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Bar'yudin v Pilipenko [2012] EWCA Civ 1524

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  • Case No : B6/2012/2104 & 2441

    Neutral Citation Number: [2012] EWCA Civ 1524

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (HIS HONOUR JUDGE EVERALL)

    (HIS HONOUR JUDGE BRASSE)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date : Thursday 25th October 2012

    Before:

    LORD JUSTICE THORPE

    LORD JUSTICE LEWISON

    and

    MR JUSTICE HEDLEY

    - - - - - - - - - - - - - - - - - - - - - - - -

    Between:

    BAR'YUDIN (Applicant)

    - and -

    PILIPENKO (Respondent)

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    (DAR Transcript of

    WordWave International Limited

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    Official Shorthand Writers to the Court)

    - - - - - - - - - - - - - - - - - - - - -

    Mary Jane Taylor (instructed by Docklands Solicitors) appeared on behalf of the Applicant.

    The Respondent did not appear and was not represented

    - - - - - - - - - - - - - - - - - - - - -

    Judgment

    As Approved by the Court

    Crown copyright(c)

    Lord Justice Lewison:

    1. On 17 January 2011 HHJ Brasse heard an application for ancillary relief following the breakdown of the marriage between Mr Bar'yudin and Ms Pilipenko. The marriage had been a short and childless one during which both parties had been working. The judge noted that there had been no less than 25 hearings in the course of what should have been a fairly straightforward case.

    2. Among the orders that he made were that the husband should pay the wife a lump sum in two instalments and an order that the wife should leave the former matrimonial home on payment of the first instalment.

    3. Ms Pilipenko, the wife, applied for permission to appeal against that order; but Thorpe LJ refused that permission following an oral hearing on 6 April 2011. The first instalment was paid, but the wife refused to leave the former matrimonial home. Accordingly, on 21 September 2011, HHJ Brasse made an order for possession against her. She sought permission to appeal against that order and also a stay. That application came before Ward LJ on 28 September 2011. He granted a temporary stay and adjourned the remainder of the application, so as to enable Ms Pilipenko to go back to HHJ Brasse seeking to re-open the original order made back in January 2011 on the ground that there was fresh evidence and that the husband had failed to make full disclosure.

    4. That application came back before HHJ Brasse on 4 January 2012. He dismissed the application, and again Ms Pilipenko applied for permission to appeal. Ward LJ refused permission to appeal at a further hearing on 8 May 2012. She also asked for permission to appeal against the order for possession made on 21 September 2011. That application was also refused.

    5. So the position is that an order for possession has been made against Ms Pilipenko. Permission to appeal against it has been refused with the consequence that that order stands. Ms Pilipenko still did not comply either with the original order of 17 January 2011 requiring her to leave the former matrimonial home or with the subsequent possession order. Accordingly, on 20 July 2012 HHJ Brasse ordered a warrant of possession to issue; and directed a hearing of the husband's application for a committal order against the wife for having failed to comply with the court's previous orders. On the same day he dismissed the wife's application for further disclosure.

    6. An application to stay the warrant was dismissed by the county court. Arrangements have now been made to execute the order and we were told this morning that a bailiff's appointment has been made for 21 November 2012.

    7. Ms Pilipenko now applies for permission to appeal against the order made on 20 July. She applied to this court for an adjournment of her application for permission to appeal but that application was refused. She has not appeared before us today.

    8. The complaint made in her Appellant's Notice is that the husband applied for execution of the order before the wife was given the opportunity to ask for permission to appeal. She says that she must have an opportunity to present yet further fresh evidence to the lower court which will show that the original order made by HHJ Brasse was wrong. In her skeleton argument dated 12 August 2012 she adduces material which she says shows that the husband's assets were undervalued and that the award to her was too low. She has of course already had the opportunity to adduce fresh evidence to show that the original order was wrong. She took that opportunity by applying to HHJ Brasse in January 2012. At the hearing before Ward LJ in April, she tried to introduce yet further material, but Ward LJ ruled that the material could have been placed before HHJ Brasse. The current application is simply an attempt to circumvent the previous rulings both of HHJ Brasse and of Ward LJ. It is to my mind an abuse of process. There is quite simply nothing in any of these Grounds of Appeal.

