Corbett v Corbett
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 04 May 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0504-1 |
| Court | Court of Appeal |
| Date | 04 May 1953 |
[1953] EWCA Civ J0504-1
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls
(Sir Raymond Evershed),
Lord Justice Birkett, and
Lord Justice Romer
MR J.E.S. SIMON, Q.C. and MR DALY LEWIS (instructed by Messrs Blakeney & Marsden Popple, agents for Mr Cyril E. Wheeler, Brighton) appeared on behalf of the Appellant (Petitioner).
SIR CHARLES DOUGHTY, Q.C. and MR D.C. HUMPHREYS (instructed by Messrs Lee, Bolton & Lee, agents for Messrs Roythone & Co.) appeared on behalf of the Respondent (Respondent).
On the 31st October of last year Mr Justice Collingwood gave Judgment in a matrimonial suit in which Mr A. J. Corbett was the Petitioner and his wife, Mrs Corbett, was the Respondent, Mr Oskar Skribis being joined as Co-Respondent. The Petitioner asked for a decree dissolving the marriage on the ground of the wife's adultery with the Co-Respondent, and the Particulars of the Petitioner specified the dates on which the alleged adulteryoccurred. The Respondent in her Answer denied the adultery, but she also claimed in the alternative that if she did commit adultery that adultery had been conduced to by the conduct of the Petitioner, and she charged the Petitioner with cruelty. She prayed in her Answer for a decree on her part dissolving the marriage on the ground of her husband's cruelty. When the matter came to be heard she did not in fact deny that she had ever committed adultery with the Co-Respondent. She put before the Court a discretion statement in which she conceded that after she had left her husband she had in fact committed adultery with Mr Skribis, but she asked the Court to exercise its discretion in her favour.
At the hearing of the Petition and the Answer the learned Judge took a very strong view in favour of the wife as a witness of truth. He stated that he thought the husband not to be a witness deserving of credence. The language he used was as follows: "Both these parties have given evidence in the box, and, having seen them give their evidence, and particularly having seen them cross-examined, I am left in no doubt whatever as to which of them was telling the truth. The Petitioner, the husband, gave a very bad impression indeed. The moment he found himself in any difficulty in explaining matters, (and there were many such difficulties), he immediately adopted an aggressive attitude towards learned Counsel, fenced with Counsel, in an endeavour to cover up his difficulties in a spate of words. The wife's evidence was far preferable. She was a straightforward witness. She never endeavoured to indulge in any exaggeration at all, and when one looks at the correspondence although it is quite clear from it what complaints she is making she does not for one moment lay claim to having been without blame herself. I accept, as I have said, the wife's evidence wherever it differs from that of her husband." The Judge's conclusion in the matter may beanticipated by the passage I have already read. He came to the conclusion that though the wife (as she said in her discretion statement) had committed adultery with Skribis, that adultery had been conduced to by the cruel conduct of the husband. He therefore dismissed the husband's Petition. Upon the wife's Prayer, on the other hand, he found her case proved and, exercising the Court's discretion in her favour, he granted a decree of dissolution of the marriage on the ground of the husband's cruelty. I read the final passage in the Judgment: "I am asked to say that what she has gone through here is nothing more than the ordinary wear and tear of married life. I should be very sorry if that were so. Accepting as I say implicitly the story that this woman has told me of her treatment, I have no doubt at all that it amounted to cruelty, that he had made life quite impossible for her in the marital home, and I am satisfied upon the evidence that the treatment that he meted out to her, driving her out of the house in the end, making it incumbent upon her to find work and a place in which to live, did conduce to her adultery. I have already said I accept implicitly what she said as to the initiation of that adultery at a date consequent upon when he came along and removed the little girl Ann in those circumstances. I think that this is a case in which it is right that I should exercise my discretion in her favour. The result therefore will be the prayer in the Petition is rejected, and there will be a decree nisi to the Respondent in the exercise of my discretion."
