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Lien on leased vehicle

Lien on leased vehicle

Postby steve » Tue Jan 26, 2016 1:18 pm

We do cover work for delivery drivers.

After a recent event where it was wrongly inferred that we were holding someone's vehicle to ransom, we are contemplating threatening to hold people's vehicles to ransom by adding a phrase like the following to our T&C.

Possession of the vehicle will not be passed back to You until You have paid in full for the work done.


What if the van is a leased van? I guess we'd have to return it to the lease-holder if requested by the lease-holder?
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Re: Lien on leased vehicle

Postby atticus » Tue Jan 26, 2016 1:24 pm

A reminder of the site rules - No names, no advice etc.

Whether your company has a right to claim a lien is questionable. Your company should take professional advice.

Adding such a clause may help, but you would need to ensure that the term is incorporated into your contracts.
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Re: Lien on leased vehicle

Postby steve » Tue Jan 26, 2016 2:02 pm

"A reminder of the site rules - No names, no advice etc."

I understand, but clues are welcome. "We" is me and the other half. We would probably not do it, but we are aware that other drivers do do this.

Is it that a lien would only be legitimate for something involved in a transaction? So a car that is fixed, or goods that are being delivered?
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Re: Lien on leased vehicle

Postby atticus » Tue Jan 26, 2016 2:12 pm

Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281 - the essential nature of a common law lien is the right to retain possession of goods delivered to the person seeking to exercise a lien for the purpose of doing work on those goods.

As I understand it, you are not working on the vehicle in the way that a garage mechanic is.

If your payment terms are anything other than immediate cash, they could welll be inconsistent with the exercise of a lien.

This approach my not win you repeat business. That said, do you want the repeat business of a non-payer?
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Re: Lien on leased vehicle

Postby steve » Wed Jan 27, 2016 8:35 am

I see there are different types of lien:

A particular lien is exercisable only against the goods involved in a specific contract. A general lien is exercisable against any goods of the customer even though they may not be the subject of the particular contract in respect of which sums are overdue.


http://www.fta.co.uk/policy_and_complia ... liens.html

But descriptions for general liens are usually written for specific circumstances - so relating to goods being transported or vehicles being repaired. e.g. the "Road Haulage Association Limited CONDITIONS OF CARRIAGE 2009"

The Carrier shall have:
(a) a particular lien on the Consignment, and
(b) a general lien against the Trader for sums unpaid on any invoice,
account or Contract whatsoever.
If such lien, whether particular or general, is not satisfied within a reasonable time, the Carrier may sell the Consignment,


"If your payment terms are anything other than immediate cash, they could welll be inconsistent with the exercise of a lien.
This approach my not win you repeat business. That said, do you want the repeat business of a non-payer?"


I think if we used a term it would be to focus someone's mind if it turned out they were less reliable than we thought. At the weekend the guy threatened to call the police because we "refused" to return his van. Whereas we'd decided if he wasn't going to pay on time he could jolly well pick it up himself.

I keep telling my OH to write down proper terms and conditions...
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Re: Lien on leased vehicle

Postby steve » Wed Jan 27, 2016 9:27 am

The judgement seemed to be mostly related to a common law right rather than a contractual right.

There were comments (in 31) about contractual rights that would outweigh common law right to have a lien. But I didn't see comments about where a contractual lien would not be valid.


...Edit - seems I responded to a deleted post...
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Re: Lien on leased vehicle

Postby atticus » Wed Jan 27, 2016 11:05 am

The point was that you do not have a contractual right, and you are unable to assert a common law right. You have said you have no ts and cs, but appear to be considering altering that position. You will need to ensure that your ts and cs are incorporated into your contracts for them to apply.
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Re: Lien on leased vehicle

Postby dls » Wed Jan 27, 2016 8:25 pm

This is not a topic to play about with. If you are trying to get your business right, and do not have formal T&Cs then this is a long way down your priorities.

Shipping law is a contractual world of its own. Take care.
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Re: Lien on leased vehicle

Postby dls » Thu Jan 28, 2016 8:18 am

Tappenden -v- Artus; CA 1964
References: [1964] 2 QB 185
Coram: Diplock LJ
The owner of a van allowed a customer to use it pending completion of a hire-purchase agreement. The van broke down and was delivered to the defendant for repairs. The price of the repairs remained outstanding and a question arose whether the garage could exercise a lien over it against the owner.
Held: Diplock LJ described the common law possessory lien: 'The common law lien of an artificer is of very ancient origin, dating from a time when remedies by action upon contracts not under seal were still at an early and imperfect stage of development: see the old authorities cited by Lord Ellenborough C.J. in Chase v. Westmore (1816) 5 M. & S. 180. Because it arises in consequence of a contract, it is tempting to a twentieth-century lawyer to think of a common law lien as possessing the characteristics of a contractual right, express or implied, created by mutual agreement between the parties to the contract. But this would be to mistake its legal nature. Like a right of action for damages, it is a remedy for breach of contract which the common law confers upon an artificer to whom the possession of goods is lawfully given for the purpose of his doing work upon them in consideration of a money payment. If, pursuant to the contract, the artificer does his work, he is entitled to retain possession of the goods so long as his charges, whether agreed in advance or (if not so agreed) payable upon a quantum meruit, are satisfied. The remedy can be excluded by the terms of the contract made with the artificer either expressly or by necessary implication from other terms which are inconsistent with the exercise of a possessory lien; cf. Forth v. Simpson (1849) 13 Q.B. 680, in the same way as the common law remedy in damages for breach of contract may be excluded or modified by the terms of the contract itself. But this does not mean that the remedy of lien, any more than the remedy in damages, is the result of an implied term in the contract to which what we may conveniently call the Moorcock (1889) 14 P.D. 64 criteria relevant to implying terms in a contract apply. The test whether or not the remedy exists is not whether or not its existence is necessary to give business efficacy to the contract. Judged by this test there would in modern times never be an artificer's lien.
The common law remedy of a possessory lien, like other primitive remedies such as abatement of nuisance, self-defence or ejection of trespassers to land, is one of self-help. It is a remedy in rem exercisable upon the goods, and its exercise requires no intervention by the courts, for it is exercisable only by an artificer who has actual possession of the goods subject to the lien. Since, however, the remedy is the exercise of a right to continue an existing actual possession of the goods, it necessarily involves a right of possession adverse to the right of the person who, but for the lien, would be entitled to immediate possession of the goods. A common law lien, although not enforceable by action, thus affords a defence to an action for recovery of the goods by a person who, but for the lien, would be entitled to immediate possession.
Since a common law lien is a right to continue an existing actual possession of goods (that is to say, to refuse to put an end to a bailment) it can only be exercised by an artificer if his possession was lawful at the time at which the lien first attached.'
This case is cited by:
    - Cited - Your Response Ltd -v- Datateam Business Media Ltd CA (Bailii, [2014] EWCA Civ 281, [2014] CP Rep 31, [2015] 1 QB 41, [2014] 4 All ER 928, [2014] WLR(D) 131, [2014] 2 All ER (Comm) 899, [2014] 3 WLR 887, WLRD)
    The claimants employed the defendants to manage subscription lists for the claimants' magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .
(This list may be incomplete)
Last Update: 28-Jan-16 Ref: 559266
28-Jan-16
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See also: http://www.swarb.co.uk/tappenden-v-artus-CA-1964
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Re: Lien on leased vehicle

Postby steve » Fri Jan 29, 2016 8:45 am

Thanks for the case law.

For the record, we are working for van drivers, not business people, and for odd weeks here and there. Many drivers don't have any money or property if we wanted to sue. T&C are partly about setting expectations and focussing minds.
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