Taylor v Diamond [2012] EWHC 2900 (Ch)

Case No HQ12X02345/1WC90009

[2012] EWHC 2900 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, The Rolls Building, Fetter Lane

Date 22/10/2012

London, EC4A 1NL

Before

MR JUSTICE NORRIS

Between

Matthew TaylorClaimant

Ms Sue DiamondDefendant

Carl Brewin (instructed by Paris Smith) for Claimant

Ms Diamond in person for in person

Hearing Hearing dates: 5 October 2012

Judgment

Subject to editorial corrections

[1]Ms Diamond is a retired police officer who suffers from dyslexia, hearing impairment and restrictions on her physical mobility. She is conducting her case in person. I would at the outset of this judgment put on record my thanks to the Chancery Listing Office and the Court Officials at the Newport (Isle of Wight) County Court for the assistance they have given to Ms Diamond, which has undoubtedly facilitated the presentation of her case: and I would acknowledge the contribution made to that process by those representing the Claimant/Respondent to Ms Diamond’s applications.

[2]Ms Diamond owns a property at 27 Staveley Road, Grove Park (Chiswick) London W4 (“Staveley Road”). It is a semi-detached house in untended grounds with a partially completed rear extension and a partially completed loft conversion. At the time of the events with which I must deal it appears to have been full of clothes and chattels (possibly the contents of the homes of three deceased family members): and these had been damaged when a pipe had burst at Staveley Road and flooded the premises.

[3]On the 18 February 2010 Ms Diamond bought Ridgemount House, Redcliffe Road, Torquay (“Ridgemount”) for £154,500.00. She bought at auction, where it was Lot 28. The vendor was Mr Taylor (who had himself bought from a Mr Cousens). Mr Taylor did not live at Ridgemount: he was a builder and it was a project. Mr Cousens had ceased to live in Ridgemount because of its dangerous condition. Ridgemount stood some yards back from the edge of a cliff. Ms Diamond did not herself inspect the property: nor did she have a survey done. She bid by telephone on the basis of photographs of Lot 28 that she had seen.

[4]The promotional material for the auction said:- “February auctions are always unpredictable as you find that collecting lots after the Christmas holiday season is always challenging. However, I am delighted to offer you a wide range of property this month with excellent development, investment and refurbishment properties going under the hammer. For those who dream of creating your own home, check out Lot 28, a truly stunning position overlooking the surrounding golf course, town and beaches of Torquay!”

[5]The description of Ridgemount in the auction itself appears above a box which advised prospective purchasers to take professional advice from a solicitor or surveyor, to read all of the Conditions in the catalogue, to inspect the lot selected, and to undertake all the usual searches and usual enquiries. The description of Ridgemount appeared under the rubric “Cash buyers only due to structural issues”. It described the property as occupying a “cliff top position” and continued:- “The property has suffered from severe structural damage and may be beyond economical repair. However, the opportunity to create a new property (subject to negotiation and any appropriate reports/consents from the local authorities) makes this project a very interesting and unique opportunity for professional builders/property investors”. It then continued with a description of the property. In her witness statement Ms Diamond quotes two other comments about Ridgemount from the sales material. The first is:- “The property is in poor condition both cosmetically and has suffered from extensive structural damage”. The second is:- “The property in our opinion is best removed and would suit being replaced with a more suitable sized family home, designed to take advantage of the views, location and structural/planning requirements”. I have not traced the source of these quotations: but on these applications I accept them as accurate.

[6]The Special Conditions relating to Lot 28 required the purchaser to admit:- “He has decided to purchase the property solely as a result of his own inspection and on the basis of these conditions and not in reliance upon any representation or warranty either written or oral or implied made by or on behalf of the sellers (save for any representation or warranty contained in the written replies given by the sellers solicitors to any preliminary enquiries raised by the buyer or the buyers solicitors)”. The “legal pack” available before the auction contained a standard form “Property Information Sheet”. This sheet said that Ridgemount was uninhabitable, suffered from structural damage apparent on inspection, and did not have central heating (although the property particulars themselves disclosed that there was a boiler room in the basement). Ms Diamond says that she sent additional Enquiries before Contract to the auctioneers on the 10 February, but she did not receive any answer.

[7]The General Conditions of the Auction provided that between contract and completion “no damage to or destruction of the lot or any deterioration in its condition, however caused, entitles the buyer to any reduction in price, or to delay completion, or to refuse to complete”: (see clause G 3.2).

[8]Ms Diamond was the successful bidder. The Memorandum of Sale describes the buyer as “Ms Sue Diamond, 27 Staveley Road, Grove Park, London W4 3HU”. This would have been information provided by Ms Diamond in order to obtain registration as a bidder (and if the auction rules were followed would have been supported by identity verification documents such as a driving licence or utility bills).

[9]In paragraph 3 of her very lengthy witness statement Ms Diamond explains why she brought Ridgemount:

“The fact is the whole reason I bought Ridgemount House so hastily at auction was because my Disabled Residence was made uninhabitable by burst pipes with extensive flood damage causing damp and retention in the lathe and plaster walls and ceilings, with water supplies still switched off to house as no access could be made to loft to start repair work until all flood damage contents, which you can see piled high drying out in corridors and all rooms spread out to dry with clothes hung up on every door frame in house left to dry out”

. Elsewhere (at paragraph 91) she explains that she intended to make the ground floor of the property her disabled living accommodation:

“… with flooded chattels being spread out on this floor and upper floors to dry and air out, which obviously needs all windows to be able to be opened up to let air circulate”

. Then in paragraph 106 she explains: “… the whole reason I bought Ridgemount House was because I urgently needed alternative disabled ground floor accommodation and extensive storage facilities to dry out everything flooded due to the burst pipes water damage with dampness causing mould spores with so much contents stacked against damp walls rendering it uninhabitable and putting the contents at risk of water damage, as everything needed to be spread out to dry and air out in non damp conditions. I needed to be in the West Country to deal with bereavement matters so this property was ideal”.

[10]On 26 February 2010 there was a major landslide on land adjoining Ridgemount (though the land within the registered title being sold remained intact). A substantial part of the cliff fell away leaving the house itself only 50 yards from the cliff edge. Ms Diamond says that this landslip now makes it dangerous to occupy the house so that it has value only as amenity land (which she puts at £3500). Accordingly, when the time came for completion Ms Diamond did not complete the transaction.

[11]On 19 March 2010 Mr Taylor’s solicitors sent by recorded delivery to Ms Diamond at Staveley Road a Notice to Complete. Paragraph 4 of the Particulars of Claim (verified by a Statement of Truth from the solicitor) says that the letter was signed for by Ms Diamond. This particular allegation is not specifically addressed in Ms Diamond’s evidence.

[12]Ms Diamond says that she herself served a Notice to Complete and some accompanying documents on Mr Taylor’s solicitors on 8 April 2010, offering to complete at a reduced price. There is no complete copy of Ms Diamond’s Notice to Complete. Ms Diamond says that all her papers have been stolen: and that it is necessary for her to reconstruct events using the copy faxed documents which Mr Taylor’s solicitors have disclosed as having been received by them (which she says are not complete). At the hearing Ms Diamond confirmed that the Notice to Complete which she sent began “I Ms S Diamond of 27 Staveley Road London W4 3HU hereby ….”. At the hearing Ms Diamond explained that she gave that address “because it was an official document”. Ms Diamond says (though Mr Taylor’s solicitors do not accept) that she also sent some Preliminary Enquiries, some Requisitions on Title and a request for completion information. On the Preliminary Enquiries she says that they are made on behalf of “Miss S Diamond c/o “The Villa” St Mary’s Road, Meare, Somerset”. On the Requisitions she described the buyer as “Ms S Diamond, the Villa, St Mary’s Road, Meare, Somerset, BA6 9SS”. I understood her to say she also sent a Form TR1 (stating a purchase price of £3500): the copy in the hearing bundle is signed by her and witnessed by someone who lives in Bolton Road, Grove Park, W4 3TE.

[13]It is common ground that on the 21 April 2010 Ms Diamond spoke with Mr Taylor’s solicitors and that in that telephone conversation(a) she made reference to letters having been sent to “the wrong address” (though in making that comment she demonstrated that she had obviously received them); and

(b) she refused to state the address to which documents should be sent. The solicitor’s account of the conversation is in a letter which he wrote to his client on the 23 April 2010 which includes the following passage:- “Whilst she comes over terribly friendly and cooperative and apparently delighted to hear from me she would not even give me the courtesy of giving the address that I am supposed to use for her. She did say though that she had got some of the earlier letters that Keith had sent to “the wrong address” but very belatedly and so it seems as if she may have changed addresses, presumably since she bought your property at auction. Had she played ball in giving me her address then I would be inclined to give her more time but as she didn’t I conclude she is not to be trusted and the signs are that any efforts to settle are going to be laboured…”. Ms Diamond’s account of the conversation from memory is that she was in “a meeting about bereavement” when she took the call and in those circumstances did not give her address but told the solicitor to look in the file where he would find it.

