Fender v St. John-Mildmay

JurisdictionUK Non-devolved
JudgeLord Atkin,Lord Thankerton,Lord Russell of Killowen,Lord Wright,Lord Roche
Judgment Date28 June 1937
Judgment citation (vLex)[1937] UKHL J0628-1
Date28 June 1937
CourtHouse of Lords
Fender (Pauper)
St. John-Mildmay

[1937] UKHL J0628-1

Lord Atkin

Lord Thankerton

Lord Russell of Killowen

Lord Wright

Lord Roche

House of Lords

Lord Atkin

My Lords,


This is an appeal by the Plaintiff from an order of the Court of Appeal who by a majority affirmed a judgment of Hawke J. on the trial of the action before himself and a special jury. The action was for breach of promise of marriage. The jury found for the Plaintiff for £2,000 damages. The learned Judge entered judgment for the Defendant, holding that the promise of marriage was unenforceable as being contrary to public policy. The Defendant, who was married at the time, met the Plaintiff at a nursing home where she was a nurse. He told her that he was unhappy with his wife: and later asked her whether, if his wife divorced him, she would marry him after the divorce. She consented and thereupon sexual relations took place between them. The wife petitioned for a divorce on the ground of his adultery with the Plaintiff and a decree nisi was pronounced on 16th January, 1933. In February and April, 1933, the Defendant promised to marry the Plaintiff immediately after the decree had been made absolute. These are the promises for breach of which the present action was brought. The parties continued their relations until June, 1933, when by the agency of his solicitor's clerk the Defendant intimated to the Plaintiff he did not intend to marry her. The decree was made absolute on 31st July, 1933. In August the Defendant again repudiated his promise: and in May, 1934, married another lady. The question is whether a promise made by one spouse after a decree nisi has been pronounced to marry a third party after the decree has been made absolute is void on the grounds of public policy. I state it in these simple terms because it was not suggested in argument and indeed could not be that it made any difference whether the promise was made by Petitioner or Respondent, and if by the latter to the man or woman with whom the adultery charged in the petition had been committed. Is it then contrary to public policy that a promise made between decree nisi and decree absolute to marry after decree absolute should be enforceable? It is not without significance that there is no judicial authority on this matter. The nearest authority in the English Courts that has been found consists of two cases in 1908 which were not concerned with divorce proceedings but decided that promises made by a married man to a woman who knew he was married that he would marry her after the death of his wife were contrary to public policy and void. It will be necessary to refer to these cases later: but I propose in the first instance to say something upon the doctrine of public policy generally. My Lords, from time to time Judges of the highest reputation have uttered warning notes as to the danger of permitting judicial tribunals to roam unchecked in this field. The "unruly horse" of Hobart C.J. is commonplace. I will content myself with two passages both of which have the authority of the approval of Lord Halsbury in Janson v. Driefontein, 1902, A.C. p. 490, "To avow or insinuate that it might, in any case, be proper for a Judge to prevent a party from availing himself of an indisputable principle of law, in a Court of Justice, upon the ground of some notion of fancied policy or expedience, is a new doctrine in Westminster Hall, and has a direct tendency to render all law vague and uncertain." Marshall on Insurance 3rd Ed., p. 32. "Public policy is a vague and unsatisfactory term and calculated to lead to uncertainty and error when applied to the decision of legal rights: it is capable of being understood in different senses: it may and does in its ordinary sense mean 'political expedience' or that which is best for the common good of the community: and in that sense there may be every variety of opinion according to education, habits, talents and disposition of each person who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision would lead to the greatest uncertainty and confusion. It is the province of the statesman and not the lawyer to discuss and the legislature to determine what is best for the public good and to provide for it by proper enactments. It is the province of the Judge to expound the law only: the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing Courts, from text writers of acknowledged authority and upon the principles to be clearly deduced from them by sound reason and just inference: not to speculate upon what is the best in his opinion for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good: for instance the illegality of covenants in restraint of marriage or trade. They have become a part of the recognised law: and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise." Per Parke B. Egerton v. Lord Brownlow, 1853, 4 H.L.C. at p. 123 cited Janson v. Driefontein, 1902, A.C. at p. 496. I will add three other well known propositions. "It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of Justice." Per Sir George Jessel M.R., Printing and Numerical Registering Co. v. Simpson (1875) L.R.Eq. 19, at p. 465, "certain kinds of contracts have been held void at common law on this ground" (of public policy) "a branch of the law, however, which should not be extended as Judges are more to be trusted as interpreters of the law than as expounders of what is called public policy", per Cave J., 1891, 1 Q.B. 595. "Public policy is always an unsafe and treacherous ground for legal decision, and in the present case it would not be easy to see on which side the balance of convenience would incline", per Lord Davey, Janson v. Driefontein, 1902, A.C. at p. 500. In Janson v. Driefontein ( sup. cit.) Lord Halsbury indeed appeared to decide that the categories of public policy are closed, and that the principle could not be involved anew unless the case could be brought within some principle of public policy already recognised by the law. I do not find, however, that this view received the express assent of the other members of the House; and it seems to me with respect too rigid. On the other hand it fortifies the serious warning illustrated by the passages cited above that the doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds. I think that this should be regarded as the true guide. In popular language following the wise aphorism of Sir George Jessel cited above the contract should be given the benefit of the doubt.


But there is no doubt that the rule exists. In cases where the promise is to do something contrary to public policy which for short I will call a harmful thing, or where the consideration for the promise is the doing or the promise to do a harmful thing a judge though he is on slippery ground at any rate has a chance of finding a footing. The contract is unreasonably to restrict a man's economic activities, to procure a marriage between two persons, to oust the jurisdiction of the court. These things are decided to be harmful in themselves. To do them is injurious to public interests. But the doctrine does not extend only to harmful acts, it has to be applied to harmful tendencies. Here the ground is still less safe and more treacherous. One cannot resist the tendency test. It was applied in this House in that remarkable case Egerton v. Lord Brownlow 1853 4 H.L.C. p. 1 not indeed to a contract but to a condition. In that case the 7th Earl of Bridgewater had attached a condition to limitations under his will that if the person taking did not in his lifetime acquire the title and dignity of Duke or Marquess of Bridgewater the estates were to pass over from his heirs male to other reversionaries subject to a like condition. The fulfilment of the condition of the grant of an honour by the Crown was of necessity lawful. But the majority of the learned Lords, Lords Lyndhurst, Brougham, Truro and St. Leonards differing from Lord Cranworth the Lord Chancellor and from the advice of the majority of the judges held that the condition was bad inasmuch as it had the tendency to cause the holder of the estates to use unlawful and corrupt means to secure the rank of a peer which involved public duties as legislator and the like. I do not stay to comment. I doubt whether at the present day such a tendency would be held to exist or to invalidate such a condition. It has been negatived in recent times in the case of a similar condition of obtaining a baronetcy. Re Wallace 1920: 2 Ch. 274. The uncertainty of "tendencies" as a criterion of rights is illustrated by the rule much in vogue in earlier days and in other countries than our own that seamen could not validly insure their future wages, which then depended upon the ship earning freight. Such insurance would have a tendency so it was supposed to induce seamen to relax their efforts to bring the ship to port, being more interested one must suppose in those days in their wages than in their safety. This rule is expressly abrogated in our country by the Marine Insurance Act. But assuming as we must that...

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