stuart referred to the "show" being scaled back due to poorer than expected ticket sales and to their having considered cancelling the event. This was followed on 19 August 2004 by an email from Mr Stuart to Mr Weston informing him that the Robot Wars event had been cancelled "with immediate effect, owing to an unforeseen circumstance that arose yesterday regarding seating". This was obviously understood (and reasonably understood) by Mr Weston to refer to a genuine problem with seating because he offered to give them the contact details of an alternative source of seating hire. In Mr Hoppitt's witness statement, he stated that the cause of the cancellation was the withholding by a ticket company of funds due, leaving the organisers with inadequate assets to fund the substantial commitments they were due to take on. In cross-examination of Mr Hoppitt and Mr Stuart, it became apparent that, as foreshadowed in Mr Stuart's email of 11 August 2004, ticket sales for the event had been poor and the ticket agency was withholding funds because it was exercising a lien in respect of its charges. The problem with the seating contractor was simply that the contractor required payment on delivery of the seating and without revenue from ticket sales, the money was not available for such a payment to be made. In those circumstances, it can be seen that Mr Stuart's explanation to Mr Weston for the cancellation of the world championships event was somewhat disingenuous.

(c) The Sale of RAF Newton

[42]By a contract dated 1 June 2004, Tolladine Estates Limited agreed to purchase from the Secretary of State for Defence what was described as "the Commercial Centre" at RAF Newton for the price of £6,200,000. Although the contract was in the name of Tolladine Estates Limited, Mr Waterfield told me that the agreement with Defence Estates was that a special purpose corporate vehicle could be substituted as the purchaser and that this is how NNL came to be the purchaser. "The Completion Date" was defined as being 20 working days after the date on which the seller notified the buyer of satisfaction of the "Condition", which was set out in paragraph 1 of the Third Schedule to the Agreement. That Condition was, in essence, that the seller should procure that the "incomplete Leases" were completed in substantially the form of the drafts attached to the contract. The First Schedule identified a number of "Occupational Leases" and, as Mr Waterfield explained in his evidence (which was not, on this aspect, the subject of any material challenge), the requirement was that for those buildings which were being used and occupied by tenants or licensees of the seller, formal leases should be executed to regularise the occupation. Building 29 was not included on the list. If the Condition was not satisfied by 1 September 2004, the buyer had the right to rescind the contract but would be entitled not to do so and to allow the seller more time to complete the leases.[43]In fact, the finalisation of the leases for the occupied buildings appears to have taken longer than was anticipated but the right to rescind was not exercised and completion took place, with the property being transferred to NNL, on 21 January 2005. Therefore, between 1 June 2004 and 21 January 2005, RAF Newton remained in the ownership of the Secretary of State for Defence and under the control of Defence Estates but subject to a conditional contract in respect of all of the commercial buildings in favour of a company with which Mr Waterfield was associated.

