Odone v Hawarden Services Ltd & Ors

The Fairey Gannet was a distinctive aircraft operated by the Royal Navy as a long range anti submarine or early warning radar aircraft. A distinctive feature was the unusual configuration of its engines; these were two turbo props placed side by side within the fuselage driving contra rotating propellers. One of the engines could be shut down to increase fuel economy on long range missions. It was produced in a number of versions: the Mk 5 was a 3-seat carrier-borne trainer.

One of these Gannet Mk 5s, together with a quantity of spares, came up for auction in late 1994. It came into the ownership of the Amjet Aircraft Corporation (“Amjet”), and was kept at Anoka County Airport in Minnesota, USA. It and the spares were bought by Harry Odone, then resident in the UK, in November 2003 for $95,000. The sale was completed in March 2004. The aircraft was then worked upon by Ray Middleton at the request of Harry Odone, with a view to the Gannet being flown to the UK. The spares made their way to the UK in 3 shipping containers: the Gannet did not. It was flown to Newfoundland, but one of its engines then failed.

The 3 shipping containers despatched to the UK were stored on some vacant land belonging to Hawarden Air Services Limited (“HAS”) at Hawarden Airport in North Wales, pursuant to an arrangement made between Harry Odone and Caroline Craft, the director of HAS. During February and March 2005 the spares within the three shipping containers were sorted out, into those relating to the Mk 5 Gannet, those relating to a Mk 3 Gannet, and a miscellaneous section of parts and tooling. The shipping containers were reorganised and repacked. In June 2005 the 3 containers were moved to a different area of Hawarden Airport, and one of them was taken from Hawarden Airport to some other place. It is said that this was done without the consent of Harry Odone or anyone connected with him.

In October 2005 the two other containers (the contents of which consisted of the Mk 5 Gannet spares, and the spares for the other version) were removed, and were sold. This was organised by Mark Petrie who said he was the agent for Ray Middleton, was done without consent of Harry Odone or anybody else, and was facilitated by HAS.

At the material times Harry Odone was in a relationship with Shannon Hendricks (later “Shannon Odone”). On the 25 January 2011 she commenced proceedings against HAS, Caroline Craft, Mark Petrie and Ray Middleton claiming damages for conspiracy and for trespass to and/or conversion of and wrongful interference with the containers. (The claim against Mark Petrie was stayed because security for costs was not provided). Shannon Odone alleged:

This claim requires me to determine 7 issues:-

In paragraph 1 of the Particulars of Claim Shannon Odone pleads that she was at all material times the owner of and entitled to immediate possession of the spares. In their Defence HAS and Caroline Craft did not deny that ownership: nor did they assert any positive case that somebody else was the owner of the spares. They put Shannon Odone “to strict proof as to her alleged title”. This does not require her to establish a title that is good against any conceivable challenge from anywhere in the entire world: but only a title sufficient to sustain the claims in trespass or conversion which she brings.

Shannon Odone disclosed documents which she said evidenced her title. Neither HAS nor Caroline Craft challenged the authenticity of those documents: and by virtue of CPR 32.19 they were therefore deemed to admit the authenticity of the documents so disclosed. At trial, however, counsel for HAS and Caroline Craft alleged that some of the documents alleged to evidence Shannon Odone’s title were forgeries or were otherwise inauthentic, and they ran a positive case as to a different chain of title. Counsel for Shannon Odone required particulars to be given of these allegations (which was done) and sought at trial to address that case. Ray Middleton did not engage with the action at all: but HAS and Caroline Craft called as a witness an associate of Ray Middleton (Mark Petrie) who provided the evidence for the positive case tracing legal title to the spares through Ray Middleton’s US company Libelle Inc (“Libelle”). In addressing the case as argued at trial I have taken into account that Shannon Odone came to trial prepared strictly to prove her own title by documents admitted to be authentic, but was ambushed by having to deal not only with her own case but with an alternative positive case for which she was not prepared. This is reflected in my assessment of her response to that positive case.

These are my findings of fact. There is no doubt that on the 25 November 2003 Harry Odone bought the Gannet and the 3 containers of spares. This transaction is evidenced by an Aircraft Purchase Agreement of that date which relates to the Gannet and declares:-

“Sales shall include all spares, records, manuals and support equipment currently available by the seller”.

The transaction was due to complete on 24 January 2004. But by that date Harry Odone had not paid the full purchase price. He paid the first instalment (in the sum of $42,475): he was not to pay the second instalment of the purchase price until 24 March 2004.

The plan was to fly the Gannet from Minnesota to Hawarden Airfield via Goose Bay in Newfoundland. To fly the aircraft in the United States it was common ground before me that it had to be registered with the Federal Aviation Administration (“FAA”). An aircraft is eligible for United States registration only if it is owned by a citizen of the United States (or certain other permitted owners, not relevant on the facts of this case). An applicant for registration of an aircraft last registered in the United States was bound to submit to the FAA conveyances completing the chain of ownership from the last registered owner, through any intervening owners, to the applicant. A bill of sale in specified form, which transferred all right, title and interest in a specifically described aircraft constituted evidence of ownership. Harry Odone could therefore not register himself as owner of the aircraft for the purpose of flying it from Minnesota to Goose Bay.

Shannon Odone produced (and relied on) a document dated 15 March 2004 made between herself and Harry Odone (who described himself as “the sole financial investor and current purchaser” of the Gannet). This agreement recited:-

“That for the purpose of [the Gannet] operating on the American “N” register under the rules of the FAA it is acknowledged and confirmed by both parties that [Shannon Odone] has paid Harry Odone $10… to purchase and become [the Gannet’s] FAA registered owner directly succeeding Amjet Aircraft Corporation. Shannon [Odone] will hold all FAA registration/ownership documents solely in her name”.