[14]On the 6 May 2010 Mr Taylor issued a claim form seeking specific performance of the contract. The claim form gave Ms Diamond’s address as being at Staveley Road. On the 12 May 2010 those documents were sent to enquiry agents for personal service on Ms Diamond at Staveley Road (Mr Taylor’s solicitors say in consequence of the conversation on 21 April 2010). According to the evidence filed on the applications before me the claim form was served personally on Ms Diamond by the enquiry agent at Staveley Road. At the hearing (confirming some bald suppositions in her evidence) Ms Diamond denied having been personally served with the claim form or any other document: and she asserted that the document had been personally served on the person who lived at 27 Staveley Gardens and who pretended to be Ms Diamond (though the instructions to the enquiry agent and the claim form itself both clearly state “27 Staveley Road” and that is the address at which the enquiry agent says he effected service): or alternatively the document had been served on some unknown female (who pretended to be her but was not her) present at Staveley Road: or alternatively the document had simply been put through the letterbox.

[15]On 8 June 2010 Mr Taylor issued an application seeking an order for the specific performance of the contract. The evidence does not specifically address the precise manner of service: but Mr Taylor’s solicitor states that all papers were served at Staveley Road until January 2012.

[16]Ms Diamond says that on 16 July 2010 she faxed a formal demand for completion and at her stated price, accompanied by another copy of the Requisitions on Title (from which her Somerset address would have been apparent). Mr Taylor’s solicitors say that they did not receive any such material: and there is none in the hearing bundle.

[17]On 23 July 2010 District Judge Ainsworth sitting in the Queen’s Bench Division in the Winchester District Registry made an order (on the application dated 8 June 2010) for specific performance and directed that interest be computed at the rate of 8% per annum on the sum of £154,500.00 from the 2nd April 2010 (when Mr Taylor’s completion notice expired) until the date of payment. (Under the terms of the contract Ms Diamond should have paid a 10% deposit when her auction bid succeeded: but she did not do so, so that the whole price was outstanding). Ms Diamond did not attend the hearing. According to the evidence of Mr Taylor’s solicitor that order was served by sending it by recorded delivery to Staveley Road. Included in the hearing bundle is a document providing “Electronic Proof of Delivery”. Alongside the barcode is printed in capitals the name “DIAMOND” and underneath it is a squiggled signature. At the hearing Ms Diamond denied that she had ever signed for receipt of this recorded delivery item, stated that she had never received it and asserted that the signature was that of her postman (with whom she had an arrangement that he would sign for recorded items).

[18]On the 29 September 2010 District Judge Ainsworth approved the form of transfer and directed Ms Diamond to pay Mr Taylor by 13 October 2010 the purchase price of £154,500.00, together with interest of £6060.00 odd (plus continuing interest until the date of payment) and assessed costs. The evidence in support of the application before the District Judge had established that Ms Diamond had not filed a Defence in the proceedings and had not attended the application for judgment for specific performance: and it complained that she did not communicate. But that very day it is common ground that Ms Diamond faxed a letter to Mr Taylor’s solicitors addressed to “The Senior Complaints Partner, Strictly Partner only”. The letterheading gave Ms Diamond’s Somerset address. The body of the letter was entitled “Re Material Non Disclosure and Misrepresentation Act 1967/DDA 2005/DPA98 (2000) the Property Misdescriptions Act 1991/Home Information Pack (No.2) Regulations 2007 /PCCBHIP Code …/Unfair Contract Terms”. The text of the letter is not legible on the fax copy on the solicitors’ file. But it was accompanied by(a) part of an unissued claim form against Mr Taylor and the auctioneers, the Claimant being described as “S Diamond” and giving the Somerset address and

(b) various other papers on which Ms Diamond had written in manuscript with comments and questions. On the 6 October 2010 the Senior Partner responded referring to the faxed documents “which were received here on 29 September”, and commenting upon their illegibility and his inability to understand what issues were being raised: but he expressed the view that as Ms Diamond was not a client of his firm she would not be covered by its complaint procedures. He sent his reply to the Somerset address. There was no further communication from Ms Diamond.

[19]Mr Taylor’s solicitors began to consider how they might carry through the order for specific performance and obtain payment of the purchase monies. They instructed enquiry agents. On 26 October 2010 those enquiry agents reported that Ms Diamond continued to reside at Staveley Road. The basis for that opinion is not stated. They decided to seek a charging order. The evidence of Mr Taylor’s solicitor is that the application for a charging order was served by post at Staveley Road. This averment is not specifically challenged by Ms Diamond: though she makes the general statement that she has never received any documents.

[20]On the 2 March 2011 Deputy District Judge Tennant made an order in the Winchester District Registry granting an interim charging order in the sum of £168,394.00 odd over the interest of Ms Diamond in Staveley Road. He directed that the application for a final charging order would be heard on the 19 April 2011 and directed that the Court was to serve the order on Ms Diamond. The address for service held by the Court would have been Staveley Road (since that was the address on the claim form and the address on the evidence of service). I have no reason to doubt that the Court served in accordance with the judge’s order. Mr Taylor’s evidence says that notice of the hearing of the application for a final charging order was sent by post to Staveley Road. The equitable charge created by the interim charging order was registered against the title to Staveley Road on 15 April 2011: any notice of that entry would have been sent by the Land Registry to Staveley Road since that was the registered address of the registered proprietor.

[21]On the 19 April 2011 District Judge Ainsworth made that order final: the final charging order does not (on the evidence) appear to have been additionally registered.

[22]On 13 September 2011 Mr Taylor commenced proceedings to enforce the charging order by an order for sale. The proceedings named the Defendant as Ms Sue Diamond of 27 Staveley Road Grove Park London W4. The evidence filed on behalf of Mr Taylor says that these proceedings were “served” at Staveley Road but does not indicate the manner of service.

[23]On 24 October 2011 District Judge Ainsworth ordered that Staveley Road be sold without further reference to the Court at a price of not less than £800,000.00, giving the conduct of the sale to Mr Taylor’s solicitors. He directed that Ms Diamond must deliver up possession on Staveley Road to Mr Taylor by 21 November 2011. The order was served at Staveley Road: but the manner of service is again unclear. Possession was not delivered up.

[24]On 1 December 2011 Ms Diamond issued proceedings in the Newport County Court (Gwent) against Mr Taylor: I understand that these have now been struck out. At the hearing she explained that she was staying in Wales and it was convenient for her to issue the proceedings there. At the hearing she also explained that “a week or two” before issuing those proceedings she had been concerned “to do a land swap” with a third party and, for that purpose, had visited the Land Registry where the official had told her “you have got a recent entry”: she explained that this brought to light the interim charging order and the proceedings of which she had until that point been entirely ignorant (none of the documents said to have been personally served on her, or for which there had been a signature by registered post, or which had been sent in the ordinary course of post to Staveley Road ever having reached her). That is the closest one gets to the specification of the date upon which Ms Diamond became aware of the orders.

[25]On the 7 December 2011 Ms Diamond was evicted from Staveley Road by the High Court Enforcement Officer (attended by the police). Ms Diamond told me at the hearing that she had gone back to Staveley Road (despite what she had described as its “uninhabitable state”) because she understood that there was a risk of possession being taken, and she wished to resist it.

[26]When Mr Taylor’s estate agents saw the state of the property (once he had obtained possession) they advised him to make an application to the court to revise the minimum sale figure. On the 25 January 2012 his solicitors wrote to Ms Diamond to inform her of the impending hearing. They sent the letter to the Somerset address (since possession had been obtained of Staveley Road and they knew it could not be her current residence, unless in breach of the Court order she had broken back in) and they said:- “Currently, this is the only address we have for communications with you and would be grateful if you would provide an address for future service of court documents. Please note that this address was obtained following a claim you issued against this firm on the 1 December 2011”. On her copy of this letter Ms Diamond has written in manuscript:- “See evidence my correspondence 31 July 2010 and earlier enquiry forms etc and Nick Vaughan Senior Partner letter to “The Villa” 5 October 2010”.

[27]The hearing of the application to reduce the permitted sale price (and for Mr Taylor to be allowed his reasonable costs of clearing the property and storing the removed chattels) was adjourned until the 23 March 2012 with directions being given to serve Ms Diamond both at “The Villa” and at the Lakeside Mental Unit of West Middlesex Hospital. (I should say that I have considered evidence as to capacity: and I am satisfied that there are no proper grounds upon which I can interfere with Ms Diamond’s autonomy).

