Fisher v Fisher
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS |
| Judgment Date | 16 June 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0616-2 |
| Court | Court of Appeal |
| Docket Number | P. 1957. (D) No. 409 |
| Date | 16 June 1959 |
[1959] EWCA Civ J0616-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Rodson,
Lord Justice Sellers and
Lohd Justice Harman.
Mr (instructed by Messrs Harsh & Ferriman, Worthing) appeared on behalf of the Appellant (Respondent).
Mr (instructed by Mr Cyril E. Wheeler) appeared on behalf of the Respondent (Petitioner).
LORD JUSTICE : This is an appeal by a reapondonfc wifo from an Order of Mr Commissioner Sir Reginald Sharpe given at on the 6th November 1958. The learned 'Commissioner hold that in divorce proceedings instituted by the husband against the wife on the ground of desertion in which she had denied the desertion, and herself asked for divorce on the ground of desertion in the constructive sense, the wife was estopped rom judicatam from proasine the issue of do sortion, or putting forward her own case of desertion, since her defence, to her husband's desert charge and her owm cross-charge involved the sums questions as those which had been determined against hor in previous proceedings; and further that she sought to raise some additional matters which might have been, but were not, raised in the earlier proceedings.
The history of the matter is that the parties were married on the 5th September 1936. They adopted a child in September 1945, and the wife left the husband in 1953, taking proceedings for the custady of that child which was given to her. That was followed by a reconciliation; but on the 27th October 1954 she left the husband leaving, it is said, a note to the effect that she had been told to set out. On the 11th November 1954, shortly after leaving, she took cut a summons in the Magistrate's Court alleging persistent cruelty, desertion and wilful neglect to maintain against hor husband. That summons or those summonsos (if there were more than one) were not proceeded with, because on the 18th September 1954 the husband filed a petition for mullity, the basis of the potition boing, as the husband said, that the marriage had not been consurmated. The wife by her answer denied the allocations of the nullity potition, and she also counter-charged agaist hor husband cruelty and sought a divorce on that ground, On the 6th December 1955 both prayers were rejected. The parties have lived apart since, and the present proceedings were instituted on the 8th November 1957.
That the wife left her husband, and had never since returned, was common ground between the parties; but as to the circumstances loading up to her leaving, she was not permitted by the learned Commissioner to give any evidence at all. The issue of desertion was not open to the wife in the earlier proceedings, which were for nullity, and it was no defence to that petition that the wife had been deserted. Moreover, she could not then make a substantive allegation of desertion as the foundation for a petition for divorce because the period which had elapsed since the separation was lose than throe years.
In those circumstances it would indeed bo strange if the wife were estopped from setting before the court and having decided the question of whether or not she had been deserted by her husband. But the learned Commissioner, in holding that she was estopped, followed the docision of Mr Justice Wilmar (as he then was) reported in 1954 Probate Division at page 273 in the case of Bright v. Bright. The learned Judge in that case based himself on the Privy Council decision reported at page 155 in 1926 Appeal Cases of Hoystead v. Commissioners of Taxation, and I think it is desirable to refer to that case first; The dispute there was about an Income Tax Assessment. The position was: "Under a will the annual income from an estate in Australia was divisible by the trustces between the testator's daughters. The trustees objected to an assessment for the financial year 1918-1919 under teo Land Tax Assessment Act 1910-1916 of Australia", and they claimed a deduction in respect of the share of each daughter.
"A Case was stated for the opinion of the Full Court of the High Court upon the questions (1) Whether the shares of the joint ownors, or any of them and which of them, in the land were original shares", and how many doductions the respondent should, maken. "The full Court answered those questions as follow: (1) The shares of the six children surviving at the date of the assesement; (2) Six. Judgment upon the objection was entered accordingly. Upon the assessment for 1919-1920 the Commissioner allowed only one deduction of £5,000, contending that the beneficiaries werem not joint owners within the meaning of the Act". That view was uphold by the Full Court; but it was hold by the Privy Council: "That the Commissioner was estopped, since although in the previous litigation no express decision had been gavon whether the beneficiaries were joint owners, it being assumed and admitted that they were, the matter so admitted was fundamental to the decision then given".
Lord Shaw in giving the Judgment of the Board at page 170 used this language: "It is aeen from this citation of authority that if in any court of compotent jurisdiction a decision is reached, a party is estopped from questioning it in a now legal proceeding. But the principle also extends to any point, whether of assumption or admission, which was in substance the ratio of and fundamental to the decision, The rule on this subject was forth in the leading case of Honderson v. Henderson by Vice-Chancellor Wigram as follows: 'I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, onsitted part of their case. The plea of res Judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time'".