The document provided that if requested by Harry Odone at anytime then Shannon Odone would immediately sell the Gannet and deliver up the FAA title and registration documents back to Harry Odone.

At the conclusion of Shannon Odone’s cross examination on this document I was not satisfied that it was a contemporaneously created document: but I was satisfied that its terms recorded an arrangement that had been entered into at some stage (probably in mid-April 2004). First, I could not understand why Harry Odone should be concerned on the 15 March 2004 with registration of the aircraft when he had not then actually paid for it and become entitled to it as owner. Second, on her own evidence Shannon Odone was not in mid-March 2004 in a serious relationship with Harry Odone: she had only just met him. In my judgment the probably is that this document was created later to bolster Shannon Odone’s case. But the creation of a supporting document does not mean that the case itself is false: nor does Shannon Odone’s willingness to rely on it destroy her credibility and demonstrate that her whole claim is false (because people tell untruths for many reasons).

Whilst the aircraft was at Anoka Airport work was being undertaken on it by Ray Middleton. Harry Odone had put him in funds, and Ray Middleton drew on those funds for materials and labour. Harry Odone appears to have been in credit at the beginning of April because on the 9 April 2004 he incurred some craneage charges when relocating the shipping containers which held the spares at Anoka Airport, and Ray Middleton said that he could pay the invoice directed to Harry Odone “from his Gannet account”.

This provides the background to certain central documents which I must set out before recording my findings in relation to them.

The first is a “Transfer of Ownership: Bill of Sale” dated the 31 March 2004 and made by Harry Odone in favour of Elaine Harper (to whom, I am satisfied, Harry Odone was indebted in the sum of £81,500). By this document it is recorded that Harry Odone sold and transferred “full title and ownership” of the Gannet including related spares and tooling at an agreed value of £53,000 in part payment of the £81,500 loan. Elaine Harper was herself the owner of another historic aircraft, and someone with whom Harry Odone had dealt since at least 2001.

The second is a purchase agreement dated the 12 April 2004 and made between Amjet and Libelle at a stated price of $75,000 with delivery due the same day (“the Libelle Agreement”). Libelle was a company belonging to Ray Middleton which he had incorporated simply to act as owner of his Libelle glider. It did not trade.

Third there is an Aircraft Bill of Sale also dated 12 April 2004 which records that in consideration of an unstated amount Amjet transferred full legal and beneficial title to the Gannet to Libelle (“the Libelle Transfer”). The Libelle Transfer was not sent to the FAA for registration until December 2004 (at which point the Gannet was stranded in Goose Bay).

Fourth, there is another Aircraft Bill of Sale in identical form whereby for an unstated consideration Libelle (acting by its president Ray Middleton) sold all title and interest in the Gannet to Shannon Odone (“the Shannon Transfer”). The date of the document (12 April 2004) is completed in the handwriting of Mr Middleton (as are the details of the aircraft). But the name and address of the transferee is completed in the handwriting of Shannon Odone. She had the purchaser’s copy of this document.

Fifth, there is a Transfer of Ownership Bill of Sale bearing the date 25 August 2004 whereby Elaine Harper sold and transferred full title and ownership to the Gannet (and all supporting spares and tooling in containers) to Shannon Odone. The agreement recited that Shannon Odone was fully aware of the current status of the aircraft and of the unpaid costs incurred relating to the aircraft, and agreed to take over the responsibility for settling all of those existing debts. It was a term of the agreement that if the aircraft eventually returned to the UK then Elaine Harper would receive 25% of any profit from its operation for the period of 3 years from the arrival date.

There are thus three separate chains of title ending up with Shannon Odone. First there is that relating to bare ownership (subject to a $10 repurchase option) direct from Harry Odone. Second there is that via Ray Middleton and Libelle which certainly relates to registrable ownership and apparently relates to what I will call true ownership. Third, there is that via Elaine Harper which apparently relates true ownership.

The evidence of Shannon Odone was that there was an arrangement between herself and Harry Odone that she would become the formal registered owner of the Gannet then undergoing restoration work by Ray Middleton. On 12 April 2004 she and Harry Odone went to Anoka Airport where they met Ray Middleton. He showed them the Libelle Transfer (the formal transfer from Amjet to Libelle for an unstated consideration): but he did not show them the Libelle Agreement (the document purportedly containing the underlying commercial transaction which contained the price of $75,000). Ray Middleton explained that Amjet wanted the Gannet off its books because it was approaching the state of air worthiness and Amjet did not want the associated duties and liabilities of ownership. Ray Middleton said that he had offered Libelle to fill the role of registered owner. Harry Odone complained at this and asked for the Libelle Transfer to be destroyed. Ray Middleton said that was not possible since it had already been sent to the FAA. But instead he made out a new Aircraft Bill of Sale transferring the Gannet from Libelle to Shannon Odone, and gave the purchaser’s copy sheet to Shannon Odone to hold whilst he corrected the position at the FAA. Shannon Odone could not herself register this document at the FAA because she could not demonstrate a complete chain of title from Amjet to herself without producing the original Aircraft Bill of Sale between Amjet and Libelle (which Mr Middleton said he did not have, having posted it to the FAA).