[28]Immediately before 23 March 2012 Ms Diamond contacted Mr Taylor’s solicitors and explained that she was going to make an application. The application she made was for an adjournment or alternatively for the hearing to be conducted by telephone. Those applications were not granted and the hearing proceeded. Ms Diamond did not attend. Deputy District Judge Chapman revised the minimum sale figure to £650,000 and made an order permitting Mr Taylor to recover the costs of clearing the property and storing the contents.

[29]I will undertake a brief digression to record some key points about the dispute over clearing Staveley Road. The clearance (which was only partial) was undertaken by what Mr Taylor’s solicitors describe as an established firm of probate clearance specialists (Jeffrey Avery & Associates) and Ms Diamond describes as “a gypsy” who has been guilty of “a major fraud and theft” involving “hundreds of thousands of pounds” and whose “criminal M.O.” she recognises from her experience as a former police officer: she says Mr Avery is an “abhorrent criminal” and an “amoral monster”. (I record, though I do not approve of, what is clearly intended to be a disparaging description). Ms Diamond says that obviously she is not going to pay for “these horrific crimes”. On the evidence Mr Taylor paid £13,000 out of his own money to achieve partial clearance and storage of items from the property: and I was told at the hearing that he has been paying £400 per month out of his own resources for ongoing storage. Ms Diamond asserts that Mr Taylor is under a continuing duty fully to insure all of her property at his expense. She says in her evidence that these arrangements must continue until such time as Mr Taylor himself pays for all of her property to be containerised and moved by an approved remover (such as Pickfords) to a storage place of her choosing: and she has chosen Ridgemount (which still belongs to Mr Taylor pending completion of the auction contract). Ms Diamond says she wants specific performance of the auction contract at the reduced price of £3500, and if Mr Taylor would accept that then he could put an end to his ongoing obligations in respect of her chattels (though he would still be liable for what has happened in the past). At the hearing she asked me if I could force Mr Taylor to divulge the address of any property he owned so that she could apply for a charging order over it to secure her claim that he bear the expenses of removal and compensate her for the losses she has sustained.

[30]I return to the narrative. On the 11 April 2012 Ms Diamond faxed to the Exeter District Registry an Appellant’s Notice appealing the order made on the 23 March 2012 and all previous orders. His Honour Judge Cotter QC (the Designated Civil Judge for Devon and Cornwall) directed that by 29 June 2012 Ms Diamond had to provide an appeal notice in a form that could be read and understood indicating which decisions were the subject of appeal and on what basis together with an explanation as to why permission to appeal was being sought out of time. An Appellant’s Notice with clear grounds of appeal was eventually to emerge on the 12 July 2012.

[31]On the 13 June 2012 Ms Diamond issued another set of proceedings against Mr Taylor, his solicitors and the auctioneers. This sought relief under “The Property Misdescription Act 1991, Misrepresentation Act 1967, “HIP Act” and Fraud Act 2006”. It also alleged breach of contact and Data Protection Act 1998 offences. The proceedings also included a claim for personal injuries and sought substantial damages for pain and suffering and loss of amenity. The Claim Form requests that the case be dealt with (in the Queens Bench Division) either at the Royal Courts of Justice, or at Exeter or Torquay County Courts or Newport (Isle of Wight) County Court. In essence (and I emphasise that this is by no means the full range of complaint) the claim is that Mr Taylor knew that there had been an earlier landslide at Ridgemount in 2001 (which he did not disclose) and he also knew that the basement boiler room at Ridgemount contained some asbestos (which, again, he did not disclose).

[32]I understand that there is a pending application to strike out this action. In giving my reasons for the orders I intend to make on the appeal and the applications before me I shall seek so far as possible to avoid expressing views on matters which will be canvassed on that occasion.

[33]On 26 June 2012 Mr Taylor’s solicitors wrote to Ms Diamond requiring her to remove the remainder of her personal property from Staveley Road (of which it will be recalled they had obtained possession in December 2011).

[34]On 11 July 2012 Ms Diamond made a “without notice” application to Mr Justice Floyd on unissued application notices, as a result of which she obtained an injunction restraining Mr Taylor from proceeding with the sale of Staveley Road and from removing Ms Diamond’s chattels from the property. When the matter came back before the court on the 16 July 2012 Mr Justice Vos varied this order to provide:- “That [Mr Taylor] be restrained until the adjourned hearing of [Ms Diamond’s] applications from doing… the following acts that is to say:(a) Entering into any contract for the sale of [Staveley Road]

(b) Selling or encumbering or disposing of any of [Ms Diamond’s] chattels”.

[35]It was accepted at the hearing before me that that is the regime which governs the relationship of the parties currently (although by oversight there may not have been a formal extension of Vos J’s order); and that that is the context in which I must consider the Appellant’s Notice and the various applications that Ms Diamond has made.

[36]The Appellant’s Notice is dated the 12 July 2012. In it Ms Diamond seeks to appeal a) The order dated 29 September 2010 (the order which settled the form of the transfer and directed payment of completion monies on the 13 October 2010): b) The order dated 2 March 2011 and that dated 4 March 2011 (in truth a single order made on the 2 March 2011 and engrossed on 4 March 2011 which was the interim charging order charging Staveley Road with the payment of £168,394.00 odd plus interest): c) The order dated the 19 April 2011 (which is the final charging order): d) The order dated 24 October 2011 (which is the order for the sale of Staveley Road at a price of not less than £800,000.00 and the order that Ms Diamond give possession of Staveley Road): and e) The order dated 23 March 2012 (which is the order reducing the minimum sale price to £650,000.00 and permits Mr Taylor to take reasonable clearance costs out of the proceeds of sale).

[37]According to the Appellant’s Notice no appeal is brought against the original order dated 23 July 2010 that the contract dated 18 February 2010 be specifically performed by the payment of £154,500.00 plus interest and costs.

[38]The 21 paragraphs of the grounds of appeal may be summarised in this way:- a) “All hearings have been held in [Ms Diamond’s] absence and without proper notice”: and she has “been denied the opportunity to state the true facts or to defend the proceedings”. Mr Taylor’s solicitors knew that Ms Diamond had “a fully known correspondence (sic) address”. b) The charging order, the order for sale and the order reducing the minimum sale price of the property were granted without consideration of the merits, which is an abuse of process. c) The judge relied on a non-professional valuation. d) The hearing of the 23 March 2012 should have been transferred to Torquay County Court and heard by telephone. e) Ridgemount is “in reality… an active landslide rock falling (topple failure) eroding cracking cliff top dangerous site” and extensive monitoring reports and photographs “were all withheld by [Mr Taylor] despite box load of crucial reports being provided by solicitor and Council to [Mr Cousins]”. f) There is no hope of redevelopment. g) There is highly dangerous blue, brown and white asbestos at Ridgemount and quotations for its removal which had been obtained by Mr Cousins were withheld by Mr Taylor. h) “There is no debt for the purchase of [Ridgemount] other than £3500 building society draft raised in 2010 in full and final settlement for re-valued amenity land with no hope of planning”.

[39]On the same day as she issued her Appellant’s Notice Ms Diamond issued an application (“the First Application”) seeking(a) an injunction ordering Mr Taylor to instruct an approved containerised removal firm to move all stored goods to Ridgemount;

(b) to restrain Mr Taylor from selling or disposing of any stored goods; and

[40]Also on 12 July 2012 she issued a further application (“the Second Application”). This sought an order appointing a firm of estate agents called Faron Sutaria as sole agents to sell Staveley Road at a minimum sale figure of £1.1 million.

[41]That same day Ms Diamond issued a further application (“the Third Application”) seeking an injunction restraining Mr Taylor from exchanging contracts for the sale of Staveley Road for a price of less than £1.1 million and an order that Barnard Marcus be appointed on a “no sale no fee basis” forthwith to market the property as sole agents.

[42]On the 16 July Ms Diamond issued an application (“the Fourth Application”) for an order restraining the sale of Staveley Road at all and restraining the disposal of any chattels.

[43]That same day she issued a further application (“the Fifth Application”) which asked the court “to order compliance in full with order dated 26 March 2012 paragraph 2”. (This paragraph said that Mr Taylor should be allowed his reasonable costs of clearing the property of all of Ms Diamond’s chattels and the storage of the same). As well as making the application for full compliance with the original order she also asked the court to vary that paragraph so that it directed Mr Taylor:- “To remove entire goods and chattels from inside and outside house, garage and garden without exception using bonded and ROARS approved containerised remover with full boxed wrapping and sealed packing into sealed containers with exception of motor vehicle and plants with permission to be given for delivery to [Ridgemount] with no clearance or disposal… and nothing to be left behind at [Staveley Road] garage or garden or temporary storage”. She also sought a general injunction “to restrain any act to cause losses, misappropriation or disposal”.

