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Hospital or prison – your choice


Boatwright v Boatwright [2010] EWCA Civ 877

Let us not get excited, this is a nothing of a case, but in these dog days of summer, where substantive case law is hard to come by, we have to take what we can get.

The Court of Appeal were confronted by a frankly bewildering application for permission by Mr Boatwright, who was facing an order committing him. This followed an application to enforce a penal notice on an order that he give vacant possession of the property he occupied to his ex-partner, Ms Boatwright (they were not married).

The history went something like this – although this was not the version Mr B presented to the Court – Mr & Ms B owned the property in joint names. Following their split, and Mr B remaining in occupation, Ms B issued a claim for a share of the property, including a claim for an order for sale. The shares of the property were not agreed and eventually the claim reached trial in October 2007. Mr B did not attend. An order was made that:

  • The property be sold, for a price recommended by the appointed agents
  • Mr B to deliver a key to Ms B’s solicitors immediately
  • Mr B to give possession of the property by 17 November 2007 – a month later
  • Mr B to remove his belongings and livestock – Ms B to do so if he failed
  • Once sale had taken place, division to be decided by the Court

Mr B didn’t deliver up a key, then or subsequently. He applied to have the order set aside and was represented by Counsel at the subsequent hearing. The order was upheld, save for the date to give up possession which was extended to April 2008. Mr B appealed, The appeal was dismissed by the Circuit Judge.

And then – nothing happened. Mr B remained were he was. There was no penal notice attached to the order. So, in March 2009 an order that Mr B give up possession by 21 April 2009 was made, this time with penal notice. For some reason, this wasn’t served on Mr B in time, so on 4 August 2009 a further order that Mr B give up possession on 31 August 2009, again with penal notice, was made.

Faced with a penal notice, Mr B… did nothing and stayed put. Finally an application was made for committal. The order was made and Mr B somehow sought permission to appeal to the Court of Appeal, enforcement being stayed in the meantime.

What, exactly, was the recalcitrant Mr B appealing? It is hard to tell – both for us and, it appears, for Stanley Burnton LJ and Arden LJ as well.

It appears that Mr B submitted that the order requiring him to give up possession had been made in October 2007 in his absence. He had omitted to mention to set-aside application, at which he was represented, or the failed appeal application.

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.

Mr B also raised various reasons for not complying with the order, but:

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.

And then

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.

However, while Mr B’s appeal was going absolutely nowhere, the Court was prepared to give him a further four days to comply with the order and give vacant possession, rather than immediate committal – as a practical step, based more on mercy than merit. Mr B had an operation listed for 13 July, so he would be given to 12 July to give vacant possession. Arden LJ’s advice to Mr B was

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.

I’m not so sure about the Court’s assumption that Mr B would be assisted as homeless by the LA, but there may well be reasons why he would be in priority need that aren’t apparent from the judgment. What is, to some degree, astonishing, is the time to which Mr B could stretch his non-compliance in the face of a penal notice, presumably on the apparent reluctance by the other party to actually enforce it. Mr B may not think so, but he was more than a little lucky in the opportunity to comply given to him by the Court of Appeal.

Arden LJ, though, wasn’t about to let Mr B leave without telling him that he was pretty much destroying the rule of law as a foundation of our society:

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.

We have no knowledge of whether Mr B did actually gather up his livestock and go, or whether he continues to undermine our happy standard of life, possibly from prison.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. simply wondered

    as per your own comment (and with respect to their lordships) it is hard to see why they so blithely assume an adult male without dependants would be housed. it also strikes me as a bit of a bugger that you would be made homeless when it seems you own some of the property. and then a nice lecture from the bench about what a useless character you are when, reading between the lines, his life has collapsed. the animals probably being his livelihood, he may have no prospect of earning a wage.
    so while accepting (of course) it is ‘a bad thing’ for people to ignore court orders, it’s easy for judges to hand down wisdom from on high – not to mention on a very nice wage. not surprising to hear arden lj make such pronouncements, as they are (again with the very greatest of respect) somewhat standard fare for her.


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