Involuntary Bailee

The High Court has considered the conduct of a mortgagee in possession as involuntary bailee of another’s goods, and held that, following Da Rocha-Afodu and another v Mortgage Express Ltd and another [2014] EWCA Civ 454, the duty of an involuntary bailee is to do what is right and reasonable. What is right and reasonable will depend upon the particular facts of a case.

A defaulting borrower had a warrant for possession executed against her, but she made no attempt to give vacant possession of the property and deliberately left her goods at the property as a tactic to thwart a mortgagee’s attempts to realise a sale.

In the circumstances, the mortgagee was justified in clearing the property and disposing of the goods. Given the varied nature of the goods, the fact that they had no intrinsic value and the substantial mortgage debt, it was appropriate for the mortgagee to dispose of the goods rather than put them into storage or seek to sell them.

(Campbell v Redstone Mortgages Ltd [2014] EWHC 3081 (Ch).)

Written by James Naylor

Partner, CG Naylor LLP.