Shannon Odone was cross-examined as to why the details of the transferee are completed in her handwriting (and not those of Mr Middleton). It was suggested to her that the documents had been provided in blank as a form of security and that she had at a later stage completed it in her own favour. She denied each of these assertions. She was cross-examined as to why the Aircraft Bill of Sale in favour of Libelle had not simply been destroyed and a new Aircraft Bill of Sale drawn up directly between Amjet and herself (to reflect the undoubtedly genuine Purchase Agreement entered into in November 2003). She adhered to her story that she was told that the Bill of Sale transferring the Gannet to Libelle had already been posted to the FAA, She descended into elaborate and I thought unconvincing detail, but maintained that Amjet had “a mini post office” and that there was no doubt that the document had been put in the post and the post had been taken. So the correction had to be made by the completion of the Bill of Sale. Thus Shannon Odone says she became entitled to be “the registered owner” of the Gannet and the spares.

However, as well as putting Shannon Odone to strict proof of her entitlement under the documents HAS and Carol Craft adduced the evidence of Mark Petrie in support of a positive case. That case was that Mark Petrie had met Harry Odone and Shannon Odone in April 2004 very shortly before meeting Ray Middleton. He understood from Ray Middleton that there was an agreement between Harry Odone and Libelle that the latter would purchase the Gannet together with the spares and tooling, that those would then be registered in the name of Libelle, that the Gannet would then be made air-worthy by Libelle, that Harry Odone (although having no interest in the Gannet) would be responsible for the payment of any fees and expenses incurred by Libelle in fulfilling these objectives, and that upon the Gannet arriving in the UK and Harry Odone settling all liabilities owing in respect of the restoration, the Gannet and its spare parts would be transferred into his ownership.

There are some improbabilities in the account of Shannon Odone and I have disbelieved her other evidence on a number of points (where I think she has attempted to bolster her case), but of the two versions advanced I prefer the account presented by her.

My reasons are as follows:-

I reject the argument that Libelle was the owner (real or nominal) of the Gannet. I reject the argument that Harry Odone and Ray Middleton were joint venturers and co-owned the Gannet. I find and hold that Shannon Odone has a better title to the containers and spares than any other contender, having acquired the right to become registered as the legal owner of the Gannet and the spares in April 2004 under an arrangement in which Harry Odone was to have the right to buy-back the Gannet from her for a nominal sum. I find that in April 2004 she and Harry Odone were put in possession of an Aircraft Bill of Sale to enable them to reverse the completion of the registration of Libelle, which had occurred without the consent of Harry Odone and contrary to his wish that Shannon Odone should be the registered owner. This is sufficient to sustain the claims advanced in this action without enquiry into the dealings with Harry Odone’s residual interest in the Gannet involving Elaine Harper (which I think are more troublesome). Before reaching this conclusion I have taken into account both the creation (probably by Harry Odone) of various documents about which I entertain real doubts and their impact on Shannon Odone’s overall credibility, given her reliance upon them.

In order to understand the conspiracy claim it is necessary to trace what became of the 3 containers for the spares. On the 27 August 2004 these were collected from Anoka Airport and shipped to Hawarden Airport. The named consignee was Harry Odone, and there is no doubt that he was responsible for the shipping costs and that he did in fact pay them. According to a fax sent by Ray Middleton on the 12 October 2005 Shannon Odone was involved in despatching the containers from the USA. Harry Odone was treated as the importer by HM Customs and Excise.

The 3 containers were delivered to Hawarden Airfield under an arrangement negotiated between Harry Odone and Caroline Craft. The only direct evidence as to the arrangements made is found in the first witness statement of Caroline Craft where she states that she agreed that he could keep the 3 containers on some waste land at the airfield and that there was no discussion as to any charge for storage. She assumed (but was not told) that they belonged to Harry Odone. The trial bundle contains a signed copy of a letter from Harry Odone to Caroline Craft dated 22 September 2004. This letter records that Harry Odone had spoken to Shannon Odone confirming an arrangement apparently agreed to by Caroline Craft for the use of an unfinished hanger at Hawarden Airfield for the purpose of unpacking and making an inventory of the contents of the 3 containers. There is no copy of the letter in HAS’ files, and Caroline Craft denies receiving it. Harry Odone did not give evidence. There is no extraneous material which would support the suggestion that Caroline Craft did, indeed, receive this letter. I therefore accept her evidence that she did not receive it.

The trial bundle also contains a letter dated the 25 September 2004 from Harry Odone to Shannon Odone, expressed “to confirm for our records” various matters. Harry Odone did not give evidence. I can think of no reason why, on the 25 September 2004, he would have wished to confirm matters as between himself and Shannon Odone. I do not regard this as a contemporaneous record.

The letter “confirms” two key facts. First, that Shannon Odone participated in the telephone conversation with Caroline Craft in which the storage arrangement was made. Second that there was an agreement that the containers would be stored on “their secure land”, and that they had in fact been placed in a secure area adjacent to the main hanger guarded by 24 hour personnel.

In cross examination Shannon Odone did not confirm this account of events. According to her evidence Harry Odone agreed with Caroline Craft that the containers could be put on some waste ground, and that after the containers had been shipped Harry Odone gave her HAS’ contact details and she (Shannon Odone) had a brief conversation with Caroline Craft in which Caroline Craft had confirmed that the containers were kept behind gates and were secure. This was itself an expanded account of events over that contained in Shannon Odone’s first affidavit sworn on the 24 January 2011. This said only that Harry Odone “acting on my behalf” had agreed with Caroline Craft that the containers could be stored on an unused piece of land at Hawarden Airfield.

Caroline Craft denied any telephone conversation with Shannon Odone. I accept that denial. I further find that there was no express agreement that the containers would be kept “secure”. They were simply to be left at the airfield, and afforded the same degree of security as was afforded to other users.

