Title to sue in conversion

There is uncertainty and confusion in modern attempts to understand the nature of a claimant's interest in goods sufficient to sue in conversion. It might be thought that the action is primarily designed to protect ownership, yet there are well-established circumstances in which the owner is not permitted to sue. If goods are pledged or hired out, and provided the pledge or hiring continues, the owner cannot sue third parties in conversion who wrongfully interfere with the goods.1 This has prompted the major textbooks on tort to discount ownership and insist that the claimant must either be in possession or have the right to immediate possession.2 Indeed, one text goes so far as to say, "English law in this respect favours possession at the expense of ownership."3 However, this is patently incorrect in so far as it suggests that bare possession is sufficient to sue. No one would argue that a mere finder or a thief could protect their possession against the owner. Possession is no more sufficient than ownership; they each require the right to immediate possession in order to support the action. There are even rare examples where the right to immediate possession accompanies neither ownership nor possession.4 That being so, it has prompted some to argue that the right to immediate possession can be based upon a contractual right.5
The old vocabulary that referred to "property" in goods, with even more esoteric qualifications such as "general property" and "special property," is largely to blame for modern uncertainty about the nature of the interest protected by conversion. The cases traditionally held that this right to possession had to be *Conv. 309 based upon, or arise out of, "property" in the goods6 and yet it is not essential for the claimant in conversion to be the owner. What then is the nature of this "property" if it is not ownership? Also what is the nature of the right to immediate possession if it must accompany property in the goods but need not accompany either ownership or possession? Here it will be argued that the right to immediate possession required of every claimant in conversion is always a proprietary interest and that it has its origins in ownership and not possession. To understand the nature of this right it is useful to begin with a short survey of detinue and trover, which were the forebears of the modern action of conversion.