Jamieson v Jamieson

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Normand,Lord Merriman,Lord Reid,Lord Tucker
Judgment Date20 March 1952
Judgment citation (vLex)[1952] UKHL J0320-1
Docket NumberNo. 6.

[1952] UKHL J0320-1

House of Lords

Lord Normand

Lord Merriman

Lord Reid

Lord Tucker

Jamieson
and
Jamieson

Upon Report from the Appellate Committee, to whom was referred the Cause Jamieson against Jamieson, that the Committee had heard Counsel, as well on Wednesday the 30th, as on Thursday the 31st, days of January last, upon the Petition and Appeal of Mrs. Ethel Foster Brown Cockburn or Jamieson, residing at care of Cockburn, 1 South Clerk Street, Edinburgh, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division of the 9th of January 1951, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Edward Malcolm Jamieson, lodged in answer to the said Appeal: and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Interlocutor of the 9th day of January 1951, in part complained of in the said Appeal, be, and the same is hereby, Reversed except in regard to expenses: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a direction to allow Proof; And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by her in respect of the said Appeal to this House, such Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis, and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Normand

My Lords,

1

The circumstances which have led to this appeal are set out in the Opinion which will be delivered by my noble and learned friend. Lord Reid.

2

We have to consider whether the averments of the Pursuer and Appellant are relevant to infer such cruelty towards her as would justify, according to the law and practice existing at the passing of the Divorce (Scotland) Act, 1938, the granting of a decree of separation a mensa et thoro, and therefore of a decree of divorce a vinculo since the passing of that Act.

3

The action is based on what is conveniently called mental cruelty. Physical violence is not averred, but there are averments of conduct by the Respondent causing injury to his wife's health and persisted in after he was aware of its injurious effects. There is also an averment that a continuance of life with the Respondent would be seriously injurious to the Appellant's health. Mental cruelty was well recognized as a ground for an action of separation long before the passing of the 1938 Act. Thus, in Aitchison v. Aitchison [1902] 10 S.L.T., 331, Lord Low held that conduct of a Defender, if it was improper and unjustifiable and if it caused injury to the Pursuer's health, was a good ground of action, although no physical violence was averred. He distinguished the well-known case of Russell (1897) A.C., 390, because in that case there was no evidence of injury to the Plaintiff's health.

4

The Lord President found it necessary, in view of some of the arguments addressed to the First Division, to vindicate the jurisdiction of the court to entertain the plea of relevance and to dismiss actions of this sort upon consideration of the averments. There ought to be no doubt whatever that, if the Defender in such an action as this moves the court to sustain a plea to relevance, the court is bound to entertain the plea and to examine the averments no less strictly than in any other action, nor that, if it comes to the opinion that the averments do not satisfy the test of relevance, its duty is to sustain the plea and dismiss the action. The dismissal of an action when the averments do not satisfy the test of relevance not only saves the parties unnecessary expense but, as the Lord President pointed out, avoids, in a divorce case, the exacerbation of the parties' feelings and the destruction of any chance of reconciliation which are often inseparable from the ventilation in evidence of their charges and counter-charges and mutual suspicions. The test of relevance is the same for all actions; there is not one standard for actions of divorce and another standard for other actions. Counsel for the Respondent submitted at the hearing of the appeal that, if the Pursuer's averments do not necessarily lead to a conclusion in her favour, the case is not relevant, and he cited in support of that proposition the opinion of Lord Hunter ( M'Dougal 1931 S.C. 102 at 114). Lord Hunter's opinion is entitled to weight; nevertheless. I think that the test was not accurately formulated by him. The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the Pursuer's averments are proved. The onus is on the Defender who moves to have the action dismissed, and there is no onus on the Pursuer to show that if he proves his averments he is bound to succeed. In the present case, however, the basis of the judgments both of the Lord Ordinary and of the learned judges of the majority in the First Division is that if all the Pursuer's averments were proved she would be bound to fail.

5

There was some difference of opinion between the Lord President and Lord Carmont on the question whether a Defender's conduct is to be judged by reference to its probable effect on the health of a Pursuer of normal susceptibilities or whether it is relevant for a Pursuer to aver that the conduct alleged did in fact cause him or her mental suffering and consequent injury to health. Neither of the learned judges proposed a dogmatic answer, and for my part I am respectfully inclined to accept the Lord President's view that the conduct alleged "must be judged up to a point by reference to the victim's capacity for endurance, in so far as that capacity is or ought to be known to the guilty spouse". There is the high authority of Lord Watson in Mackenzie v. Mackenzie (22 R. [H.L.] 32 at 44) for the proposition that much depends in each case upon its circumstances and in particular upon the victim's capacity for endurance. That leaves it open to find, after evidence, that the Pursuer was the victim of his or her own abnormal hypersensitiveness and not of cruelty inflicted by the Defender. But the cases in which such a decision would be possible without evidence must be exceedingly rare and this case is certainly not one of them.

6

The Lord President, I think, reaches the crux of the case when he says that "where the cruelty is of the type conveniently described as 'mental cruelty,' the guilty spouse must either intend to hurt the victim or at least be unwarrantably indifferent as to the consequences to the victim". There is room for differences of opinion about what kinds of case may be covered by the words "unwarrantably indifferent". I do not propose to go into that because I wish to avoid the discussion of hypothetical cases and because I am of opinion that actual intention to hurt may have in a doubtful case a decisive importance, and that such an intention has been averred here. Actual intention to hurt is a circumstance of peculiar importance because conduct which is intended to hurt strikes with a sharper edge than conduct which is the consequence of mere obtuseness or indifference. My noble and learned friends have discussed the averments in the Opinions which they will deliver and which I have had the advantage of reading, and they have shown that the Appellant has averred a case of actual intention to hurt, wilfully persisted in after the injury to the Appellant's health was apparent to the Respondent. These averments are, in my opinion, relevant and they are, I think, supported by sufficiently specific instances of the Respondent's alleged cruelty. I therefore agree that the action should go to proof.

7

My Lords, I think that it does not do justice to the averments to take up each alleged incident one by one and hold that it is trivial or that it is not thurtful or cruel and then to say that cumulatively they do not amount to anything grave, weighty or serious. The relationship of marriage is not just the sum of a number of incidents, and in this case it has been overlooked that all the incidents averred are said to have been inspired by the Respondent's intention to impose his will upon his wife without consideration of her feelings or health. Moreover, it is impossible in the bald averments of a Condescendence to convey the effects of the conduct of one spouse on the feelings and, through the feelings, on the health of the other spouse. What on paper may seem little more than a series of pin pricks may present a very different aspect when it has been developed in evidence, though the evidence does not exceed by a single word the bounds set by the record. These considerations do not derogate from the jurisdiction of the court, but they do impose special caution in the application of the test of relevance to actions founded on mental cruelty. The observations of noble Lords in Thomas v. Thomas 1947 S.C. (H.L.) 45 on the value to be attached in an action of divorce for cruelty to the opinion of the Lord...

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