(d) Storage after the World Championship Event

[44]On 13 August 2004, Mr Stuart sent Mr Weston an email which included the following:
"We spoke some time ago about longer lets on Building 29, is this still something that the owner is unlikely to want or would it be considered? Is there any other storage space on site that is available? I would prefer not to move the set back to London at the moment, if ever! ..."
[45]This prompted Mr Weston to send an email to Mr Waterfield in the following terms:
"Dear Simon We currently have a short term hire in building 29 until 30 th August 2004 with Phantom Events Limited/Phantom Media Limited who are filming Robot Wars in hangar 2 the previous week. They are using this building for set storage prior to and during the event. They have asked however if there is a chance of a longer term usage of this building for storing the set rather than moving the same down to London. It may be worth considering if it does not interfere with your plans insofar as if you wish to consider film usage from the hangars they will be on site and lience more likely to use Newton than elsewhere. Their representative is Rick Stuart (e.mail rick.stuart@[a email address])..."
[46]Mr Waterfield's response on 16 August 2004 was as follows:
"Dear David We are completing on this at the end of September, what sort of lease do they want - if they are prepared to pay £165,000 per annum then I am interested in doing a deal ..."
[47]In reply, Mr Weston pointed out to Mr Waterfield that the enquiry was only in relation to Building 29, implying that Mr Waterfield had perhaps quoted a rental figure based on the use of both Building 29 and Hangar 2. In the meantime, Mr Stuart chased Mr Weston for news about whether the owners were prepared to grant either a short term or long term extension on Building 29. Mr Weston's response by e-mail dated 20 August 2004 is an important one and was in the following terms:
"... I have got nowhere on an extension of use on building 29 for storage. The future owners said they would consider if you where (sic) prepared to pay a rediculous (sic) rental of £185000 per annum. I have queried the figure thinking that they must have been confused with a hangar but have not heard further. I did ask them to contact you direct. Unless we get some progress early next week therefore you will need to arrange to move out by the end of the licence period. Sorry to add to your burden."
[48]In fact, on 18 August 2004, Mr Waterfield had sent an e-mail to Mr Weston acknowledging that he had been confused as to which building was required and suggesting a rent of £60,000 per annum for Building 29. Mr Weston's response, dated 1 September 2004, included the following:
"The last Robot Wars event did not take place as the company were let down by their seating contractors. They should have therefore vacated the building (My staff are checking in the morning) I doubt therefore if they are now interested."
[49]Mr Weston did not pass on the suggested rent of £60,000 to Mr Stuart and his explanation for not doing so was that he had missed the e-mail of 18 August 2004 when it had come in and by the time he read the e-mail, he thought that the Robot Wars Set had been moved out of Building 29. As regards the words "My staff are checking in the morning", his evidence was that in fact the check had been prior to the sending of his e-mail. (e) What happened to the Robot Wars Set after the cancellation of the Robot Wars World Championship?[50]This is the critical question in this case. It is the Defendants' case that the major part of the Robot Wars Set was removed at the end of August 2004 leaving only a modest amount of equipment of little or no value, whereas it is the Claimants' case that the entirety of the Robot Wars Set remained in Building 29 until it was removed and destroyed by the Defendants.[51]In Mr Weston's email of 20 August 2004 he had told Mr Stuart that he would need to arrange to move out of Building 29 by the end of the licence period. Although under the Licence Agreement that date was 31 August 2004, by 16 August 2004 Mr Weston and Mr Stuart were proceeding on the basis that the licence would expire on 29 August 2004 (Mr Weston sent two copies of a revised licence to that effect signed on behalf of Defence Estates to Mr Stuart under cover of a letter dated 16 August 2004 and although Mr Stuart never signed or returned that revised agreement, it seems to have reflected what Mr Stuart planned to do, as revealed by the e-mail exchanges leading up to the sending of the revised agreement). Mr Weston's e-mail of 1 September 2004 refers to his belief that the Robot Wars Set was being removed from Building 29 and to his staff checking that that had been done.[52]In his witness statement, Mr Weston states that as he was away on holiday at the time that Phantom Events' licence was due to end on 29 August 2004, his then colleague, James Bailey attended the premises at the end of August and saw that the contents were in the process of being removed. When cross- examined, he confirmed that he expected the Robot Wars Set to be removed from the site on 29 or 30 August 2004. Mr Bailey, in his witness statement, states that Mr Weston asked him to attend the site on 29 August during his absence on vacation in order to check whether Phantom Events was in fact in the process of vacating the premises it occupied and would have vacated Building 29 and Hangar 2 on the due date. He states that he agreed to do this for Mr Weston and when he attended the site on 29 August 2004, Phantom Events were in the process of removing themselves from the premises and he was told by one of the representatives that everything would be removed that day. (His witness statement refers to Phantom Estates Limited but he must have intended to refer to Phantom Events.) In his oral evidence, in relation to Building 29 he stated that he saw vehicles around the building, the twin doors to the building open and tied back, individuals going into and out of the building, items of equipment outside Building 29 and individuals bringing items out of Building 29. He was fairly confident that items were being removed from Building 29 and he spoke to an unidentified individual as he was coming out of Building 29 and asked if they were making good progress in removing items from the building, to which he received confirmation that they were.[53]The only document that I have passing between Mr Stuart or any of his companies and Mr Weston after 29 August 2004 and prior to Mr Waterfield raising the issue of the presence of equipment in Building 29 after completion of the transfer of RAF Newton to NNL, is a letter from Mr Weston to Mr Stuart dated 13 October 2004 setting out the compromise that Defence Estates were prepared to offer in the light of the cancellation of the use of Hangar 2. The letter requested payment of £4,685 comprising £935 for the use of storage in Building 29 until 29 August 2004 and a cancellation fee for Hangar 2 in the sum of £3,750, being 50% of the rental for a reduced period of use of Hangar 2 that Mr Weston had suggested in his e-mail of 13 August 2004. As the letter refers to payment being made on the proposed basis, it would seem apparent that Phantom Events had indeed not made any payment by that stage for the use of Hangar 2 or Building 29. There was no response to that letter and there is no evidence that any payment was made pursuant to it. Furthermore, there was no repetition of the enquiry that Mr Stuart had made in mid August 2004 about continuing storage at RAF Newton. Mr Stuart's explanation for this is that Defence Estates appeared to be content for the goods to remain in Building 29 while they were negotiating about a rate for long term storage and he allowed matters to drift.[54]Mr Waterfield's evidence was that when the purchase of the site was completed on 21 January 2005, he arranged for a contractor, Hughes Property Services Limited, ("HPS"), to clear the commercial buildings at the site. The evidence of Mr Hughes, a Director of HPS, was that in Building 29 he saw equipment in three areas of Building 29, in one of which he saw what he now understands to be items from a Granada TV show called "Jungle Run" and in the other two areas he saw timber sheets, plastic screens and sundry bits of steel. In his second witness statement, he stated that they did not immediately look to him like parts of a TV set. In his oral evidence, he elaborated on what he saw in the two areas which were not associated with Jungle Run. He stated that there were approximately 30 MDF sheets, a pile of steel components such as box sections and angle irons on the floor, cardboard and polystyrene lent against the wall and maybe some one dozen plastic sheets in a frame system in a metal rack on wheels. He commented that he had seen similar sheet material in Hangar 4 which was also being cleared. He stated that the sheets in Building 29 did not seem to be anything out of the ordinary to him and did not look like a TV set. Mr Waterfield's evidence was that Mr Hughes told him that he had found staging type equipment in Building 29.[55]When Mr Hughes reported to Mr Waterfield what he had found, Mr Waterfield contacted Mr Weston. This caused Mr Weston to send a fax to Mr Stuart dated 26 January 2005 which stated as follows:
"I am advised by the new owner of the site, that there is equipment still in this building from your usage last summer. Please contact me immediately to advise as to its removal."