    9. Accordingly, we revert to the position that the possession order stands. Since there is no merit in the Grounds of Appeal there can be no legitimate complaint that a warrant for possession was issued. An order made by the court is there to be enforced and the issue of a warrant of possession is the usual way of enforcing a possession order.

    10. The other complaint in the Appellant's Notice is that the judge gave directions for the hearing of an application for committal before the wife had had a chance to appeal. In my judgment, there is no substance in that complaint either. First, unless and until it is set aside on appeal an order of the court must be obeyed. Second, there were in any event no arguable grounds for appealing against the order. Third, all that the judge did was to give directions for a hearing. He made no substantive decision on the committal application itself. In other words this was no more than a case management decision. In my judgment, therefore, none of the grounds advanced disclose an appeal with real prospects of success. I would therefore refuse permission to appeal.

    11. The hearing of the committal application took place on 24 August 2012. Ms Pilipenko applied for an adjournment on the ground that she wanted legal representation. The practice direction then in force requires the court to have regard to the Article 6 rights of an alleged contemnor. In particular paragraph 4.6 of the practice direction provides:

    "The court should also have regard to the need for the respondent to be -

    (1) allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;

    (2) made aware of the availability of assistance from the Community Legal Service and how to contact the Service;

    (3) given the opportunity, if unrepresented, to obtain legal advice; and

    (4) if unable to understand English, allowed to make arrangements, seeking the assistance of the court if necessary, for an interpreter to attend the hearing."

    12. HHJ Everall QC refused the adjournment. He noticed specifically that Ms Pilipenko had had ample time to arrange legal representation, that she had been told about the availability of public funding and that the husband had indeed offered to pay her a capital sum to pay her legal costs, which she had declined. He therefore had full regard to the provisions of the practice direction even though he did not mention it specifically. The practice direction does not give an alleged contemnor a right to an adjournment: merely that consideration of his or her Article 6 rights have been taken into account. That was done by the judge.

    13. Having heard the evidence, the judge was satisfied to the criminal standard that Ms Pilipenko was in contempt of court by having failed to leave the former matrimonial home as ordered. Having found the contempt proved to the criminal standard, the judge proceeded to sentence. Whilst some judges might have given Ms Pilipenko yet another opportunity to obtain legal representation before proceeding to sentence, I do not consider that by proceeding immediately the judge can be said to have been wrong in law; and indeed no point about the process is taken in the Appellant's Notice. The underlying ground upon which Ms Pilipenko wishes to appeal against the finding of contempt is that the order which she had not complied with was in itself wrong, but that is as I have said a matter upon which she has no arguable Grounds of Appeal.

    14. The judge passed a sentence of 14 days' imprisonment suspended for 12 months. Since the order made was a committal order, no permission to appeal is needed, but there is still a need to comply with time limits for appeal. In this case the wife did not file her Appellant's Notice until 21 September, but the delay is short and since the order may involve her imprisonment I would extend the time for appeal. But since the Grounds of Appeal against the order seek yet again to re-open the question whether HHJ Brasse's original order was wrong, there is no substance in any of the grounds. It may well be that, as the wife says, enforcement of the order will leave her homeless. HHJ Brasse's original order necessarily carried that consequence and the wife was not required to leave the former matrimonial home until she had received the first instalment of the lump sum, which she could have used to buy or rent somewhere else. In my judgment there is no ground upon which HHJ Everall's finding of contempt can be faulted nor can his sentence be successfully challenged. Where a litigant resolutely refuses to comply with court orders, the protection of the administration of justice requires suitable coercion and penalty. A suspended sentence of 14 days imprisonment is, in my judgment, an entirely suitable coercive penalty. I therefore would dismiss the appeal.

    Lord Justice Thorpe:

    15. I agree

    Mr Justice Hedley:

    16. I also agree.

    Order: Appeal dismissed


Published: 25/11/2012

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