John O'Connor v George Alfred Isaacs and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE MORRIS,LORD JUSTICE ROMER |
| Judgment Date | 30 April 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0430-1 |
| Court | Court of Appeal |
| Date | 30 April 1956 |
[1956] EWCA Civ J0430-1
Lord Justice Singleton
Lord Justice Morris and
Lord Justice Romer
In The Supreme Court of Judicature.
Court of Appeal
MR N.R, FOX-ANDREWS, Q.C. and MR R. L. BAYNE-POWELL (instructed by Messrs George C. Carter & Co.) appeared on behalf of the Appellant (Plaintiff).
MR G.G. BAKER, Q.C. and MR DAVID WACHER (instructed by Messrs Wilkinson, Howlett & Moorhouse) appeared on behalf of the Respondents.
This is an appeal by the Plaintiff from a Judgment of Mr Justice Diplock given on the 24th January, 1956. The claim of the Plaintiff was against fourteen Justices of the Peace for the Petty Sessional Division of Kingston-on-Thames fordamages for false imprisonment and for acts done by the Defendants without jurisdiction while sitting as Justices of the Peace.
The facts on which the Plaintiff relies are set out in the Statement of Claim. It will save time if I read part of it now. "(1) On the 16th day of August 1941 the Defendants Isaacs, McGhee and Hale, sitting as Justices of the Peace for the Petty Sessional Division of Kingston-upon-Thames, in the County of Surrey, heard a Summons by Annie O'Connor, the wife of the Plaintiff, on the ground of the persistent cruelty of the Plaintiff. The said Defendants duly found the Plaintiff not guilty of persistent cruelty. Thereupon the said Defendants without jurisdiction purported to order by consent that the Plaintiff should pay his said wife the weekly sum of One pound five shillings and purported to insert a non-cohabitation clause into the said Order and further to order the Plaintiff to pay 10 shillings and 6 pence, the costs of the said Summons.
"(2) The Plaintiif made some payments under the said purported Order but fell into arrear. On the 27th day of April 1942 the Defendants Isaacs and Wagner, sitting as Justices of the Peace for the Petty Sessional Division aforesaid heard a Summons by the said wife of the Plaintiff to vary the said purported Order and without jurisdiction purported to increase the said weekly payment to One pound 15 shillings, 10 shillings thereof being expressed to be for the child of the marriage for the custody of whom, however, no Order was made. On the same day a Court of the said Petty Sessional Division committed the Plaintiff to prison for one month on the ground of his having neglected or refused to pay all the amounts purported to have been ordered by the purported Order dated the 16th day of August 1941."
"(3) By reason of the said committal Order the Plaintiff was imprisoned in Brixton Prison, in the County of Surrey, fromthe 18th day of June 1942 to the 29th day of June 1942.
"(4) The Plaintiff fell into arrears with payments under the purported Order dated the 27th day of April 1942 and on the 7th day of March 1944 the said Court of Summary Jurisdiction committed him to prison for three months. By reason of the said committal Order the Plaintiff was imprisoned in Brixton Prison aforesaid from the 26th day of July 1944 to the 27th day of October 1944.
"(5) After his release from prison on the 27th day of October 1944 the Plaintiff again fell into arrears with payments under the purported Order dated the 27th day of April 1942 and on the 23rd day of May 1945 the said Court of Summary Jurisdiction committed him to prison for three months. By reason of the said committal Order the Plaintiff was imprisoned in Brixton Prison aforesaid from the 20th day of July 1945 to the 19th day of October 1945."
The next four paragraphs cover variations in the Order made from time to time, sometimes increasing and sometimes reducing the amount, and apparently are meant to provide the reason for adding Justices as Defendants. I am not sure that all this was necessary.
The Plaintiff went to gaol on three occasions, and he claimed damages for false imprisonment in respect of the periods which he spent in gaol. The last of those periods was from 20th July, 1945, to 19th October, 1945. He paid the Collecting Officer, for his wife and child, the sums set out in paragraph 11 of the Statement of Claim, and he claims those sums from the Justices (or from some of them) as damages suffered by him. He had no legal advice in the early stages, though he consulted welfare officers. In 1954 he consulted a solicitor and on the 5th April, 1954, he applied by Counsel to the Kingston Magistrates for a discharge of the Order of the 18th August, 1941. They held that they had no jurisdictionto grant his application.
On the 5th October, 1954, he applied to the Divisional Court of the Probate, Divorce and Admiralty Division, and on the 6th October that Court granted him leave to appeal out of time and set aside the Order and the variation Orders.