[44]On the 16 July 2012 Mr Justice Vos adjourned(a) the hearing of Ms Diamond’s application for an extension of time for her Appellant’s Notice and for permission to appeal and

(b) the hearing of all her then-existing applications to the Applications Judge on the 26 July 2012. On the 26 July 2012 those matters were adjourned into my vacation list on the 2 August 2012.

[45]On 2 August 2012 I permitted Ms Diamond to attend the hearing by telephone when she asked for 7 days to prepare her evidence and for the hearing to take place on the Isle of Wight because she was unable to travel to the Royal Courts of Justice. I was doubtful that she could be ready within 7 days (notwithstanding that that would be 1 month after she had made her initial “without notice” application). I therefore adjourned the matter to the 4 September 2012 and said that I would hear it at the Newport (Isle of Wight) County Court (but firmly indicating that that was an exceptional course and not a precedent for all future hearings). Ms Diamond subsequently applied to Mr Justice Vos for (and obtained) a further adjournment and the matter was relisted for the 5 October 2012. That is 2 years and 2 months after Mr Taylor obtained his order for specific performance. It is 1 year and 5 months after he obtained his final charging order. It is just under a year since he obtained his order for sale.

[46]Over the period of that adjournment Ms Diamond issued five further applications. On the 27 September 2012 she issued an application (“the Sixth Application”) to set aside all orders on the grounds that the proceedings had not been properly served and an order that the action in which Mr Taylor had obtained the final order for specific performance should be struck out pursuant to CPR 3.4 on the grounds that his claim had no real prospect of success. In the alternative Ms Diamond sought summary judgment under CPR Part 24 on the grounds that she had offered £3500 cleared funds and there was no answer to her claim for specific performance of the contract on payment of that sum.

[47]That same day she issued a further application (“the Seventh Application”) seeking an order that Mr Taylor “fully compensate me for the substantial losses (thefts) I have suffered in excess of several hundred thousand pounds as a result of his negligent breach of duty of care, failing to ensure that he was employing the services of a bonded professional secure containerised remover such as Pickfords who is an approved member of the [the] British Association of Removers and the National Guild of Removers”.

[48]She also on that day issued an application (“the Eighth Application”) seeking to stay execution of the Land Registry Charge and possession

[49]She also that day issued an application (“the Ninth Application”) seeking an injunction that Mr Taylor should be ordered to remove brickwork from some bricked up windows at Ridgemount and to reinstate the window frames and glazing (if they had been removed).

[50]On the 2 October 2012 Ms Diamond issued a yet further application (“the Tenth Application”) seeking an order that all court orders should be set aside: and seeking an order that different selling agents must be appointed for Staveley Road.

[51]For all of these applications Ms Diamond claimed fee exemption. Each of these applications was supported by a single unsigned witness statement to which Ms Diamond simply added additional pages (the last two being handed to me at the commencement of the hearing).

[52]I should briefly record the rulings that I made at the start of the hearing. I told Ms Diamond that there was one day available for the hearing of her applications for permission to appeal and the First to Fifth Applications as originally listed and (so far as possible) the Sixth to Tenth Applications which she had recently issued and had asked to be heard at the same time. Ms Diamond told me that this was not satisfactory, that she needed several days to present her evidence, and that a failure to allow her the several days she needed was a failure to make reasonable adjustments in the light of her disabilities. I ruled (having in mind CPR 1.4) that taking into account the interests of Mr Taylor, the interests of other court users and the allocation of resources (in particular the holding of High Court hearings in the Newport (IoW) County Court) the hearing would proceed on the footing that it would last one day (but that I would review the position at the end of the day). I indicated to Ms Diamond that in the first instance she should address me on the footing that she had two hours available, and that I would then review the position: Ms Diamond disputed this ruling. (In the event Ms Diamond was given something like four and a half hours). Ms Diamond indicated that she intended to read out to me line by line her 145 paragraph witness statement and all of the material she had put in evidence, and that it would take days. I told her that this would not assist me because I had already read all of that material (including Ms Diamond’s markings on various documents and her skeleton argument): and that the witness statement itself was repetitive and contained much detailed listing. I expressed a preference for being addressed on the key points that Ms Diamond wished to ram home in relation to her Appellant’s Notice and each of her applications (which overlapped one another), and to be taken to the documents she thought would most assist me to understand her case on each. She told me that this was impossible, that everything was key and that all of the documents and all her comments on them were relevant; and so she would read her witness statement and accompanying documents. This she did, until I invited Counsel to make short submissions at 3.45pm (confined to his skeleton argument, which Ms Diamond had). I then gave Ms Diamond the opportunity to draw any material to my attention in answer to Counsel’s points as made in his skeleton argument (because she had sought to address me during his submissions). At the end of the hearing Ms Diamond indicated that she wished to adjourn all her applications so that she could address the Court for longer: or alternatively she wished to withdraw all her applications so that she could reissue them and obtain more time from the Court. I indicated that I would consider those applications: and I reserved judgment at 4:50pm.

[53]Since reserving Ms Diamond has sent me(a) on 8 October a 26 page fax:

(b) on 9 October a 16 page fax:

(d) on 11 October a single page fax; (d) on 12 October 4 faxes totalling 20 pages;

(e) on 16 October 9 faxes totalling 59 pages (in relation to which she has engaged members of the Court staff for lengthy periods in re-ordering the transmitted pages);

(f) on 17 October two faxes totalling 14 pages: and

(g) on 18 October two faxes totalling 59 pages. Much of this is a duplication of other material: but some of it is not, and so the whole requires reading. There is no indication that she has sent all of this material to Mr Taylor: so there is a danger that in part this is an attempt to conduct private correspondence with the judge. I have therefore read it only to see whether there is some point in it that might bear on my decision, always asking myself (a) what fairness and openness requires and (b) whether I should put Mr Taylor to the burden of considering and dealing with this mass of material.

[54]Included in that material is the following:- “In view of not having time to present most of my evidence and my PTSD Medical Condition preventing me from coping with the necessary presentation of crucial evidence and my dyslexic problems/disability coupled with stress disorder condition which made it impossible for me to manage to go through my evidence within the short time frame I was only allowed in court, with no reasonable DDA adjustments made to give me more time to fully present each and every one of my many complex applications in full detailed way necessary to ensure justice is rightly served… as it clearly did by preventing me from managing to present my case effectively to the court… I do, as requested in court, need four of my many application hearings adjourned so they can be properly and fairly heard, with the reasonable adjustments required under the Disabled Discrimination Act 2005 made by the court to give me the time and assistance necessary to ensure I am given the same opportunity as an able minded litigant in person without putting me under stress dysfunction which prevented me from being able to cope with the mental task required with such tight time restraints, severely prejudicing my best interests and making it impossible to achieve a fair reasoned decision…”

[55]That is something I must address.

[56]My recitation of the facts has been more lengthy than is usual on applications for permission to appeal and interlocutory applications (because it has been necessary to establish a coherent narrative not available elsewhere): even so, it is not complete and addresses only those facts necessary for an understanding of my reasons for the orders I intend to make. It thus addresses only the legally relevant facts (rather than all of those canvassed in the evidence). I have reminded myself that the hearing before me is not a trial. I have therefore focused upon those matters that are common ground or indisputable from the documents, and have recorded matters of contention. I cannot try disputed questions of fact: but I am not obliged to accept a fact as “in dispute” if, on a full understanding of the documents and in the light of other facts which are common ground (together with the overwhelming probabilities), what is asserted in a witness statement (or in the course of submission at a hearing) is simply incredible.

[57]I must first consider whether the proceedings (that is to say, the action for specific performance and the action to enforce the charging order) were served on Ms Diamond.

[58]I regard Ms Diamond’s denial that the specific performance proceedings were personally served on her as incredible. The evidence as to personal service is clear: and the suppositions made in the evidence fanciful. But I do not rest my decision on this ground alone.

[59]On the assumption that Ms Diamond was not personally served with the specific performance claim form but that some other person received it or that it was left at Staveley Road, I am nonetheless satisfied that it was still properly served within the rules. CPR 6.9(2) says that an individual Defendant must be served at their “usual or last known residence”. Rule 6.9(3) says that where a claimant has reason to believe that the “usual or last known residence” is an address at which the defendant no longer resides, then the claimant must take reasonable steps to ascertain “the defendant’s current residence”.

[60]The specific performance proceedings were served on 16 May 2010. When the specific performance action commenced Staveley Road was, so far as Mr Taylor was concerned, Ms Diamond’s usual or last known residence. It was the address that had been given by Ms Diamond to register for the auction (and so appeared on the Memorandum of Sale): and it was the address she had given on her Notice to Complete (because it was “an official document”). Ms Diamond had provided another address for correspondence. Sometimes she put “C/o The Villa” and sometimes she simply put “The Villa”. But she did not say to Mr Taylor’s solicitors (and she has nowhere said in her evidence) that Staveley Road ceased to be her “usual residence” even though she was temporarily away from it. Indeed in her evidence she has described “The Villa” as an “alternative correspondence address”: and she has so described it in other Court papers.