This prompted what I regard to be an important telephone conversation which is the subject of a note by Mr Weston on his copy of the fax. The note states: "Says not his". In his witness statement, Mr Weston's evidence was that Mr Stuart contacted him in response to the fax and advised him that the items did not belong to him (which Mr Weston understood to mean that they did not belong to Phantom Events), that he, Mr Stuart, thought that the building had been cleared and was unaware of any equipment there. Mr Weston stated that the name of RAL was never mentioned. When cross-examined, he elaborated on that conversation whilst emphasising that he could not remember the exact words used. The gist of the words used, on his recollection, was that he told Mr Stuart that he had been contacted by the new owner who was concerned about materials in Building 29 and said to Mr Stuart that he thought he had moved out in August, to which Mr Stuart replied that he had. Mr Weston then asked whose materials they were to which Mr Stuart replied that they were not his but that he had used contractors and would ask them if they knew.[56]Mr Stuart, in his witness statement, denies that anything was moved out at the end of August 2004 and maintained that denial in his oral evidence. Somewhat surprisingly, he did not in his witness statement address Mr Weston's fax of 26 January 2005 or the conversation that he had with Mr Weston in response to it. Nor did he make a second witness statement in response to that of Mr Weston in relation to this conversation, although Mr Hoppitt produced two further witness statements addressing other matters. In his oral evidence, Mr Stuart, for the first time, gave his account of the conversation which was that he merely told Mr Weston that the equipment in Building 29 belonged to RAL and not to Phantom Media. His explanation for not having given his account of this conversation before was that it had not struck him as something he should refer to. He says that he was shocked to get the fax of 26 January 2005 because he had expected to get something sorted out about the storage of the equipment in Building 29 and when he received the fax he got on to his colleague, Mr Hoppitt, who then wrote the letter to Mr Weston dated 11 February 2005 which was in the following terms:
"Dear Mr Weston I have been informed by Phantom Events, the company with which we were working to run the event last year at RAF Newton that you contacted him regarding the collection of the parts in building 29. Phantom inform me that the site has changed hands and is now under new ownership - if you could forward me details of the new owners then I will personally make contact with them and make arrangements for the removal of the parts in building 29 as quickly as possible. Yours sincerely, ..."
[57]Mr Hughes gave evidence as to the quantity of material that was removed from the site. He explained that he had arranged for another contractor, M Ward Demolition Limited, to assist in the clearance of the site and they had a cutting machine on site to deal with sheet material that was in Hangar 4. He stated that as Wards were on site anyway to clear Hangar 4, they agreed to clear Building 29 for no extra charge and to credit against their charges for their other clearance work the sum of £250 in respect of the scrap value of what was in Building 29. He regarded this as being a goodwill gesture on Ward's part. Once cut up, the material from Building 29 made up, in his estimation, no more than part of one 35 cubic yard skip and it was his estimation that if RAL's equipment in Building 29 had not been cut up, it could all have been accommodated in one large builder's skip, assuming it was stacked properly. This is in stark contrast to the 5 large articulated lorry loads to which Mr Hoppitt referred in the context of the movement of the Set to RAF Newton in June 2004.[58]In this regard, Mr Hoppitt was cross-examined about a statement attributed to him in the East Anglian Daily Times for 1 February 2005. That article quotes him as saying the following:
"What we desperately need at the moment is somewhere to store this set while we work on a permanent solution," he added: "
It's a piece of TV history and doesn't take up a great deal of space - probably no more than 10 square metres. ..." The figure of 10 square metres would not be dissimilar to the quantity of equipment that Mr Hughes described as being present in and removed from Building 29 but Mr Hoppitt denied that he had used the figure of 10 square metres.[59]Mr Hoppitt also claimed to have obtained a verbal quote for 4-5 articulated trucks to collect the equipment from Building 29 for £500 (he said that he was offered this price because the trucks would be running back empty to Felixstowe Docks from Nottingham). However, the only document relating to this was a letter dated 26 May 2007, therefore produced after this dispute had arisen, from someone claiming to be a former employee of a freight company which purported to confirm that the author had given a quote to Mr Hoppitt for 5 40 foot trailers at a rate of £495 per trailer, i.e. almost £2,500 in total. On that basis, £500 would be the correct figure if only 1 lorry was necessary.[60]The Defendants' evidence was that the clearance of Building 29 took place on 4 March 2005. Mr Hoppitt visited RAF Newton on 6 March 2005 and there was an issue on the evidence as to whether anything was left in the building by that time. Although, ultimately, that issue did not feature as one affecting liability or quantum, it is the case that there was once again a stark conflict between the evidence of Mr Hoppitt and the evidence adduced by the Defendants. In his witness statement, Mr Hoppitt asserted that he could see through the windows of Building 29 that there were still 2 pallets of MDF floor panels, 2 piles of large floor panels, 2 flights of cased ventilation systems, 1 judge's chair and a pile of banners left in the building. In his oral evidence, he stated that his visit to RAF Newton on 6 March was to collect a set of banners. He described what was left as being a couple of umpires' chairs, pallets of MDF and a few other items such as a wrecking ball. He did however state that 99% of the equipment had gone and there were just a few items remaining.[61]Mr Pezaro stated that he accompanied the visitors to Building 29 on 6 March 2005 and that, in contrast to what Mr Hoppitt had said, there were 2 men who he accompanied. His evidence was that when he looked through the window, all he could see was a piece of bent over aluminium ducting.[62]On 7 March 2005, after Mr Hoppitt had complained about the removal of items from Building 29, Mr Hughes wrote a letter to Mr Waterfield confirming what he had been instructed by Mr Waterfield to do, to which I will return later in this Judgment, and recording that the material in Building 29 was disposed of on Friday 4 March 2005. The letter concluded: "The remainder of the clearance works will be complete by tomorrow afternoon." and he was cross-examined on the basis that this referred to the completion of the clearance of Building 29. He denied this and stated that it referred to other clearance works, with Building 29 being clear, in the sense that the equipment in it had been removed on 4 March 2005. He also specifically denied having seen any chairs in the building.[63]On 7 March 2005, Mr Hoppitt had a number of telephone conversations - he spoke to Mr Duncan, a lady in Mr Waterfield's office, Mr Waterfield on four occasions and Mr Hughes. Each of those telephone calls was recorded by Mr Hoppitt without the knowledge or consent of the other party to the telephone call. The transcript of the telephone calls reveals the following: (i) In the telephone conversation with Mr Duncan, Mr Hoppitt stated:
"And the building's empty"; (ii) In one of his telephone conversations with Mr Waterfield, Mr Hoppitt stated: "
And I went up at the weekend to do a reccy, just to check that everything was still where it was and what have you for the trucks, and found locks had been changed and it was all gone ...." Mr Hoppitt's explanation for using this language was that these were "colloquial" telephone conversations during which he did not go into detail as to what remained.[64]I should also add that, even on the basis of what Mr Hoppitt asserts was in the building immediately prior to its being removed and destroyed, on 4 March 2005, what he describes in his witness statement as being left in the building would represent far more than 1% of the total and yet as I have already recorded, he conceded in his oral evidence that 99% of the equipment had gone.[65]It was also the evidence of Mr Hughes that he found Building 29 to be unlocked, whereas the Claimants' evidence was that the building had been secured with a padlock when the Set was moved in (which I accept was done).[66]On behalf of the Claimants, Mr Ashfield relied on the fact that it emerged from the evidence of Mr Pezaro that there was a system for the keeping of logs by the security staff at RAF Newton throughout 2004 and yet no log had been produced to show the presence of vehicles or personnel for the purposes of the clearance of Hangar 2 and Building 29 on 29 August 2004 or, indeed, the presence of Mr Bailey on site on that day. He also cross-examined Mr Hughes in relation to one of the statements that he made in his telephone conversation with Mr Hoppitt on 7 March 2005 to the effect that there were written instructions in relation to his clearance of Building 29, whereas the only document evidencing the giving of such instructions was a letter which Mr Hughes had written after the event. He accepted that this was an error on his part although it is fair to say that the only document that Mr Hughes referred to a little later in the conversation was a letter from him to Mr Waterfield.