Day v Day
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,LORD JUSTICE ORMROD |
| Judgment Date | 21 December 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J1221-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1978 |
[1978] EWCA Civ J1221-2
In The Supreme Court of Judicature
The Court of Appeal
(On Appeal from Barnet County Court)
Lord Justice Orr and
Lord Justice Ormrod and
Lord Justice Templeman
MR. P. SINGER (instructed by Messrs. Milnes & Milnes of Barnet, Herts.) appeared on behalf of the Appellant.
MR. WEBB (instructed by the Mary Ward Legal Centre, London) appeared on behalf of the Respondent.
MR. N. WILSON appeared on behalf of the Queen's Proctor.
I will ask Lord Justice Ormrod to give the judgment of the Court.
This is an appeal by the wife petitioner against an order giving the husband respondent leave to file an answer out of time, made by His Honour Judge Eric Stockdale at Barnet County Court on 15th November, 1978.
This case appears to be the first occasion on which the Court of Appeal has had to consider a question arising under the so-called Special Procedures for dealing with undefended causes, so the Court thought that it would be helpful to have the assistance of the Queen's Proctor as amicus curiae. We have now had the advantage of hearing full argument on the points raised in the appeal and wish to express our gratitude to Mr. Wilson for the Queen's Proctor and to Counsel for the parties for the help which they have given to us.
The facts which give rise to this appeal are as follows; it is necessary to set them out in some detail. Mr. and Mrs. Day were married in 1952 and have three children, only one of whom is under 18 years of age. By November 1977 the marriage, from Mrs. Day's point of view, had become impossible owing to her husband's behaviour, so she consulted solicitors and a petition for dissolution was filed on her behalf on 8th November 1977 and served on Mr. Day on 17th November. They were then living, and until quite recently continued to live in the same house. Mr. Day, on the other hand, regarded the marriage as continuing quite normally. He did not return the acknowledgment of service but did consult a solicitor. Some correspondence followed, in the course of which it was indicated that Mr. Day intended to defend the suit, but no further steps in the proceedings were taken until over six months had elapsed.
In July 1978 the wife decided that she would wait no longer. Her solicitors decided to re-serve the petition, this time personally, so that there could be no question about service. In the light of the correspondence, between the solicitors this appears to have been unnecessary, but may have been easier than satisfying the Registrar, without an acknowledgment of service, that the petition had been duly served. Service was effected on 24th July 1978and this time an acknowledgment of service giving notice of intention to defend, dated 3rd August 1978, was eventually received. No answer, however, was filed by the husband, so on 15th September the wife's solicitors applied in writing to the Registrar for directions for trial under the Matrimonial Causes Rules 1977, rule 33. Since the suit was apparently undefended, the Registrar, on 26th September, gave the appropriate directions under sub-rule (3) and entered the cause for trial in the special procedure list. Pursuant to rule 48 the Registrar then considered the evidence filed by the wife and gave a certificate under rule 48(1)(a) to the effect that she had sufficiently proved the contents of her petition and pursuant to sub-rule (2) fixed a day, 15th November, for the pronouncement of the decree by the Judge, and sent notice of this appointment to the husband. At this very late stage, the husband applied for legal aid and on 13th November received an emergency certificate.
On 15th November he attended the appointment before the Judge and was represented by counsel. The wife was also present because there was a child under 18 in respect of whom a certificate under section 41 of the Act of 1973 was required. She was not represented, but her solicitor happened to be in Court in connection with another matter. On the name of the cause being read out, the husband's counsel "showed cause" why the decree should not be pronounced, and applied for leave to file an answer out of time. The wife's solicitor was given an opportunity of being heard. A short affidavit by the husband in support of his application was put before the Judge who then gave leave to file an answer out of time and took the case out of the special procedure list.
Mr. Singer on behalf of the wife has raised two important questions. The first is whether the Judge should have adjudicated on the husband's application at that stage, and the second is what principles should be applied in deciding whether to grant or refuse it. To answer these questions the special procedure must be examined very carefully.
The first point to be made is that its description has become a complete misnomer. It is no longer the "special procedure"; it is now theordinary procedure for dealing with undefended causes of all kinds, and therefore of great importance to very large numbers of ordinary people who can no longer obtain legal aid for this part of the divorce process. It was originally invented in 1973 for a special class of case, petitions based on two years separation with the consent of the respondent where there were no relevant children, and where an acknowledgment of service indicating that the suit would not be defended was available (Matrimonial Causes (Amendment No. 2) Rules, 1973). It has been progressively extended until under the Matrimonial Causes Rules 1977 it now applies to all classes of undefended causes, including those in which a notice of intention to defend has been received but no answer has been filed.
Under this procedure the process of adjudication has been transferred from the Judge to the Registrar. Rule 48(1) requires the Registrar to:
"consider the evidence filed by the petitioner and - (a) if he is satisfied that the petitioner has sufficiently proved the contents of the petition and is entitled to a decree and any costs for which he prays (to) make and file a certificate to that effect."
If he is not so satisfied he may either give the petitioner an opportunity of filing further evidence or remove the cause from the special procedure list. Rule 48(2) provides for the "pronouncement of a decree by a Judge in open Court" and specifically, that it shall not be necessary for either party to appear on that occasion. The Practice Direction of 22nd May 1978 further provides, in paragraph 23, that the associate will call the non-specially fixed cases "in bulk."
Mr. Wilson made a valiant effort to maintain that the decision still remained in the Judge, but in our view so to hold...
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