Nelson v Nelson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD |
| Judgment Date | 30 June 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0630-1 |
| Court | Court of Appeal |
| Date | 30 June 1958 |
[1958] EWCA Civ J0630-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Romer
and
Lord Justice Ormerod
MR. EDWIN F. JOWITT (Instructed by Messrs. Gibson & Weldon, Agents for Messrs. Straw & Pearce, Lough borough) appeared for the Appellant (Petitioner below)
MR. M.V.ARGYLE (instructed by Mr. P. Alec Cook) appeared for the Respondent (Respondent below)
LORD JUSTICE HOMER: This is an appeal in a Divorce Petition which has been brought by the petitioning husband, Mr. Nelson, from a decision of Mr. Commissioner Robson dated 21st March, 1958, where by he dismissed an appeal brought by the Petitioner from the decision of Mr. District Registrar Evans opted 28th February, 1958, refusing the Petitioner's application for leave to amend his petition. The facts can be quite shortly seated. The parties were married in 1923 and they ceased to live together in December, 1952, thirty years later. On the 21st March, 1957, the husband filed a Petition for the dissolution of the marriage, founding himself exclusively on alleged constructive desertion by the wife. We were told that the husband thought it improbable in the circumstances that the wife would defend the Petition but, in fact, on the 31st July, 1957, the wife put in an Answer deny—ing the charge of desertion brought against her by her husband and making charges against him of desertion, adultery and cruelty, and she added a cross-Prayer for dissolution of the marriage on those grounds. No Reply to that has yet been filed, but, in February? 1958, the husband applied for leave to amend his Petition by introducing charges of cruelty against the wife. As required by the Matrimonial Causes Rules that application was supported by an affidavit sworn by the husband of which I need read only paragraph 1. He says: "That although I disclosed various acts of cruelty by my wife against me to my Solicitor before my Petition was presented I was advised by Counsel to rely only on desertion in presenting my Petition at that time as allegations of cruelty would only add to the cost of the divorce proceedings if the Petition were undefended. Counsel further advised me that if my wife defended the Petition I should seek leave to amend my Petition by making allegations of cruelty against her".
The amendments which he sought to make are conveniently set, out in the Notice of Appeal before this Court, and I need only say that they are detailed and elaborate and charge various acts of cruelty starting from the time of about the fifth year after the date of the marriage.
That, application for leave to amend was refused by the Registrar, the application being contested by the wife. The Registrar refused the application, saying that the Petitioner could raise the charges of cruelty, if be throught proper to do so, in his Reply. The Petitioner than appealed from the Registrar to the learned Commissionerand he dealt with the matter on the 21st March of this year. He dismissed the appeal and we have a note of his reasons.
The note is to this effect: "If there had been no authority to guide me I should have been inclined to allow this husband's application to amend his Petition. But I consider I am bound by the decisions in Jayne v. Jayne and Prothero (1869) 21 Law Times, 401, and Austin v. Austin (1871) 41 Law Journal (Probate and Matrimonial) 8, Jayne v. Jayne and Prothero appears to have been an application particularly without merit and might be distinguishable bat I can see no way of distinguishing Austin v. Austin. It was urged on me that the application in Austin v. Austin was made at a later stage in the case than in this one and that it was an application to add cruelty to cruelty and not, as in this case, cruelty to desertion. In my judgment, those are not differences which should affect my reading of that decision. Rowley v. Rowley (1839) 23 Justice of the Peace 744, was cited to me. It appears to be a decision in direct opposition to Austin v. Austin but it may have turned on special facts not clear in the report. Austin v. Austin was decided twelve years-later and apparently has not been over-ruled in over eighty years: in my judgment I am bound by it rather than by Rowley v. Rowley, Brittain v. Brittain and Camp (1859) 23 Justice of the Peace was also cited to me. The head note in the report is to the same effect as Rowley v. Rowley but I can find nothing in the report of the case to support the head note. In Gillett v. Gillett (1962) 1 All England Reports, 1399, an amendment to the Petition was allowed but it was not one which gave the Petitioner a new ground on which to obtain a decree, and the case does not appear to me to be of any assistance to this Petitioner, I therefore dismiss the application".
Before considering the grounds on which the learned Commissioner dismissed the application, it is convenient to note the powers which the Court has of allowing amendments to pleadings in ordinary litigation. Those powers derive from Section 43 of the Judicature Act, 1925, and are embodied in Order 28, Rule 1, and Rule 12 of the Rules of the supreme Court. I think itis only necessary for the present purpose to refer to Order 28, Rule 1, which is in the following terms: The Court or a Judge may, at any stage of the proceedings, allow either forty to alter or amend – his or pleadings in such manner and en such terms as may be just, and all such amendments shall bemade as may be necessary for the purpose of determining the real questions in controversy between the parties". Then in the Annual Practice there is a note in this Rule headed "General Principles" and a citation Is made from the case of Tyldesley v. Harper, 10 Chancery Division, page 396, in which Lora Justice Bramwell said: "My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or other vise".
There is another citation from the judgment of Sir Balliol Brett, Master of the Rolls, in Clarapede v. Oxford Union Associa—tion, 32 Weekly Reporter, page 263, where he says: "However negligent or careless may have been the first omission, and how late the proposed amendment, the amendment should be allowed ifit can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs".
By virtue of Rule 82 of the Matrimonial Causes Rules, 1957, the Rules of the Supreme Court are, generally speaking, made applicable to...
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