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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Campbell v Redstone Mortgages Ltd [2014] EWHC 3081 (Ch) (29 September 2014) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2014/3081.html Cite as: [2014] EWHC 3081 (Ch) |
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CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
B e f o r e :
____________________
MISS PAULA JAYNE CAMPBELL | Claimant | |
and | ||
REDSTONE MORTGAGES LIMITED | Defendant |
____________________
Mr Wilson Horne (instructed by TLT LLP) for the Defendant
Hearing dates: 11-12 and 19 September 2014
____________________
Crown Copyright ©
MR ANDREW SUTCLIFFE QC :
Introduction
Background facts
Execution of the mortgage
"6.1 If we [ie Redstone] or a receiver take possession of the Property, you [ie Miss Campbell] must, on Notice, remove all of your furniture and belongings. If you have not done so within 7 days of the Notice, we may as your agent remove, store or sell any items left behind.
6.2 Neither we nor the receiver will be responsible for any resulting loss or damage to your possessions. You must reimburse us for all the expenses of dealing with your furniture and goods. If we sell any of them we will pay you what's left after deducting those expenses. …"
The possession proceedings
Execution of the warrant for possession on 29 January 2014
"On behalf of our clients, who have taken possession of the Property, we hereby give you notice requiring you to remove all your goods, chattels and furniture from the above Property within 7 days of this Notice and further give you notice that under the conditions of your mortgage, in the event of your refusing or failing to remove all items of furniture or chattels from the above Property within 7 days of this Notice, the mortgagee now in possession will thereupon become and be your agent with full authority at your expense to remove, store, preserve, sell or otherwise dispose of such items of furniture and chattels in such manner and in all respects as they shall see fit. Any monies arising from the sale may be applied by the mortgagee in or towards discharging the mortgage debt.
Should you wish to remove personal affects [sic] from the Property, please contact the estate agent below within 7 days who will arrange for your request to be forwarded to the mortgagees in possession for consideration, such items will be left at the Property at your own risk."
Events following 29 January 2014
Injunction granted on 4 April 2014
Allegation that mortgage deed procured by fraud: claim number A00DH168
Allegation that mortgage deed not validly executed because not properly attested: claim number A30LS606
This Trial
The oral evidence
Dear Sirs/Madam,
We refer to the Injunction Order, Part 7 Claim Form and associated documents issued in the Durham County Court on 4 April 2014 under Claim no: A00DH198 (the Claim).
Following recent telephone conversations with Mr Graeme Brown, and his confirmation that this e-mail address may be used to contact all claimants in claim no: A00DH198 (i.e. Jayne Elizabeth Campbell, James Campbell, John Sheppard and Graeme Brown), please treat this e-mail as written to all four Claimants. References to "you" below are to all four Claimants accordingly.
It is not accepted that service of the Claim has been properly effected. Our Mr Chadwick confirmed to Mr Graeme Brown in a telephone conversation prior to the hearing of the Claim that TLT LLP were not instructed to accept service of proceedings. Mr Chadwick stressed repeatedly that if papers were sent to TLT LLP then service would not have been effected.
Notwithstanding this, and purely to progress matters, our client has today instructed us to acknowledge service of the claim form as issued as an act of cooperation and in order to deal with this matter as quickly and as efficiently as possible. We reserve our client's right to make application to strike out the Claim as being without merit and having no reasonable prospects of success. In making that application we will seek and enforce orders for costs against you.
Our client accepts that it was placed on notice of the Injunction Order on receipt of an e-mail from the Court dated 4 April 2014 and timed at 16:06 which attached the same.
We confirm that our client has not breached the terms of the Injunction Order and indeed immediately ceased all removal and disposal of goods from the Property on receiving notice of the same.
We thought it useful at this juncture to set out a brief summary of the background to the removal of goods prior to the Claim following various orders made in the possession claim between Redstone Mortgages plc and Paula Jayne Campbell. We confirm as follows:
1. The Possession Order granted by District Judge Mainwaring-Taylor sitting in the Bishop Auckland County Court dated 3 June 2008 was enforced on 29 January 2014 by our client.
2. Notices pursuant to the Torts (Interference with Goods) Act 1977 were erected on site confirming that all goods contained at the Property would be disposed of should they not be collected (the Notices). Ms Paula Campbell, Ms Jayne Campbell and others attended at the eviction and were fully aware of the process in relation to the removal of goods at the Property.
