Oury Clark Blog

Well possession could indeed be said often to be 9/10s of the law because recovery from the possessor is no easy business, notwithstanding any legal remedies that are available, including those in statute such as the Torts (Interference with Goods) Act 1977 and common law.

For example only, professionally I frequently seek files as Liquidator from both solicitors and accountants who have historically been retained by the insolvent company, to assist my investigations into a company’s demise. Such fellow professionals have usually entered into contracts for services with the company and the files in relation to the same (in which they will often have acted as an agent) will usually contain documents to which a liquidator is legally entitled. However, it is not uncommon to meet resistance to this request which can take many and varied forms; simply to obtain documents to which the company holds legal title. These can take the form of requests for settlement of a whole range of costs such as those applicable to retrieval, photocopying, their time costs etc.

Now as Liquidator I certainly will have powers under Section 236 of the Insolvency Act 1986, to seek orders for production of such files but there are substantial costs associated with using such powers. Further, when a company is insolvent it may have no pennies in the pot to discharge the same. So what is the good of having powers that are too expensive to enforce?

However, in addition to some of the practical aspects, the question of the lawful position warrants some consideration. Indeed, unlawful possession of property such that denial of the proprietary rights of the legal owner, can result in a conversion with a claim for damages made against the possessor. The same is clearly not nine tenths of the law.

So do not deny the true owner possession in reliance upon the fact that you think for the most part you are protected. Make sure of your position and if necessary seeking independent legal advice from a qualified professional.

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This entry was posted on Monday, July 19th, 2010 at 11:30 am and is filed under Insolvency. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.