Danchevsky v Danchevsky
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUCKLEY,LORD JUSTICE SCARMAN |
| Judgment Date | 25 July 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0725-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 1974 |
[1974] EWCA Civ J0725-1
The Master of The Rolls
(Lord Denning)
Lord Justice Buckley and
Lord Justice Scarman
In The Supreme Court of Judicature
Court of Appeal
From: Judge Hinchcliffe, Manchester County Court.
MR M.D. KENEEDY (instructed by The Official Solicitor) appeared on behalf of the Appellant (Defendant).
MR A.A. RUMBELOW (instructed by Messrs John Gorna & Co., Manchester) appeared on behalf of tho Respondent (Plaintiff).
Mr and Mrs Danchevsky were married in 1958. They have two children, aged now about 10 and 12. In 1973 there was a divorce on the ground that Mr Danchevsky had been guilty of unreasonable conduct which had brought about the breakdown of the marriage. We are concerned today with the matrimonial home, 72 Cymbeline Way, Bilton, Rugby, Warwickshire. It was in joint names. The wife left it withthe children and went to her mother's. Then she made an application about It. The registrar made a declaration that it was held by them jointly in equal shares. She wanted the house sold, so as to receive her half-share of the property. The registrar made an order for sale. I am not sure that that was a very wise order to make. When a wife leaves the house, the usual practice is to assess her share in money and give her a charge on the house for it, such charge not to be enforced except on further application to the court. but the husband to pay interest meanwhile: see Wachtal v. Wachtal (1973 P. at page 96). If that had been done in the present case all the subsequent troubles could have been avoided. But in the present case the Registrar ordered a sale of the house. And now it appears that there has been great difficulty in getting the order enforced. Mr Danchevsky stoutly refuses to recognise that the marriage has been dissolved. He will not leave the house. her will he let it be sold. He says that he is willing for his wife to come back. She can use half the house if she wishes to come back, but he is not going to recognise the order of the court for sale. In this state of affairs the judge, on 15 May, 1974, made an order that the wife's solicitors would have the conduct of the sale of the property, and he added the important clause - "that the Respondent (that is, the husband) should give up possession of the said property to the Applicant or her Solicitors by 12 noon on the twelfth day of June, 1974"; and a further order that the husband should co-operate in the doing of all things necessary towards the sale.
That order was not complied with. The husband did not go out of possession, nor did he co-operate in any way towardsthe sale. So on that very day, 12 June, as good as the order was disobeyed, the wife applied to commit the husband to prison. On 21 June the application came before the juige. The judge asked Mr Danchevsky why he had not obeyed the order of the court. He said: "I am still not denying the wife the use of the house which could be divided into two separate households. This would give greater security for the adolescent children". The judge said: "Do you intend to obey my order?". Danchevsky replied: "While the children are adolescent I want to maintain the property". The judge offered him three days to vacate. Mr Danchevsky refused to give any undertaking to do so.
So the judge made an order committing him to prison. He committed him for three months certain - by word of mouth - but there is nothing in the committal order to that effect. The committal order dated 21 June, 1974, after various recitals, said:
"The Court being of opinion that the husband, Mr Danchevsky, has been guilty of a contempt of this Court by failing to vacate the premises by 12 noon on the 12th day of June, 1974, doth order that the said Bohdan Danchevsky do stand committed to Her Majesty's Prison at Strangeways for his contempt, and that a warrant of attachment for the arrest of the said Bohdan Danchevsky be forthwith issued".
In drawing up the committal order, the clerks in the office made a mistake. They followed the County Court Rules. They issued it for an unlimited period: instead of three months certain.
On the same day, 12th June, an order was drawn up giving directions to the Prison Governor. These directions recited that Mr Danchevsky had been committed to prison for contempt of court. Then the directions told the Governor:
"to receive the said Bohdan Danchevsky and keep him safely in the said Prison not less than three months from today, unless in the meantime he agrees to vacate, the premises and otherwise comply with the order dated 15th May, 1974"
Note the words, "not less than three months from today". That again was a mistake. It was said to he a clerical error. These mistakes are much to be regretted. I must say that, in matters concerning the liberty of the subject, It is most essential that the orders issued by the court should be accurately drawn up. The reason being that the Governor and all concerned must have clear and precise instructions as to the detention of any man. The writing is their authority, and it must be correct.
Take first the committal order for an indefinite term, It follows the County Court Rules, Order 25 Rules 67, 68 and 70, and the forms thereunder, which are 195 and 196. These contemplate an indefinite order by which a mau stays in prison indefinitely until he purges his contempt. So does the form given to the Rules in the High Court, see Appendix A, Form 5. But that is not the only kind of order available. Both the County Court and the High Court have power to make an order to imprison for a fixed term. If the sentence is for a fixed term, it should appear in the order. It is often a question which order should be made. It seems to ae that when the object of the committal is punishment for a past offence, then, if he is to be imprisoned at all, the appropriate order is a fixed term. When it is a matter of getting a person to do something in the future - and there is a reasonable prospect of him doing it - then it may be quite appropriate to have an indefinite order against him and to commit him until he does do it. But if there is no such prospect - ashere - there should not be an indefinite term. If he is to be imprisoned at allt it should be a fixed term for hie past disobedience.
Take next the directions to the Prison Governer: "Not less than three months". That, too, was bad. It leaves it in the discretion of the Governer when to release him: with a minimum of three months. That cannot be right, The length of sentence must be determined by the judge, and not by the Governer.
What then should have been done? The...
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