Hilda Doreen Fletcher (Petitioner Appellant) v William Henry Fletcher (Respondent Respondent)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE DAVIES |
| Judgment Date | 12 March 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0312-1 |
| Court | Court of Appeal |
| Date | 12 March 1963 |
[1963] EWCA Civ J0312-1
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Wrangham
The Master of the Rolls (Lord Denning)
Lord Justice Danckwerts and
Lord Justice Davies
MR G. B. HUTTON (instructed by Messrs Kinch & Richardson, Agents for Messrs T. A. Matthews & Co., Hereford) appeared as Counsel for the Appellant.
THE RESPONDENT did not appear and was not legally represented.
This is an unfortunate case. Mr and Mrs Fletcher were married in 1947 and they had one child, a girl born on the 2nd October, 1947. In 1950 the husband left the house where they were living and the wife got an order against him from the magistrates on the ground that he had been guilty of wilful neglect to provide maintenance for her. It was an order, I think, for £1 a week for her and 10s. Od. for the child. He evidently felt very strongly that he was not to blame: he felt the order was so unjust that he did not pay and he went to prison several times in consequence. He never paid, no doubt because he took strongly the vieiv that he was not at fault. Then on the 22nd November 1960 Mrs Fletcher brought a petition for divorce against her husband alleging that he deserted her all those years ago in 1950 when he left the hone. He put in a defence, an Answer, in which he said he had just cause for leaving the home as he did. He said it was all her fault; she had given him good cause to leave the home, and he went on further to say that he had several times offered to resume cohabitation with her and she refused to.
The case was due to come on for hearing on the 9th October, 1962. Six days before, on the 3rd October, the hus-band went to see his solicitor, Mr Yelloly, of Kington in Herefordshire. He told Mr Yelloly he was fed up with the whole case: he did not want to have to go to Gloucester where the case was to be heard, and he told Mr Yelloly to withdraw the defence. Thereupon Mr Yelloly pointed out: "You know what the trouble has been about maintenance: if you take that course and withdraw your defence you will be subjecting yourself to a maintenance order". Mr Yelloly asked the husband whether he wanted access to his daughter and he said yes. Then Mr Yelloly suggested that the wife might be willing to forego a maintenance order as he thought it had been no use to her. He took a note of the instructions which his client gave him and a letter was produced, which I must read because the whole question is whether there has been collusion or noto This letter wasprepared in the office of the solicitor and it was signed by Mr Fletcher. It is addressed to Mr Yelloly and it saya: "Having given further thought to the outcome of this matter and the welfare of all parties concerned, I have decided to withdraw my defence and I hereby authorise and instruct you to inform my wife's solicitors accordingly and that I do not wish further to oppose her divorce or defend the petition". Now if it had stopped there, no question of collusion would have arisen, but it goes on to say this: "Nevertheless, I desire appropriate provision to be made for access to my daughter and this is a condition of my withdrawal. I would suggest that I should be allowed to see her for the day on six occasions per annum. It is also a condition of my withdrawal that ray wife should consent to the rescission of the existing order for maintenance in her favour. If that is done I will consent to a suitable order for the maintenance of my daughter only and if such an order is made I will do my best to comply with it. I suggest 15s. Od. per week".
Mr Yelloly had a discussion with Mr Thompson, the solicitor for the wife, and as the result, on that very day, 3rd October, Mr Yelloly wrote to the wife's solicitor: "I confirm that subject to reasonable access to his daughter and to your client not pursuing any further her claim for maintenance against him, my client is not wishing to further defend this petition".
Now the Judge, having that correspondence, which was very properly put before him, asked to see and did see the solicitors for the parties. He said: "Upon this evidence it is...
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