[67]I have taken into account all of the criticisms that Mr Ashfield was able to make about the Defendants' evidence on this issue and in particular I have taken into account the fact that some of the witnesses were first asked for their recollections some time after the occurrence of the events. However, I have no hesitation in preferring the evidence of the Defendants' witnesses on these issues to that of Mr Hoppitt and Mr Stuart. The Defendants' witnesses each gave their evidence in a measured way, qualifying their evidence where appropriate. By contrast, I considered the approach of Mr Hoppitt and Mr Stuart to their evidence to be evasive. For example, Mr Hoppitt simply does not address the evidence of Mr Bailey in any of his 3 witness statements and Mr Stuart did not respond in any supplemental witness statement to what Mr Weston had said about the conversation with him following the fax of 26 January 2005. Furthermore, although Mr Hoppitt and Mr Stuart have made claims about how there was continuing commercial interest in the use of the Set, not one document evidencing such interest has been produced. Similarly, no documentation relating to the carriage of the set to Building 29 has been produced.[68]Importantly, it also seems to me that only the removal of the major part of the Robot Wars Set at the end of August 2005 fits in with the contemporary documentary record. Mr Weston's e-mail to Mr Stuart of 20 August 2004 had made it clear to Mr Stuart that the Set would have to be moved out by the end of the licence period and whilst it is true that the figure of £185,000 per annum suggested by Mr Waterfield as a rental was recognised by Mr Weston and Mr Stuart as necessarily relating to Hangar 2 as well as Building 29 and Mr Weston did not communicate the revised proposal of £60,000 per annum for Building 29, it would have been and, I conclude, was apparent to Mr Stuart that he was not going to be able to negotiate with Mr Waterfield a rental payment that his companies could afford. The World Championship Event had had to be cancelled because of cashflow problems and there is no evidence that any payment was ever made to Defence Estates for the period of occupation under the Licence Agreement. Mr Stuart asserted that whilst his companies' cashflow position may not have been such as to enable them to cover the cost of a long term letting, the Directors could have put money in but in circumstances where they were not even prepared to put in money to pay the seating contractor so that the World Championship Event in August 2004 could go ahead or to pay Defence Estates what was due under the Licence Agreement or even pursuant to the compromise offer in the letter of 30 October 2004, there is no reason for me to believe that Mr Stuart was able or willing to fund the payment of a commercial rate for storage in Building 29. I must also bear in mind that Mr Weston's e-mail to Mr Stuart of 20 August 2004 telling Mr Stuart to move out at the end of the licence period was the last communication in the exchanges about any possible continued use of Building 29 after the expiry of the licence period.[69]In those circumstances, I consider that Mr Stuart's evidence that he allowed matters to drift from September 2004 onwards in circumstances where he thought there was still a pending negotiation about the continued use of Building 29 which might result in an agreement for the continued storage of the Robot Wars Set in that building is to be rejected. My conclusion is that the reason for his silence is that he had arranged for the removal of the major part of the Robot Wars Set on 29 August 2004, as required by Mr Weston's e-mail of 20 August 2004 and as witnessed by Mr Bailey on 29 August 2004. I am satisfied that Mr Bailey went to the site on the instructions of Mr Weston specifically to check whether the Robot Wars Set was being removed from the site. If he had witnessed anything which caused him to doubt whether the Set was being removed from the site, he would have reported this to Mr Weston and Mr Weston would have challenged Mr Stuart on the point. The absence of any complaint about the continued presence of equipment in Building 29 is, in my judgement, only explicable on the basis that Mr Bailey was satisfied with what he saw and was told on site that the Robot Wars Set was being removed and that he so reported to Mr Weston. I discount the possibility that a professional man like Mr Bailey, visiting the site for one specific task, could have made a mistake about what he saw or about what was happening on the site and I accept as reliable his account of the gist of the conversation he had with one of the individuals involved in the clearance of the buildings in question. I also specifically accept Mr Weston's account of his conversation with Mr Stuart following the sending of the fax of 26 January 2005 and I reject Mr Stuart's account of this conversation. What Mr Stuart said amounted to a confirmation of what in fact had happened, namely that he had made arrangements for the Robot Wars Set to be removed at the end of August 2004 and believed that it had all been removed. His comment that he had used contractors and would ask them if they knew whose the property was that remained in Building 29 was, I conclude, a reference to the contractors who had cleared Building 29 on his instructions and left open the possibility that they had left equipment in Building 29 behind because they had identified it as belonging to someone else. There would as a result of what he said, though, also be the possibility that whilst Mr Stuart believed that all of the Robot Wars Set had been removed, in fact some of it had been left behind by the contractors, whether due to their mistakenly believing that it was not part of the Set or because they did not have enough room on their vehicles to remove the equipment.[70]This raises the question as to why Mr Hoppitt reacted as he did when he discovered that what remained in Building 29 had been destroyed. There is, of course, the possibility that Mr Stuart, as the businessman and as sole shareholder of each of the companies, simply took matters into his own hands and did not keep Mr Hoppitt up to speed with what was happening, with the result that Mr Hoppitt genuinely believed, albeit mistakenly, that the Robot Wars Set was still stored in its entirety in Building 29. On the other hand, there is the curiosity of the statement attributed to him in the newspaper article in the East Anglia Times about the volume of equipment for which storage was required and his evidence was unsatisfactory in a number of respects, including in particular his account of what remained in the building on 6 March 2005, which I reject, preferring as I do the evidence of Mr Hughes and Mr Pezaro on that issue.[71]One indication that Mr Hoppitt was aware of the removal of the equipment at the end of August 2004 is the evidence of Mr Pezaro as to what was said when Mr Hoppitt visited the site on 6 March 2005. As I have already recorded, his evidence was that all that could been through the windows of the building to be remaining in it was a piece of bent over aluminium ducting, to which he said one of the two men that he accompanied to the building reacted by saying there had been "a couple of grand's worth of stuff in the building. If he had been told that there was "a couple of hundred grand's worth of stuff in the building, as Mr Hoppitt asserted, he said that he would immediately have informed his foreman and the site manager. I accept Mr Pezaro's evidence on this aspect, although of course it is possible that by this time Mr Hoppitt had realised that, with the failure of the World Championship Event, the Robot Wars Set had ceased to have anything other than historic value, as reflected in the statement attributed to him in the East Anglia Times to the effect that the Set was a piece of "TV history". I deal with this aspect below.[72]In circumstances where the question of Mr Hoppitt's knowledge of what occurred on 29 August 2004 does not affect my overall assessment of his credibility or the issues of liability in this case, I have decided that it is an issue on which I need not reach any particular conclusion. Suffice it to say that my finding is that all that remained in Building 29 when it was acquired by NNL on 21 January 2005 was what was described by Mr Hughes in his evidence and was not, therefore, anything like what was described as being the full Robot Wars Set but rather was merely part of some of the basic staging equipment. I conclude that ail of the specific equipment for the Robot Wars Set, for example those items with artwork or specific colouring or which had been tailor-made for the set or which were a specific requirement for a Robot Wars Set, had been removed at the end of August 2004. I also conclude that everything which remained in the building as at the commencement of clearance on 4 March 2005 was removed on that day, cut up where necessary and disposed of, leaving only what Mr Pezaro saw through the window on 6 March 2005.

