Parker v British Airways Board
Court: English Court of Appeal
Persuasive on NZ courts (superior court in
UK jurisdiction)
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Cur adv vult
Reserved decision gives higher precedent
value
Facts
BA (D) leased the executive lounge from Airport
Parker (P) was a passenger in executive lounge at London Heathrow airport
P found gold bracelet lying on the floor
P delivered to employee of D
P left name/address and requested item be returned to him if true owner not
identified
D did not return bracelet to P
D sold bracelet and retained funds 850 pounds
Parker's claim - finding a lost bracelet and taking control of it gives him finders rights
BA's claim - it had rights in the bracelet immediately before Parker found it because
an occupier of land has rights over all lost chattels which are on that land whether
the existence is known or not
Finder (P) was entitled to be in the lounge
Occupier (D) had not shown an intention to exercise control over lost chattels in the
lounge
Occupier (D) had not shown an intention that permission to enter granted members
of travelling public was on terms that the maxim "finders keepers" would not apply
Finder (P) had the superior right to the bracelet as against the occupier (D)
Material facts
An occupier allowed certain members of the
public to enter its property. A person was
lawfully on the property and found an item
on the floor. They took the item to an official
for the purpose of finding the true owner.
The true owner could not be found.
Issue
Whether an occupier who restricts entry to
his/her property to certain members of the
public, but takes no other step to
demonstrate an intention to exercise control
over things found on the property, has a
superior right to items found there over the
finder, when the true owner cannot be
found.
Ratio
An occupier who restricts entry to his/her property to certain members of the public, but
takes no other step to demonstrate an intention to exercise control over things found on the
property, does not have a superior right to items found there over the finder, who is lawfully
on the property, when the true owner cannot be found.
Rights and obligations of the finder (p 843)
1. The finder of a chattel acquires no rights over it unless (a) it has been abandoned or
lost and (b) he takes it into his care and control.
2. The finder of a chattel acquires very limited rights over it if he takes it into his care and
control with dishonest intent or in the course of trespassing.
3. Subject to the foregoing and to point 4 below, a finder of a chattel, whilst not
acquiring any absolute property or ownership in the chattel, acquires a right to keep it
against all but the true owner or those in a position to claim through the true owner or
one who can assert a prior right to keep the chattel which was subsisting at the time
when the finder took the chattel into his care and control.
4. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his
employment or agency and not wholly incidentally or collaterally thereto and who
takes it into his care and control does so on behalf of his employer or principal who
acquires a finder's rights to the exclusion of those of the actual finder.
5. A person having a finders rights has an obligation to take such measures as in all the
circumstances are reasonable to acquaint the true owner of the finding and present
whereabouts of the chattel and to care for it meanwhile.
Rights and obligations of the occupier (p 843)
1. An occupier of land has rights superior to those of a finder over chattels in or attached
to that land and an occupier of a building has similar rights in respect of chattels
attached to that building, whether in either case the occupier is aware of the presence
of the chattel.
2. An occupier of a building has rights superior to those of a finder over chattels on or in,
but not attached to, that building if, but only if, before the chattel is found, he has
manifested an intention to exercise control over the building and the things which
may be on or in it.
3. An occupier who manifests an intention to exercise control over a building and the
things which may be on or in it so as to acquire rights superior to those of a finder is
under an obligation to take such measures as in all the circumstances are reasonable
to ensure that lost chattels are found and, on their being found, whether by him or by
a third party, to acquaint the true owner of the finding and to care for the chattels
meanwhile. The manifestation of intention may be express or implied from the
circumstances including, in particular, the circumstance that the occupier manifestly
accepts or is obliged by law to accept liability for chattels lost on his 'premises' e.g. an
innkeeper's or carrier's liability.
4. An 'occupier' of a chattel, e.g. a ship, motor car, caravan or aircraft, is to be treated as
if he were the occupier of a building for the purposes of the foregoing rules.
Questions
Was the item lost or abandoned?
Yes, the gold bracelet was found abandoned in an airport lounge.
Were steps taken to find the true owner?
Yes – Parker handed the bracelet to an employee of British Airways, gave his name and
address and asked for the bracelet to be returned to him if it was not claimed by the owner.
The official handed the bracelet to the lost property department of British Airways (p 834).
“He had a full finder’s rights and obligations. He in fact discharged those obligations by
handing the bracelet to an official of British Airways, although he could equally have done so
by handing the bracelet to the police or in other ways such as informing the police of the
find and himself caring for the bracelet.” – Donaldson LJ (p 843)
Was the finder trespassing or otherwise dishonest?
No – there is restricted entry to the lounge and by being allowed in, Parker was clearly either
a first class ticket or boarding pass holder, and/or a member of the British Airways Executive
Club (p 835). He had to clear customs and security to reach the lounge. He showed honesty
by handing the bracelet to a British Airways employee, with the purpose of finding the true
owner.
“Mr Parker was not a trespasser in the executive lounge and … was acting with obvious
honesty.” – Donaldson LJ (p 843)
Did the finder take it into his/her care and control?
