Nast v Nast and Walker

JurisdictionEngland & Wales
Judgment Date26 January 1972
Neutral Citation[1972] EWCA Civ J0126-2
Judgment citation (vLex)[1972] EWCA Civ J0126-1
CourtCourt of Appeal (Civil Division)
Date26 January 1972

[1972] EWCA Civ J0126-1

In The Supreme Court of Judicature

Court of Appeal

APPEAL (by leave) by petitioner from order of Mr. Justice Payne on 22nd July, 1971.


The Master of the Rolls (Lord Denning),

Lord Justice Karminski and

Lord Justice Orr.

Peter Lawrence Nast
Sincne Nast
Arthur Walker

Mr. LEONARD CAPLAN, Q.C., and Mr. JONATHAN SOFER (instructed by Messrs. Batchelor Fry Coulson & Border, agents for Messrs. R.L.W. Rons Co. of Bexleyheath, Kent) appeared on behalf of the Appellant.

Mr. IAN PERCIVAL, Q.C., and Mr. WATER BLUM (instructed by Messrs. Habershon Watts Powell & Robinson) appeared on behalf of the Respondent.

The co-respondent did not appear and was not represented.


The husband, Mr. Nast, petitions for divorce against his wife, Mrs. Nest. Originally, in 1967, the petition was on the ground of cruelty, but later on, by amendment, on the ground of adultery. Since the 1969 Act, another petition has been lodged on the ground of irretrievable breakdown of the marriage. The only question today is whether the husband should be allowed to administer interrogatories to the wife and also to the co-respondent in order to prove the adultery.


It is alleged that they committed adultery on a holiday at Babbacombe in Devon, and also at the matrimonial home at Welling in Kent. A number of interrogatories were submitted to Mr. Justice Payne. He did not allow any of them. He made suggestions of his own, but did not order them to be answered. The husband appeals to this Court. Pie seeks to administer interrogatories in the form suggested by Mr. Justice Payne but with an additional one.


In the course of the hearing before us, Mr. Percival, for the wife, has raised a point of principle. He says that even today interrogatories are not admissible in the Divorce Court in order to prove adultery.


Before 1851 the parties to a suit were net competent to give evidence themselves in it at all. So there was no question of interrogatories being allowed to prove adultery. By a series of statutes from 1851 to 1869, it was enacted that parties were competent and compellable to give evidence. But there was an exception in section 3 of the Evidence Further Amendment Act, 1969, which said:

"The parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceedings: but no witness in any such proceedings, whether a party to the proceedings or not, shall be liable to beasked or be bound to answer any question tending to show that he or she has been guilty of adultery unless he or she has already given evidence in the same proceedings in disproof of the alleged adultery."


That section only says the parties shall be "competent to give evidence in any such proceedings. It does not say "compellable". But this was implied. Several years ago I looked into all these statutes, and I stated the result in Tilley v. Tilley (1949) P. 240 at pages 254 to 259: "Every party to a divorce suit instituted in consequence of adultery is competent and compellable to give evidence save only in so far as he can claim the privilege" I referred, of course, there to the statutory privilege, and not to any ecclesiastical or other privilege. In saying that a party is "compellable" I meant that he was compellable not only to give evidence, but also to come to the Court, for the purpose.


Such was the law from 1869 onwards: the parties themselves were competent and compellable to give evidence and to answer any questions save in so far as they could claim the protection of that statutory privilege.


In Redfern v. Redfern (1891) P. 139 the Court of Appeal considered the question of discovery in a divorce case. It was held that discovery of documents was not permissible in order to prove adultery. Equally, of course interrogatories were not permissible. Mr. Percival submitted to us that the reason for that decision was because adultery was an ecclesiastical offence, and that, as the ecclesiastical Courts did not permit discovery in order to prove it, their practice was inherited by the Divorce Courts. I realise that there are some statements in that case which point in that direction. But I think that the decision is to be supported, not on any ecclesiastical privilege, but upon the statutory privilege contained in section 3 of the1869 Act. Many distinguished Judges have since explained the decision in that way, notably Lord Esher in Spokes v. Grosvenor Hotel Co. (1897) 2 Q.B. at page 132; Lord Greene in Campbell v. Campbell (1940) P. at page 95 (explaining Cavendish v. Cavendish (1926) P. 10); and Lord Justice Kaminski in Hulbert v. Hulbert (1957) P. 178.