(f) The Marketability and Value of the Robot Wars Set

[73]When Mr Hoppitt had the telephone conversations on 7 March 2005 to which I have referred, he made a number of assertions about the Robot Wars Set. During the course of his conversations with Mr Waterfield, he asserted that RAL had lost "a quarter of a million pound asset" and that RAL had bookings for the set to be used "through this year", with the result that the business relied on the Set. Mr Hoppitt told Mr Waterfield that the Set was insured against fire "and that sort of thing" but not against their being disposed of by the owner of the RAF Newton site.[74]In the context of a claim for £345,000 for the replacement of the Robot Wars Set and the supposed justification of that claim that this was genuinely a business asset of RAL, the sale of the Set by Mentorn to RAL for £11,000 inclusive of VAT would seem to be rather surprising. In his evidence, Mr Hoppitt sought to suggest that Mentorn sold the Set because the television series had come to an end and Mentorn was more interested in developing reality TV programmes, but that does not fit with the e-mail that they sent to the Defendants' solicitors on 26 May 2009, which stated that they "went on to develop a new format and commissioned a set designer to come up with a brand new design" for a new version of Robot Wars. They also commented on Mr Hoppitt being an enthusiast for the show as one of its former competitors, rather than someone to employ or work with. In his evidence, Mr Hoppitt has mentioned approaches from Mentorn regarding the possibility of a re- commissioning of the Robot Wars series by the BBC and discussions in about February 2005 with the BBC about how Robot Wars could be brought back. He also referred to the ability to market the old arena as "the original Robot Wars Set from the TV series" so as to give any event kudos and to the development and sale by RAL of a "featherweight (XFM) arena" to another company for about £2,000, which was used by the purchaser as the basis for the construction of a larger Set, albeit still on a relatively small scale compared to the Robot Wars Set. Mr Stuart did no more than to confirm the discussions with Mentorn to which Mr Hoppitt had referred, putting the timing of those discussions, as Mr Hoppitt had done, as occurring some time in 2007.[75]As regards insurance of the Set, Mr Hoppitt's evidence was that he had thought that Mr Stuart had arranged for insurance of the Set but Mr Stuart's evidence was that whilst he had obtained a few quotes, the cost of insurance had been prohibitive because of the lack of adequately secure storage at RAF Newton and so he had not in fact arranged any insurance. It might, of course, have been of some interest to see the value for which the Robot Wars Set was going to be insured but Mr Stuart said that there was nothing in writing.[76]It is quite plain to me that Mr Hoppitt made inaccurate and misleading statements in his conversations with Mr Waterfield on 7 March 2005. He had no reasonable grounds for believing that any insurance had been arranged for the Set and there were no bookings whatsoever for the use of the Set. What is more, there is not even any documentary evidence to show that insurance was even sought for the Robot Wars Set or to indicate that anyone was showing any serious interest in the use of the Robot Wars Set. The proposed World Championship Event in August 2004 had not generated sufficient interest to make the holding of the event financially viable and in those circumstances the outlook for the future use of the Set was bleak. In my judgement, the reason why Mentorn sold the Set and sold it so cheaply was that it was regarded by Mentorn as and indeed was a redundant and tired Set with little prospect of generating any financial return. The prospect of it generating any financial return was even further diminished by the failure to generate sufficient interest for the World Championship Event. In such circumstances, I am satisfied that the Robot Wars Set would have been regarded, commercially, as being a liability, because of the need to find storage for it, rather than an asset.[77]This reinforces the conclusion that I have reached as to the removal of the major part of the Robot Wars Set from RAF Newton at the end of August 2009 because the last thing that Mr Stuart would have wanted would have been to incur yet further liabilities for storage and he would have realised that it simply was not financially viable for any commercial charge to be paid for storage of the Set.

