Miss Paula Jayne Campbell v Redstone Mortgages Ltd
| Jurisdiction | England & Wales |
| Judge | Andrew Sutcliffe,Mr Andrew Sutcliffe |
| Judgment Date | 29 September 2014 |
| Neutral Citation | [2014] EWHC 3081 (Ch) |
| Docket Number | Claim No: A00DH285 |
| Court | Chancery Division |
| Date | 29 September 2014 |
[2014] EWHC 3081 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
Mr Andrew Sutcliffe QC, sitting as a Judge of the High Court
Claim No: A00DH285
The Claimant, Miss Paula Jayne Campbell, in person
Mr Wilson Horne (instructed by TLT LLP) for the Defendant
Hearing dates: 11–12 and 19 September 2014
I direct pursuant to CPR PD 39A para 6.1 that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Andrew Sutcliffe QC
Mr Andrew Sutcliffe QC:
Introduction
This is the trial of a preliminary issue of liability, namely, whether the Claimant as mortgagor ("Miss Campbell") has a claim for damages against the Defendant as mortgagee ("Redstone") in respect of chattels which Miss Campbell left behind at her property known as Milkup Bank Farm, Willington, Crook, County Durham, DL15 0RN ("the Property") following the execution by Redstone of a warrant for possession.
As mortgagee in possession, Redstone became an involuntary bailee of those chattels. The principal question I have to decide is whether having regard to all the circumstances of the case (including the relevant mortgage conditions, warnings given by Redstone that it intended to dispose of the chattels and orders made by the court), what Redstone did with the chattels was right and reasonable.
In considering all the circumstances of the case, it is necessary to set out the background facts in some detail. I have largely taken these from the third witness statement of James Chadwick, Redstone's solicitor, whose evidence as to the chronological history of events was not challenged.
Background facts
Execution of the mortgage
Miss Campbell executed a mortgage deed over the Property dated 3 August 2006 ("the mortgage") in favour of Beacon Homeloans Limited ("Beacon"). The mortgage was a re-mortgage of an existing debt of approximately £500,000 secured on the Property in favour of Bristol & West Building Society. Miss Campbell's signature on the mortgage was purportedly witnessed by one Andrea Steel of 52 High Street, Byers Green, Spennymoor DL16 7PG, although Miss Campbell says that the witness was not present when she signed the mortgage.
Shortly after the mortgage was executed by Miss Campbell, Beacon assigned the mortgage to Redstone. Redstone was then known as Redstone Mortgages Plc and became a private company limited by shares following a change in status on 4 December 2009.
The mortgage conditions included the following clauses G6.1 and 6.2 entitled "Your Furniture and Personal Possessions":
"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
Miss Campbell fell into arrears and possession proceedings were issued by Redstone in Bishop Auckland County Court under claim number 7PA18647.
A possession hearing was initially set for 20 March 2007. However, Miss Campbell made a payment of £10,727.88 on 24 January 2007. The proceedings were adjourned and Redstone's solicitors' file was closed and returned to Redstone.
Miss Campbell again fell into arrears when the next contractual instalment became due. A number of further instalments were unpaid and Redstone restored the possession proceedings on 20 July 2007. The arrears at this date were £7,555.50.
A new date for the possession hearing was set for 18 September 2007. Again Miss Campbell made a substantial payment shortly before the proposed hearing causing the matter to be further adjourned.
The possession claim was restored once more on 20 December 2007 when the arrears were £7,905.00. A hearing was listed for 11 March 2008.
The matter came before District Judge Mainwaring-Taylor on 11 March 2008 at which time the arrears were £15,858.30. Upon hearing Miss Campbell's submissions, the Judge granted an adjournment to the first open date after 28 days. Miss Campbell's submissions were that she was nursing both parents, her mother had cancer, she was going through a divorce and she had paid £10,600 the day before the hearing and promised to pay a further £9,400 that day.
At the adjourned hearing on 3 June 2008, when the arrears were £23,810.60, District Judge Mainwaring-Taylor granted an order for possession in 28 days ("the Possession Order"), suspended on payment of the monthly instalment by 10 June 2008 and payment of future monthly instalments plus £500 thereafter, commencing on 1 July 2008. No appeal was made against this order.