[61]I am satisfied that in actual fact Staveley Road continued to be her permanent home and her “usual residence” even though she was temporarily away from it. In the body of her witness statement are pages and pages listing chattels which she says were at Staveley Road (together with many sacks of personal papers). Part of her complaint is in these terms:- “I actually have no clothes left because all three roomfuls of the most exclusive designer clothes and accessories shoes, bags, belts, mink, fox fur, coyote, wolf, fur, sheepskin and leather coats and jackets including clothing stock (mainly or new) I had from my business along with all my designer suits, top designer jackets, skirts and dresses, blouses, tops and huge quantity of designer shoes, boots, sandals, bags, belts, ostrich and buffalo luggage, handbags, even all my underwear has all been stolen… Mr Avery has left me with no socks, no shoes, no boots, no gloves, no scarves, no underwear, no towels, no curtains, no pillows, no cushions, no duvet covers, no pillow cases, no cushion covers, no bedspreads, no umbrellas, no headphones, no deaf aid equipment, no mobile phones, no reading glasses, no pens or stationery, no records, no cassette tapes, no DVDs, no video tapes, no CDs, no hairdryers, no razors, no makeup, no perfume, no toasters…[and so on]”. It seems to me that if all these items were at Staveley Road and none of them was anywhere else then Staveley Road was Ms Diamond’s “usual or last known residence”: it was her permanent home though she may have had a correspondence address elsewhere.

[62]The charging order proceedings commenced on 13 September 2011. They were served at Staveley Road. This was after Ms Diamond had written to the Senior Complaints Partner at the firm of solicitors retained by Mr Taylor enclosing part of an unissued claim form which gave her Somerset address; and it was after the firm had written to her at that address rejecting her complaint. The insertion by Ms Diamond of an address on an unissued claim form is not the equivalent of stipulating an address for service of any proceedings to be commenced by Mr Taylor. I have held that the specific performance proceedings were properly served. I regard it as incredible that the specific performance proceedings (whether personally served or otherwise served) did not come to the attention of Ms Diamond under whatever arrangements she had made for receipt of post. She admits that conveyancing documents and conveyancing correspondence sent to Staveley Road reached her; and no rational ground has been advanced why the court documents did not. On that footing Ms Diamond had failed (in the specific performance proceedings) to provide Mr Taylor with an address at which she could be served other than Staveley Road. I am therefore satisfied that as regards the charging order proceedings Mr Taylor had no reason to believe that Staveley Road had ceased to be Ms Diamond’s usual residence (even if he is to be taken as knowing that she had a correspondence address elsewhere).

[63]I am also satisfied on Ms Diamond’s own evidence that Staveley Road was in fact her usual residence at the date when the charging order proceedings commenced. I have already given reasons.

[64]I therefore find and hold that both the specific performance action and the charging order proceedings were properly commenced and served, and that both actions were properly constituted. I therefore dismiss the Tenth Application (at least insofar as it alleges a failure properly to commence the specific performance action and the charging order proceedings).

[65]It is now necessary to consider the Appellant’s Notice: and Ms Diamond’s other applications. The applications with which I am at this point particularly concerned are the Sixth Application (“to set aside all orders including original charging order made at initial proceedings in my absence”), the Eighth Application (“set aside…illicitly obtained by abuse of process Land Registry charge and possession order”) and Tenth Application (“set aside all orders”). These “set-aside” applications have been made to me (rather than to a District Judge). It is in the interests of the expeditious and economic disposal of proceedings if I deal with them.

[66]The relationship between appeals and applications to set aside upon the grounds of non-attendance was considered in Bank of Scotland v Pereira

[2011] EWCA Civ 241

. That case considered the interrelationship between appeals and applications under CPR 39.3. In the instant case it is not clear from the forms of order I have seen that in either the specific performance or the charging order proceedings there was a date fixed for “trial”. But in an action for specific performance and in proceedings to enforce charging orders it is generally the case that the matter proceeds by a series of applications: even if these result in final orders. In that case the relevant rule governing applications by a non-attending party would appear to be CPR 23.11.

[67]In relation to applications by a non-attending party to re-open what are in effect final orders made on applications under Part 23 I hold that the Court must (under the over-arching guidance given in CPR 1.2) consider the same factors as would fall for consideration under CPR 39.3: that is to say(a) there must have been a good reason for non-attendance;

(b) the non-attending party must demonstrate an arguable case on the merits: and

(c) the non-attending party must have applied to set aside the courts order promptly. But that is not to say that those factors are to be given the force of mandatory requirements which restrict the exercise of the Court’s discretion (which is the way those factors are expressed in CPR 39.3). I have found it helpful also to structure my consideration of the exercise of the discretion by reference to the matters suggested in CPR 3.9 : but I have had had regard to the observations of the Court of Appeal in Hackney LBC v Findlay

[2011] EWCA Civ 8

[68]In Pereira at paragraph [37] the court held that where a Defendant is seeking a new trial on the ground of non-attendance at the actual trial then (even if there are other grounds of appeal) the Defendant ought first to make an application under CPR 39.3 (or in the instant case, so far as appropriate, CPR 23.11). Because Ms Diamond’s application for permission to appeal had not been determined before she issued her Sixth, Eighth and Tenth Applications I will treat Ms Diamond as if she had followed that guidance.

[69]The application for the order for specific performance was made on the 8 June 2010 and the order for specific performance itself made on the 23 July 2010. Mr Taylor’s evidence says that this was served at Staveley Road. I regard it as incredible that whereas (on her own account) conveyancing documents sent to Staveley Road did reach Ms Diamond, none of the many court documents sent to that address ever did. I am satisfied that by 23 July 2010 Ms Diamond must have had notice of the existence of the specific performance action (even if I accept that the proceedings were not personally served on her). But I am not confident on the state of the evidence that a notice of hearing posted on or about the 8 June 2010 must actually have come to Ms Diamond’s attention by the 23 July 2010: and I will therefore accept for the purposes of argument that she had good reason for not attending the hearing on 23 July 2010.

[70]But it is clear that she has not applied promptly to set aside that order. First, I consider that she must have received the notice of the application for the specific performance order and, indeed, the order itself (sent by recorded delivery to Staveley Road and either signed for by Ms Diamond herself or by her postman under the arrangement she had made with him) by the autumn of 2010. Earlier that year the conveyancing documents had got through (perhaps with some delay) notwithstanding that they had been sent to “the wrong address”: and there is no rational ground for supposing that the court documents did not likewise get through. She did not apply to set aside the order for almost 2 years.

[71]I need not rest my decision upon that ground, because there is a separate (and independent) ground. Even if one were to accept every word that Ms Diamond said without qualification, then on her own case she became aware of the situation in November 2011 (when alerted by the Land Registry): yet it still took the best part of a year for her to apply to set aside the orders. The requirement of promptitude means that an applicant must act with all reasonable speed in the circumstances: and I consider that the later the discovery of an order, the faster an applicant may be expected to act to set it aside. Even allowing for the fact that Ms Diamond was litigating personally (and that allowance can only be modest, for the same set of Rules apply to all) and even allowing for the fact that Ms Diamond suffers a degree of dyslexia (balanced by the fact that she has the aptitudes of a police officer) she did not act promptly. She was actively litigating from December 2011: but she made no application until September 2012.

[72]This conclusion makes it strictly unnecessary to consider the third factor to be weighed: whether, if she had attended the hearing, Ms Diamond had a real defence to the claim for specific performance. Because of the strike out application relating to the proceedings which Ms Diamond commenced on the 13 June 2012 seeking damages I will not conduct an analysis of Ms Diamond’s misrepresentation, and non-disclosure allegations (all of the evidence for which I have thoroughly read). I will confine myself to saying that having regard to the terms of the contract she entered I consider that there is no real prospect that Ms Diamond herself could have obtained an order for specific performance with an abatement in the purchase price to £3500 (which is what she seeks).

[73]Having given those factors their due weight in the balancing exercise suggested in CPR 3.9 it is clear in my judgment that any attempt by Ms Diamond to set aside the order for specific performance made on 23 July 2010 must fail. For essentially the same reasons I hold that the consequential order made on 4 March 2011 cannot be set aside either.

[74]The final charging order was made on 19 April 2011. The evidence establishes that it was served by post at 27 Staveley Road (as was the notice of the hearing and the order actually made). For the reasons given above I would for the purposes of argument accept that Ms Diamond had good reason not to attend the hearing (because of delayed receipt of the application and notice of hearing). But, also for the reasons given above, I consider that in due course they must have made their way to her by the summer of 2011. But she has failed to apply to set them aside until 27 September 2012.