(g) The Destruction of the Contents of Building 29

[78]Mr Hughes' evidence was that he did not regard the equipment he found in Building 29 as being "rubbish" but could not see that the equipment had any specific purpose and it did not seem to him to be of any particular value. However, as Mr Waterfield was a new client, he wanted to ensure that he had Mr Waterfield's instructions before he proceeded to do anything with what was in the building. He also referred to his concern about the presence in the building of combustible materials such as the cardboard and polystyrene to which he referred, due to the arson risk on the site (this had followed publicity about possible uses of the site which had publicised the fact that the site was largely vacant). According to Mr Waterfield, Mr Hughes described the material to him as staging equipment and so he suggested to Mr Hughes that he should approach one of the occupants at RAF Newton, which was a company which staged events, to see if the equipment was of any value or use to them. Mr Waterfield knew that Hangar 2 and Building 29 had been used for television productions and so it did occur to Mr Waterfield that the equipment was probably something which had been left in Building 29 by a production company. However, he did not associate what Mr Hughes had found with the enquiry he had received back in August 2004 about the possibility of long term rental of the building. He explained to me that he dealt with a number of properties and was regularly dealing with enquiries about their occupation and so would have had no reason to remember being asked to provide rental figures for long term storage. It must also be borne in mind that the negotiations did not go anywhere and so Mr Waterfield would have been entitled to assume that the interest had not continued.[79]Following his conversation with Mr Waterfield, Mr Hughes approached the occupant to which Mr Waterfield had referred, L.H. Woodhouse & Co., but they were not interested in the equipment.[80]In the meantime, Mr Waterfield had contacted Mr Weston. By this time, Bruton Knowles were no longer retained in relation to the site but Mr Weston continued to act, essentially, as a conduit for communications. Mr Weston's account was that Mr Waterfield telephoned him expressing concern as to the presence of equipment or materials in Building 29 and stating that he thought the buildings should be empty. Mr Waterfield asked if he knew who the equipment belonged to, to which Mr Weston replied that the last user had been Phantom Events but that Mr Weston thought they had moved out in August. Mr Weston's recollection was that Mr Waterfield had referred to the cost of removing the equipment from Building 29 and had asserted that that would be the responsibility of Defence Estates. The conversation ended, according to Mr Weston, with him saying that he would contact Phantom Events to see if they had left the goods behind.[81]Mr Weston's attitude was that as he was no longer working as agent for Defence Estates, Mr Duncan of Donaldsons should deal with this issue. Nonetheless, he sent the fax of 26 January 2005 and had the conversation with Mr Stuart to which I have referred earlier in this Judgment. This was followed by his receipt of RAL's letter dated 11 January 2005. On 14 February 2005, Mr Weston sent the following e-mail to Mr Duncan:
"Dear Robert I have had a letter this morning from Robot Arenas Limited c/o 35 Manor Road, Marlesham Heath, Ipswich, Suffolk IP5 3S asking to be advised as to the contact to arrange for removal of their equipment. They have given no phone number: you will need to write to them on this issue. Regards ..."
[82]As the e-mail from Mr Weston reflects, the letter of 11 February from RAL, signed by Mr Hoppitt, to Mr Weston, which was received at Bruton Knowles on 14 February 2005, merely contained an address. There was no telephone number or e-mail address. Nor was there anything to suggest to Mr Weston that RAL was a company with which Mr Stuart was associated as Director and sole shareholder.[83]On 15 February 2005, Mr Duncan wrote to RAL in the following terms:
"Dear Sirs RAF NEWTON I understand from David Weston of BK that you require access to remove your equipment from Unit 25 RAF Newton. We are happy to give you access to the site but as far as we are aware you have the only keys to the padlock of the building. If you care to let me know when you wish to gain access I will see if it can be arranged. I look forward to hearing from you. Yours sincerely ..."
Mr Duncan did not consult with Mr Waterfield before sending that letter and had no authority to act on NNL's behalf but had assumed that everyone would be happy to allow RAL on to the site. Mr Weston could not remember the source of his information about the keys but assumed that he must have telephoned security at RAF Newton to discover that they had no keys to Building 29.[84]The copy of Mr Duncan's letter disclosed by the Claimants has in manuscript in the bottom right hand corner the entry "Replied 24/02/05". There is no letter of that date but the Claimants have disclosed a file copy of a letter from Mr Hoppitt to Mr Duncan dated 20 February 2005 which purports to reply to Mr Duncan's letter and includes the following passage:
"I have made some enquiries and spoken to my colleagues about booking the trucks and crew needed and I believe we will be coming to site to collect within the next 6-8 weeks. If this is not soon enough please let me know as soon as possible. Once I have an exact date I will let you know so that security at the gate can be informed."
In his conversations with Mr Waterfield on 7 March 2005, Mr Hoppitt referred to having written to Mr Duncan on 24 February 2005. Mr Duncan's evidence was that there is no record of his ever having received the letter of 20 February and my conclusion is that he did not receive it. Mr Hoppitt's explanation for referring to a letter of 24 February in his conversations with Mr Waterfield was that he had posted the letter on 24 February. Whilst I do have some doubts about whether the letter of 20 February was ever sent, I cannot rule out the possibility that it was posted and went astray. Whether or not it was written and posted in February 2005 is not, however, material to my conclusions, although if it was written at the time, the contents of the letter do suggest that perhaps Mr Hoppitt had not been aware of Mr Stuart's removal of the major part of the equipment in Building 29 at the end of August 2004.[85]None of the communications involving Mr Weston, Mr Duncan, Mr Stuart and Mr Hoppitt were passed on to Mr Waterfield and he did not chase Mr Weston for .an update on the progress that was being made. However, from his perspective, he had raised the matter with Mr Weston at the latest on 26 January 2005 in terms of a complaint and by 4 March 2005, over 5 weeks later, had heard nothing further. Mr Weston had not reported back to him that an owner of the goods had been identified, no one had contacted Mr Waterfield about removing the goods and no one had attended the site either to remove the goods or to make arrangements for their removal. Furthermore, Wards were on site with a cutting machine for the purposes of other clearance work on 4 March 2005 and for them to return on another date with their cutting machine would result in additional expense being incurred by NNL for the clearance of Building 29, whereas for clearing Building 29 whilst on site for other clearance works, Mr Hughes was able to negotiate with Wards for the clearance to be carried out at no additional charge and with a credit of £250 for the scrap value of the material. It was in those circumstances that the removal and destruction of what was in Building 29 occurred.

