Clear v Clear
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE PEARCE |
| Judgment Date | 27 February 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0227-1 |
| Court | Court of Appeal |
| Date | 27 February 1958 |
[1958] EWCA Civ J0227-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Morris
Lord Justice Pearce
MR. K. BRUCE CAMPRELL and MISS ELAINE JONES (instructed by Messrs. Marey & Co., 14 Old Square, Lincoln's Inn, W.C.2) appeared as Counsel on behalf of the Respondent Husband.
This is an appeal from an order of Mr. Commissioner Blungo White, who was sitting in these courts in July 1957 for seven full days and part of another? trying a suit for divorce instituted by the wife on the ground of cruelty, in which the husband by his answer denied the cruelty alleged against him and said that the wife had been cruel to him and that ha was entitled to a divorce.
In the wife's Petition she said that she sought a divorce notwithstanding her adultery; that is to say, she asked for the discretion of the court to be exercised in her favour.
At the conclusion of the case the learned Commissioner found in her favour, that she had been treated with cruelty by her husband; and he found that the husband had not proved cruelty against the wife. On the petitioner's evidence given in the witness box about her adultery he exercised his discretion in her favour, and pronounced a decree.
In Making an order for costs he took into account the fact that the wife was by no means without blame for the break-up of this marriage, although he attributed the original fault in the destruction of the marriage to the husband's conduct. Accordingly, he made a limited order far costs. He did not 'sake what he otherwise would have done, a full order for coats against the husband.
The husband has appealed, and I should preface what I have to say by recognising the assistance we have had from counsel because the husband, although he is above the legal aid limit, is only a man with a borate salary. He is a serving soldier, and be has not been able, he told us, to do what is necessary to provide the court with a transcript of the evidence, given in the court below for seven days, which would have coat a great deal of money The court excused him that, but refused to place the burden on public funds of having the evidence copied. That would have been tantamount, I should have thought, to the court giving legal aid in part where it had been refused. The wife has been legally aided, so that with a transcript of the evidence she baa been able to assist the court. Counsel for the husband had a useful note taken by other counsel who assisted in the court below, and the court itself had the original of the Judge's notes. Fortunately it has not been thought necessary by counsel on either aide to examine the evidence given over this long period in great detail.
The argument has been directed to three main points. The first is as to the allegation of cruelty Made against the wife. The husband says that upon one matter certainly the evidence which was given, and indeed accepted by the learned Commissioner, pointed in one direction only, namely, that the wife had wade a particularly cruel and violent assault upon bar husband which had given him a serious injury, acting in such a way that she must necessarily be found to be guilty in the matrimonial sense of cruelty towards her husband.
The second ground of appeal is that oven assuming, which is not of course admitted, that this man has boon guilty of cruelty towards his wife, nevertheless the evidence shows that everything was condoned. Moreover, it is said that upon the Commissioner's finding of fact, as he expressed himself, this court ought to treat his judgment as if it had been a finding of condonation.
The third question under appeal is whether the husband ought to have been granted an adjournment in order that justice should be done between the parties, the position being that the Pleadings disclose that the wife was going to say in the witness box that she had committed adultery, but the allegations related only to cruelty. In this state of affairs the husband, who was deceived by his wife throughout as to her infidelity, did not know anything of the adultery (except that she was going to ask for the discretion of the court) until he actually entered the court and then learnt for the first time, when counsel was opening the case against Him, that his wife had not only committed adultery with an Iraki officer (whom she named) who was stationed in this country and who turned out to be Known to the husband, but also had very shortly before the trial given birth to a child, a child who must have been conceived in or about August 1956 before the parties had actually separated.
The application for an adjournment was by the husband's counsel after openings statement bad been made on the other side, and before evidence had been given on this matter, in anticipation of that evidence being given, in order that he might have time before the Iraki disappeared from this country to serve him, if need be and give him an opportunity of defending the case. The application was refused Mr Campbell it plain that he was anticipating the proper Moment when the application should be made, and I for my part do not think it ought to be taken against him that he did not repeat the application at the proper moment. namely when the wife gave evidence (which she subsequently did) of her adultery because it was obviously convenient, he having the material in paper format any rate in his hand that he should get the amendment in train as seen so possible. He explained to the Commissioner that he was making the application then because he would have to act quickly in serving the man. He said: "My Information Is that at this moment he may be in this country but we think it more likely that be is in Iraq. As this case is expected to go on for the rest of the week it is just possible that service may be effected upon him during that time and thus avoid delay at the end". The learned Commissioner, realising the practical difficulties involved, said, and I respectfully agree with him, that if the amendment were granted the man would have to be served because he was entitled to hear the allegation against him. The allegation made is not like the one in the case before 'Mr. Justice illnar to which we were referred, an admission made by a wife outside the court implicating another man but a sworn statement not yet made but later made in the case, implicating that man as the adulterer. The Commissioner refused to consider any device by which the regular practice laid down by statute of Instituting service on the co-respondent could be avoided, and he eventually expressed his opinion in these words: "I see no advantage in acceding to the application. I do not even know that this Captain is in this country, and if he is not in this country a lot of delay would be caused by serving him". It was pointed out by the wife's counsel, after the Commissioner had expressed this opinion, which was I think not a final decision in the matter necessarily, that if such a charge were redo it would be at least open to the wife to plead in answer to the charge conduct conducing. The application was never renewed, and I am treating this case as if it had been made at the proper time.
The mere fact that delay would be caused by serving him is not of itself, in my judgment, a sufficient ground for not granting an adjournment in order that an amendment may be made and necessary steps taken. On the other hand I am not prepared to say that in every case where the parties come to trial, one knowing of the circumstances in which the other side is asking for discretion and finding the evidence for the first tire at the hearing, leave to amend must be given ex debito justitiae.
It is Quite true the courts have gone a long way in civil in saying that leave to amend will always be granted where injustice will not thereby be done and where any injustice which is temporarily done can be remedied by costs, but it must always be remembered that there is a discretion to be exercised judicially in this case, and in this matrimonial jurisdiction very often the exercise of the discretion is peculiarly difficult. It would, I think, be wrong to say that, where a party had rarely lain by and waited so to speak for the evidence to fall into his or her lap at the trial, the amendment must necessarily be given.
This situation was dealt with recently by Mr. Justice Davies at Birmingham Assizes in the case of Clueit v. Cluelt, reported in 1958(1) All England at page 417. I agree with the learned Judge's observations in which he said that on the facts of the case before him it was right that leave to amend should be given in order to enable one of the parties before him to make an allegation of adultery of the facts in the admission made by the other aide in asking for discretion. he had in mind what was said by this Court in Burford v. Burford reported in 1955(3) All England at page 664, a case to which have also been referral, where this Court in considering that situation by no means sought to lay down that in all such cases must leave to amend be given. I agree with Mr. Justice Davies in so far as he implied that it was very often the right thing to do, so that justice could be done between the parties appearing before the court.
One has to remember that the parties are not entirely helpless in these matters. They are told, when the Petition is served upon then by the ether side, that discretion is being asked for not withunderstanding the adultery committed If they want to raise the issue of adultery as a live issue and fight it and not merely accept the finding of adultery which they are reasonably sure they will get against the other side at the hearing, if they want proof of It themselves, it is prima facie, I think, incumbent upon them to take steps so to...
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Lewis v Lewis
...a defense would be open to him. But there was no objection to the amendment being made. The Court has said recently in the a case called Clear v. Clear ( which is not reported) that where, in suits for divorce, a husband or wife has given evidence in the witness box of his or her adultery f......