Privy Council overturns order to return excavator

The content originally appeared on: Trinidad and Tobago Newsday

Lord Ben Stephens –

AN Appeal Court’s order for a business owner to return an excavator unlawfully detained by police for two years and three months to the State has been overturned by the Privy Council.

On March 28, Lords Hodge, Hamblen, Leggatt, Stephens and Richards upheld Caribbean Welding Supplies’ appeal and set aside various orders of the Court of Appeal.

In the ruling, Lord Stephens delivered the decision and said the local appellate court “fell into error in several respects.”

In July 2018, Justice Avason Quinlan-Williams ordered the State to compensate Caribbean Welding Supplies (CWS) for the unlawful detention of its excavator. The State was ordered to pay $1,328,320, representing the value or sale price of the excavator, and $150,000 in aggravated damages and its costs.

In its appeal before Justices of Appeal Nolan Bereaux, Mark Mohammed and Charmaine Pemberton, CWS complained of the judge’s failure to award damages for loss of rental income during the period of unlawful detention. In September 2020, the Court of Appeal dismissed CWS’s appeal. In their ruling, delivered by Mohammed, the Court of Appeal held it had jurisdiction to order CWS to return the excavator to the State since it received special damages for its value.

It was the latter consideration that the Privy Council held there was no legal basis to order that the excavator be given to the State.

“The appellant owned and was entitled to possession of the excavator. The State did not own and was not entitled to possession of the excavator.”

Stephens also noted that CWS did not get back its excavator because of a court order since it was returned, by police, a month before the judge delivered her ruling.

“Secondly, the Court of Appeal wrongly categorised the award of special damages of $1,328,320.00 as being an award of the value of the excavator rather than as an award for the depreciation in the value of the excavator.”

Stephens said Quinlan-Williams did not simply assess the value of the excavator but “carefully considered” the evidence of its condition caused by the police’s failure to maintain it while in their possession and by storing it in an open area where it was exposed to the weather.

“The Court of Appeal overlooked that detinue is primarily an action for the return of goods,” Stephens said CWS, by its proprietary rights, was entitled to the return or, and to retain, the excavator no matter how badly damaged it was.

“The Court of Appeal’s order that the appellant deliver the excavator to the State not only is contrary to the primary purpose of detinue as an action for the return of goods but also incorrectly overrides the appellant’s proprietary rights.

“…The Board concludes that the Court of Appeal did not have jurisdiction to order the appellant to deliver the excavator to the State. Accordingly, the Board allows the appellant’s appeal in relation to this issue and sets aside the Court of Appeal’s order that the appellant deliver the excavator to the State.”

In its original claim, CWS said it purchased the excavator in December 2014 for US$124,527. CWS rented excavators for $3,000 and $4,000 a day.

At the time of the seizure and unlawful detention of the excavator, CWS was renting it out. CWS, in October 2015, agreed to sell the excavator, which was delivered to a site at Turure Road, Sangre Grande, when it was seized by police on October 21, 2015, one day after it was delivered.

Although she declined to make an award for loss of use, Quinlan-Williams found that CWS was entitled to be compensated for the aggravation the company suffered as a result of the continued detention of the excavator which would have been sold had it not been for the seizure of it.

In its ruling, the Privy Council dismissed CWS’s appeal of the two-thirds costs order of the Court of Appeal.

The company was represented by Tom Richards, KC, Gerald Ramdeen and Dayadai Harripaul while Rowan Pennington-Benton represented the State.