Case No: B2/2010/1353
Neutral Citation Number: [2010] EWCA Civ 877
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM SWINDON COUNTY COURT
(HIS HONOUR JUDGE WADE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 8th July 2010

Before:

LADY JUSTICE ARDEN
and
LORD JUSTICE STANLEY BURNTON
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Between:

	Boatwright	
Appellant	
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Boatwright	

Respondent	

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The Appellant Appeared In Person.

The Respondent Did Not Appear And Was Not Represented.

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Judgment
Lord Justice Stanley Burnton:

1.	This is an appeal by Joseph Charles Boatwright against an order by HHJ Wade at Swindon County Court on 20 May of this year committing him to prison for breach of an order of the court dated 4 August 2009 which required him to give possession of the property in which he lives.  The order was suspended to give him enough time to do so.  It was suspended until 3 June 2010.

2.	Mr Boatwright did not comply with that order and therefore he stands in peril of being committed to custody for a period of three months.  He appeals against the order.  The basis of his appeal is not clear.  He has complaints about the original order, to which I shall refer in a moment, and puts forward various difficulties which he says prevented him from giving possession or resulted in delay in his giving possession.

3.	The proceedings in question relate to a property which was and remains in the joint names of Mr Boatwright and Susan Boatwright.  Despite the identity of their surnames they were not and are not married; the property was in joint names. They lived together and then fell out, as a result of which Mrs Boatwright issued a claim for a share of the property.  That would of course involve its being sold and the proceeds divided up between them.  There was an issue between them as to what that division should be. 

4.	The proceedings began as long ago as September 2006.  In May  2007 there was an order for a joint valuation of the property, and various other steps to be taken with a view to trial of the issues between them.  There were interlocutory applications in June of 2007 and ultimately the matter came for trial on 16 October, when Mr Boatwright did not appear.  The judge then was District Judge Asplin and he, having heard counsel for the claimant and considered the evidence before him, made an order for the property to be placed on sale on the open market immediately.  Selling agents were identified, namely Peter Long and Partners.  The selling price was to be as recommended by them or as determined by the court if either party was dissatisfied with their recommendation.  There was an order that Mr Boatwright deliver a key to the property to the solicitors for Mrs Boatwright immediately, an order which too has not been complied with, and the claimant's solicitors were to have the conduct of the sale.  Paragraph 6 ordered Mr Boatwright to give possession of the property by 15 November 2007 and to remove all his personal belongings, chattels including livestock.  Paragraph 7 perhaps sensibly provided that if he failed to do so Mrs Boatwright should be at liberty to do so, in which case Mr Boatwright would bear the cost of her doing so.  There were various other orders made.  The proceeds of sale of the property were to be held by the claimant's solicitors pending the court's decision as to the division of those proceeds.  The court, had that been complied with, would by now have decided whether the split should be 50/50 or whether Mr Boatwright was entitled to a greater percentage by reason of monies he put into the property or whatever.  

5.	As I have already mentioned, Mr Boatwright did not appear on that occasion and in November 2007 he applied to set aside that order.  The matter came before District Judge Asplin again.  Both parties were represented by counsel and that was an opportunity for Mr Boatwright to put forward his case and I have no doubt it was properly considered by the District Judge.  Having heard that, he ordered that his previous rule should stand apart from the fact that he extended dates for compliance, in particular being that Mr Boatwright should give vacant possession by 30 April 2008.

6.	Mr Boatwright sought to appeal against that order. HHJ Hughes QC considered the papers including the grounds put forward on appeal.  He refused permission to appeal on the basis that it had no real prospect of success and there was no other reason for an appeal to be heard.  That should have been the end of the any dispute about the order for vacant possession and should have been complied with.  At that stage no penal notice had been attached to any order, presumably in the hope if not the assumption that it would be duly complied, with but it was not.  The result of that was that some ten months later on 30 March 2009 District Judge Watkins made an order that vacant possession should be given by 21 April 2009, with a penal notice being attached to the order.  As Mr Boatwright is well aware, the effect of a penal notice once the order is served on him is to place him at risk of being held to be in contempt of court if he does not comply with it and at risk of a custodial sentence.

7.	The order of 30 March was not in fact served before the date of possession to which it referred.  The result of that was that a further order was made on 4 August 2009, again by District Judge Asplin, which gave a new date for him to give vacant possession, namely 31 August 2009, again with a penal notice attached, and it was duly served on 6 August, two days after the order had been made. 

8.	So even starting from that date of 31 August 2009, Mr Boatwright has had almost a year to comply with this order and he has not done so.  He has applied for a stay of that order, which was refused understandably.  He was threatened with enforcement proceedings, namely application for his committal.  Nothing happened, the result of which was that the order which is under appeal was made.  It has been effectively suspended pending the hearing of this appeal.