On the 13 January 2005 Caroline Craft sent to Harry Odone some invoices for storage of the containers from September 2004, requiring payment. HAS and Caroline Craft do not suggest that these invoices arose from any agreed change to the storage arrangements made in September 2004. What Caroline Craft says is that the accountant to HAS said that they ought to be making a charge, and so they did. The letter also required Harry Odone “to move all your equipment by 12 February 2005” because the space was being reused. Caroline Craft informed Harry Odone that space was available in another part of the airfield, but there would be a charge of £2.50 per square foot for this space. Neither Harry Odone nor Shannon Odone responded to this letter, and it is not clear that it was received by them. At all events, the containers were not moved in February 2005. Instead Harry Odone and Shannon Odone both attended at Hawarden Airfield unpacked, inventoried, and repacked the 3 containers, as I have explained.

On 20 April 2005 HAS wrote to Harry Odone again informing him that the area in which the containers were sited needed to be cleared, and that unless the containers were moved before the 4 May 2005 then HAS would move them and charge accordingly. The evidence of Caroline Craft (which I accept) was that they were so moved in accordance with this letter. An invoice was subsequently addressed to Harry Odone in the sum of £950.00 for this move together with a storage charge from 1^st September 2004 to the 30^th May 2005 in the sum of £720.00 (being 9 months’ charge for 960 square feet at £1.00 per annum).

By this time Mark Petrie was alleging that Harry Odone owed him some £25,700 odd in respect of safety equipment provided for the July 2004 flight from Anoka Airport to Goose Bay, Newfoundland (where the Gannet lay stranded). Mark Petrie was attempting to recover this and other money by whatever means he could. HAS was also alleging that Harry Odone owed it money in respect of storage charges for another aircraft: and it commenced proceedings in the Chester County Court for recovery of this money (but not explicitly for storage charges for the 3 containers).

This was the context in which in about June 2005 HAS removed the locks placed by Harry Odone/Shannon Odone on the 2 remaining containers of Gannet spares and permitted Mark Petrie to inspect the contents: and also the context in which HAS refused Shannon Odone permission to enter Hawarden Airfield so that she could inspect the containers. Almost immediately Shannon Odone was provided with keys to the new locks put on by HAS and she succeeded in surreptitiously gaining access to Hawarden Airfield.

Claims by HAS for money said to be due from Harry Odone continued. But in July 2005 Elaine Harper paid the aircraft storage charges being claimed by HAS (because she accepted that she was the owner of the aircraft for the storage of which Harry Odone was being charged by HAS). This left outstanding the claimed container storage charges dating back to September 2004 (which claims contradicted the agreement between Harry Odone and Caroline Craft on behalf of HAS).

In none of these dealings had Shannon Odone figured. But on 19 July 2005 she telephone Mr Bartley (the solicitor for HAS) to seek explanations about various items on the invoices. She undoubtedly made the point that the aircraft for the storage which Harry Odone was being invoiced in fact belonged to Elaine Harper. But she says (and Mr Bartley denies) that she also said she was the owner of the containers. Mr Bartley made a file note in which he recorded that Shannon Odone was “an associate” of Harry Odone, but did not record being informed that she was the owner of the containers. I consider Shannon Odone’s recollection of the telephone conversation on the 19 July 2005 to be much less secure than that of Mr Bartley supported by his attendance note. It seems to me that if he had taken the trouble to record the alleged ownership of one item for which storage charges were being levied (the aircraft) it is unlikely that he would fail to record similar information about the other item (the containers) if that information had been given. I find that Mr Bartley was not told on the 19 July 2005 that Shannon Odone was the owner of the containers.

There followed several other conversations and emails between Shannon Odone and Mr Bartley. I have the distinct impression that Mr Bartley was being as difficult as possible in resolving queries relating to the invoices (even to the extent of failing to provide any information at all as to the basis upon which storage charges for the containers were being levied). Indeed, one of his letters (dated 15 August 2005) read:-

“As you do not consider that there is any contract between our client and Mr Odone, and as such, no payment should be made, our client is placed in an untenable position. Consequently, as it is now your contention that the containers are not connected with Mr Odone, we trust that Mr Odone will have no objection to our client disposing of the containers and the contents thereof”.

In my judgment this is exactly what HAS and Mark Petrie were seeking to achieve. They wanted to sell the containers and their contents in order to satisfy their various respective claims against Harry Odone: but they were in difficulty in finding a fig-leaf of legality. There is an obvious distinction between saying “There is no contract for Harry Odone to pay storage charges for the containers” and saying “The containers do not belong to Harry Odone”: but HAS and Mark Petrie were prepared for Mr Bartley to twist what Shannon Odone was saying in order to engineer taking control of and selling the containers in order to get some money out of Harry Odone. They became all the more anxious to do so because on 26 September 2005 they learned that Harry Odone had been made bankrupt on 12 September 2005.

But what is equally clear is that it would not have been apparent to a participant in the telephone conversations or to a recipient of the various emails that Shannon Odone was claiming that she was the owner of the containers and their contents. Although Mr Bartley and HAS were told to direct their invoices relating to the aircraft to Elaine Harper, they were not told to direct any invoices relating to the containers to Shannon Odone. Shannon Odone’s ownership of the containers was only asserted to anyone at the end of August 2005 when she complained to the police about interference with the containers: and it only became crystal clear when Harry Odone filed a Defence to a second set of proceedings commenced by HAS against him on the 23 August 2005 in respect of what was said to be HAS’ “provision of… storage space for containers”. In that Defence (undated but served on the 16 September 2005) Harry Odone alleged that HAS well knew that “many attempts have been made to communicate with them by [Shannon Odone] the owner of [3] storage containers”.

