Netta Patricia Danchevsky (Plaintiff) v Bohdan Danchevsky
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE GOFF |
| Judgment Date | 10 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1110-3 |
| Docket Number | Plaint No. 73/50875 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 1977 |
[1977] EWCA Civ J1110-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Manchester County Court
(His Honour Judge Hinchcliffe)
The Master of the Rolls (Lord Denning)
Lord Justice Lawton and
Lord Justice Goff
MR.F.B. CARTER (instructed by Messrs. John Gorna & Co., Solicitors, Manchester) appeared on behalf of the Plaintiff (Respondent).
MR. J. McDONNELL (instructed by the Official Solicitor) appeared on behalf of the Defendant (Appellant).
This is, I hope, the last chapter of Mr. Danchevsky's case. Mr. and Mrs. Danchevsky were married years ago. They were married in 1958. They have two children, who are now teenagers. 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. The matrimonial home, which is the cause of all the trouble, was at 72 Cymbeline Way, Bilton, Rugby in Warwickshire. It was in joint names. The wife left the house, took the children with her, and went to her mother's.
Then she made an application about the house. The registrar made a declaration that it was held by them jointly in equal shares. She wanted the house sold so as to get her half share of the property, and the registrar made an order for the sale of the property so that she could get her half share. One of the important things was that she should get it with vacant possession so that the house could be properly realised especially, if I remember rightly, as Mr. Danchevsky had not been paying maintenance for his wife or the children. The rest of the story is of all the attempts on behalf of the wife to get possession of this house so that it should be sold. Alongside that was Mr. Danchevsky's firm determination that he was not going to get out of that house. Whatever the law said, he regarded his marriage as still subsisting, and he regarded the house as still being the matrimonial home. He was going to stay there and have the children there if need be, but he was not going to be turned out of his home. That was his attitude all the way through this long story.
He has been to prison three times for different periods - four weeks, eleven weeks and eighteen weeks - because of the attitude he took that he would not" give up possession of this house to allowIt to be sold. During the last time he was in prison it was sold with vacant possession; and it having been sold, he was then released from prison.
One might think that was the end of the matter; but he has appealed to this court with the assistance of the Official Solicitor. He says that he was wrongly committed to prison at least on the last two occasions. He says he served the first term of imprisonment of four weeks for the offence and he could not under our law be committed to prison again for it. That is the matter we have to consider today, whether he was lawfully imprisoned for contempt of court.
This depends on the various orders which were made against him, and I am afraid I must recite the dates and the stories. The first date was the 15th May, 1974 when the County Court made an order must he must give up possession of the property to the wife or her solicitors by 12 noon on the 12th June, 1974. That is the order on which everything in this case depends. He was ordered to give up possession of the house by 12 noon on the 12th June, 1974, and he did not do it.
There was an application to commit him for contempt of court because he did not obey that order. He did not give up possession. On the 21st June, 1974 the court made an order that he had been guilty of a contempt of court by breach of the order to give up possession by the 12th June. He was committed to prison, and the governor was directed that Mr. Danchevsky was to be kept safely in prison for not less than three months from that date unless he agreed to vacate - which he never did.
On what occasion Mr. Danchevsky appealed to this court - I do not know if the Official Solicitor was acting for him. It is a reported case, Danchevsky v. Danchevsky (1975) Family Division at page 17.We set aside that order for committal because it was bad in law. You cannot commit a person for "not less than three months". You cannot make an order for an indefinite period, leaving it to the governor's discretion. So, although he had served four weeks, he was released on the 25th July. It was intimated by the court that the proper thing to do was to get a warrant for possession of the property and sell the house.
Then Mrs. Danchevsky appealed for a warrant for restitution. It is an order which is authorised by the rules of the court. It is a way of getting possession. A warrant of restitution was issued on the 9th October, 1974. It was executed and possession was given But then Mr. Danchevsky immediately went back again. On at least two occasions when the bailiffs had gone in and had got possession, within a very short time, there was Mr. Danchevsky in the house again. So that remedy having proved ineffective there was another application to commit him to prison for contempt.
On the 6th November an application was made to commit him to prison for neglecting to obey the order of the 15th May, 1974 requiring him to give up possession. Upon that application, an order was made on the 15th November, 1974 committing him to prison, this time for a period of four months. There was a proviso however saying that it was not to be executed if he gave up possession on the 12th December, 1974. But he did not do it. So he went to prison for those four months then. He went to prison, but he earned remission. So he did not serve the full period of four months: he served 11 weeks and some days under that order. He served that from the 7th April, 1975 to the 27th June, 1975. Be it noted that it was for failing to obey the first order of the 15th May, 1974.
That is the first point of the case. Could he be sent to prisonfor a second time - for these four months - when he had already served the first four weeks?
As soon as he came out of prison in June 1975 he went straight back to the house again. Once again, what was to be done about it? An application was again made to commit him to prison on that account. On the 20th July, 1976 an application was made to the court. The court made an order to commit him to prison for 8 months because again he had not obeyed and failed to conform to that first order of the 15th May, 1974. I will read this last order: "… the said Bohdan Danchevsky has been guilty of a further contempt of this Court by neglecting to obey the said order of the 15th day of May 1974, that is to say, by failing to give possession and still continuing in possession of the said property and evincing no intention of vacating the same and by his continuing wilful and recalcitrant conduct …". It was ordered that he should be committed to prison for 8 months, but there was a proviso that the order was not to be executed without leave of the court if he gave possession by the 12th October, 1976. But he did not give possession then. So it was ordered on the 9th December, 1976 that, as he had not obeyed the order, he should be committed to prison for eight months. On the 27th...
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