INVOLUNTARY BAILMENT AND CIVIL PROCEDURE: CAMPBELL -v- REDSTONE CONSIDERED
The law as to bailment sometimes raises its head in civil procedure. It is relevant for instance when someone damages a car which is borrowed. It is more significant in relation to the duties owed in relation to goods left behind after repossession. What duties does the repossessing party owe. This issue was considered by Andrew Sutcliffe QC, sitting as a High Court Judge, in Campbell -v- Redstone Mortgages  EWHC 3o81 (Ch). This is important to anyone giving advice in these circumstances.
The defendant had taken possession of the claimant’s former home, which also operated as animal sanctuary. After possession was taken there were a large number of interlocutory hearings and injunctions to enable the claimant to return and recover her possessions.
THE NATURE OF THE DUTY OWED
The damages issue
The law on involuntary bailment
- The law on involuntary bailment is helpfully reviewed in the recent Court of Appeal authority of Da Rocha-Afodu and another v Mortgage Express Limited and another  EWCA Civ 454;  2 P. & C.R. DG10, a judgment of Arden LJ (with whom Jackson and Sharp LJJ agreed) handed down on 20 March 2014.
- In that case Mr and Mrs Da Rocha (the Appellants) appealed against the dismissal of their claim for damages for conversion of personal chattels. The alleged conversion of the Appellants’ chattels arose out of events relating to the enforcement by Mortgage Express Ltd (the Respondent) of its security over their property. The Appellants fell into arrears. The Respondent obtained a suspended order for possession on 12 October 2005. The Appellants breached the terms of the suspension. The Respondent obtained a warrant of execution on 11 November 2005. There were attempts to delay execution of the warrant. The Appellants were finally served with notice of eviction on 4 September 2006, given an eviction date of 9 September 2006 and the letter which accompanied that document or the notice itself warned the Appellants to arrange “to leave the property with all your belongings before this date and time”. This was only one of the warnings which the Appellants received. The Respondent’s solicitors wrote to them about the need to remove their possessions from the property on 29 November 2005, 22 May 2006 and 5 September 2006. Nonetheless, when the Appellants left the property, they left a considerable amount of their personal belongings on the property. Mr Da Rocha returned to remove his possessions on some three occasions: 1 October, 5 October and 21 October 2006. Meanwhile, the Respondent’s agents had put up notices at the property stating that if the chattels were not removed within 14 days, the agents would be entitled to dispose of the chattels in an appropriate manner. The first such notice was put up on 29 September 2006. An employee of the Respondent noticed that this had been removed. She replaced it with a second notice warning about removal of the chattels if they were not removed within 14 days. Mr Da Rocha made a fourth appointment to collect further chattels from the property on 3 November 2006. However, when he and the agent arrived, the subcontractor had already removed and disposed of the chattels remaining in the property. That had led the Appellants to bring the claim.
- The judge heard the matter over two days. She held that the Appellants had an obligation to deliver up vacant possession of the property on execution of the warrant. Having considered the decision of Mr David Kitchin QC, as he then was, sitting as a Deputy High Court Judge in Scotland v Solomon  EWHC 1886, she held that on the authorities, the duty of an involuntary bailee was to do what was right and reasonable. Further, she held that what was right and reasonable would depend upon the findings of fact in each case. She summarised the evidence and found as a fact that the Respondent’s employee wrote the second notice on 12 October 2006 and put it up in a window of the property on that date. She held that the notice would still have been there on 21 October 2006 when Mr Da Rocha attended again to collect further belongings and that he must have seen the notice in the window. She also held that on the balance of probabilities she was satisfied that he had removed the notice on that date. She found that the Respondent wanted to sell the property with vacant possession without delay. It would have been simpler for them and their agents if the Appellants had removed their property. The Respondent acceded to oral requests for access made by the Appellants and offered on one occasion to provide a house sitter so that the removal could be completed under secure conditions. The judge was satisfied that the Respondent had complied with its duties as an involuntary bailee of the Appellants’ goods to do what was right and reasonable. On that basis, she held that the claim based on conversion must fail.
- In Scotland v Solomon, the facts were that a charging order had been made over a residential property in favour of the neighbour following a dispute between two neighbours. The former owners were evicted and the locks were changed. Some arrangements were made for the former owners to collect their possessions, but they claimed that they were denied the opportunity to remove all their possessions. The property was sold. The purchasers removed the remaining contents.
- The deputy judge held that there was a triable issue as to whether or not the Defendants’ neighbour who had obtained the charging order had met the test of doing everything right and reasonable to enable the former owners to recover their chattels. However, he also held that if the Defendants had done what they had contended, then even though the former ejected owners may have lost some of their possessions, the Defendants would not, in his judgment, be liable in conversion. Because there was a dispute on the facts, the judge held that there had to be a trial.
- The classic statement regarding the duty of an involuntary bailee is set out in Elvin & Powell Ltd v Plummer Roddis Ltd  Solicitors Journal 48. In that case, a rogue ordered goods for delivery to a well known shop. The shop delivered the goods to the rogue who then disappeared. It was held that the shop was an involuntary bailee, but that it was not liable in damages to the true owner of the goods because it had acted reasonably. Hawke J held that the shop had done everything which was reasonable: “An involuntary bailee has an obligation to do what was right and reasonable.” It was that statement of the law that was relied on by the deputy judge in Scotland v Solomon.
- In Houghland v RR Low  All ER 159, Ormrod LJ said obiter:
“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.”
- Mr Horne submitted, and I accept, that the following propositions of law form part of the ratio of Da-Rocha (references to paragraph numbers below are to those in the judgment of Arden LJ):
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 FINDINGS IN THIS CASE
The facts of the case were unusual in that the claimant had obtained an injunction to allow her extra time to return to collect her goods and barricaded herself into the property on one occasion. The judge made a clear finding.
Accordingly I find that what Redstone did with the goods left at the Property when it took possession was, in the circumstances, right and reasonable. On the preliminary issue that I have to determine, I hold that Redstone has no liability in damages to Miss Campbell or indeed any of the other owners of chattels left on the Property, including Mr Brown and the other Third Party Claimants who obtained the interim injunction on 4 April 2014 that was subsequently discharged on 14 May 2014.
POINTS TO NOTE
The case is worth reading for the discussions of the evidence and the evidential issues that arose. At one stage a witness had to be substituted because the proposed witness became ill, yet the hearing went through with no major evidential hiccup. It demonstrates the need for documentary evidence to be obtained and retained in circumstances where involuntary bailment is taking place and there could be issues in relation to the disposal of any items left in the property.