3. Applications to extend the period for collection of chattels and personal possession were made by Ms Paula Campbell as follows:
3.1. The Order of Deputy District Judge Welch dated 12 February 2014 - following an application and oral submission by Ms Paula Campbell and by agreement with our client it was ordered that Ms Paula Campbell, her daughter and two sons be permitted access to the Property for the purpose of collecting your chattels between the hours of 10am and 3pm on 24 and 25 February 2014, subject to such supervision as our client deemed appropriate (the First Order);
3.2. The Order of HHJ Behrens dated 28 February 2014 - following an application by Ms Paula Campbell and oral submission by her Counsel (and with Ms Paula Campbell in attendance) and by agreement with our client the First Order was varied to allow access between the hours of 10am and 3pm on 11, 12 and 13 March 2014 for Ms Paula Campbell, her daughter, two sons and Graeme Brown and one vehicle, subject to such supervision at our client's discretion (the Second Order); and
3.3. The Order of HHJ Reaside QC dated 14 March 2014 - following an application and oral submission by Ms Paula Campbell and agreement with our client the Second Order was varied to allow access between the hours of 10am and 3pm on 26, 27 and 28 March 2014 for Ms Campbell, her daughter, three sons and Graeme Brown and one vehicle, subject to such supervision at our client's discretion (the Third Order). The Judge stated that no further indulgence would be granted by the Court and that this was the final chance for you to collect the chattels from the Property.
4. As is clear you have failed to remove chattels from the Property in accordance with the First Order, Second Order and Third Order despite our client giving you more than ample opportunity to collect the same. Our client in no way prevented you from collecting the chattels and assumed quite correctly that the same had been abandoned given the numerous opportunities you were given to collect and the numerous occasions on which you simply failed to act.
Accordingly our client was well within its rights pursuant to the Notices to remove and dispose of the items left by you which it did up to it receiving notice of the Injunction Order.
The only person (or persons) who can be criticised for failing to remove such items are you having been named in the three orders and having been given 40 hours over 8 days to arrange collection of the same. You were given three opportunities to remove the chattels and you have chosen for whatever reasons to leave the same at the Property.
We note that you rely upon four purported Notices relating to undefined goods which you claim were left by you at the Property, provided by e-mail on 4 April 2014. As explained to Mr Brown and as set out within our e-mail in response dated 4 April 2014 timed at 11:34 (sent to this e-mail address) you have failed to provide any documentation to evidence any third party ownership despite having in excess of 2 months to provide the same and being repeatedly requested to do so.
Our client has never refused any party the right to collect goods properly due to them. Unfortunately whilst access has been granted under Court Order you have failed to take any steps to collect. In one final attempt to allow collection of chattels, and entirely without prejudice to our client's contention that the Claim should be struck out on the basis that it has no prospect of success given your abandonment of your chattels, we confirm as follows:
1. We attach full inventory with photographic evidence taken following notification of the Injunction Order detailing all chattels left at the Property (all other items having been properly disposed of in accordance with the Notice prior to notification of the Injunction Order);
2. Please identify by 4pm on 23 April 2014 the items from the list which you state are yours providing documentary evidence to confirm ownership of the same together with Ms Paula Campbell's written confirmation that the goods to which you lay claim over are indeed yours to collect. If documentary evidence is not available please provide signed confirmation from Ms Paul Campbell that she consents to the collection of the items detailed by you;
3. Once confirmed we will arrange for collection of the goods; and
4. Please note that collection must take place by 4pm on 28 April 2014 on a date and at a time to be agreed by us. The handover will be completed at the entrance to the Property under our client's supervision (as it deems fit) and no access whatsoever will be allowed to the buildings or outhouses at the Property. Access to complete the collection will not be allowed to anyone other than you. Police presence will be arranged by our client.
5. If you fail to withdraw the Claim we will make immediate application to the Court to strike out the same and to discharge the Injunction Order seeking costs awards against you.
We look forward to hearing from you in accordance with the timescales set out above.
Should you have any questions or require any clarification of the above please call our James Chadwick on 0161 669 8845.
Yours faithfully,
TLT LLP
Dear Mr Brown
We refer to your three telephone conversations yesterday with our Mr Chadwick during which you accused him of lying and incompetency and repeatedly used expletives. We will not tolerate ill founded and unacceptable conduct of that nature and hope that as requested by him you will adopt a professional manner when dealing with us.
We have been trying to maintain a dialogue with you in order to facilitate the removal of chattels from the Property as set out within our email of 17 April 2014 timed at 13.14pm.