9.	We have heard Mr Boatwright's excuses and justifications for not complying with this order.  In my judgment none of them justify the stance he has taken.  There may be difficulties in complying with it.  He has to find some other accommodation but the local authority is under a duty to house him if he is homeless.  There are animals on the property apparently but arrangements could be made for them to be looked after.  Ultimately if necessary there would have to be application to an animal shelter or to the Royal Society for the Prevention of Cruelty to Animals for them to look after the animals.  I would hope that Mrs Boatwright would be willing to take some responsibility for the animals insofar as they belong to her or she has a responsibility for them.  But this order has to be complied with and at the moment no excuse has been given for Mr Boatwright's not complying with it.

10.	The judge gave more than adequate time for Mr Boatwright to comply with the order by giving up possession and he has not done so, so that any allowance we give to him today is really by way of mercy rather than merit and I see no justification other than an attempt to be practical and to avoid his having to serve a significant sentence of imprisonment by reason of his inexcusable failure to comply with a court order.

11.	What I would be prepared to do, subject to my Lady's agreement, would be to suspend this order for a very short time to give him enough time to remove himself and his things.  He has an operation as an inpatient on the 13th of this month.  It seems to me that he must leave before that -- that is to say, by the 12th -- and that is a short time but it is a short time because he has already had a very considerable time.  I would therefore propose to give him this allowance to suspend the order further so that, provided he gives vacant possession by the 12th of this month, the sentence of imprisonment will not be served;  but otherwise I see no alternative but for that sentence to take effect. That is the order I would propose.  The order of this court would have to be served on him and the penal notice would have to be attached.

Lady Justice Arden : 

12.	I agree with all that has fallen from my Lord Stanley Burton LJ.  I see no merit in his application.  Mr Boatwright submitted that an order had been made in his absence on 16 October 2007 which required the property to be sold and for him to give up vacant possession, but with the chronology helpfully prepared by Mr Bond on behalf of the respondent we were able to see that that order had been reconsidered by the court later in 2007 and a further extension of time for giving vacant possession had been given and that the matter had then been the subject of an application for permission to appeal to HHJ Hughes QC in 2008.  On the occasion when the application to set aside the order was prepared Mr Boatwright was represented by counsel so that he had the opportunity for all his points to be placed before the court and to be dealt with, so he has had his day in court, indeed more than one day in court, and the order for possession has now been outstanding for an exceptionally long period. 

13.	I agree with Stanley Burnton LJ that we should give a very short extension to the 12 July.  I consider that, for the reasons he has given, that is reasonable in all the circumstances of this case but I am very concerned that Mr Boatwright now takes every step to give up vacant possession.  He accepts that he will be homeless but the local authority will now be bound to offer him some temporary accommodation.  He has sensibly offered to have a key to the property cut today and to send it to the solicitors for the respondent no later than tomorrow.  The court is very pleased to hear that, at least I am very pleased to hear that, and it is better that he does that now, although it was ordered long ago, than not at all.

14.	The extension to 12 July is a very short period but in my judgment four days is adequate and Mr Boatwright should aim to give vacant possession in less than that time.  There are other provisions of the orders of the court that have already been made which deal with the position if he is unable to remove property including the livestock, and I express the wish that Mrs Boatwright should if possible give every assistance if called on to do so with the arrangements for the livestock.  

15.	Mr Boatwright does not want to give up vacant possession because he would like to buy the property himself using an equity release scheme.  He has told us that that is difficult because he does not know the size of Mrs Boatwright's share of the property.  I do not accept, however, that he could not have made an offer to Mrs Boatwright by now or, assuming that offer was rejected, not have made an application to the court so that the court could determine that outstanding issue and decide the amount of the shares so that the matter could have been taken forward.  There has been plenty of time for all that since 2007. 

16.	Likewise Mr Boatwright is concerned about improvements which he made to the property but that sort of issue, if it is still open to him, can be taken as well when the property has been sold, as can be done now, because it is a matter which goes to the distribution of the proceeds of sale.

17.	Finally I would say this.  We have the privilege of living in a society that respects the rule of law, and that depends on everybody understanding that if the  court makes an order, that order is to be complied with promptly and fully unless the court orders otherwise.  Mr Boatwright must remind himself of that.  This is one of the privileges of the society within which we live, and without it we would none of us be able to enjoy the happy standard of life that we do in comparison with other countries.  So my immediate advice to Mr Boatwright is that he should go to the local authority, have the key cut, give vacant possession within the time allowed and in that way he will also be able to have the surgery on his hand which he needs to have on the date fixed next week rather than be committed to prison.

18.	Thank you very much for your submissions.  Thank you.

Order: Appeal dismissed