The Order of the Divisional Court is Document 7, and I must read it. "Upon reading the Notice of Appeal dated the 9th day of April 1954 filed on behalf of the Appellant, the Husband, by way of appeal from the Orders of the Justices of the Petty Sessional Division of Kingston-on-Thames.…Dated the 18th August, 1941, 27th April, 1942, 9th July, 1951, 13th August, 1951, 4th January, 1954, and the 5th April, 1954, and upon hearing Counsel on behalf of the parties, the Appellant by leave withdrawing the appeal against the Order dated the 5th April, 1954, and having extended the time in which to appeal against all other Orders, the husband undertaking not to reopen matter as to any payments made thereunder. It is ordered on the 6th day of October, 1954, that the appeal be and the same is hereby allowed the said Orders dated the 18th August, 1941, 27th April, 1942, 9th July, 1951, 13th August, 1951, and the 4th January, 1954, discharged". I shall refer later to the undertaking which was given and which was embraced in the Order. It is to be observed that the Justices, who are Respondents in the appeal now before us, were not parties to the proceeding before the Divisional Court. We were informed that the position of the Justices was not mentioned on the hearing before the President and Mr Justice Willmer as Counsel had not then in mind the question of bringing an action against them. The Writ in this action was issued on the 21st December, 1954.
The Order of the Justices of 18th August, 1941, was produced before the Divisional Court. It is clearly bad on the face of it. There was also produced a document headed "Reasonsfor Judgment" (page 16 of Document 4) which reads: "Seasons for Judgment. Persistent cruelty. The reasons for judgment in this case are that both the complainant and the defendant have consented to the Order". That is signed by Mr Isaacs. The document is one drawn up, no doubt, because of a practice rule in the Divisional Court of the Probate, Divorce and Admiralty Division.
Now it is clear that an Order could not be made on the ground of persistent cruelty if the complaint of persistent cruelty was not found to be proved, as appears from the Order of the Justices. Precisely what took place on the hearing on 18th August, 1941, cannot be proved after these years. No doubt the Justices were satisfied that the Plaintiff consented to something, but Mr Justice Diplock did not consider that he consented to an Order involving the consequences which it did. No one has questioned the fact that the Order, being bad on the face of it, could not stand if the Plaintiff was given leave to appeal out of time. In the course of his Judgment the learned President said (at pages 5 and 6): "I now come to what, in my opinion, is the only real issue in this case, and that is, how to get rid of the Order of the 18th August, 1941, for it must be got rid of somehow. The husband manifestly is at mercy after this long lapse of time in asking us to give leave to appeal against that Order, worded as it is, and very properly, in my opinion, Mr Bayne Powell has told us that he had already anticipated that particular difficulty and had obtained instructions to give an undertaking on the part of the husband, as one of the terms for granting leave to appeal out of time, that the book should remain closed as regards any payments made under such Order down to date, and that there would be no question, if the original Order was set aside, of any attempt to obtain repayment of any payment that had been made. That seems to me to be a most proper suggestion, and one that relieves us fromimposing it as a term, because it is quite clear, whatever else is not clear in this case, that there never has been any practical doubt that the husband was paying to the Collecting Officer of the Court under some form of compulsion, albeit he may have consented to the compulsion in some shape or another in the first instance. So at the end of it all I think that the proper way to deal with this case is to give leave to appeal now against the original Order, on the basis that the husband undertakes not to reopen any payments made under that Order or the various Orders by which the original Order has purported to be varied, and, having given leave to appeal, to discharge the Order. On that, the whole bag of Orders, so to speak, falls. All the variations fall with the original Order, and it is open to either party to start de novo, but not retrospectively."
Mr Justice Willmer said (at page 6): "Our power to grant that leave is, of course, discretionary, and, taking the view that it ought to be exercised in this case, I, like my Lord, am impressed for one thing by the fact that an undertaking has been given on behalf of the husband not to seek to recover hereafter any of the payments which have been made under the original Order, an...
To continue reading
Request your trial
- Ng Kook Kin v PP
-
Chagos Islanders v Attorney General and Another
...fulfilled, in that case the making of an arbitrator's award, the Limitation Act did not bite at an earlier stage; see O'Connor v Isaacs [1956] 2 QB 288 326, Diplock J. The Limitation Act and unconscionability 599Mr Allen's next and related point was no more arguable. It was to the effect th......
-
Firman v Ellis
...Griffiths J. Heaven v. Road and Rail Wagons Ltd. [1965] 2 Q.B. 355; [1965] 2 W.L.R. 1249; [1965] 2 All E.R. 409. O'Connor v. Isaacs [1956] 2 Q.B. 288; [1956] 2 W.L.R. 585; [1956] 1 All E.R. 513; [1956] 3 W.L.R. 172; [1956] 2 All E.R. 417, C.A. Smith v. Central Asbestos Co. Ltd. [1973] A.C. ......
-
M v P (Queen's Proctor intervening)
...1 FCR 339, [1988] Fam Law 254. NP v KRP (recognition of foreign divorce)[2013] EWHC 694 (Fam), [2014] 2 FLR 1. O’Connor v Isaacs and Ors [1956] 2 QB 288, [1956] 3 WLR 172, [1956] 2 All ER 417, (1956) 120 JP 325. P v P [1971] P 217, [1971] 2 WLR 510, [1971] 1 All ER 616, CA. P v P and J [197......