In A. v. A. H. (1962) P. at page 198 Mr. Justice Ormrod expressed a contrary view: he said that the practice of refusing-discovery is not derived from the statutory privilege, but "is derived from the rules of the ecclesiastical courts, which invariably refused to compel a party to convict himself of adultery." But, after the discussion we have had in this Court, I do not think he was correct. No doubt there was in former times a privilege which was recognized by the ecclesiastical Courts. But that privilege was replaced and supplanted by the statutory privilege contained in section 3 of the 1869 Act. After that Act the ecclesiastical privilege disappeared. Only the statutory privilege remained.


The statutory privilege remained on the statute book for years and years. In 1912 the Royal Commission, presided over by Lord Gorell, recommended its abolition. In 1956, Lord Norton's Commission did likewise. In 1967 the Law Reform Committee (Cmnd 3472), presided over by Lord Pearson, also recommended its absolution, saying:

"This privilege may have made good sense in 1869 when adultery (with or without other matrimonial offences) was the only ground for divorce a vinculo, and was regarded as a serious social offence. Under the modern law and practice in matrimonial causes, it operates in an irrational and arbitrary fashion andis, in our view, a hindrance to the administration of justice in those cases to which it applies. The judges of the Probate, Divorce and Admiralty Division are not in favour of retaining it any longer; we too think that the sooner that it is abolished the better."


In 1968 the recommendation was implemented. By section 16(5) of the Civil Evidence Act, 1968, the privilege was abolished. After its abolition, there could be no objection to the administration of interrogatories, or to discovery of documents in suits which charged adultery.


This is borne out by the recent decision of the House of Lords in Skone v. Skone (1971) 1 W.L.R. 812. A husband petitioned for divorce on the ground of his wife's adultery. He failed, but afterwards found a bundle of love letters, He sought a new trial. The Court of Appeal refused it, but the House of Lords allowed it. Lord Hudson said at page 816-F:-

"The Court of Appeal seems wrongly to have been under the impression that discovery could cot be had on an issue of adultery: see Redfern v. Redfern. where the rule based on the practice of the ecclesiastical courts and until recently embodied in section 43(2) of the Matrimonial Causes Act, 1905, was held to exclude discovery. This rule has, however, now been abrogated by section 16 of the Civil Evidence Act, 1968, which came into force on 26th October, 1968."


After citing the abrogation, he says (at page 817-A)


"The position is, therefore, that the husband could have obtained discovery from both the wife and the co-respondent".


That; shows that, since the 1968 Act, the Court will order discovery of documents relating to adultery. So Redfern v. Redfern (1891) P. 139. is no longer law. The same must apply to interrogatories. Now that the statutory privilege has gone, interrogatories can be administered in a divorce case, with the object of getting the defendant to answer as to whether or no he has committed adultery.


The old ecclesiastical privilege arose at a time when adultery was regarded as equivalent to a criminal offence party in this answer could object that it tended to incriminate him. Nowadays the thunders of the Church have lost their force Even society does not condemn adultery as once it did. It is still a grave moral offence; but not one which enables a personto object to answering questions about it.


The next question is: What interrogatories should be allowed? Mr. Justice Payne formulated a number of interrogatories which seem to be reasonable to discover whether or not the wife and the co-respondent occupied the same bedroom: but the Judge stopped short of allowing the direct question: Did you have sexual intercourse the one with the other? I think that question should be allowed as well. The whole object of interrogatories is to make the party interrogated speak to the very matters which it is necessary for the party interrogating to prove In order to establish his case. See by Lord Justice A. L. Smith in Kennedy v. Dodson (1895) 1 ch. 334 at page 341. It would be quite in order for the interrogatories simply to ask whether the couple went on holiday together to Devony whether they occupied the same bedroom, and whether they her sexual intercourse together. Similar interrogatories would be permissible in regard to the matrimonial home.


But Mr. Percival says that these interrogatories do not come within Order 26, rule 1. He says that they are not necessary for fairly disposing of the matter or for saving costs, I cannot accept this argument. The husband does not wish to bring his own daughter to Court to prove that her mother committed adultery. And it would be a waste of time and money to employ inquiry agents to inspect hotel registers, and so forth, if the couple are ready to admit adultery.


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