[75]As an independent ground I hold that even on her own case Ms Diamond made the relevant discoveries in November 2011 (before launching her own proceedings): but she delayed until September 2012 to make her application. Applying the test set out above, her application was not made promptly.

[76]Were it is necessary to do so I would hold that (because the order for specific performance of the contract price was rightly made and the consequential directions for payment of that price and the preparation of a transfer are unimpeachable) Ms Diamond had no real prospect of resisting the charging order.

[77]Exercising my discretion according to the principles set out above I hold that Ms Diamond cannot set aside the order dated 19 April 2011 imposing the charge.

[78]The proceedings seeking an order for sale were commenced on 13 September 2011. According to the evidence the papers were served at Staveley Road. For the reasons given above it is not credible that they were never, ever received by Ms Diamond: but I accept that there may have been a delay in their receipt. I will therefore accept for the purposes of argument that Ms Diamond had good reason not to attend the hearing on 24 October 2011 at which the order for sale was made. She did, however, become aware of the charging order and of the probable existence of a possession order almost immediately. She nonetheless delayed in applying to set aside those orders until September 2012. Applying the standards adumbrated above this is not sufficiently prompt (even making every allowance for her disability). If she was able to issue her own proceedings on the 1 December 2011 in the Newport County Court (Gwent) and able to be negotiating a “land swap” then she was able to issue an application to set aside any order which she said had been made in her absence.

[79]Furthermore, I do not consider that Ms Diamond had a real prospect of resisting the order for sale (given the existence of the order for specific performance and the final charging order). For so long as she refuses to utilise the £154,500 cash she obviously did have at the time of her bid, to complete the contract she entered, then Staveley Road is the only source of the purchase monies.

[80]Adopting the approach I have set out above to the relevant exercise of discretion, I therefore hold that Ms Diamond cannot set aside the order made on 24 October 2011.

[81]The next hearing was that which occurred on the 23 March 2012 Ms Diamond knew of this hearing, but did not attend it. I consider that she had good reason for not attending it because she was in Lakeside Mental Unit at West Middlesex Hospital. She had made applications for an adjournment or to participate by telephone. She filed no evidence in advance of the hearing: but she had criticisms to make of the agents selected by Mr Taylor’s advisors to market the property, and concerning the reduced minimum sale price of £650,000. Had she attended she would have wanted to submit that the evidence before the court was “non-professional valuation evidence from a wholly inappropriate North London agent with offices only in North London area locality without expert knowledge of upmarket Chiswick West London niche market over ten miles away on other side of London”. She would have wanted the opportunity to put in evidence that the house next door was on the market for £1.35 million pounds (even though that property was smaller).

[82]Ms Diamond’s application to set aside this order is dated 27 September 2012, some six months after the date when the order was made.

[83]If Ms Diamond is to be able to set aside the order of the 23 March 2012 she must act promptly (in the sense I have set out above). The Master of the Rolls in Pereira at paragraph [26] pointed out that this was a very fact sensitive exercise and that the court “should, at least in many cases, not be very rigorous when considering the applicant’s conduct”. I have noted above the relevance of her status as a litigant in person and the disabilities from which she suffers. I have noted her ability to litigate vigorously. But given that Ms Diamond was in hospital at the time when the order was made and given that she did on 11 July 2012 obtain an injunction (since continued in varied form) which prevented the sale in accordance with the order of 23 March 2012 taking effect (in the course of which she made plain her criticisms of an order permitting the sale at a price as low as £650,000) I would (albeit with considerable hesitation) hold that she has acted with sufficient promptitude.

[84]One must then ask whether, if the issues raised in the application which led to the order of 23 March 2012 were to be reassessed, Ms Diamond would have a real prospect at persuading a judge to make a different order. In my judgment there is a real prospect of persuading the judge that the minimum price should not be as low as £650,000.00: but there is no real prospect of persuading a judge that Mr Taylor should not be entitled to take his reasonable costs of clearing Staveley Road and of (temporarily) storing the contents out of the proceeds of any sale.

[85]If I set aside the Order permitting a sale at £650,000 I leave in place the order of 24 October 2011 permitting a sale at £800,000: so there is no real prejudice to Mr Taylor (on the offers he has so far received). But I leave open the question what order ought to be made concerning the sale price (in the light of any cross-application by Ms Diamond). In my judgment paragraph 1 of the order dated 23 March 2012 should therefore be set aside: but paragraph 2 of that order should stand. That is the only relief I would grant on Ms Diamond’s Sixth, Eighth and Tenth Applications (insofar as they relate to setting aside previous orders).

[86]I now turn to the Appellant’s Notice. Even though Ms Diamond has failed in her applications to set aside orders made at hearings which she did not attend she retains the right which every litigant has to appeal the

[87]Guided by the decision of the Court of Appeal in Foenander v Bond Lewis & Co

[2001] EWCA Civ 759

I will consider first the substantive merit of Ms Diamond’s appeals before turning to the procedural question of extending time.

[88]Ms Diamond’s overall strategy is to secure from the court an order that Mr Taylor specifically perform the auction contract but with an abatement in the purchase price to £3500. She would then seek to adduce evidence that she is willing to pay £3500 (and, indeed, tendered that sum earlier). She would then ask the Court to revoke the existing order that she pay the purchase monies and the charging order which seeks to enforce that obligation to pay (together with the consequential order for the sale of the property). The fundamental difficulty faced by this strategy is that Ms Diamond’s Appellants Notice of the 12 July 2012 does not seek to appeal the order of District Judge Ainsworth dated 23 July 2010 by which he ordered that the contract be specifically performed by the payment of £154,500.00 plus interest computed at 8% from the 2 April 2010: (the order is not perfectly drafted but its meaning is clear). If that order (made two and a half years ago) stands, then in my judgment there is no real prospect of overturning the subsequent orders which Ms Diamond does appeal.

[89]In fact, having regard to the terms of the auction contract which she entered I do not think that there is any real prospect of Ms Diamond overturning the order for specific performance, even if she were to challenge it. The expression of this opinion should not be taken to indicate a view, one way or the other, on the proceedings commenced by Ms Diamond on the 13 June 2012 (and which are the subject of the current “strike out” application) insofar as it advances claims for damages.

[90]I therefore refuse permission to Ms Diamond to appeal the orders set out in her Appellant’s Notice (other than that dated 23 March 2012 with which I will separately deal).

[91]Had it been necessary to do so I would also have dismissed Ms Diamond’s Appellant’s Notice on the grounds that (save as regards the order dated 23 March 2012) an extension of time ought not to be granted. The decision is a discretionary one and exercised in accordance with the approach set out in CPR 1.1 and by reference to the factors enumerated in CPR 3.9. I have reminded myself of the competing considerations on applications to extend time identified in Costellow v Somerset County Council

[1993] 1WLR 256

. I have reminded myself that the time for filing an Appellants Notice is 21 days, and that this is the embodiment of a policy which regards finality in litigation as a great importance.

[92]For the purpose of assessing what extension is required I examined Ms Diamond’s evidence as to when she filed the Appellants Notice dated 12 July 2012. It is her case that she lodged a notice on 11 April 2012 at Winchester and that it is the fault of the court and the court staff that it was not in fact issued until 12 July 2012. For the purposes of analysis I will accept this to be the case (though in truth I think the position is that HHJ Cotter QC either directed that such notice should not issue or struck it out and required Ms Diamond to issue a notice that complied with CPR 52).

[93]In the case of the orders made between 29 September 2010 and 24 October 2011 should an extension of time be granted (on the assumption that the Appellant’s Notice was issued in April 2012)? Even assessing the length of the delay in the way indicated, weighing the reasons for the delay (I have indicated that I do not accept that Ms Diamond can have been entirely unaware of the orders made, and that in any event she became aware of them in November 2011), and weighing the prejudice to Mr Taylor (who has had the benefit of final orders in his favour for many many months) I would in any event have refused to extend time for the filing of the Appellant’s Notice.

[94]I deal separately with the order of the 23 March 2012. I have already set aside paragraph 1 of that order. The question is whether I should grant permission to appeal paragraph 2 of the order. This turns solely upon whether I consider whether there is a real prospect of success (having regard to the other orders which I have held must stand) in overturning paragraph 2: no significant issue about extending time arises on the approach I have adopted to the date of issue of Ms Diamond’s Appellant’s Notice.

[95]To have a real prospect of upsetting paragraph 2 of the order of the 23 March 2012 Ms Diamond must persuade me(a) that she has a real prospect of persuading an appeal judge that the decision not to adjourn the hearing was wrong in law: and

(b) that she has a real prospect of persuading an appeal judge that some other order would have been made at an adjourned hearing than was made on the 23 March 2012.

[96]The decision whether or not to adjourn the hearing was a case management decision of the Deputy District Judge: even so, I do not think that Ms Diamond’s argument that, on a correct appreciation of the legally relevant factors, there should have been an adjourned hearing by telephone, can be dismissed as fanciful. She was in hospital at the relevant time.

