Taylor v Diamond

Service on an individual defendant is ordinarily valid when made at the defendant’s usual or last known residence. A separate correspondence address does not displace that residence unless the claimant has reason to believe that the defendant no longer lives there.

An application to reopen a final order made in a party’s absence should consider the same matters relevant to relief under the Civil Procedure Rules: a good reason for non-attendance, an arguable case on the merits, and promptness. Those matters guide the court’s discretion and are not rigid conditions. A person who leaves goods after an order for vacant possession may remain an involuntary bailee, whose duty is generally to make the goods available for collection rather than fund their removal.

The claimant obtained an order for specific performance of an auction contract concerning a damaged property. Consequential orders required payment of the purchase price, created a charging order over the defendant’s home, and permitted its sale.

The defendant, acting in person and alleging disabilities and lack of notice, sought to set aside the orders, appeal out of time, restrain the sale, control the handling of her chattels, and obtain mandatory relief concerning the properties. The central issues were whether the proceedings had been properly served, whether the orders should be reopened, whether permission to appeal should be granted, and what interim arrangements should govern the sale and storage of the chattels.

1. Service. The specific performance proceedings and charging order proceedings were properly commenced and served. Under CPR 6.9(2) and CPR 6.9(3), Staveley Road was the defendant’s usual or last known residence. Her use of a Somerset address for correspondence did not amount to notification that Staveley Road had ceased to be her usual residence.
2. Applications to reopen orders. For applications by a non-attending party to reopen final orders made on applications under Part 23, the court should consider: good reason for non-attendance; an arguable case on the merits; and promptness. These factors inform the discretion under CPR 1.2 and are not mandatory requirements. The court also had regard to CPR 3.9. The defendant had not acted promptly in relation to the earlier orders and had no real prospect of resisting the specific performance, charging and sale orders.
3. The court nevertheless set aside paragraph 1 of the order dated 23 March 2012, which permitted sale at £650,000, because there was a real prospect that a different minimum price might be justified. Paragraph 2, allowing reasonable clearance and storage costs to be recovered from the sale proceeds, remained in force.
4. Appeals. The defendant retained a right to appeal despite failing in her applications to reopen the orders. Permission to appeal the earlier orders was refused because there was no real prospect of success and, alternatively, no sufficient basis for extending time. Permission to appeal paragraph 2 of the 23 March 2012 order was also refused, since the costs order would have been made after any adjourned hearing.
5. Chattels and sale. The claimant was at most an involuntary bailee. He was not required to fund removal of the goods, though he had to avoid gross negligence and make them available for collection. The injunction restraining disposal of the chattels was continued, subject to liberty to apply and recovery of storage costs. The claimant was directed to offer Barnard Marcus a joint-agency opportunity to market Staveley Road at £1.1 million for a limited period. The remaining applications were dismissed, several being held totally without merit. Permission to appeal this judgment was refused.

The judgment concerned applications relating to orders made by District Judges and Deputy District Judges in the specific performance, charging order and sale proceedings. The High Court set aside only paragraph 1 of the order dated 23 March 2012, left the other material orders standing, and refused permission to appeal.