Lewis v Lewis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON |
| Judgment Date | 11 March 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0311-1 |
| Court | Court of Appeal |
| Date | 11 March 1958 |
[1958] EWCA Civ J0311-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson and
Lord Justice Pearce.
Mr. H. B. GRAZBROOK, Q. C. and Mr. W. R. K. MRRYLEES (instructed by Messrs W. H. Matthews & Co) appeared on behalf of the Appellant (Husband Petitioner).
Mr. NELL McKINNON, Q. C. and MR. P. G. LANGDON-DAVIES (instructed by Messrs Seeley & Son, Agents for Messrs L. C. Thomas & Son, Neth, Glamorgan) appeared on behalf of the Respondent Wife.
This is an appeal from an Order of Commissioner Sir Harry Trusted dated the 30th January, 1958. The appeal is by leave of the Commissioner which was given on the 31st January against that part of the Order which gave leave to the Respondent (the wife)in a divorce suit to amend her Answer to as to include a charge of adultery. The Charge of adultery is set out in the amended answer – "That the Petitioneron some day or days unknown, say that it was after April, 1954, at a place or places unknown committed adultery with a women or women whose name or names are unknown". Consequential amendments were allowed in the two succeeding paragraphs.
The suit was instituted on the 14th March, 1956, by the husband for divorce, based on cruelty; and on the 12th June he amended the prayer of his petition, pursuant to an order of the 4th June, so as to include a prayer for the exercise of the discretion of the Court in his favour. The Respondent by her denied cruelty, herself alleged cruelty, and asked for a divorce on that ground. There was originally no charge of adultery in the Respondent's Answer.
The petitioner gave evidence in support of his allegation of cruelty, and his evidence-in-chief mad no reference to this own adultery, which it was known he was going to admit eventually because of the amendment of the prayer. He was cross-examined, and in the cross-examination he was asked by Counsel for the wife whether he had committed adultery. The answer he gave was "Yes"; and the effect of the answer is contained in the amended Answer. Objection was taken by Counsel on behalf of the husband to the question being asked. At first at any rte it was put upon the ground that it was an incriminating question and ought not to be asked, or at any rate that the witness out to have the opportunity of objecting the answer on that ground. The Commissioner gave leave to the amend the answer so as to include the allegation of adultery, based, and based solely, on the sworn evidence of the husband given in the suit in the witness box. Evidence was given by the wife on the issue of cruelty, and she had no evidence herself go give on the charge of adultery. The matter was then adjourned in order that, as the Pleadings then stood, Counsel for the husband might have an opportunity of pleading to the charge of adultery. As soon as the adjournment was granted the question of this appeal was considered, and on the following day, the 31st January (the hearing ended on the 30th January), Counsel made the successful application for leave to appeal.
The objection taken to the amendment is on a variety of grounds. Dealing the question, first of all, as to whether the question was properly asked – which no doubt goes to the root of the matter – the objection that the question was an incriminating question is unsound. The ecclesiastical penalties which may involved in cases where persons commit adultery have been held by the Court not to be, at the present time, such as to carry with them the protection of the witnesses which they are unable to claim in order to avoid incriminating questions. It is unnecessary to do more than refer to the decision of the Court of Appeal in ( Blunt v. Park Lane Hotel Limited 1942, 2 King's Bench, at page 253) where reliance was placed on some observations in the Judgment of Lord Justice Bowen in the divorce case, Redfern v. Redfern (reported in 1891 Probate, page 139), as showing that the peril of ecclesiastical punishment was still a live peril against which witness were entitled to claim protection. But that view was held to be obsolete, and it was pointed out that the decision in Redfern v. Redfern was based on the particular provisions of the statute which prevented, in proceedings instituted in consequence of adultery, questions being asked tending to show that a witness has committed adultery. The relevant statute at the present time – later than the statute under consideration in Refern's case – is the Matrimonial Causes Act, 1950, section 32, subsection 3. "The parties to any proceedings instituted in consequence of adultery and the husbands and wives of the parties shall be competent to give evidence in the proceedings, but no witness in any such proceedings, whether a party thereto or not. Shall be liable to be asked or be bound to answer ay questions tending the show that he or she was en guilty of adultery unless he or she has already given evidence in the same proceedings in disproof of the alleged adultery".
The proceedings not having been instituted in consequence of adultery but, as I have already stated, in consequence of cruelty, that express statutory provision does not apply and does not become applicable now that the amendment has taken place, The answer was given in the witness box when the proceedings were proceedings for cruelty. If it be objected to the question that, whether incriminating or not, it could not be asked because it...
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