Meanwhile HAS continued to render invoices addressed to Harry Odone for storage charges for the containers. By this time the third container (containing miscellaneous spares and tools) had been removed in circumstances which it is unnecessary to address for the purposes of this claim: and the other two containers were being charged at a rate of £1.00 per annum for 640 square feet.

Mark Petrie said that he was acting as the agent of Ray Middleton in respect of unpaid restoration bills (though I have no doubt he was also seeking to protect his own personal claims). According to Caroline Craft Mark Petrie told her that the containers were jointly owned by Harry Odone and Ray Middleton. But that was immediately contradicted because on the 21 September 2005 Ray Middleton sent to Caroline Craft the Libelle Agreement. He, of course, knew this document to be a sham because Libelle had never paid $75,000 to Amjet. Nor indeed had Libelle ever paid $75,000 to Harry Odone to acquire the benefit of the completed contract of purchase between Amjet and Harry Odone. Caroline Craft did not know (and had no reason to know) that the document was a sham. But she would have known within days of seeing the Libelle Agreement that it was flatly contrary to what Harry Odone was saying about the ownership.

On the 10 October 2005 HAS received from Mark Petrie’s company a cheque for £2800, being the sum which HAS was seeking to recover from Harry Odone in respect of aircraft and container storage. This cheque was paid into HAS’ account on the 11 October 2005. Once the £2800 was paid HAS gave the keys to the containers to Mr Petrie, plainly intending that he should have access to and control over them, and with the object of facilitating their intended sale (about which there was no secret).

On either 10 October 2005 or the following day (i.e. simultaneous with the payment-in of Mark Petrie’s cheque and the handing over of the keys) HAS’ solicitors received from Shannon Odone’s solicitors a letter quite clearly asserting that she was “the owner of 3 containers which were sent to your clients’ premises for storage”. I consider it probable that this claim was immediately communicated by the solicitors to Caroline Craft, and by her to Mark Petrie, and then to Mr Middleton. It provoked a fax from Ray Middleton on the 12^th October 2005 to Caroline Craft in these terms:-

“It is my understanding that [Shannon Odone] is claiming ownership of the said containers. With what documentation??? To my knowledge the only connection [she] had with these containers is that she was involved in despatching them from the USA to the UK. … I was hoping that Harry Odone would sell these parts in order to pay off his debts here in the US. So far he has only created confusion and run up more expenses i.e. storage charges with you. As outlined in my previous correspondence to you, I have now delegated [Mark Petrie] to handle the sale of these items and pay all charges owing to you. It is my understanding that [he has] already given you a cheque to cover your storage fees. I would suggest that expediency (sic) is important, since as long as this drags on, the funds available to settle Mr Odone’s debts will continue to diminish”.

As is apparent from that letter, although Ray Middleton was asserting that the containers and their contents belonged to him, he was also asserting that Harry Odone had a right to sell them (and that it was hoped that he would) and, moreover, that if Ray Middleton himself procured their sale then the proceeds would belong to Harry Odone and could be used to pay off Harry Odone’s debts. It was therefore clear that Ray Middleton was not asserting that Libelle was the real and absolute owner of the containers and their contents.

Sometime between the 12^th October 2005 and the 27^th October 2005 Mark Petrie sold the 2 containers and their contents for £7500 to Kennet Aviation. He reimbursed himself for the storage charges which he had paid to HAS, took some money that he considered was owed to him by Harry Odone, and paid what little was left to Ray Middleton. HAS and Mark Petrie were the chief beneficiaries of the sale.

When Shannon Odone discovered that the containers had gone, she asked the police to investigate. But in January 2007 the police indicated that they considered the matter to be a civil one (a view to which the police adhered when asked to reconsider the matter in April 2008). It appears from the records of the investigations that the police were told that:-

“The containers form part of [a] property dispute and Middleton and Petrie’s view of this is that the containers belonged to them”.

When the matter was reinvestigated in January 2008 HAS informed the police that:-

“As far as they are concerned the containers were jointly owned by Mark Petrie and Harry Odone… they [HAS] took legal advice and were told that Mark Petrie had title in the goods and so when he paid off the storage charges he was allowed to remove the items from the airport”.

Mark Petrie could not explain how the police had gained this understanding. I consider that the probability is that in 2007 and 2008 nobody had a clear recollection of the grounds upon which they had acted in 2005: and that was because even in 2005 no one had really analysed the legal basis upon which the containers could be accessed, moved and sold. Harry Odone had gone bankrupt on the 12 September 2005: and I consider it likely that Ray Middleton and Mark Petrie (particularly the latter) were simply taking whatever steps they could to get some money before the trustee in bankruptcy claimed the spares for the estate and made Ray Middleton and Mark Petrie prove in the bankruptcy.

After the containers had been sold and removed (and a month after receiving Shannon Odone’s claim to ownership) HAS’ solicitors responded on 15 November to say that they were not instructed to reply substantively to the letter dated 10 October 2005 until Shannon Odone had produced documentary evidence to support her title claim. I think the unexplained delay in responding to the letter of the 10 October 2005 and the failure immediately to disclose the fact that the containers had been sold and the proceeds pocketed by HAS and Mark Petrie was probably to let the trail go cold and to ensure that Kennet Aviation was not drawn into the dispute. Shannon Odone provided this on the 9 December 2005.

It is upon this evidence that the various claims must be decided, the first of which is that there was a conspiracy between Ray Middleton and Mark Petrie to injure Shannon Odone.

