Davies v Davies
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE DEVLIN |
| Judgment Date | 21 July 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0721-2 |
| Court | Court of Appeal |
| Date | 21 July 1960 |
[1960] EWCA Civ J0721-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Willmer and
Lord Justice Devlin
MR. C. TREVOR REEVE (instructed by Messrs. Theodore Goddard & Co., Agents for Messrs. Myer Cohen & Co., Cardiff) appeared on behalf of the Appellant (Wife, Petitioner).
THE RESPONDENT (Husband) did not appear and was not represented.
This is an appeal on the part of a petitioning wife from an order of His Honour Judge Temple—Morris made at Cardiff on the 26th October, 1959. The appeal is only upon a question of costs. So far as the party and party costs are concerned, which are involved in this appeal, leave to appeal was refused, and this court can only entertain the appeal, at any rate on that part of the order, on the basis that the learned judge did not exercise any judicial discretion in dealing with the matter as he did.
The order was an order pronouncing a decree nisi of divorce in an undefended case, the ground of the divorce being the adultery of the husband, the respondent, with a woman service upon whom had been dispensed with. That part of the order stands. It was made on the 26th October, 1959, upon which day the order as originally drawn "condemned the respondent in the costs incurred and to be incurred on behalf of the petitioner up to the 23rd June, 1959". The situation was that on the 23rd June, 1959, the learned Commissioner, not being satisfied as to the absence of collusion, adjourned the matter for the assistance of the Queen's Proctor, who appeared by Counsel on the 26th October and said that the Queen's Proctor had made enquiries and proposed to take no further part in the case. On that occasion the respondent—husband gave evidence of his own adultery, and the decree was pronounced.
The part of the order appealed against, there being no complaint a be ut any costs which arose by reason of the adjournment not being allowed, reads as follows; "… excluding all solicitor's costs relating to the statement made by the respondent on the 11th September, 1958, his attendances" (that is, the solicitor's attendances) "upon the respondent, and the telephone conversations in relation thereto, and the preparation of the affidavit in support of the application for leave to dispense with the service of the petition on the woman named therein such costs to be taxed as between party and party". The order continues — and this also is appealed against — "And it is ordered that the costs of the petitioner excluding all solicitor's costs relating to the statement made by the respondent on the 11th September, 1958, his attendances upon the respondent, and the telephone conversations in relation thereto" — and so on, following the wording of the previous part of the order the provisions of the Third Schedule of the Legal Aid and Advice Act, 1949.
The learned judge was concerned in this case, and rightly concerned, to see that justice was done in accordance with the law, which requires him, in an undefended (as in a defended) case, to he satisfied as to the charges which are to be proved, and also to be satisfied as to the absence of collusion. What happened in this case was this. The wife consulted her solicitor and gave instructions. Inferentially it appears from the evidence that the instructions were based upon the supposed fret that the husband had committed adultery. Following upon that, a telephone number which the husband had given to the wife — they were living apart — was given to the solicitor and the solicitor telephoned to the husband, spoke to him on the telephone, and obtained an admission from him on the telephone to the effect that he had committed adultery. This was followed by an interview which the solicitor had with the husband in which, after being warned that anything he said would be used in evidence against him and that he need not say anything, the husband made a statement which was reduced into writing.
On the first day of the trial the only evidence of adultery which was produced was this statement made by a man who clearly on the face of it was, I think it may be said, importuning his wife for a divorce and anxious that a divorce should be pronounced against him on the ground of adultery. In circumstances of that kind the court is naturally concerned as to the weight of the evidence, because a statement of that kind, unless strongly supported by surrounding circumstances, must necessarily be of little weight. So far as the weight of the evidence is concerned, nothing I think in the end turned upon that — if the Commissioner had ever been concerned with that aspect of the case; I do not know — because the husband eventually swore on oath (the previous statement being unsworn) that he had committed adultery, and upon that evidence being accepted the decree was pronounced. But the Commissioner, in depriving the petitioner of part of the costs, was actuated by the disapproval which he expressed as to the way in which the evidence had been obtained in the first instance, in that the solicitor had communicated with the husband and obtained the statement in the way which I have described, saying in terms that he did not think that was the right thing to do: he had passed it once but when it was repeated he thought it was time to show his disapproval in no uncertain way by disallowance of costs, so that the matter should never be conducted in that way before him in similar cases in the future. He pointed out that there were plenty of enquiry agents a be ut, and if that sort of work was to be done it should be done by the enquiry agents.
With all respect to the learned Commissioner, I do not think that in exercise of his duty in trying a case depending upon evidence it was any part of his function to say whether the solicitor as a professional man was acting properly or improperly in behaving as he did. So far as the evidence is concerned, the weight does not vary...
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