During the hearing on 3 June 2008, Miss Campbell stated (i) she had been let down by a third party who had promised to make payment for her; (ii) she was commissioned to write a play for which she would receive £25,000 within three months; (iii) she had two children at home, one of whom had just come out of hospital following two and a half months in intensive care (although Miss Campbell had not mentioned this at the previous hearing seven weeks earlier); and (iv) she received an income of £4,000 per month.
Of the two initial payments due under the Possession Order, £2,651.10 was due on 10 June 2008 but only £1,500.00 paid and £3,151.10 was due on 1 July 2008 but only £1,200.00 was paid (on 30 June 2008). So of the total of £5,802.20 that was due, only £2,700.00 was paid. In view of the considerable shortfall in payments due (i.e. £3,102.20), Redstone sent a letter before warrant to Miss Campbell on 13 July 2008 asking her to remedy the default. Further letters before warrant were sent on 15 August 2008 and 23 December 2008.
Shortly after the second letter before warrant was sent, Redstone and its solicitors began receiving emails from third parties asking for leniency to be shown towards Miss Campbell. It was at that point that it came to Redstone's attention that Miss Campbell was running the Rainbow Ark Animal Sanctuary ("the Sanctuary") from the Property.
Further letters before warrant were sent on 23 March 2009 and 13 May 2009. On 24 May 2009, when the arrears were £23,663.90, Redstone received a letter from a volunteer at the Sanctuary stating that Miss Campbell had suffered a "family loss" and was unable to contact Redstone or its solicitors. The letter stated that the volunteers were raising awareness of the Sanctuary through local media appeals and peaceful demonstrations. The volunteer also claimed that Miss Campbell had progressed to the live shows in the ITV programme 'The X Factor'. Redstone's solicitors responded to this letter on 27 May 2009 stating that Redstone and its representatives could not discuss the mortgage with anyone other than Miss Campbell as Redstone did not hold a third party authority.
As the account was falling further into default, a warrant for possession was requested on 8 July 2009. The arrears at that date were £29,198. A bailiff appointment was listed for 13 August 2009. However, Miss Campbell filed an application to suspend the warrant which was heard on 11 August 2009 (when the arrears were £31,965.06).
At the hearing om 1 August 2009 Miss Campbell stated that (i) her adult son, his wife and their new baby lived at the Property along with Miss Campbell's other two children and her disabled mother; (ii) there were more than 400 animals at the Sanctuary; (iii) her primary income was fundraising for the Sanctuary; (iv) she was in the process of securing funding from a "benefactor", Mark French, a London property developer and special needs teacher; (v) she was in a position to maintain the monthly instalments plus £500 (this being the amount ordered on 3 June 2008); and (vi) an offer of payment of £16,000 had been accepted by Redstone.
Upon receiving these submissions, District Judge Traynor ordered that the matter be adjourned to 8 September 2009 so that Miss Campbell could make the £16,000 payment by 31 August 2009 as she had promised. The payment of £16,000.00 was made on 31 August 2009. Therefore, at the adjourned hearing on 8 September 2009, District Judge Traynor suspended the warrant on payment of the monthly instalments plus £500 per month with effect from 1 October 2009.
Miss Campbell immediately defaulted and Redstone therefore requested that the warrant be reissued on 19 October 2009 when the arrears stood at £20,612.96. A bailiff appointment was listed for 25 November 2009 but, prior to execution of the warrant, Miss Campbell filed a further application to suspend which was heard on 19 November 2009. At the hearing of this application, Miss Campbell stated (i) there were 12 people living in the Property, including her elderly mother who had suffered a stroke, her daughter-in-law and her baby grandchild who had been in intensive care since birth; (ii) she was fundraising through car boot sales and a market stall; (iii) she was selling three acres of land at the Property to a registered charity; (iv) she was the widow of an ex-serviceman but had not enquired as to her entitlement to his benefits (Miss Campbell had previously stated that she was going through a divorce); (v) one of her sons was due to join the police and the other the armed forces; and (vi) payments made to Redstone had gone missing.
At the hearing on 19 November 2009, Deputy District Judge Harrison adjourned the application...
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