Paragraph 9 of the Particulars of Claim alleges that Mark Petrie and Ray Middleton conspired together “to obtain by deception and/or unlawfully convert the Gannet to their own use”. This is an allegation of an “unlawful means” conspiracy. Counsel for the Claimant did argue in closing that there was a straightforward conspiracy to injure: but this requires a predominant intention to injure the Claimant, and that is not established on the facts as I have found them. Accordingly I will address only the pleaded claim of an “unlawful means” conspiracy.

The tort of conspiracy to injure requires concerted action to be taken pursuant to an agreement or understanding. There is no doubt that Ray Middleton and Mark Petrie acted in concert. Although he described himself as Ray Middleton’s “agent” there is no sense in which Mark Petrie acted at the direction of Ray Middleton. Mark Petrie did what he wanted in Ray Middleton’s name so that he (Mark Petrie) could recover what Harry Odone owed him and then pay Ray Middleton what he was owed out of what was left. To that extent Mark Petrie and Ray Middleton shared a common aim.

That common aim must be the injury of Shannon Odone by unlawful means. I think it is clear from the decision in OBG v Allan [2007] UK HL 21 at paragraphs [164] – [167] in the speech of Lord Nicholls that an intention to harm can either be an end in itself or a means to an end. In the present case Mark Petrie and Ray Middleton decided to take possession of the containers and their contents and to sell them, not as an end in itself but as a means to protect their own economic interests and to recover what was owed to them by Harry Odone; but without the inconvenience of taking the lawful steps of obtaining judgment and executing it, and instead using Ray Middleton’s temporary registration as nominee for Harry Odone to undertake an appropriation and sale of which they knew he would not approve. In my judgment that would suffice for the mental element of the tort of conspiracy to injure by unlawful means, provided that the intention was directed at the Claimant.

In my judgment it is at this point that the conspiracy claim breaks down. I find and hold that Mark Petrie and Ray Middleton knew that Shannon Odone claimed to be the owner of the containers; but that they considered this to be a fictional claim created to avoid the consequences of Harry Odone’s bankruptcy. They were able to form and adhere to this view because during July and August 2005 Shannon Odone had not asserted to them (let alone produced documents to support) title to the containers. When HAS was pressing for its storage charges (which it could legitimately claim from May 2005 at £1 per square foot per annum) Shannon Odone never said “these charges are down to me”. So within the pool of knowledge that was undoubtedly shared between HAS and Mark Petrie (and through Mark Petrie with Ray Middleton) it was not known or believed that Shannon Odone was the real owner of the containers and their contents. The most that could have been known (and that by Ray Middleton) was that as a result of what had happened in April 2004 Shannon Odone was in a position to become the registered owner of the Gannet and the containers as nominee for Harry Odone, replacing Libelle as such.

This question does not arise since I have found that there was no conspiracy between Mark Petrie and Ray Middleton to injure Shannon Odone by unlawful means. HAS undoubtedly knew of Shannon Odone’s claim to own the containers (because that is what she had told the police in August 2005, was asserted in Harry Odone’s Defence and was the subject of a claim by solicitors writing on her behalf). But Shannon Odone herself had never made that claim directly to HAS when dealing with HAS’ solicitor: nor had she ever produced documents of title. I am sure that if HAS had believed that the real owner of the containers was Shannon Odone then as soon as HAS had discovered the fact of Harry Odone’s bankruptcy (which it did on 26 September 2005) then it would have redirected its demands for payment to her.

HAS is not guilty of the intentional tort of conspiracy to injure Shannon Odone by unlawful means. It does not follow that the means it used to get its money were lawful.

This requires an analysis of the scanty evidence of arrangements made between Harry Odone and Caroline Craft in August 2004. Counsel for HAS submitted first that there was no arrangement between HAS and Shannon Odone at all, but only between HAS and Harry Odone, so that HAS could not be bailee for Shannon Odone. Secondly, he submitted that the true relationship was that of licence and not bailment.

As to the first of those arguments, the identity of the person with whom the arrangement was made does not in my judgment determine the nature of the relationship so made. It is plain that such conversations as there were took place between Harry Odone and Caroline Craft (on behalf of HAS). Whether Harry Odone was acting as principal or as undisclosed agent for Shannon Odone when the arrangement was made cannot determine the nature of the arrangements so made.

The second argument is, in my view, more formidable. Counsel for Shannon Odone argued that at its inception the arrangement was one of gratuitous bailment, involving a transfer of possession of the containers from Harry Odone/Shannon Odone to HAS. Counsel for HAS argued that the mere leaving or depositing of the containers upon land belonging to and occupied by HAS does not necessarily make HAS a bailee. The essence of the distinction is that bailment requires a transfer of possession and a voluntary acceptance of the common law duty of safe keeping, whereas a licence amounts to no more than a grant of permission to leave the containers on HAS’ land on the understanding that there is no transfer of possession and no responsibility for guarding the containers.

Both Counsel referred to the decision of the Court of Appeal in Lotus Cars v Southampton Cargo Handling Plc [2000] 2 Lloyd’s Reports 532. A Lotus car was stolen from a large and securely fenced compound at the docks, which was regularly patrolled. The question was whether the Port Authority which owned the compound, kept the keys to it, and whose employees patrolled it, were bailees of the car. The majority of the Court of Appeal held that the relationship was one of bailment because of the expectation of users of the compound, the adoption by the Port Authority of measures suitable to meeting those expectations, the enclosed and protected nature of the site, the charging of fees to those who used the compound, and the freedom assumed by the Port Authority over the methods of handling the goods. Counsel for Shannon Odone argued that Hawarden Airport was fenced, the access to it was subject to security arrangements, and the expectation of anyone leaving a plane or anything else at the airport would be that it was secure. He pointed out that HAS sought to charge for their services (and lawfully did so from May 2005), assumed the right to move the containers to suit its purposes when it required the space occupied by the containers for use as an aircraft taxi way or parking apron, and excluded Shannon Odone (and Harry Odone) from the airport to prevent them having access to the containers.

