Lake v Lake
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HODSON,LORD JUSTICE PARKER |
| Judgment Date | 19 May 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0519-1 |
| Date | 19 May 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J0519-1
The Master of the Rolls (Sir Raymond Evershed),
Lord Justice Hodson and
Lord Justice Parker
In The Supreme Court of Judicature
Court of Appeal
Mr E. H. LAUGHTON-SCOTT (instructed by Messrs Smith & Hodson, Agents for Messrs Harold Michelmore & Co., Newton Abbot) appeared on behalf of the Appellant (Respondent wife).
Mr T. DEWAR (instructed by Messrs Keene, Marsland & Co., Agents for Messrs McBusky & Braddell, Exeter) appeared on behalf of the Respondent (Petitioner husband).
This case first came before this Court on the 2nd May last upon an application by learned Counsel for the wife (Respondent in the divorce association) for leave to appeal notwithstanding that the time for appealing had expired. He then gave a direction which, so far as is relevant, adjourned the question whether there was any right to appeal at all, any subject-matter which, upon appeal, this Court could entertain; and, in my recollection, invited the representatives of the wife to bring the matter to the attention of the Petitioning husband's legal division, so that we might have the advantage, as we are have had, of hearing learned Counsel for the husband.
The point which the wife desires to agitate in the Court of appeal is the conclusion to which she ways the Commissioner who tried the case came, that time (the wife) had committed adultory. The case was one in which the husband petitioner sought a dissolution of the marriage on two grounds first, adultory, and, second, cruelty. The wife learned the charges. As regards the adultory, the act the charge, but the alleged by way of if, contrary to her contention, there had been adultory on may part, it and been condened. The went on by a cross-prayer to the herself a decree of judicial separation on the of Mr cruelty.
to her disadvantage hereafter, either on some subsequent petition because the alleged adultory had been revived or perhaps in some proceedings for maintenance which she might bring against her husband.
I should say here that what I gather admittedly occurred was that at a certain date the wife was delivered of a , proved to be of approximately three months' age, and that the date therefore when she must have conceived that footus was (it was said by the husband) a date when he had in fact no access to her. She, on the other side, said that she had been taken by her husband for drives in a motor van and that on one or more such occasions sexual intercourse took place between them. This is the relevant part of the Judgment, meaning thereby the Judge's reasons: "The landlady of the place where she (the wife) was living said that there was some discussion between the Petitioner and the Respondent afterwards, in which it was not altogether clear that the Petitioner knew of his wife's condition. So on the whole, although it is a difficult matter about which to make up one's mind, I do not think that the Petitioner was responsible for the state of affairs which resulted in this miscarriage": and then a little later, leaving a few lines out: "I do not know exactly the facts which led to that": that was an alleged scence of violence. "It was never fully gone late, but proceedings took place between September and the 17th December, when she had the miscarriage. As I say, I am not satisfied that the Petitioner was responsible for that condition". He went on: "Be that as it may, the parties came together in the following January, and lived together again as men and wife. So that anything which may have occurred before then, whether or not it caused this marriage, it was undoubtedly condoned by both parties". Then he passed on to see what had happened thereafter which related to the allegation of cruelty.
If the matter had rested there, it might well be said that there was no concluded expression of opinion on this issue of adultory; but at the end of the Judgment there followed, as there commonly does, a discussion with Counsel, and Mr Dewar, the learned Counsel for the husband, at the very end of this recorded transcript, said this: "It may be clear from your Lordship's Judgment that you find adultery in case it is revived hereafter. (The Commissioner): Yes, I think so. (Mr Dewar)" - sticking to the point - "There may be a possibility of revival hereafter. (The Commissioner): Yes", Now, for reasons which I will later state, I think (being wise after the event) it is perhaps a pity that Mr Dewar Sought to rub his triumph home in that way. At any rate, the consequence to him is that he is now here in the Court of appeal. But, in face of those last two questions and answers, there is obviously a formidable case for saying that this Commissioner did find, and did intend to find, adultery committed by the wife. It is for that reason, as I have said more than once, that Mr Haughton-Scott feels a certain anxiety as to the consequences that may flow therefrom for his client in the future.
The next question that we must decide is whether, in the circumstances as I have stated them, there is, properly speaking, any subject-matter upon which we could properly entertain an appeal. I have come to the conclusion that there is not. It is quite clear from the form of Order or Judgment which I have read that it does record accurately the conclusion which, in the end of all, the Commissioner reached. Upon the question whether its form is satisfactory, we took the opportunity of consulting with the President of the Probate, Divorce and Admiralty Division, and he has indeed been kind enough to supplement what he told us by also bringing the matter, as I understand, to the attention of his brother Judges.There seems to be no doubt whatever that this form of Judgment or Order, where the Petitioner fails in the end of all (although he may base himself on a number of charges, in respect of some of which he may succeed in proving some of the alleged facts) is hallowed by very long usage. It certainly has been consistently used for 20 years and I should think very probably more. I think also, for my part, that to suggest (except, at any rate, in wholly exceptional circumstances) that as order of this kind should condescend to a detailed statement of every single issue which was raised in the case and of the Court's conclusions upon those issues scriatim would be to make the form of Order altogether too complicated, and, indeed, that it would be an impracticable and wholly undesirable result.
Therefore, I start by assuming and accepting that this is an appropriate and correct form of order. From that it seems to me to follow inevitably that we could not now entertain an appeal upon this matter of fact. or so, was the wife guilty of adultory? For the short and simple reason that, even if we came to the conclusion that the Commissioner formed a wrong view on the facts, we could not make any alteration at all in the form of the order under appeal. It would still stand correctly recording the result of the proceedings, exactly as it stands now. I go further. As I indicated to Mr Laughton-Scott this , let it be supposed that he were free to raise this matter in the Court and that the Court came to the conclusion, as sometimes does happen, that the manner of the trial of this issue was not satisfactory - I am not, of course, suggesting we should in this case because we have not gone into it, but, supposing that we did - the right course for the Court to take, presumably, would then be to order a new trial. A new...
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