Horton v Horton (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE UPJOHN,LORD JUSTICE WILLMER |
| Judgment Date | 01 November 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1101-1 |
| Date | 01 November 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J1101-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Upjohn
MR. MOULTON-BARRETT (instructed by Messrs. W. G. Streets Co.) appeared for the Appellant, Defendant in the County Court.
MR. JOHN NEVIN (instructed by Messrs. Gerald Samuels & Shine) appeared for the Respondent, Plaintiff in the County Court.
: I will ask Lord Justice Upjohn to give the first judgment.
This is an appeal from a judgment given on the 5th April by His Honour Judge Geoffrey Howard sitting at West London County Court. The action is between a wife and a husband, the wife being the plaintiff and the husband being the defendant.
The question which falls for consideration is as to payments which are due from the husband to the wife under certain documents dealing with their separation. The facts, very shortly, are these. The parties were married in April, 1942, and they parted in the year 1954, The defendant entered into a separation agreement, an agreement under seal, dated the 12th March, 1954, which recited, among other things, that the husband had agreed to pay the wife the monthly sum of £30 per month "for and towards her maintenance and support during the joint lives of the husband and the wife" as thereinafter mentioned. The deed then went on to contain a number of covenants common in separation deeds such as a covenant that the wife might live separate and apart from the husband, and a mutual covenant not to molest. The third covenant was in this form:; "The husband shall during the joint lives of himself and his wife and so long as the wife shall perform and observe the agreements and stipulations on her part herein contained pay to the wife the monthly sum of thirty pounds on the first day in every month during the continuance of these presents". Then follow a number of other covenants which I need not read.
The husband, in fact, paid the £30 a month without any deduction of tax, although it is plain that upon the true construction of that deed that he ought to have done so and have accounted in one way or another for the tax to the Inland Revenue, Such payments continued for about ten months. In January of 1955, it appears that the wife was minded to supplement her income by going out to work and she consulted her solicitor, a Mr. Freeborough, who was - to quote the judge's words in his judgment - "quick to perceive that if she did so and the husband under the form of the agreement as it stood, changed his mind and elected to deduct tax, she might well suffer loss in no longer being able to reclaim the full rebate". Accordingly, - I continue to state the facts from the learned judge's judgment - he asked the husband to come and see him and put in front of him a supplementary agreement which the husband read through and signed without any separate independent legal advice. The supplemental agreement was endorsed upon the original separation deed. It was not a document under seal. It is in these terms: "It is hereby mutually agreed between the parties hereto that Clause 3 of the within written agreement shall be amended by the insertion, after the words 'monthly sum', of the words which after deduction of income tax shall amount to the clear sum of thirty pounds each month'. It is further declared that the within written agreement was and always has been interpreted by the parties hereto as if the said amendment had been originally in the said agreement when the same was first executed". That is signed by the husband and wife. It is undated but there is no dispute that it was signed in January, 1955. So the effect of that memorandum, if it is enforceable, is to change the obligation of the husband from paying £30 a month less tax to the wife, into an obligation upon him to pay £30 a month tax free, using that expression as meaning such a sum as after the deduction of tax should amount to £30.
The whole question that the learned County Court judge had to decide, and that we have to decide, is whether that memorandum is enforceable or not. Before dealing with that matter, there are one or two subsequent dates which I must mention just to complete the history. The husband continued to pay £30 a month until some time in the year 1958. In May or June of that year, the Commissioners of Inland Revenue made a...
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Commissioners of Inland Revenue v Ferguson
...and give effect to the distinction between said two forms of words. (iv) That in a recent Court of Appeal case, Horton v.Horton (No. 2) [1961] 1 Q.B. 215, a separation deed provided for aliment of £30 per month but was amended by a supplemental deed which substituted "a sum which after dedu......
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Ferguson v Commissioners of Inland Revenue
...and give effect to the distinction between said two forms of words. (iv) That in a recent Court of Appeal case, Horton v.Horton (No. 2) [1961] 1 Q.B. 215, a separation deed provided for aliment of £30 per month but was amended by a supplemental deed which substituted "a sum which after dedu......
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Inland Revenue v Ferguson
...and give effect to the distinction between said two forms of words. (4) In a recent Court of Appeal case (Horton v. HortonELR (No. 2), [1961] 1 Q. B. 215) a separation deed provided for aliment of 30 per month but was amended by a supplemental deed which substituted a sum which after deduct......
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Inland Revenue v Ferguson
...and give effect to the distinction between said two forms of words. (4) In a recent Court of Appeal case (Horton v. HortonELR (No. 2), [1961] 1 Q.B. 215) a separation deed provided for aliment of £30 per month but was amended by a supplemental deed which substituted “a sum which after deduc......