The principle is not unqualified. Bowen LJ identified salvage in maritime law as one qualification. Other cases, including other cases of necessitous intervention, may now be seen as further qualifications to the principle but it is not necessary to examine in this case how extensive are those further qualifications or what is their content. For the purposes of this case the critical observations to make are first that Builders' restitutionary claim does not yield to analysis as a claim for work and labour done or money paid and secondly, that Builders' restitutionary claim, if allowed, would redistribute not only the risks but also the rights and obligations for which provision was made by the contract the Lumbers made with Sons."
36 The plaintiff submitted that the facts of this case came within the "cases of necessitous intervention" referred to by the High Court. The plaintiff submitted that whether a situation of "necessity" had arisen was a matter to be determined on the facts of any particular case. It submitted that in the present case a situation of "necessity" arose for two related reasons. First there was public interest necessity because the police, having identified a likely breach of the criminal law, were duty bound to take all reasonable steps to investigate it. That could only be done by requiring the vehicle to be towed to an appropriate place for forensic analysis.
37 The second reason was that the plaintiff had no practical choice but to tow and store the car. It had no choice as to whether it received any particular job under the job allocation scheme and, once it had been allocated a job, was required to tow the car in accordance with the direction of the call centre (clauses 32 and 35 of the Regulation). It was an offence to fail to tow in accordance with an authority issued under the Act.
38 In support of that proposition, the plaintiff relied upon a 1976 decision of the County Court at Stockton in the United Kingdom. There is no proper report available of that decision, although the bare statement of facts would seem to support the plaintiff's proposition, i.e. P was a crane hirer and D a haulage contractor. One of D's lorries became jammed under a bridge in a busy thoroughfare of a large town. Police were unable to contact D and telephoned P asking for a crane to be sent to the site to free the lorry. P successfully sued D alleging an agency of necessity claiming its fees for the removal of the truck and was successful. Given the absence of a report setting out the Court's reasoning process, the plaintiff accepted that this case was of only limited value.
39 Another case which appeared to be directly in point was Surrey Breakdown Limited v Knight [1999] RTR 84, a decision of the Court of Appeal in England (a two judge bench). The facts of that case were that the defendant's car was stolen and left at the edge of a pond. The police instructed the plaintiffs, who provided break down services, to remove and store the car. The defendant refused to pay the plaintiffs' removal and storage charges. The plaintiffs commenced proceedings in the County Court to recover those charges and were successful at first instance in the County Court. On appeal, the County Court judgment was set aside.
40 The leading judgment was delivered by Sir Christopher Staughton. On this issue he said:
"The doctrine of agency of necessity is not wholly settled in English law. It is well established in maritime cases that there may be what is called officious intervention creating, as it were, an agency. Whether the same is the case on land is not settled. Bowstead and Reynolds on Agency (16th ed 1996) at 156 states:
"Any attempt at development within [this] category has to contend initially with the dictum of Bowen LJ in 1886 that "work or labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved, or even, if standing alone, create any obligation to repay the expenditure.""
That is a reference to Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234.
However, the modern view is to be found at chapter 15 in Goff & Jones, The Law of Restitution (4th ed, 1993), and in particular at 373. There it is said that to support an agency of necessity:
"Necessity must have compelled the intervention. The emergency must be so pressing as to compel intervention without the property owner's authority."
It seems to me that it cannot reasonably be said that Surrey Breakdown Limited in taking the car out of the pond at 4.35 in the morning were doing so because necessity compelled them to do so without the authority of Mr Knight, the owner. Plainly, they were doing it because the police invited them to do it. It may have been very proper for the police to take that course under the Act of 1984 and the Regulations. That is why the Act and the Regulations are there. But in my judgment it was not a common law case of agency of necessity."
41 The plaintiff distinguished that case on the basis that the legislation authorised the police to request assistance from a towing company but did not compel the towing company to perform the service. In that regard, the facts could be distinguished from the present case. Otherwise the statement of principle was correct and counsel for the plaintiff conceded that it did not support the submission.
42 The plaintiff also relied upon decisions in some American States which followed the Restatement of Restitution. Those American decisions support the plaintiff's submission. The most authoritative was First Federal Savings and Loan Association v A & M Road Service Inc, a 1998 decision of Ohio Court of Appeals.