Yes – Parker, when handing the bracelet to the employee of British Airways, gave his name
and address and asked for the bracelet to be returned to him if it was not claimed by the
owner. Donaldson LJ said that if a finder is under a duty to take reasonable steps to reunite
the true owner with his lost property, this will usually involve an obligation to inform the
occupier of the land of the fact that the article has been found and where it is to be kept (p
842). In this case, Parker carried out this obligation.
“Mr Parker was not a trespasser in the executive lounge and, in taking the bracelet into his
care and control, he was acting with obvious honesty.” – Donaldson LJ (p 843)
Did the finder find in the course of employment?
No – “Mr Parker’s prima facie (at first appearance) entitlement to a finder’s rights was not
displaced in favour of an employer or principal. There is no evidence he was in the executive
lounge in the course of any employment or agency.”
Can members of the public access the property?
Members of the public can access the property, but it is restricted access. British Airways
limit the use of the lounge to passengers who hold first class tickets or boarding passes or
who are members of their Executive Club (p 833).
Where was the item found?
Parker found the gold bracelet in the executive lounge, on the floor (not attached to the
building). British Airways was unaware of the presence of the bracelet.
“British Airways, for their part, cannot assert any title to the bracelet based on the rights of
an occupier over chattels attached to the building. The bracelet was lying loose on the
floor.”
Did the occupier manifest intention to exercise control over things found on or in a
building or on land? Was this intention obvious?
BA claimed the right to decide who should and who should not be permitted to enter and
use the lounge, but their control was in general exercised on the basis of classes or
categories of user and the availability of the lounge in the light of the need to clean and
maintain it. They also had the right to exclude individual undesirables (e.g. drunks) and
specific items (e.g. guns, bombs).
But such control has no relevance to a "manifest intention to assert custody and control"
over lost articles. There was no evidence they searched for lost articles regularly or at all.
The only instructions about lost items were for staff, in terms of their employment, and
were not published to users of the lounge. They could have put up signs saying any items
found belong to British Airways, or given a ticket with fine print that said about lost items
etc.
The lounge was in the middle band of the spectrum of control, and “on the evidence
available, there was no sufficient manifestation of any intention to exercise control over lost
property before it was found such as would give British Airways a right superior to that of Mr
Parker or indeed any right over the bracelet.” – Donaldson LJ
“There is nothing so special in the place and no other evidence to indicate that the
defendants, on whom is the burden of proof, in any way demonstrated that they possessed
the intention to exercise exclusive control over lost property or that the permission to enter
as a member of the travelling public, albeit having purchased the special privilege of the
executive lounge, was on the terms that the commonly understood maxim ‘finders keepers’
would not apply. I therefore would dismiss this appeal.” – Eveleigh LJ
Treatment of cases
Armory v Delamirie
 Court: King’s Bench
 How is the case treated: Approved (court approves a previous decision of a court of
inferior jurisdiction in unrelated proceedings)
 Where in judgment: pages 836 (j) to 837 (a)
 "The rule as stated by Pratt CJ must be right as a general proposition, for otherwise
lost property would be subject to a free for all in which the physically weakest would
go to the wall."
 However, he says that “Pratt CJ’s ruling is, however, only a general proposition
which requires definition.”
Elwes v Brigg Gas Co
 Court: Court of Chancery (a division of UK high court)
 How is the case treated: Distinguished (where the court decides it need not follow a
previous case even where it would otherwise be bound by it, because there is some
salient difference between the cases)
 Due to difference in material facts
 “The chattel concerned was beneath the surface of the soil and so subject to
different considerations.”
South Staffordshire Water Co v Sharman
 Court: Queen’s Bench
 How is the case treated: Distinguished (where the court decides it need not follow a
previous case even where it would otherwise be bound by it, because there is some
salient difference between the cases)
 Where in judgment: page 839 at (j)
 "Sharman's case itself is readily distinguishable, either on the ground that the rings
were in the mud and thus part of the realty, or on the ground that the finders were
employed by the plaintiff to remove the mud and had a clear right to direct how the
mud and anything in it should be disposed of, or on both grounds."
 Donaldson LJ accepts Russell CJ's statement of the general principle: "Where a
person has possession of house or land, with a manifest intention to exercise control
over it and the things which may be upon or in it, then, if something is found on that
land, whether by an employee of the owner or by a stranger, the presumption is
that the possession of that thing is in the owner of the locus in quo."
o Provided that the occupier's intention to exercise control over anything
which might be on the premises was manifest
 Eveleigh LJ: “I regard Lord Russell CJ as saying that it is necessary for the occupier to
prove that his intention was obvious. A person permitted on the property of another
must respect the lawful claims of the occupier as the terms on which he is allowed
to enter, but it is only right that those claims or terms should be made clear.”
Hannah v Peel
 Court: King’s Bench
 How is the case treated: Distinguished (where the court decides it need not follow a
previous case even where it would otherwise be bound by it, because there is some
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salient difference between the cases)
Difference in material facts (non-occupying owner claim rather than occupier claim)
“This was indeed a finding case, but the claimant was the non-occupying owner of
the house in which the brooch was found. The occupier was the Crown, which made
no claim either as occupier or employer of the finder.”
