Hulbert v Hulbert
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING |
| Judgment Date | 21 March 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0321-1 |
| Court | Court of Appeal |
| Date | 21 March 1957 |
[1957] EWCA Civ J0321-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Mr Justice .
MR JOSEPH JASKSON (instructed by Messrs Pollard, Staliabrass George Martin) appeared on behalf of the Appellant (Husband, Respondent).
MR DENMOND ACKBER (instructed by Messrs Herbert , Nathan A Vandyk) appeared on behalf of the Respondent (, Petitioner)
This case raises the question whether Interrogatories are permissible in a divorce suit for cruelty. The Petitioner (the wife) on the 9th September, 1955, filed a Petition on the ground of cruelty alleging assaults and , to which the husband Respondent pleaded: Hot guilty of cruelty: alternatively, . I cannot imagine that any question of Interrogatories would arise at that stage of the case, because it all depended than en the evidence of toe two parties. Bat the wife afterwards in October, 1956, filed a supplemental in which she made a series of and different allegations of cruelty. She alleged that the husband had sent to friends in which he her , with the ablest tad effect of and hart that when he was visiting Holland he spoke to two ladle, in Holland and made defamatory statements about her: and in addition that he went to the Law Society in London and told the Legal Aid Department that she had provided the National Board with false information. Those were new allegations of cruelty; to which the husband simply pleaded that he was 'not of the cruelty as therein alleged'. I pause to way that it was quite correct for the husband to deny cruelty. He can plead not guilty, no matter how many paragraphs there are in the Petition.
The wife (who is legally aided) now seeks to administer Interrogatories for the husband to answer. In the first interrogatory she asks the husband to look at one of the Christmas cards and to answer the Question: "Bid you not send in this " Then in the next two Interrogatories (concerning where she has not got the Christmas cards) she asks: "Did you not state in writing on a Christmas card" such-and-such? in the fourth and fifth Interrogatories she asks about the conversations with the ladies in Holland: "Old you not tell them….." so-and-so, setting out the defamatory Finally, in the sixth Interrogatory, she asks: "Did you not tell the Law Society that I had given false information?"
The first five Interrogatories are put for the purpose of saving costs, namely, to save the costs of calling the witnesses from different parts of this country and from Holland; and the last interrogatory, about the Law Society, is put because it is said that there any be a statutory prohibition preventing a witness from the Law Society giving that evidence. On this account it is said these Interrogatories ere necessary for fairly disposing of the case and for saving costs.
Mr Jackson has urged before us today that in the Divorce Division Interrogatories are never allowed so as to enable a Petitioner to make out a case of cruelty. She is not permitted to prove her case out of the mouth of her husband. He says that no such Interrogatories have ever been allowed: and that in this respect the Divorce 01 vision follows the practice of the old Court.
I find myself unable to accede to that argument. It is true that Interrogatories are very rarely allowed in the Divorce Division, but that is because in the great majority of cases they are not necessary for fairly disposing of the matter or for saving costs; but in a proper case I have no doubt that they are permissible. I cannot agree with what Mr. Jaefcson & sys about the Ecclesiastical Courts. Those Courts habitually allowed Interrogatories, in one shape or another, when they would never have been allowed in the Common Law Courts. In ( Swift v. Swift 1832) 4 Haggard's Ecclesiastical Reports, page 139, 31r John Hicholl pointed out that, although in the ordinary Common Law Courts no party was bound to furnish evidence against himself, it was otherwise in the Ecclesiastical Courts and in the Courts of Equity: because a party was bound to answer there as to the facts. Those Courts recognized, of course, that a party was not bound to incriminate himself. That is a privilege which is available in all the Courts to this day, but it is a privilege which has to be taken in the answer. It is not a ground for disallowing the Interrogatory.
After the Divorce Court was set up it too allowed Interrogatories...
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