Those are wide words, but they have been considered by the House of Lords in New Brunswick Railway Company v. British and French Trust Corporation, reported in 1939 Appeal Cases at page 1. At page 43 of the Report Lord Romer, referring to the passage which I have read from Lord Shaw' Judgment, said: "It was sought to treat this passage as an authority for the proposition that the plea of ros Judicats can successfully bo raised whenever it can be shown thai a question substantially similar to that being litigated has been decided in an earlier action between the same parties. My Lords, I cannot read the words that I have just cited as laying down any such proposition, a proposition for which, I venture to think, no authority can be found in the, books. It is no doubt true to say that whenever a question has in substance been decided, or has in substance formed the ratio of, or been fundamental to, the decision in an earlier action between the same parties, each party is estopped from litigating the same question thereafter. But this is very different from saying that the may not thereafter litigate, not the same question, but a quaation that is merely substantially similar to the one that has already been decided. If in an action the question of the construction of a particular document has been in substance decided, each party to the action is estopped from subsequently litigating the same question of construction of that particular document, But he is not estopped from subsequently litigating the question of construction of another document oven though the second one be in substantially identical words. For the documents are two distinct documents, and the questions of their construction are two distinct questions".
Mr Justice willmer in the Bright case sought to apply those principles which he derived from the Judgment in Hoystead in a case where there had been previous proceedings by a wife alleging cruclty inter alia, and subsecruent proceedings by a wire alleging desortion, and based on the same matters in part as she had raised in the earlier proceedings. He came to the conclusion that as to those matters which had been previously raised, they had specifically been decided against her in the earlier proceedings, and therefore she could not raise them again. But the learned Judge wont on to say that she was estopped from raising certain matters not specifically raised before on the ground that these allegations could well have been brought forward as part of the previous case of cruelty if thoy were allegations of substance.
It is only the second part of the learned Judge's decision which is, I think, open to criticism, because it is, after all, a salutary and necessary principle that one party should not be permitted to vex and oppress his opponent by repeating allegations which have been previously made and decided adversely to that party. But the rule has to be confined within proper limits, and sometimes it has been difficult to determine how the rule should be applied in particular cases. The most recent statement of the rule, I think, was that of Lord Justice Morris sitting in this court...
To continue reading
Request your trial
-
Holland v Holland
...is not an altogether easy subject, but we have had the benefit and guidance of two decisions of this Court in Thompson v. Thompson and Wisher v. Fisher. Thompson v. Thompson is reported in 1957 Probate, page 19. That was a case in which there had been, in the first instance, proceedings bro......
-
Thoday v Thoday
...and Lord Justice Morris, in the case of Thompson v. Thompson to which I have already referred. It was also the basis of the decision in Wisher v. Fisher, (1960) Probate 36, which, as I will presently seek to show, seems to me to be the case which of all the cases cited is most in point in ......
-
Lim Beng Choo v Tan Pau Soon
... ... See Fisher v Fisher [1942] 1 All ER 438, decided under English legislation with similar wording (`when granting`) although dealing with a slightly different ... ...
-
Anglo-African Perspectives on Self-Defence
...nations.11A.N. Allott (ed), The Future of Law in Africa, Record of Proceedings of the London Conference, African Studies Association (1960), pp. 36–37 and cited by J.S. Read, ‘Criminal Law in the Africa of Today and Tomorrow’, 7 Journal of African Law 5 at 17. Unfortunately, no progress wha......
-
Cicero, Roman Republicanism and the Contested Meaning of Libertas
...of freedom. Thisinterpretation of Cicero’s usage of ‘equality’rather than ‘equity’ is supported by Asmis (2005,p. 403).16 Wirszubski (1960, p. 36) defines dignitasas a for m of personal‘worthiness’ that ‘attaches to a man permanently, and devolves uponhis descendants’.17 See Ar istotle, 19......
-
A New Institutionalism? The English School as International Sociological Theory
...Cambridge University Press, 2002), p. 13.57 See also Martin Wight, ‘Why Is There No International Theory?’, International Relations, 2, 1960, p. 36, for the role of international law in developing international theory, and Brian C. Schmidt, The Political Discourse of Anarchy: A Disciplinary......