Picture the scene: the reception desk of a small, family run, ‘bed & breakfast hotel' in Victoria, London - 

A guest and his wife are checking out. They are having a heated argument with the proprietor. The essence of the dispute is that the guest wants a discount on the price because the hotel had not provided hot water in the showers during the period of their two day stay – despite the guest having complained about this problem the previous morning. The proprietor is resisting this request.

Matters come to a head when the guest proffers a cheque for the balance of the bill - minus a small amount to cover the lack of hot water. The proprietor is incensed. He rushes around the reception desk and grabs the guest's bag.

The guest resists and an unseemly tug of war ensues. Voices are raised. The guest is heard to say, ‘Get your hands off my ******* bag.' His wife joins in with her best fishwife impersonation, shouting, ‘STOP THAT! THAT IS ASSAULT!' The guests in reception look on open-mouthed as the scuffling continues, while others lean alarmingly over the banisters leading to the upper floors, fighting to get a better view.

The proprietor shouts to his wife to get the police. The guest, thinking this is a good idea, tells his wife to do the same. The guest's wife makes for the door but the proprietor's wife endeavours to prevent her leaving. There follows a brief but decisive struggle in which the guest's wife prevails.

Bloodied but victorious she exits the hotel and returns very shortly with a policeman. Despite looking only 16 he delivers a judgment worthy of Solomon. He informs the parties that as this is a civil matter then it should be dealt with by the civil justice system and by solicitors. He orders that the guests provide their home address to the proprietor and informs them that they can leave and if the proprietor wants his money he will have to pursue it through the civil courts. The shaken guests depart.

That is a true story. It happened to me and my wife over 20 years ago but the memory remains vivid. Since then we have dined out on the story many times. That Basil Fawlty was alive and well and living in Victoria horrified our friends. At least Basil only hit the staff, not the guests, they said.

But what prompted his behaviour? What made him rush around the desk and grab my bag? The only explanation is that he was exercising his hotelkeeper's lien over our property – the right of a hotelkeeper to detain guest's luggage if they fail to pay the bill.

But was he entitled to do so? And, further, was he entitled to wrest it forcibly from my grasp? The answer to these questions turns upon whether his establishment was actually an hotel (or an inn as they used to be called). The definition of an hotel can be found in the Hotel Proprietors Act 1956:

"S.1(3) In this Act, the expression "hotel" means an establishment held out by the proprietor as offering food, drink and, if so required, sleeping accommodation, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received."

The essence of this definition is that the hotelkeeper is prepared to take all comers (in fact it is a criminal offence to turn potential guests away if they are in a fit state and can pay) and that they cater for all the needs of the traveller – both accommodation and food. As this establishment only offered bed and breakfast it is dubious it would satisfy the definition.

The consequence of this being that the proprietor had no right of lien and his attempt to wrest the luggage from my grasp amounted to trespass to the person – assault and battery – for which my wife and I might have recovered substantial damages.

Even if the establishment was an hotel and he had a prima facie right to detain my luggage for non-payment did his right of lien extend to taking the luggage out of my possession. There is an old case, Sunbolf v Alford (1838), in which an innkeeper who had not been paid proceeded to strip a coat from the back of the plaintiff to satisfy the debt. When the issue came to court Baron Parke said:

"But there is, at all events, no power to do what this plea justifies – namely, to strip the guest of his clothes; for, if there be, then, if the innkeeper take the coat off his back, and that prove to be an insufficient pledge, he may go on and strip him naked; and that would apply either to a male or to a female. That is a consequence so utterly absurd, that it cannot be entertained for a moment."

Note the horror in his voice as he contemplates, with true Victorian prudishness, the prospect of women being stripped naked in order to satisfy the innkeeper's debt.

This extract leaves no doubt that the hotelkeeper cannot take the clothes from the guest's back (nor, as the case also makes clear, can he detain the guest himself) but there remains a small doubt as to whether the guest's luggage can be taken from the guest's possession. Lord Abinger seemed to think not:

"I do not agree that the has any right to take a parcel or other property out of the possession of the guest."

However Baron Parke left the door open a little:

"Wearing apparel on a man's person (even if it does not extend to goods in the possession of the person) cannot be taken … " [Emphasis added]

Of these two statements the former seems the preferable position. The justification for not permitting the clothes to be stripped from the guest's back is that it would amount to an assault and a breach of the peace. From there it is only a small step to take to say that the same justification can apply to wresting the luggage from the guest's hand. – as occurred in our case.

And what of this fine establishment today? Does it still exist? When doing the research for this article I looked on the internet to see if it was still in business and yes it is. I have no idea whether it is still under the same management but if you want to investigate whether standards have improved try logging on to tripadvisor.com and look for the Caswell Hotel in Victoria and judge for yourself.

But if you wish to book it online remember that you will be paying be credit card and that once the money has been authorised it will be much more difficult to retrieve. And assaulting the proprietor in order to get a refund is not advisable.

Professor David Grant is the co-author (with Helen Douglas and Julia Sharpley) of ‘Hotel Law: A Concise Guide to the Law of Inns and Innkeepers' published in March 2007 by Northumbria Law Press.  Copies are available to purchase priced £24.99 (plus £4.00 p&p) by contacting Eve Wilthew at Northumbria Law Press by email; eve.wilthew@unn.ac.uk.