Howarth v Howarth
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE UPJOHN,LORD JUSTICE DAVIES |
| Judgment Date | 04 July 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0704-3 |
| Court | Court of Appeal |
| Date | 04 July 1963 |
[1963] EWCA Civ J0704-3
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Baker – Liverpool)
Lord Justice Ormerod
Lord Justice Upjohn and
Lord Justice Davies
Mr. G.H. CRISPIN, Q.C. and Mr. E.E. YOUDS (instructed by Messrs. Mawby, Barrie & Letts, Agents for Messrs. John P. Bonney & Adler. Southport) appeared on behalf of the Appellant (Wife, Petitioner).
Mr. R.M. BINGHAM, Q.C. and Mr. C.J. CUNLIFFE (instructed by Messrs. Jaques & Co., Agents for Messrs. Dodds, Ashcroft & Cook, Liverpool) appeared on behalf of the Respondent (Husband).
(without calling upon Counsel for the Appellant to reply)
This appeal comes from a decision of Mr. Justice Baker given in the first place at Liverpool Assizes on the 25th October, 1962, and then later (on the issue only of discretion) in London on the 9th November, 1962. The case arose in this way. The parties were married on the 17th March, 1945, when the husband was 22 and the wife 20. There was one child of the marriage, who now is over 16 and therefore is not in any may concerned with the case. The parties have not lived together since November, 1956. On the 11th April, 1957, the Southport justices found that the husband had been guilty of persistent cruelty to his wife and made a separation and maintenance order. About that time (I am not sure of the date) the wife was represented by a solicitor in Southport of the name of Bonney, and he is the second party cited in the present proceedings. Bonney apparently at some stage, for a reason entirely unconnected with these proceedings, was suspended by the Law Society, and during that period was not practising; but it does appear that at some stage after he was suspended he had permission of the Law Society to deal with or to advise clients on matters with which he had been concerned before he was suspended, and this action was one of them.
On the 7th January, 1958, the wife issued a petition against her husband for a decree, based on his cruelty and adultery with a Mrs. Oldfield. The wife in that petition did not ask for discretion, and indeed there was no reason why she should because there had never been any suggestion prior to the time she left her husband that she had committed adultery. The answer by the husband was put in on the 6th August, 1958. That answer denied the cruelty of which the husband had been accused and alleged that the wife had committed adultery with a man of the name of Watkinson (who was later dismissed from the suit) and contained a cross-prayer for a decree on the ground of the wife's adultery with Watkinson. On the 5th April, 1961, the husbandamended his answer and cross-prayer and alleged adultery with Bonney. The husband did not ask for the discretion of the court and did not at any time put in a discretion statement. The wife denied adultery both with Watkinson and with Bonney.
The case was heard at Liverpool, and with this result. Mr. Justice Baker found that the husband had been guilty of cruelty and of adultery with Mrs. Oldfield. There was then the issue of the wife's adultery with Watkinson. He was dismissed from the suit because the learned judge took the view that there was no sufficient evidence against him of adultery. Finally there was the issue as to the wife's adultery with Bonney, and the learned judge came to the conclusion there that there had been adultory, in spite of the denials both of the wife and Bonney. The learned judge adjourned the case to London so that the issue of discretion could be heard and gave both parties an opportunity to amend their petitions to include a prayer for the exercise of the court's discretion. The wife amended her prayer and asked for the exercise of the court's discretion in her favour. The husband chose not to do so.
When the matter came before the court in London the learned judge held that although for many reasons this was a case where discretion should be exercised he could not do so because of the perjury committed by the wife.
The circumstances which led to the judge finding the wife guilty of adultery with Bonney were these. On various occasions at Southport she had been seen sitting in the back of a car with Bonney on the beach after dusk. She denied that on more than one occasion she was with the solicitor and was in fact in the car with Bonney on the promenade somewhere in the vicinity of the beach and denied that on more than one occasion when she was seen by witnesses whose evidence was accepted by the learned judge that she was in a car with Bonney at all. When she was in a car with Bonney the reason she gave for being there was that she was discussing with her solicitor the facts and issues in these proceedings. The learned judge did not accept that and he drew the inference that these two people were in the car for thepurpose of committing adultery and had committed adultery. He clearly came to the conclusion, I think, when his judgment is read, and after hearing the argument on this question, that the wife had been guilty of perjury.
This appeal comes before this court in two ways. In the first place there is an appeal against the finding of the learned judge that the wife was guilty of adultery with Bonney. Then there is an appeal against the refusal of the judge to exercise his discretion. Mr. Crispin, on behalf of the appellant, was willing that the issue of discretion should be considered first and that if this court considered it right to differ from the learned judge on that issue it would be unnecessary to consider the finding of the wife's adultery. This question was not fully argued. It was a question of fact. The judgment of the learned judge given at Liverpool has been read to us. It appears to me that it was a most careful judgment, founded on a careful consideration and analysis of all the available evidence, and it may be that Mr. Crispin would be in a difficulty in persuading this court to take a different view of the facts. Be that as it may, the learned judge decided that this was not a case in which he should exercise his discretion.
I think there is little doubt that the learned judge was influenced, and influenced decisively, by the fact that he had formed the view that the wife had committed perjury. There can, I think, be very little doubt that this was in his mind. In a very early passage on page 3 of what I will call the London judgment he said this: "The question is, should I exercise my discretion in favour of the wife to grant her a decree although, on any showing, she has been guilty of perjury because in the wit-ness box she and the solicitor, Bonney, denied emphatically that adultery had ever taken place. Indeed they denied that they had been at any rate on one or two occasions at places where the evidence clearly established they had been, that is to say on the sands at Southport in a motor car late at night". That, I would have thought, was a clear indication that what was in the mind of the learned judge was that these two people, andparticularly the wife, with whom he was concerned at this stage, was guilty of perjury in saying that she had not committed adultery with Bonney in the circumstances alleged.
The learned judge used the phrase "perjury" on quite a number of occasions. For instance, at the bottom of page 7 he says "…a wife who has committed perjury in the witness box", and on page 8, just above the letter "A", he speaks of "the discretion of the court" being "exercised when perjury has been found"; and, a little later on the same page, "But on the other side of the coin there are...
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