Neutral Citation Number: [2013] EWHC 4257 (QB)
Case No: 1QB/2013/0496 
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

10 July 2013
BEFORE:

HIS HONOUR JUDGE SEYMOUR QC
(SITTING AS A JUDGE OF THE HIGH COURT)

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BETWEEN:

MORRIS

		Claimant	

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	DONALDSON
	Defendant	
			
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MS SARAH LIPPOLD (instructed by RLS Solicitors) appeared on behalf of the Claimant

MS CABRA (instructed by Peacock & Co) appeared on behalf of the Defendant

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Judgment
JUDGE SEYMOUR:

1.	The claimant in this action is Mr Brian Morris.  The defendant is sued as Ms Emma Donaldson, but I think she prefers to be described in her former married name as Mrs Emma Jagler.  Both Mr Morris and Mrs Jagler were formerly married to other people, but in about April 2009 they started a relationship together and subsequently they moved into a rented property in Putney at 40 Homebush Road with some of their children.  I think between them they have six children, but only five of them, I think, moved into the property at 40 Homebush Road.  The detail actually does not matter.
 
2.	Subsequently, a property was purchased in the name of Mrs Jagler (actually she was registered at HM Land Registry in the name of Emma Jane Donaldson), the property being at 4 Putney Heath Lane, London SW5.  As I understand it, Mr Morris and Mrs Jagler lived there together with her children and with visits from Mr Morris's children, Antoinette and Christian, for significant periods of time.  Perhaps 40 percent of the time when those children lived anywhere they lived at 4 Putney Heath Lane.  Unhappily, although Mr Morris and Mrs Jagler seem to have agreed to marry, recently, in May and June of this year, their relationship has fallen apart.  Mrs Jagler asked Mr Morris to vacate the property at the end of June and he did so.
 
3.	The property contains items which both Mrs Jagler and Mr Morris have accumulated over many years in the course of their previous marriages, and also items, as I understand it, which they have purchased together.
 
4.	This action has been commenced in this division, the Queen's Bench Division.  By the application in this division what is sought is an order in the following terms:
 
"1.  The defendant shall forthwith permit the claimant, together with a legal representative and a representative or representatives from a removal company selected by the claimant ("the removal company"), to access property 4 Putney Heath Lane, London SW5 ("the property") for a period of up to four hours (the first attendance) for the purpose of ‑
(i) on the claimant undertaking not to remove any items from the property which are not included in the schedule of essential items attached to this order, delivery up to the claimant of essential items  belonging to him as set out in the schedule of essential items;
(ii) preparation by the claimant and his legal representative of an inventory of the claimant's possessions and the possessions of his children which remain at the property and which are not included in the schedule of essential items (and they are to be called the Inventory of Remaining Possessions);
(iii) preparation by the claimant and his legal representative of an inventory of items jointly owned by the parties (and that is to be the Inventory of Jointly Owned Possessions);
(iv) assessment by the removal company for requirements for the removal of the remaining possessions.
 
2.  For the duration of the first attendance the defendant shall not attend the property.  The defendant is permitted to arrange for the attendance of a legal representative or a third party of her choosing to supervise the claimant.
 
3.  By 4.00pm on 15 July 2013 the claimant shall serve upon the defendant the Inventory of Remaining Possessions and the Inventory of Jointly Owned Possessions, indicating which items jointly owned between the parties he wishes to retain and which he requires the defendant to purchase his interest in.
 
4.  By 4.00pm on 17 July 2013 the defendant shall confirm whether she agrees or disagrees that the Inventory of Remaining Possessions and the Inventory of Jointly Owned Possessions accurately reflects the ownership of the items listed therein.  The defendant shall further confirm whether she agrees with the claimant's proposals to retain jointly owned items and/or for the defendant to purchase his interest in jointly owned items.  In the event of disagreement the defendant shall specify which matters are not agreed and the reasons for any disagreement.  The defendant shall act reasonably in seeking to reach agreement.
 
5.  If the parties are unable to reach agreement in relation to the Inventory of Remaining Possessions and the Inventory of Jointly Owned Possessions either party is at liberty to apply for further directions.
 
6.  The parties will use all reasonable endeavours to reach agreement as to the value of the items in the Inventory of Jointly Owned Possessions.  If the parties are unable to reach agreement in relation to the valuation of any item or items either party is at liberty to apply for further directions.
 
7.  The defendant shall on 20 July 2013 permit the claimant to access the property together with a legal representative and the removal company for a reasonable period (the second attendance) for the purpose of ‑
(i) upon the claimant undertaking not to remove any items in relation to which there is disagreement as specified in paragraphs 4 and 5 above unless directions have been made to the contrary.  The delivery up of all items in the Inventory of Remaining Possessions and delivery up of all items on the Inventory of Jointly Owned Items which it is agreed that the claimant will retain.
 
8.  For the duration of the second attendance the defendant shall not attend the property.  The defendant is permitted to arrange for the attendance of the legal representative or a third party of her choosing to supervise the claimant.
 
9.  Until such time as the defendant has delivered up all items on the schedule of essential items the Inventory of Remaining Items and such items in the  Inventory of Jointly Owned Possessions which the claimant indicates he wishes to retain and until valuation of items in the Inventory of Jointly Owned Possessions, alternatively as the court may order or until trial or further judgment the defendant shall not damage, interfere with or otherwise deal with any items on the Schedule of Essential Items, the Inventory of Remaining Possessions and the Inventory of Jointly Owned Possessions." [quotation unchecked]
 
5.	And then there are other provisions which I need not for the time being mention.
 
6.	It is, I think, appropriate to notice that what is being sought in the Draft Order which has been put before me, first, is delivery up of identified items of property; second, what is then envisaged is that Mr Morris, the claimant, should be permitted to enter the property ‑‑ which legally at any rate is that of the defendant, Mrs Jagler, whatever beneficial interest there may be in that property ‑‑ with a view to him identifying what he says are items of his property and what he says are items of joint property and then seeking to impose upon Mrs Jagler some obligation to declare herself in relation to the assertions of Mr Morris.  And in the event of there being disputes which the parties are not able to resolve between themselves that the matter be brought back to this court with a view to a resolution by this court of whatever disputes there may be.
 