43 The defendant submitted that the starting point in principle is that the law is reluctant to impose an obligation to pay for work on a person who neither agreed to it nor requested it, nor was under any duty which caused the work to be done. To overcome that fundamental principle, a clear basis in principle is required to justify the imposition of such an obligation and clear evidence is required to show that the test has been met in a particular case. The defendant submitted that both those components were missing in this case.
44 The defendant submitted that the plaintiff's use of the language of necessity focused the inquiry on the wrong person. In interventions where there is no pre-existing relationship between the parties the focus is on the forced "recipient" not the person who did the work and the reasons why that person did it. That is the case unless the situation is one of emergency which affects both the recipient and the person who did the work. It is the necessity of the recipient of the benefit which must ultimately be assessed so that there is a basis in principle and in evidence to impose on that person a payment obligation. It also has to be established that the intervention produced an indisputable benefit for the recipient of the services. The defendant submitted that outside of a true emergency the reason why the person did the work, even if required by statute to do so, is irrelevant to the application of the principle.
45 The defendant submitted that if the focus was not upon the recipient of the services there was the potential for considerable injustice. By way of illustration, an owner not carrying insurance could have his or her car stolen and destroyed. If that car were towed at police direction and stored, the owner would still be required to pay for those towing and storage services.
46 The defendant submitted that no emergency situation was established by the evidence and no incontrovertible benefit, beyond the initial removal of the vehicle, was established. It followed that the relevant necessity for the provision of the services had not been established.
47 In the alternative, the defendant submitted that if the plaintiff had established a restitutionary claim it would have to be restricted solely to those services which clearly benefited the defendant and in relation to which the concept of necessity operated. In that regard the defendant referred to the authority signed by the police officer which was restricted to towing the vehicle.
48 The law in this area is not clear. The latest edition of Goff & Jones (7th ed, 2007) at paragraph 17-102 states the authors' recommendations:
"There is much to be said for the view that in English law an intervener should not only be exempted from tortious liability but should, in appropriate cases, be granted a restitutionary claim. A few American States, following the Restatement of Restitution, have allowed restitution. The limits of any restitutionary claim should, however, be carefully defined; and the nature of these limitations will inevitably reflect the extent to which courts wish to encourage strangers to intervene in an emergency. However, in accepting the desirability of such a claim, there is a danger that the Court may impose too great a burden on the owner of the land who has neither requested nor freely accepted the intervention."
49 As is clear from the extract from Lumbers v W Cook Builders Pty Limited (in liq) while the categories of "necessitous intervention" have not been closed, the development of the law in this area is still governed by the fundamental principle that an obligation to pay for work should not be imposed on a person who neither agreed to it nor requested it. Given the fact that this point was not taken at first instance and the real likelihood that had it been taken further evidence would have been required from both sides, this case is not an appropriate vehicle to explore whether a case of "necessitous intervention" as envisaged by the High Court has arisen.
50 On the limited evidence in this case, I would not be prepared to apply the restitutionary principle as advocated by the plaintiff. I am not satisfied that the test of necessity looked at from the point of view of the recipient of the benefits, has been established. I am not satisfied that the emergency was so pressing as to compel intervention without the defendant's authority.
51 I am not persuaded that the storage of the motor vehicle between November 2006 and the hearing before her Honour was reasonable and in the best interests of the defendant. Relevant to that last aspect, is the unexplained delay between November 2006 and the plaintiff's examination of the data available from REVS.
52 If I am wrong in that conclusion I would have restricted the plaintiff's right to charge for its services to the towing fee and the storage of the vehicle until after the police had carried out their forensic examination. Essential to the plaintiff's submission was that it was compelled to tow the vehicle and to store it. The authority, however, in its terms was restricted to towing. I am prepared to accept that implicit in the authority to tow was an authority to store until the forensic procedure had been completed. Thereafter if the plaintiff wished to rely upon the element of necessity being made out by its obligation to comply with the police direction, it was necessary for it to have that direction altered so that not only towing but also an indefinite storage was required. That was not done.
53 Accordingly, even if the plaintiff had been entitled to raise this issue in the appeal it would not have succeeded or if it did succeed, the amount which it would have recovered would have been restricted to the towing fee and storage charges for one month.