Despite repeated requests you have failed to identify the items from the full inventory provided which you state are yours. Further you have not provided documentary evidence to confirm ownership of the same together with Ms Paula Campbell's written confirmation that the goods to which you make claim over are indeed yours to collect. As we have repeatedly explained, if documentary evidence is not available, please simply provide signed confirmation from Ms Paula Campbell that she consents to the collection of the items detailed by you. You have failed and refused to confirm that position.
We have also asked for confirmation on the date upon which you would like to arrange collection of the goods. Again, you have failed to answer that question.
As set out in our email of 17 April 2014 timed at 13.14pm, should you fail to withdraw the Claim we will make immediate application to the Court to strike out the same, and to discharge the Injunction Order seeking costs awards against you (i.e. the four claimants to the Claim).
Your repeated unwillingness to enter into any form of constructive dialogue further evidences your approach to this matter and will be referred to the Court when the issue of your conduct to date is considered.
Please come back to us with a definitive list of those items you wish to collect, providing the appropriate documentation/consents by 4pm on 24 April 2014 (a further extension of 24 hours). In doing so please also confirm the date for collection.
Finally there is one issue upon which we would like to make ourselves very clear. You have repeatedly stated that our Mr Chadwick has perjured himself by suggesting that you (Mr Graeme Brown) barricaded yourself into the Property with Ms Paula Campbell. As explained to you repeatedly, and as referred to in Redstone's application for permission of the Court to issue a warrant of restitution dated 31 March 2014, there has never been a suggestion that you were involved in that unlawful activity. The application notice stated "other attendees" and/or "other named attendees". We have been quite clear that this reference does not in any way refer to you, and accordingly, your repeated accusations that Mr Chadwick has intentionally misled the Court are without merit and ill-founded. We would be grateful if you would desist from making repeated accusations of some form of wrongdoing on Mr Chadwick's part, and focus on the issues at hand being the chattels which currently remain at the Property and are the subject matter of your without merit claim.
Yours faithfully
TLT LLP
The issues
101.1 Is Miss Campbell entitled to have the mortgage set aside on the basis that it was procured by fraud or that it does not comply with s.1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 ("the mortgage issue")?
101.2 Is Redstone liable to Miss Campbell in damages as a result of the steps it took when it was involuntary bailee of her chattels ("the damages issue")?
The mortgage issue
"My problem with all of this is that it is all water under the bridge. There has been an action for possession. Possession has been granted and it seems to me that it is far too late now to be challenging the mortgage. Furthermore these documents do not go anywhere near, so far as I am concerned, raising a serious issue as to whether the mortgage deed was forged. Not only that of course, there is the undisputed fact that she was lent £500,000. There have been extensive proceedings since then. The mortgage debt I am now told according to the evidence is in excess of £700,000 and there is an executed possession order in relation to it. It does not seem to me that it is realistic or it seems to be to be hopeless to suggest that the whole matter can now be re-opened after all the hearings that have taken place. In my view therefore there is no basis for the claim that is being made by Miss Campbell and it follows that there is no basis for any injunction to support it."
The damages issue
The law on involuntary bailment
"It seems to me that to try to put a bailment, for instance, into a watertight compartment — such as gratuitous bailment on the one hand, and bailment for reward on the other — is to overlook the fact that there might well be an infinite variety of cases which might come into one or the other category. The question that we have to consider in a case of this kind (if it is necessary to consider negligence) is whether in the circumstances of this particular case a sufficient standard of care has been observed by the defendants or their servants."
"… in my judgment, the point that Ormrod LJ was making was that within each category of bailee there will indeed be a wide variety of circumstances. However, the Court can take those into account when applying the duty which is imposed on involuntary bailees that they should do what is right and reasonable in all the circumstances. The Court must be alert to have regard to all the particular circumstances in the case."
116.1 A mortgagor is subject to an obligation to deliver up vacant possession of the Property on the execution of a warrant for possession (§8).
116.2 A mortgagee who finds himself in possession of chattels on the execution of a warrant for possession is in law an involuntary bailee (§9 and also paragraph 13-001 of Palmer on Bailment).
116.3 The duty of an involuntary bailee is to do what is right and reasonable. What is right and reasonable depends upon the findings of fact in each case (§8).
116.4 The relevant conditions of the mortgage provide a framework within which the common law duty of care, which is imposed on an involuntary bailee, is to operate. Further, any of the trigger events in the mortgage conditions is merely a starting point. The court has to go on and ask whether what the mortgagee did was, in the particular circumstances of the case, what was right and reasonable (§52).
The law applied to this case
Other applications by Miss Campbell