Counsel for HAS characterised the instant case (by way of contrast with Lotus) as a personal arrangement. He pointed to the initial absence of payment. He stressed that on the only direct evidence available the arrangement was that containers could be deposited on waste land, without any explicit arrangement as to safeguarding. He accepted that, as with any airport facility, there was a measure of security: but he pointed out that the airport as a whole was in multiple occupation by a variety of tenants of HAS. He finally submitted that it was not necessary for HAS to have possession of the containers (for they had no task to perform in relation to them) and that the owners of the containers retained possession of them and, indeed, entered them and prepared inventories of their contents. He placed reliance on a passage in Palmer on Bailment (3^rd edition) where the author states [at 5-019]:-

“Where an occupier grants the owner of a chattel the exclusive right to use a particular identified portion of his premises for storage or safe keeping, this agreement will frequently provide conclusive evidence against the creation of a bailment. The reason is that the exclusion of the occupier is inconsonant with the high degree of physical control necessary to constitute a delivery of possession… Even where the owner has not specifically divested himself of the right to enter the area, but a specific part of his premises has been set aside for the plaintiffs’ personal use, there will generally be no bailment”.

I find and hold that HAS was initially the gratuitous bailee of the containers, and from early May 2005 (when it lawfully began to charge) a bailee for reward. The issue of “licence” or “bailment” is highly fact sensitive, but as a matter of impression (taking particular account of the features highlighted by Counsel for Shannon Odone) it strikes me that the relationship was more like storage of an item than simple use of a piece of land. Accepting the direct evidence of Caroline Craft as to the nature of the arrangements made, it seems to me that whilst there is no express reference to obligations of custody or safeguarding, the whole nature of an airport operation means that security and control of access is a “given”. Those who left aircraft or boxes of spares at the airport would expect HAS to take some steps to safeguard them, and HAS took steps to fulfil that expectation. Normally HAS charged a fee for this service. In the instant case it did not initially do so. But the absence of a fee made no difference to what was done: the Odone containers had the benefit of exactly the same security arrangements as the aircraft for the storage of which Elaine Harper paid. Nor do I think it matters that the Odone’s had access to the containers: that is a common feature of storage arrangements. HAS plainly had the right (which it exercised as against the Odones) to exclude people from the airport, and the right (which it exercised) to require items to be relocated and itself to relocate them. In short, I consider that possession of the containers was transferred and HAS assumed the obligation of safe-keeping. I was shown no Terms & Conditions applicable to other users of the airport which might modify those ordinary duties, and it was not argued that any applied.

As bailee HAS was under a duty to return the containers to the bailor (or to permit the collection of the containers by the bailor) at the end of the bailment. The actual arrangement giving rise to the bailment had been made by Harry Odone. I have found that Shannon Odone did not participate in the making of those arrangements or immediately thereafter communicate with Caroline Craft directly to confirm them. But this does not matter because by no later than 16 September 2005 it was crystal clear that Harry Odone and Shannon Odone were both saying that she was the owner of the bailed goods.

Delivery of the containers to Mark Petrie as agent for Ray Middleton was prima facie a conversion of the goods. In Motis Exports (1999) 1 Ll. Rep 837 Rix J applied the basic common law rule that “the tort of conversion is one of strict liability in which the moral concept of fault …in the sense lack of reasonable care to avoid injury, loss or damage to another, plays no part” to the case of a ship-owner who released goods upon a forged bill of lading. He held (at p.844 col.1)

“ In my judgment the delivery of goods to persons who present a forged bill of lading…….is an intentional act inconsistent with the true owner’s rights, albeit done in ignorance of them and without intending to challenge them: and is a conversion…………I would also observe that misdelivery is something different from loss by theft. A bailee may of course seek to prove that goods in his possession were stolen from him without any failure or lack of care on his part, and if he succeeds he will have a defence. In such a case a bailee has done nothing, intentionally or otherwise. But if he misdelivers the goods, the position is different. He has intentionally parted with possession of the goods, and may be liable in conversion, despite any ignorance of the fraud that has been practiced upon him or of the fact that the goods belong to someone else….”

In my judgment that principle covers this case. HAS deliberately and intentionally parted with the containers to Mark Petrie (as agent for Ray Middleton). HAS gave Mark Petrie the keys and allowed him to remove the containers. HAS may have relied on the Libelle Agreement. But that document was a sham. Ray Middleton had never bought the Gannet and the spares.

HAS chose to rely on the Libelle Agreement even though HAS knew (a) that Libelle had not bailed the containers (Harry Odone had); (b) that as the person who had placed the containers for bailment (and to whom HAS had always addressed demands for payment) Harry Odone was formally denying that Libelle was the owner; (c) that even Libelle was not acting as if it was the real owner of the containers because it was saying that the containers should be sold to pay Harry Odone’s debts. In my judgment this was wholly unreasonable behaviour. HAS took a commercial risk in order to get the money it was claiming: and it must take the consequences.

Paragraph 14 of the Particulars of Claim alleges that HAS and Caroline Craft committed trespass to the containers by breaking the locks, and by taking away the containers without the authority of Shannon Odone “or any other lawful authority or justification”. In my judgment there was a technical act of trespass. It occurred when HAS caused the locks on the containers to be broken and the containers opened so that Mark Petrie could see what was inside them. The actual trespass (the removal of the original locks) was soon remedied by Shannon Odone being provided with keys to the new locks. The tort adds nothing to the conversion claim arising from misdelivery.