7.	It is, I think, immediately obvious that whatever else is appropriate, it is not that this court should resolve any issues between these parties.  If and in so far as there is a question as to the ownership of an item, the appropriate division of this court, if it were appropriate indeed for this action to remain in the High Court, would probably be Chancery Division or possibly Family Division, but assuredly not this division.
 
8.	I have power, as I have been reminded by Ms Sarah Lippold on behalf of the claimant, Mr Morris, under Part 25.1 of the Civil Procedure Rules amongst other things to order delivery up of property belonging to Mr Morris.  However, as has been pointed out quite rightly by Ms Cabra, who appears on behalf of the defendant, that power is only to order up identified items of property.  There is a list of identified items.  That which is relied upon before me is a Revised Essential Items List dated today, 10 July 2013.  As I understand it, there is no dispute that the items which are listed in that schedule are items in which Mrs Jagler does not claim any property.  I put it in that way because one of the items, Mr Morris's mobile phone, I am told has been mislaid so it is not physically in the custody of Mrs Jagler, but Mrs Jagler (through Ms Cabra) offers an undertaking to make available the other items which are in the Revised Essential Items List and in those circumstances it is plainly unnecessary and inappropriate for me to make an order for delivery up of the items in the Revised Essential Items List.
 
9.	I accept the undertaking which I am offered by Mrs Jagler to make those items available.  The terms upon which, as I understand it, she is prepared to make them available is really this.  That all of the listed items, save Mr Morris's files in the basement, can be made available within 48 hours, she being prepared to offer her best endeavours to do it within 24 hours and to arrange at her own expense what I think is popularly called a "man and a van" to deliver those items to wherever Mr Morris specified they should be delivered.  She is also prepared to undertake, and I accept her undertaking, to make available the files  in the basement, I think by the close of business on Monday next, 15 July.  The reason for a differentiation between the files in the basement and the other items is that the files in the basement are, I think, quite numerous, 50 or 60 lever arch files, and they need to be assembled and dispatched, whereas the other items are more readily accessible and can be assembled and dispatched much more readily.  So that deals with the application before me in so far as it relates to delivery up.
 
10.	I come to the application in so far as it seeks injunctions, in effect requiring Mrs Jagler to permit Mr Morris and others to enter her property for the purpose of listing items that Mr Morris claims are his or his children's or in which he claims to have a joint interest.  I do not doubt that this court has power to make such orders.  The question is whether it is appropriate for this court to exercise those powers. It has to be recognised that an order of this court requiring somebody to permit another person to enter their home is extremely intrusive.  In ordinary circumstances this court does not readily make such orders.  In exceptional circumstances this court does make orders in the form popularly described as Anton Piller orders, but the circumstances which justify the making of an Anton Piller order need to be very exceptional.
 
11.	In deciding whether it is appropriate to make the other orders that I am invited to make, it is, I think, material for me to recognise that Mrs Jagler is prepared to offer an undertaking within seven days to prepare a list of the items in her property which she considers belong to Mr Morris or in which he has an interest with her.  She is also prepared to offer an undertaking within 21 days to arrange at her expense for the items that she accepts belong to Mr Morris to be removed from her property to whatever location Mr Morris specifies as the location in which he wishes to receive those items or, in default, to a neutral place of storage pending the giving of instructions by Mr Morris as to where he wants delivery to be made.
 
12.	It is plain from the witness statement of Mr Morris in support of this application that he claims to own items physically in Mrs Jagler's house which have not been delivered up so far and which are not listed in the Revised Essential Items List.  He is therefore capable to some extent at least of preparing his own list of items which remain in the property where Mrs Jagler lives at 4 Putney Heath Lane.  It is perhaps to be expected that Mr Morris would have the least difficulty in recalling the existence of those items which are most valuable or in relation to which he has the strongest sentimental attachment.  It may well be that he would not be able to remember every last nut, bolt and screw in the property which he considers belongs to him; however that problem must, as it seems to me, be one of common occurrence in family proceedings and I am sure that there is some established mechanism in family proceedings, or quasi family proceedings, for remedying the problems presented by an inability to recall precisely each and every last item of property that one of parties in a matrimonial or quasi matrimonial dispute claim to own.
 
13.	In those circumstances, it seems to me that the appropriate way forward is for me to accept the undertakings offered by Mrs Jagler, but to make no other order, save that this action be transferred either to the Wandsworth County Court or to the Family Division, as to which I will hear further from Ms Lippold and Ms Cabra.  I am inclined to think that the appropriate destination is the Wandsworth County Court because I am told that proceedings have been commenced by Mrs Jagler in the Wandsworth County Court which are in the nature of family or quasi family proceedings.  Ms Lippold emphasises to me that the claimant and the defendant never actually married and it may be that consequently it is not appropriate for this action to be transferred to the Wandsworth County Court.  Well it has to go somewhere because it certainly is not appropriately in this court and so the question is whether it should perhaps go to the Family Division or to the Chancery Division, but I will hear Ms Lippold and Ms Cabra further on that point.