(a) Abandonment

[86]Mr Beresford submitted that if I was satisfied that the majority of the Robot Wars Set had been removed from Building 29 at the end of August 2004, the appropriate conclusion for me to draw was that what had been left in the building was equipment which was no longer wanted and that this was reflected by what Mr Stuart said to Mr Weston in response to his fax of 26 January 2005. On the other hand, as I have indicated, what Mr Stuart said to Mr Weston in that conversation is not inconsistent with Mr Stuart leaving open the possibility that the contractors he engaged to remove the equipment might have left some of it behind. The fact that Mr Hughes found the building to be unlocked, and I accept his evidence in this regard, would be indicative of abandonment of the equipment but Mr Hoppitt certainly showed an interest in recovering the equipment in his letter of 11 February 2005.[87]Although there are certainly grounds on which I could conclude that what Mr Stuart left in Building 29 was equipment which he no longer wanted, and that I should attribute his intent to RAL notwithstanding Mr Hoppitt's state of mind, on balance I have concluded that the evidence is not sufficient for me to conclude that RAL had the intention to abandon the equipment in Building 29. As I have indicated, what Mr Stuart said to Mr Weston may have indicated a belief on his part that all of the equipment had been removed without his realising that some equipment had been left behind, and even if Mr Hoppitt was aware that the bulk of the equipment had been removed, he certainly seemed to be interested in recovering whatever remained in Building 29. The fact that Mr Hughes found the building to be unlocked might be said to be consistent with an intention to abandon but it could also be consistent with the contractors who removed the bulk of the equipment at the end of August 2004 failing to secure the building when they left or someone else having in the meantime removed the lock in order to gain access to Building 29.[88]Once RAL has proved its ownership of the equipment, the burden of proving abandonment as a defence to a claim in conversion must be on the Defendants and I conclude that the Defendants have not discharged the burden of proving on the balance of probabilities that RAL had the necessary subjective intent to abandon whatever remained in Building 29.

(b) Liability for Conversion/Negligence

[89]For the reasons given earlier in this Judgment, liability in conversion for someone finding themselves in the position in which the Defendants found themselves is, exceptionally, not a strict liability. Rather, liability depends on whether the Defendants knew or ought reasonably to have known that the goods belonged to a third party.[90]Whilst Mr Waterfield's conversation with Mr Weston after he had been informed by Mr Hughes of the presence of the equipment in Building 29 was by way of a complaint, it was apparent from his evidence and from what he said to Mr Weston that he realised that there was a possibility that what had been found in Building 29 belonged to a person or company engaged in the business of film or television production or such like. This means that he was under a duty to make reasonable enquiries in order to ascertain whether or not the equipment had been abandoned.[91]An important issue on this aspect is whether, in reaching my conclusion as to the Defendants' entitlement to remove and destroy the equipment, I should take into account the knowledge of Mr Weston and Mr Duncan of RAL's claim to the equipment and expressed intention to collect it. By the end of the trial, it was common ground that neither Bruton Knowles nor Donaldsons were acting as agents of the Defendants when they dealt with Mr Waterfield's enquiry. However, Mr Ashfield submitted that the approach that I should take is to treat the duty of a person in the position of the Defendants as being a non delegable one, with the result that if and to the extent that the duty was delegated, the Defendants must be treated as having been aware of such facts as came to the knowledge of the persons to whom the duty was in fact delegated. I reject that submission. The duty is not a strict or non-delegable one but merely involves making such enquiries as might be reasonable in the circumstances into the ownership of the goods. Mr Weston, due to his prior involvement in the site as agent for Defence Estates, was the most obvious person to whom the enquiry should have been addressed and the Defendants acted reasonably in addressing the enquiry to him but that does not result in the Defendants being fixed with whatever Mr Weston discovered. Similarly, the fact that Mr Weston then involved Mr Duncan in the process does not result in Mr Duncan's knowledge being treated as if it was the Defendants' knowledge. This is not a case of delegation of a duty, rather it is simply the Defendants doing what in the circumstances was reasonable by addressing their enquiries to the only person they thought might be aware of or be able to ascertain the position in relation to the equipment in Building 29.[92]Such being the case, the only question on liability is whether Mr Waterfield was reasonably entitled to conclude, as he said he did, that the equipment in Building 29 had been abandoned in circumstances where it was found in an unlocked building, was regarded as being of no use to it by one of the other site occupants engaged in the business of staging events and, following Mr Waterfield's complaint to Mr Weston on or before 26 January 2005, the goods had not been collected and Mr Waterfield had heard nothing, whether from Mr Weston or from anyone claiming to be the owner of the goods, as to the goods being other than abandoned. A further factor which Mr Waterfield says, and which I accept, was in his mind was that throughout the period of his interest in the acquisition of the site, the only buildings which he had been told by or on behalf of Defence Estates were occupied were those which were identified in the conditional contract dated 1 June 2004. Whilst he knew that occasionally Hangar 2 and Building 29 might be used for film or television productions, it was common ground that these would only be for short term use and there was nothing to suggest to Mr Waterfield that there was any recent or ongoing production to which the equipment might be related.[93]Mr Ashfield submitted that, notwithstanding the above matters, Mr Waterfield ought reasonably to have checked with Mr Weston to see if he had made any progress with his enquiries before proceeding with the destruction of the goods. That argument is not without merit and it would, I anticipate, usually be the case that where the possessor of goods has asked a third party to find out whether anyone was still interested in the goods on the basis that the third party is believed to be the only person who would be able to provide an answer to that question, the result of such enquiries ought to be ascertained before the goods are destroyed.[94]However, what is reasonable must always depend on the precise circumstances of the case. In this case, the site had been purchased with vacant possession and Mr Waterfield was entitled to complain about the fact that there was equipment in Building 29. Indeed, Mr Weston understood him to be complaining. Although there was no immediately pressing need for Building 29 to be cleared and Mr Waterfield acknowledged that if he had known about RAL's claim to and interest in the equipment he would not have proceeded with its destruction on 4 March 2005 if it had not been collected by then, these were premises which the Defendants wanted to prepare for and put to commercial use. Mr Hughes had been engaged in order to render the buildings in a fit state to be offered for letting and marketing of the commercial buildings commenced in June 2005, after they had been cleared and refurbished. In addition, clearance of the equipment in Building 29, if it was not claimed by anyone, would require the use of a cutting machine for the most efficient disposal of the equipment and if the opportunity was not taken to use Wards' machine whilst they were on site for other clearance works, NNL would have had to have incurred additional expenditure in order to dispose of the equipment in Building 29.[95]In addition, I consider that Mr Waterfield was, in the circumstances, entitled to assume that Mr Weston appreciated the urgency of the need to remove the equipment from Building 29, that Mr Weston would know the identity of all the potential owners of the equipment in Building 29 and be able to contact them, that Mr Weston would communicate to anyone he could identify as the owners of the equipment that there was a new owner of the site who required the removal of the equipment and that any reasonable businessman being apprised of the situation would realise that if it was his equipment that was in Building 29, there was an urgent need to remove it. In this regard, Mr Stuart acknowledged that he understood that a purchaser of premises would expect to be given vacant possession and he therefore understood or ought to be taken as having understood that there was a real risk that any equipment belonging to RAL that remained in Building 29 might be regarded as having been abandoned and be removed and destroyed.[96]After a lapse of time of over 5 weeks from the date of his complaint to Mr Weston without having heard anything further from Mr Weston or any owner of the goods and without anyone having made any attempt to collect the goods, I consider that Mr Waterfield was reasonably entitled to conclude that there was no one who was interested in the goods and on that basis NNL and Mr Waterfield were entitled to permit Mr Hughes to continue with the clearance of Building 29. The fact that the correspondence disclosed for the purposes of this litigation now reveals that RAL had laid claim to the goods and had expressed an intention to collect the goods means that, with the benefit of hindsight, it can be seen that Mr Waterfield's conclusion was erroneous but that is not sufficient to render the Defendants liable. It is also true that, in the light of the correspondence now disclosed, it can be seen that all that Mr Waterfield had to do to apprise himself of the true facts was to telephone Mr Weston to ascertain what progress he had made with his enquiries and the answer that Mr Weston would have given him would have caused Mr Waterfield to postpone the clearance of Building 29. However, the question is whether Mr Waterfield acted reasonably in proceeding as he did without having made that telephone call and in my judgement, in the particular circumstances of this case, Mr Waterfield was entitled to proceed on the basis that the absence of any indication after a period of over 5 weeks that anyone was laying claim to the goods was sufficient for him to conclude that they were no longer wanted. He was also entitled to be reinforced in that conclusion by the fact that Building 29 was found by Mr Hughes to be unlocked and that Woodhouse had not been interested in the equipment, thereby indicating that it might well not be of any continuing use to anyone.[97]In the light of my above conclusion, the Claimants' claim against the Defendants must fail. The Defendants could not be liable in conversion and, having regard to the criteria relevant to the assessment of their liability for conversion, could not be liable in negligence either.