[97]However, it seems to me plain that at any adjourned hearing an order in the terms of paragraph 2 of the order of the 23 March 2012 would have been made. Ms Diamond was ordered to give possession of Staveley Road on 21 November 2011 (by order dated 24 October 2011). That possession order was enforced on the 7 December 2011 (Ms Diamond then being in the house). A court order for possession means that vacant possession must be given i.e that that property is clear of people and of contents (NYK Logistics v Ibrend

[2011] EWCA Civ 683

. The continued presence of Ms Diamond’s chattels constituted a trespass. Mr Taylor, as the person entitled to possession under the order of the court, had the right to remove the chattels which constituted the trespass. Because his right to possession arose under a charging order he did not have the right to sue Ms Diamond for damages for trespass: but he did have the right to ask the court that when he came to render his account of the proceeds of sale of Staveley Road he should be permitted to enter (as an allowance to be made) his reasonable costs of bringing about that which the court ordered he was entitled to, namely, vacant possession. I consider that the law is correctly stated in Fisher & Lightwood’s Law of Mortgage (current edition) at paragraph 29.52.

[98]I would therefore refuse permission to appeal paragraph 2 of the order dated 23 March 2012.

[99]I must now address the substance of Ms Diamond’s various applications. I address first the three limbs of the First Application.

[100]I reject Ms Diamond’s application for a mandatory injunction ordering Mr Taylor to instruct an approved containerised removal firm to move all stored goods to Ridgemount. Before making a mandatory injunction otherwise than at trial I must have a high degree of assurance that such relief would be granted at trial. I do not have that high degree of assurance. On the contrary, I consider that a court at trial would refuse such relief. Ms Diamond left her goods and chattels at Staveley Road for four months after the court had ordered her to give vacant possession. When Mr Taylor took possession of Staveley Road under the Court order he became at most an involuntary bailee of those goods. He paid £13,000 of his own money to have the goods removed from Staveley Road and put into storage and he is paying £400 of his own money each month to have them stored. True it is that he will eventually recover this money (under the existing Court orders) when Staveley Road is sold. But in the meanwhile he has to bear these expenses out of his cash flow as a working builder. As an involuntary bailee of the goods (at most) he is under no obligation out of his own monies to fund the transfer of the stored goods to some other address (let alone to another property in his ownership which Ms Diamond is refusing to purchase, although ordered by the Court to do so). As an involuntary bailee his duty is to make the goods available for collection: not himself to deliver them to the owner’s order. If Ms Diamond wants the goods moved to another storage venue (or another property in her own ownership) then she may do so: she must have available to her the £154,500.00 cash with which she intended to buy Ridgemount: and she has available to her a substantial equity in Staveley Road which is about to be sold (against which she might be able to borrow). So she is not without funds to pay for the removal herself to property of her own or to a self-storage facility of her choice. But there are no grounds upon which I can compel Mr Taylor (as involuntary bailee) effectively to lend Ms Diamond the removal costs.

[101]In her evidence (and in her many faxes) Ms Diamond places reliance on paragraph 5 of the witness statement of Mr Eminton dated 16 July 2012. In that he records an offer by Mr Taylor to take the chattels from storage and to move them to an address of Ms Diamond’s choosing, provided that authority was given for the costs of the exercise to be deducted from the sale proceeds of Staveley Road: and he records that the only delivery address that Ms Diamond will contemplate is Ridgemount itself (despite the fact that she does not own it). He then continues:- “If the Court is satisfied that the cost of transporting the chattels to [Ridgemount] is an appropriate expenditure to be deducted from the sale proceeds or if the Defendant is prepared to give an unequivocal and irrevocable written authorisation to that effect then [Mr Taylor] has no issue with doing this”.

[102]However, it does seem to me plain that, in the event that Ms Diamond and Mr Taylor can agree a delivery address, and in the further event that either Mr Taylor volunteers to fund the removal costs or Ms Diamond and he come to some arrangement (and there is a hint in one fax from Ms Diamond sent after the hearing that this might be possible), then Mr Taylor would be entitled to take the costs he thereby incurs out of the sale proceeds: and to assit the parties I would make a declaration in those terms.

[103]Mr Taylor has been unable completely to clear Staveley Road. There is an unused car stored at the premises: and the garage contains a quantity of gardening equipment, building materials and car parts. There is no legal basis upon which I can properly grant a mandatory injunction ordering Mr Taylor to remove these to storage. His duty is to make a reasonable offer to have them available for collection and in the meantime not to commit an act of gross negligence in relation to them (see JJA SA v Avon Tyres cited in Palmer on Bailment p. 709 note 57). Paragraph 2 of the order of the 23 March 2012 does not direct Mr Taylor to remove these chattels: it simply provides for a means of payment should he choose to do so. I decline to grant a mandatory injunction.

[104]The First Application also seeks a prohibitory injunction, restraining Mr Taylor from selling or disposing of any stored goods. It was on this application that Ms Diamond obtained (first from Floyd J and then from Vos J) the interim injunction which the parties accept governs their present relationship and which restrains Mr Taylor from selling or encumbering or disposing of any of Ms Diamonds chattels.

[105]On the evidence as it is before me I would continue this injunction but give liberty to Mr Taylor to apply to discharge it on 2 clear day’s notice, and on terms that he be entitled in any event to his costs of storage on the indemnity basis and to retain and pay those costs out of the proceeds of sale of Staveley Road. I think there is an issue to be determined about whether in the events which have happened Mr Taylor has a present right of disposal: and I can protect his position (absent any cross-undertaking in damages from Ms Diamond) in the event that I am wrong in restraining the sale.

[106]Mr Taylor remains an involuntary bailee of the goods in storage: but although they are a great inconvenience to him that does not give him a right of disposal: Munro v Willmott

[1948] 2 All ER 983

. On 29 June 2012 he gave notice under the Torts (Interference with Goods) Act 1977 requiring their removal. But it is not clear beyond argument that the 1977 Act avails an involuntary bailee; and in that respect Mr Taylor may be worse off than a gratuitous bailee. He must abstain from gross negligence; and this requires I think that he does not destroy the goods or put it beyond the power of the owner to collect them unless driven by necessity. That necessity is not demonstrated on the evidence before me: but it could be demonstrated if (for example) Mr Taylor was unable to fund current storage charges as they arose: He must at the least then have the same right of disposal as a warehousemen would have in respect of unpaid storage charges.

[107]The continuation of the injunction pending the making of such an application is on terms that Mr Taylor recovers his storage charges “on the indemnity basis”. That is shorthand for the making of the same assumptions and presumptions as apply when assessing litigation costs on the basis. He should not be exposed to any significant risk in dealing with goods with which he has been landed against his will. The continuation of the injunction pending the making of that application give Ms Diamond one last chance to arrange for their removal to a property which is in her ownership (not Ridgemount) or to storage facilities at her choice, the process of removal to be at her expense. This is on occasion some (but not on the evidence significant) prejudice to Mr Taylor in that he cannot begin the process of disposal (and the reduction of his liability for ongoing storage charges) for an additional three weeks. But the evidence does not disclose that this will impose undue cash flow pressures upon him.

[108]This brings me to the Second and Third Applications. These seek a variation of the current arrangements for the sale of Staveley Road under the order dated 24 October 2011. The Second and Third Applications are contradictory: but that difficulty can be overcome.

[109]The conduct of the sale was given to Mr Taylor’s solicitors. They instructed a firm of agents with a physical presence in North London but with access to internet marketing of the property for sale. They obtained an offer for £810,000.00 for the property (after over 20 viewings by prospective purchasers). This exceeded the market value as assessed by local Chiswick valuers (Ian Phipps & Co). To put matters shortly, Ms Diamond was much concerned that the property might thus be sold for as little as £650,000.00 under the order of the 23 March 2012: and she regarded £810,000.00 as a significant undervalue. She attributed this to the fact that the property was being marketed by a North London agent of whom she did not approve. She suggested a number of local agents whom she regarded as competent. One of those was Whitman & Co. Mr Taylor’s agents engaged them as sub-agents. Further marketing of the property in August and September has yielded 40 viewings and six higher offers ranging from £830,000.00 to £860,000.00 (some for cash and some requiring finance). The highest offer is from a property speculator connected with Whitman & Co.