It is unnecessary to address any case in negligence because of my finding in conversion. But I have in dealing with that case expressed the view that what HAS did in permitting removal of the containers was not reasonable.

The removal of the containers by Mark Petrie on behalf of Ray Middleton was a conversion (not a trespass). It is clear that Ray Middleton is liable in conversion for taking possession (through his agent Mark Petrie) of the containers and disposing of them and their contents (even though he knew he was not the real owner).

Counsel for Shannon Odone submits that Caroline Craft is personally liable as joint tortfeasor with HAS. He relies on the principle stated in MCA Records v Charly Records and quoted from the decision of Rimer J at first instance on the strikeout application. In fact the principle is best stated in paragraph [50] of the judgment of Chadwick LJ in the Court of Appeal at [2001] EWCA Civ 1441 in these terms:-

“[T]here is no reason why a person who happens to be a director or controlling shareholder of a company should not be liable with the company as a joint tortfeasor if he is not exercising control through the constitutional organs of the company and the circumstances are such that he would be so liable if he were not a director or controlling shareholder. In other words, if, in relation to the wrongful acts which are the subject of complaint, the liability of the individual as a joint tortfeasor with the company arises from his participation or involvement in ways which go beyond the exercise of constitutional control, then there is no reason why the individual should escape liability because he could have procured those same acts through the exercise of constitutional control. there is no reason why a person who happens to be a director or controlling shareholder of a company should not be liable with the company as a joint tortfeasor if he is not exercising control through the constitutional organs of the company and the circumstances are such that he would be so liable if he were not a director or controlling shareholder. In other words, if, in relation to the wrongful acts which are the subject of complaint, the liability of the individual as a joint tortfeasor with the company arises from his participation or involvement in ways which go beyond the exercise of constitutional control, then there is no reason why the individual should escape liability because he could have procured those same acts through the exercise of constitutional control.”

Whilst the evidence demonstrates that Caroline Craft took the decision about who should be treated as the owner of the containers (“I (acting on behalf of HAS) was satisfied that Libelle had title to the Containers”: Witness Statement para 34) it does not establish who (amongst those acting on behalf of HAS) handed over the keys after payment of the storage charges or who was complicit in the arrangements to move the containers. Although, given her prominent role, it might be possible to infer that Caroline Craft brought about or permitted these events, it was not put to her in cross-examination that she was personally responsible for either. It would in the circumstances be unfair to find and hold that she procured or induced those acts to be done by HAS or that, in some other way, she and HAS joined together in concerted action to secure that those acts were done. I therefore do not find her jointly liable for the conversion by HAS.

Paragraph 19 of the Particulars of Claim set out Shannon Odone’s claim for damages. The claim to the market value of the spares was said to be the subject of expert evidence. But none was adduced. There was a claim for residual loss in value of the Gannet by reason of the absence of spares, loss of income from tooling hire, loss of income from historic aircraft displays caused by the absence of spares, loss of membership and sponsorship revenue, deterioration in the condition of the aircraft whist at Goose Bay and costs of storage and the cost of returning the Gannet to Minnesota from Goose Bay (because it could not be repaired). In addition there was a claim for aggravated damages on the basis (a) that the actions of Ray Middleton were “opportunist, threatening, extremely dishonest and intended to be intimidating towards the Claimant”; and (b) that the denial by HAS of access to Hawarden Airport, the deliberate non-communication with Shannon Odone by HAS and Mr Bartley and “lies told to the police” were threatening and frightening for Shannon Odone and made her feel very vulnerable.

Counsel for Shannon Odone asked that these matters be put off for enquiry once questions of liability had been addressed. I refuse that application. This was the trial of the action. I bear in mind that it came before me on transfer from another venue because another judge felt (at the last minute) unable to take it, that the parties had already suffered the inconvenience of an earlier adjournment, and that the trial was squeezed into what time was available. But it was the scheduled trial. HAS and Caroline Craft came to meet to entire case pleaded against them. It would be most unfair to put them to the worry and expense of a further trial (and absorb resources that could be made available to other litigants) simply because Shannon Odone had not put her evidence in order before trial.

The value of the spares converted by HAS and Mr Middleton is established by the sale price achieved by Mark Petrie: that is £7500. That is the only properly grounded finding that can be made. The more expensive process of taking an account would (on the material I have) yield the same result: that head of relief was (rightly) not pressed.

I dismiss all other damages claims. Quite apart from questions of causation and remoteness (which were simply not addressed at trial and face apparently insurmountable difficulty) there is simply no reliable evidence by reference to which properly to conduct any assessment.

I dismiss the claim for aggravated damages. Shannon Odone became (through her own choice) caught up in some robust commercial dealings as creditors sought to recover money which they felt they were owed by Harry Odone (who they considered owned the Gannet and the spares). She did not put all her cards on the table. They took short cuts to get their money. Mark Petrie in particular was prepared to issue scarcely veiled threats in order to achieve his commercial objectives: but not to Shannon Odone. There was a degree of skulduggery on both sides of the argument, with documents being produced to create or to bolster cases. I am not satisfied that any case for aggravated damages is made out.

There will accordingly be judgment for the Claimant in the sum of £7500 together with interest on that sum. My provisional view as to the manner in which my discretion to award interest should be exercised is that simple interest at the rate of 2.5% p.a should be awarded from 1 January 2008 (there being no apparent reason why proceedings were issues so late in the day).

I will hand down this judgment in Liverpool at 2.00pm on 23 May 2014 in the absence of the parties. I will consider the consequential matters of interest and costs after considering written submissions (to be filed by 4.00pm 13 June 2014).