Da Rocha-Afodu and Anr v Mortgage Express Ltd and Anr
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Jackson,Lady Justice Sharp |
| Judgment Date | 20 March 2014 |
| Neutral Citation | [2014] EWCA Civ 454 |
| Docket Number | B2/2013/0990 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 2014 |
[2014] EWCA Civ 454
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON JUSTICE CENTRE
(District Judge Langley)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Arden
Lord Justice Jackson
Lady Justice Sharp
B2/2013/0990
Mr M Paget appeared on behalf of the Appellant
Mr R Higgins (instructed by DLA Piper UK Ltd) appeared on behalf of the Respondent
This is an appeal by Mr and Mrs Da Rocha from the order dated 19 January 2012 of District Judge Langley sitting in the Central London County Court whereby the District Judge dismissed the Appellants' claim for damages of conversion of personal chattels. She made an order for costs against the Appellants with an interim payment of £50,000 to be paid by 27 April 2012.
I am indebted to the judge for her clear and concise judgment. I also pay tribute to the able submissions that we have had from both counsel.
I am going to set out the background first and I will do so relatively briefly. The alleged conversion of the Appellants' chattels arose out of events relating to the enforcement by the Respondent, which I will refer to as MX, of its security over 30 Miles Drive, London, SE28, which I will call the property. The Appellants fell into arrears. MX obtained a suspended order for possession on 12 October 2005. The Appellants breached the terms of the suspension. MX 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, in fact, 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, MX'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. Mrs Goodall, an employee of MX, 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 this 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 in detail the decision of Mr David Kitchin QC, as he then was, sitting as a Deputy High Court Judge in Scotland v Solomon [2002] 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.
These two points were made in paragraph 20 of her judgment. She also held that a mortgagee who finds himself in the possession of chattels on execution of a warrant for possession was in law an involuntary bailee. Such a person is defined by Palmer on Bailment 3rd Edition 2009 at paragraph 13–411 as a person whose possession of the chattel although known and the result of circumstances of which he is aware, occurs through events over which he has no proper control and where he has given no prior consent.
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.
Mr David Kitchin QC 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.
Returning to this case, the judge summarised the evidence and found as a fact that Mrs Goodall wrote the second notice on 12 October 2006 and put it up in a window of the property on that date. The judge held that the notice would still have been there on 21 October 2006 when Mr Da Rocha attended again to collect further belongings. She held, in effect, that he must have seen the notice in the window. She further held that while it was not necessary to make a finding on this point, on the balance of probabilities she was satisfied that he had, in fact, removed the notice on that date.
The judge found that MX 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. However, MX acceded to oral requests for access made by the Appellants. MX offered on one occasion to provide a house sitter so that the removal could be completed under secure conditions. The judge was satisfied that MX 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.
She then turned to consider a claim based on breach of the Mortgage Terms and Conditions 200 ("the Mortgage Conditions"). She referred to section 9 of the Mortgage Conditions, which I will set out in detail below, which stated that particular steps would not be taken for a period of 7 days. That period would run from the date on which notice was given to the mortgagors at their new address or, if no such address was given, 7 days after they left the property.
The judge held that no new address for correspondence was ever provided. Accordingly, she held that MX was not liable for breach of the Mortgage Conditions 2000 and that the Claimants' claims for damages for breach of those Conditions failed.
She then turned to consider the quantum of the Appellants' claim. In the claim form, damages of some £800,000 had been claimed. She accepted that a considerable amount of property had been lost. However, she held that there was insufficient evidence to substantiate the Claimants' claim. She accepted that there was no documentary evidence to support the cost prices given for the chattels that were left in the property. She pointed out that there was no information as to when the items were purchased and as to their value at the date of the conversion. She described the photographs that had been taken on the day that the property was removed, but she held that it was impossible to form any view from them as to the value of the goods in the property.
She held that the burden of proof rested on the Claimants to prove their loss and to provide evidence as to the value of the items at the date of the alleged conversion and that they had not discharged this burden. The judge referred to a second schedule showing the replacement costs of certain goods. This was furnished by receipts. However, there was no evidence as to the value of the goods at the date of conversion.
Thus, all the Court could, in her judgment, do was to award a fairly nominal sum, which she had fixed at £5,000. She was unable to form a view as to what items it would be reasonable to replace. She noted that the photographs did not cover any obviously new or valuable items. For reasons which she gave, she held that the evidence raised questions as to the reliability of the contents of the schedule as to the loss.
I now turn to the submissions. The arguments on this appeal have taken rather a different course from that before the judge. Mr Michael Paget has appeared on this appeal for the Appellants. He did not appear below. He has presented their case in a different way.
The focus of the argument of the Appellants on this appeal has been on section 9 of the Mortgage Conditions which are headed "our rights when in possession of the property". This section is set out at page 317 of the trial bundle. Section 9 reads:
"The following will apply if we take possession of the property:
• If you have left any goods or animals at the property, we may take the following steps on your behalf and at your expense. Firstly, we may remove and store the goods and animals. Then we may either dispose of them or if we know that they do not belong to you, return them to their owner.
• We will only take the steps mentioned in the previous...
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