(c) Contributory Negligence

[98]In the light of my conclusion that the Defendants are not liable in conversion or for negligence, this does not arise but in any event, for the reasons given earlier in this Judgment, contributory negligence could not have been relevant to liability in conversion. If, however, I had found that the Defendants were not reasonably entitled to proceed with the removal and destruction of the equipment in Building 29 but that the defence of contributory negligence was available, I would have held RAL to be 50% to blame for what occurred.

(d) Quantum

[99]Again, in the light of my conclusions on liability, this does not arise. However, if it had arisen, I would have applied the guidance to be found in Voaden v. Champion and held that even if the full Robot Wars Set had been present in Building 29 on 4 March 2005 and removed and destroyed by the Defendants, the replacement cost of the Set would not be an appropriate measure of damages. The replacement cost of goods which have been destroyed is appropriate where the Claimant has lost a profit earning chattel. In this case, however, all that the Claimants would have lost would have been an asset which was in reality in my view, redundant and to award the Claimants the replacement cost of the Set would be to place them in a far better position than they were in immediately before the destruction of it because they would then have the capital to invest in a new design and configuration which might be more attractive to television companies than the Set which they had owned. In reality, as I have already concluded, the Set had become a liability rather than an asset. Some of the components might have been re-usable if a new Set was being built but taking the Set as a whole, the only value that it had was either a scrap value or the relatively nominal value that an enthusiast of the former TV series might have been prepared to pay to acquire the set as a historical memento. In the light of the price charged for the Set by Mentorn to RAL in April 2004 in circumstances where the Set still had the potential to be used for a 2004 World Championship Event, the value of the Set could not have been more than, at most, a few thousand pounds.[100]What was in fact left in Building 29 probably had no value whatsoever because it could only have had scrap value and to be set against that scrap value would be the cost of removing and scrapping it.[101]Accordingly, the Claimants could not in any event have succeeded in a claim for substantial damages.

(e) Damages for Use and Occupation

[102]The Defendants' claim was ultimately restricted to 42 days' use and occupation from 21 January to 4 March 2005. In his evidence, Mr Waterfield accepted that if the goods had been removed, he would not have charged for use and occupation. I also take into account the fact that I have concluded that only a limited amount of equipment was present in Building 29 as at 21 January 2005. I can well understand the sense in the Defendants pleading a counterclaim for use and occupation in circumstances where the case against them was that the full Robot Wars Set was in Building 29 at all material times and that it comprised up to 5 lorry loads of equipment. However, in the light of my conclusion that most of the Set had been removed prior to 21 January 2005, Mr Waterfield's attitude to charging for use and occupation if the equipment had been removed and the fact that the removal and scrapping of the equipment in Building 29 did not give rise to any additional cost to NNL but, on the contrary, resulted in their receiving the scrap value of £250, I do not consider that it is appropriate for me to make any award on the counterclaim, which I therefore dismiss. I would emphasise, though, that the dismissal of the counterclaim essentially follows and is a result of my findings in favour of the Defendants on the Claimants' claim. Outcome[103]For the reasons given above, both the claim and counterclaim are dismissed.

Cited in 3 later judgments