[110]Ms Diamond remains of the view that this still constitutes an undervalue. Her evidence contains much criticism of the way Staveley Road has been marketed, much material about other sales in Staveley Road of properties which she says afford useful comparisons, and much complaint that Mr Taylor’s agents have overestimated the amount that would be required to clear the grounds, complete the rear extension, complete the loft conversion and generally refurbish the property so as to put it into the same sort of condition as those properties (such as the one immediately adjoining) which are on the market for £1.35 million pounds. She accordingly wants Barnard Marcus and/or Faron Sutaria to sell the property. The latter may be discounted because they insist that they will only act as sole agents. Ms Diamond has always had (but never took) the opportunity herself to sell Staveley Road to raise the completion monies (if she no longer has the cash she must once have had to complete the sale). The court has now decided that the conduct of the sale should be given to Mr Taylor’s solicitors, and they are not conducting the sale on a sole agency basis. On the evidence Barnard Marcus are prepared to contemplate a joint agency basis.

[111]Both Barnard Marcus and Faron Sutaria are scathing as the offers so far received. In letters written to Ms Diamond and produced to the court at the hearing their market appraisal is £1.1 million pounds, which they say is easily achievable. Both agents say that because the property is being advertised at an asking price of around £800,000.00 it has principally attracted developers who want to sell on at a profit, rather than families who wish to undertake the necessary work and occupy as end users. Barnard Marcus say:- “From our experience, in asking £800,000.00 for this property, you are only going to attract people looking in this price bracket. People looking in the price range of a million pounds plus are not even going to notice a property asking £800,000.00 as they will expect it to be a lot smaller or in a less desirable location, rather than the very upmarket this property is situated in… It is utterly impossible for the chargee to comply with their duty of care to get the best price reasonably available when the agents are still offering it at such a serious undervalue. The property should be marketed for the proper market value of £1.1 million pounds in its current condition”.

[112]Mr Taylor is not interested in remarketing the property. Whether the property is sold for £860,000.00 or £1.1million pounds he seems to be more than adequately covered for the amount due under the charge, accruing interest, the costs of the sale and the amount he is entitled to charge in the final account in respect of dealing with the chattels. But obviously it matters a great deal to Ms Diamond. In my judgment Mr Taylor should be directed to offer Barnard Marcus the opportunity to market the property at a price of £1.1 million (on a joint agency basis until Friday 4 December 2012 on terms that they will receive a share of the commission on the sale only in the event of selling the property to someone introduced by them (who has not been introduced by the existing agents or sub-agents) at a price in excess of £900,000.00. (I select the figure of £900.000.00 since that was the highest offer elicited by the existing agents, although the transaction fell through when the buyer examined the economics).

[113]My reasons for an order in that form are as follows:- a) I consider that Ms Diamond has introduced (just) sufficient material to suggest that the current procedure may not have produced the best price reasonably obtainable: b) Mr Taylor appears amply covered in respect of what is due to him even allowing for accruing interest: c) No extended marketing period can be allowed because Mr Taylor is already out of his money for some two and a half years, he sold Ridgemount in order to raise case for use in his business and personal affairs (and not to make an investment even at 8% interest), and he is currently living in a caravan pending the resolution of this dispute; d) The longer a sale is delayed the more acute the problems over the chattels become, so there can be no extended marketing; e) If at this stage the sale arrangements are altered to accommodate Ms Diamond’s concerns that the best price reasonably obtainable is not being achieved then there is the possibility of avoiding a further round of litigation once the sale goes through. f) Barnard Marcus’ letters are (like Faron Sutaria’s) extremely bullish, and if they do not rise to the challenge then in the future it will be open to the Court to treat their letters to Ms Diamond as empty words.

[114]For that extent I would grant the Second and Third Applications.

[115]I turn to the Forth Application: this seeks an injunction restraining a sale of Staveley Road at all and it seeks and injunction relating to dealing with chattels. As to the latter, this is a duplication of the relief sought in the First Application with which I have already dealt. As to the former I do not consider that there is any serious issue to be tried in relation to Mr Taylor’s right to sell Staveley Road on the orders as they exist: and having regard to the direction I have given for the future conduct of the sale there is no ground to restrain the sale pending the making of other arrangements. I would therefore dismiss the Fourth Application.

[116]I would refuse to grant relief in relation to the Fifth Application. I have already dealt with this in the course of dealing with the First Application. For the reasons there given there is no ground to grant a mandatory injunction requiring Mr Taylor to remove what remains at Staveley Road in the way of chattels in the elaborate way suggested (or at all): and no grounds for ordering him to deliver those chattels to property which he still owns.

[117]With the heart of the Sixth Application I have already dealt. It will be readily apparent from my findings and holdings above why I would dismiss Ms Diamond’s application to strike out the specific performance action (or to grant Ms Diamond summary judgment in that action).

[118]I would dismiss the Seventh Application (by which Ms Diamond seeks an order that Mr Taylor fully compensates her for the substantial losses or thefts which she has suffered as a result of his alleged negligent breach of duty of care in failing to engage the services of a bonded professional removal company): and I would hold the application to be totally without merit. Whether or not Ms Diamond ultimately has a claim against Mr Taylor for the way in which he has dealt with her chattels (and as expressed I do not think Ms Diamond has appreciated the limited scope of the duties of an involuntary bailee) it is wholly wrong to seek that relief by way of an application in the specific performance proceedings or in the charging order proceedings.

[119]I have already dealt with the substance of the Eighth Application (which sought a stay of execution of the Land Registry Charge and of the possession order). I have also dealt with the second limb of that application which sought an injunction restraining a sale at anything less than £1.15 million. My disposition there has been that I have left unaltered the original order permitting the sale of Staveley Road at anything above £800,000.00 (subject always to the general duty to obtain the best price reasonably obtainable): but I have directed Mr Taylor to conduct the sale by involving the agent of Ms Diamond’s choice.

[120]As to the Ninth Application (which seeks a mandatory order that Mr Taylor remove the brickwork from some bricked up windows and Ridgemount and reinstate the window frames) I refuse that relief: and I hold that application is totally without merit.

[121]It appears that on advice Mr Taylor has bricked up some windows at the property to keep out intruders because of the potentially dangerous state of the structure. Ms Diamond objects to this because she says she needs opening windows for her disabled accommodation and to provide a flow of air to preserve her flood damaged chattels. If Ms Diamond seeks this relief, then she must bring a claim for it. Were she to do so I would not grant mandatory relief in this form pending a trial of such a claim because I do not have a high degree of assurance that such an order would be made a trial. Mr Taylor remains the legal owner of Ridgemount. It is true that he holds it upon a vendor’s constructive trust pending completion under the order for specific performance. But I consider that it is very strongly arguable that he is entitled to protect himself against any potential liability to which he is exposed during the prolonged continuation of his trusteeship because of the purchaser’s default.

[122]I have already dealt with the Tenth Application.

[123]Having considered all of Ms Diamond’s applications I have stood back and considered whether in relation to any of them I would have been assisted by Ms Diamond reading out her witness statement to me, or whether there is some point of doubt that I would have wished to put her (and which she has lost the opportunity of answering). I consider there is not, and that there is no reason to defer handing down this judgment until a further adjourned hearing. In reaching that view I have taken note of the fact that Ms Diamond has sent to me a constant stream of faxes, during which at any point she could have complied with my request to ram home the key points on her applications and to draw to my attention documents that were important to the points she wanted to make. On extensive perusal those faxes are essentially repetitions of points already made in her witness statement, and copies of documents already provided. It is without doubt time for a decision to be made on these much adjourned applications in this long standing litigation.

[124]I shall formally hand down this judgment in Manchester at 10:30am on 22 October 2012. I do not expect the attendance of parties. There will arise some consequential questions.

[125]First, as regards costs, I reserve the question of costs to a telephone hearing to be arranged by Mr Taylor’s solicitors in accordance with CPR PD 23A paragraph 6, not earlier than 28 days after the date of this order. (The period of delay is imposed because I consider it likely that Ms Diamond will be much engaged with the pending strike out application and with the consequences of this judgment in the next 21 days).

[126]Second, I anticipate that each party will seek permission to appeal. I will refuse each party permission to appeal. So far as my refusal of Ms Diamond’s application for permission to appeal is concerned, that is the end of the matter: there is no further appeal. So far as the other matters are concerned I do not consider that there is a real prospect of success. Applications must therefore be made to the Court of Appeal by an Appellant’s Notice containing an application for permission to appeal by 12 November 2012: and it must be accompanied by a copy of this judgment.

[127]Third, I have dismissed applications on the ground that they are “totally without merit”: I am obliged to consider whether it is appropriate to make a form of civil restraint order. My provisional view (reinforced by the form of all Ms Diamond’s applications and her conduct after I reserved judgement) is that it is appropriate. But before making such an order I would wish to give Ms Diamond the opportunity to address argument. I will therefore adjourn argument on that question until the telephone hearing to be arranged in respect of costs.

order

or in the alternative restraining a sale at anything less than £1.15 million pounds. order: see Pereira at paragraph [40] – [42]. At this stage I am concerned only with(a) whether it is appropriate to extend the time for filing the Appellant’s Notice: and

(b) if time is to be extended, whether it is appropriate to grant permission to appeal.