Bridges v Hawkesworth
 Court: Queen’s Bench
Donaldson LJ:
 “The ratio of this decision seems to me to be solely that the unknown presence of
the notes on the premises occupied by Mr Hawkesworth could not, without more,
give him any rights or impose any duty on him in relation to the notes.”
 Donaldson LJ says Patteson J did not see it as significant that the notes were found
in public part of shop
 "I can find no trace in the report of Bridges v Hawkesworth of any reliance by
Patteson J on the fact that the notes were found in what may be described as the
public part of the shop."
 Accepts Russell CJ's statement of the general principle (which he discusses in
Sharman): "Where a person has possession of house or land, with a manifest
intention to exercise control over it and the things which may be upon or in it, then,
if something is found on that land, whether by an employee of the owner or by a
stranger, the presumption is that the possession of that thing is in the owner of the
locus in quo."
o Provided that the occupier's intention to exercise control over anything
which might be on the premises was manifest
 "But it is impossible to go further and to hold that the mere right of an occupier to
exercise such control is sufficient to give him rights in relation to lost property on his
premises without overruling Bridges v Hawkesworth. Mr Hawkesworth undoubtedly
had a right to exercise such control [i.e. manifest] but his defence failed."
 Donaldson LJ chooses not to overrule Bridges (p840 at h)
Eveleigh LJ:
 Level of control not enough to assume intention to possess
 The shop was open to the public, and one could not infer any special conditions of
entry
 “He was not saying that the place is an irrelevant consideration. He was saying that
there was nothing in the place where notes were found to rebut the principle of
‘finders keepers.’”
Sir David Cairns:
 “The only possible distinction is that in Bridges v Hawkesworth the notes were
apparently found in the part of the shop to which the public had, in practice,
unrestricted access, whereas in the instant case there was some degree of control of
access to the lounge where the bracelet was found. In my judgment, that is not a
sufficient ground for deciding this dispute in favour of the occupier rather than the
finder.”
 “There could be no logical reason for according more favourable treatment to an
Airways Board which admits only a fraction of the public to a particular lounge …
and a shopkeeper who imposes no restriction on entry to his shop while it is open
(but who would be entitled to refuse entry to anybody if he thought fit)."
Other cases distinguished due to not being relevant:
 Glenwood Lumber Co Ltd v Phillips: "However there the occupier knew of the
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presence of the logs on the land and had a claim to them as owner as well as
occupier. Furthermore, it was not a finding case, for the logs were never lost."
Re Cohen, National Provincial Bank Ltd v Katz: “The money had been hidden and not
lost and this was not a finding case at all.”
Johnson v Pickering: “This is again not a finding case.”
Moffatt v Kazana: “The claimant established a title derived from that of the true
owner. This does not help.”
Hibbery v McKiernan: “The only issue was whether for the purposes of the criminal
law property in the golf balls could be laid in someone other than the alleged thief.
The indictment named the members of the club, who were occupiers of the land, as
having property in the balls, and it is clear that at the time when the balls were
taken, the members were very clearly asserting such a right, even to the extent of
mounting a police patrol to warn off trespassers seeking to harvest lost balls.”
Cases that were considered: (where a court considers a previous decision but does not
actually follow, apply or distinguish it)
 Corporation of London v Appleyard: "The principal interest of the decision lies in the
comment of McNair J that he did not understand Lord Russell CJ as intending to
qualify or extend the principle … that possession of land carries with it possession of
everything which is attached to or under that land when the Chief Justice restated
the principle."
 Grafstein v Holme & Freeman: "He considered that Russell CJ intented to extend the
statement of principle … to include things on land or in a house."
 Kowal v Ellis
Obiter
Not relevant to decision, but had facts been like that then it would have - “by the way"
 “One who ‘finds’ a lost chattel in the sense of becoming aware of its presence, but
who does no more, is not a ‘finder’ for this purpose and does not, as such, acquire
any rights.”
 Trespassers do not acquire finder's rights – (Parker was not trespasser so not
relevant to decision, but still persuasive statement of law). The rights would go to
the occupier of the property on which the finder was trespassing
 If finder develops dishonest intention after finding, probably acquires limited rights e.g. if someone finds something but does not intend to find true owner
 If item is attached to the land or building when it is found, occupier has better title
 If Parker had been in the executive lounge in the course of any employment or
agency, his finder’s rights would be displaced in favour of an employer or principal.
This would have happened in the case of British Airways’ employees finding the
bracelet
 "In some circumstances the intention of the occupier to assert control over articles
lost on his premises speaks for itself." There is a spectrum:
 At one end a Bank manager who has a manifest intention to exercise a very
high degree of control
 At the other end is a park to which the public has unrestricted access where
there is no manifest intention to exercise any such control
 “The occupier of a house will almost invariably possess any lost item on the
premises. He may not have taken any positive steps to demonstrate his animus
possidendi, but so firm is his control that the animus can be seen to attach to it.”