The husband has appealed against that decision, but he has also served a notice of motion in the form usual in such cases asking that further evidence be admitted with a view to showing that the wife's story, notwithstanding the Judge's belief of it, was in material respects quite untrue.The rub of the case made on the motion I think is undoubtedly this, that so far from her discretion statement being a candid admission of a single instance of adultery, she in fact committed adultery on another occasion in another place and with another man. As is usual in such cases the proposed affidavits which the husband has now available have been read by the Court de bene esse with a view to seeing to what those affidavits amount, assuming that the deponents gave evidence in conformity with the written words and assuming also that the evidence so given was believed. It is not in doubt that in general the rule of this Court laid down long ago in Shedden v. Patrick and since followed in many cases is briefly this, that it being in the public interest that there should be an end of litigation, fresh evidence on appeal will not be permitted unless two conditions are satisfied. The first is that the new evidence was not available to the party seeking to use it at the trial or that reasonable diligence would not have made it so available. The second condition is that the fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision in the Court below. That, as I have said, is the general rule in the ordinary run of cases, and if it be applicable here, I have no doubt that the conditions would not be satisfied — particularly I have no doubt that the first condition is not shown to be fulfilled.
In order to make that clear I must say a little about what this fresh evidence, if admitted, amounts to. The main witness (the person from whose evidence or from whose assistance all else, so far as I can see, has flowed) is a Mrs Randall. That lady was well-known to the Petitioner at the date of the trial and had been well-known to him for many years. In fact, as I understand the circumstances of the case, the husband and wife had livedwith her originally in 1942 and had then lived at her house (that is to say she was their landlady) from 1949 onwards. As the Petitioner himself says in the course of his own deposition, he had seen and spoken to Mrs Randall "almost every day" during the previous twelve months. Now it is quite true that Mr Corbett goes on to say that she never disclosed to him the information now set out in the affidavits. But he does not say that he ever enquired of her whether she had any information to impart and there is therefore no evidence to show that the Petitioner or those advising him made any attempt to see whether Mrs Randall had any information which would be useful to the Petitioner's case or made any particular enquiry beyond the circumstances surrounding the particular instance of adultery which they alleged. Indeed (and I take what I am about to say from the Petitioner himself) he was advised that the case he was alleging on that particular matter was so strong that there was no doubt as to the result. I add also that the Petitioner was acquainted with (though not "well acquainted" with) two other of the deponents.
A good deal of this proposed new evidence is directed to showing that Mrs Corbett was better acquainted with Oskar Skribis, the Co-Respondent, than she had led the Court to suppose. Nothing in it suggests or leads to the inference that any other acts of adultery were committed with him than those to which she herself deposes in her discretion statement, unless the fact that he wrote her letters and advanced her money from time to time might lead to that inference. I quite follow the suggestion that the evidence may be said to be in conflict with her story that when she eventually left her husband (driven out as the Judge found by the husband's conduct) she did not then know where the Co-Respondent was. But I do not propose to takeup further time on this part of the case. By itself I do not think Mr Simon really pressed us to take the view that it would be of a convincing character. It is the specific instance of adultery with another man upon which he mainly fasten.
That matter is dealt with by two affidavits, one an affidavit by a Mrs Phyllis May Thorn, who appears to be a woman of somewhat light character, and the other affidavit of one Reginald Horace Lambley. The episode to which those two deponents direct themselves is that in May, 1950, Mrs Thorn and the Respondent Mrs Corbett arranged to go to Boston in the County of Lincoln with two male companions and there to spend the night with their respective consorts in the White Hart Hotel, Boston. Lambley, who was the consort selected for the purpose of this excursion by Mrs Corbett, goes so far as to say that, having signed the hotel register in his own name, he and Mrs Corbett occupied a double-bedded room, that they slept together, and that he committed adultery with her. I need not say that if that evidence is true then the discretion statement was false and, as Mr Simon points out, the Judge at the trial was induced to grant the decree in favour of the wife upon a perjured discretion statement, let alone altogether what effect that...
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