Notes Of Cases
| Published date | 01 January 1953 |
| Date | 01 January 1953 |
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02767.x |
NOTES
OF
CASES
Law
REPORTS
THE thanks of the profession are owed
to
the Incorporated Council
of Law Reporting and the proprietors of
The Times Law Reports
for their combined action which has resulted in the greatest single
contribution since
1865
to
the rationalisation of law reporting in
this country. With the appearance of
The Weekly
Law
Reports
we
should
be
provided, under the ofRcial auspices of the profession,
with a speedy report of every decision of su0icient interest
to
appear
in
any general
series
of law reports.
An
old
friend,
The
Times Law Reports
has disappeared,
8s
has an equally old, but
less valued, acquaintance
The
Weekly Notes.
The former fumled
a
valuable function in,the past but the time had come for it
to
go
into honourable retirement, and a tribute should
be
paid
to
its
proprietors for recognising
this
fact and for their public-spirited
action
in
agreeing to
it.
This
represents the latest stage in a remarkable process of
consolidation which has
led
to
the disappearance as independent
entities of a multiplicity of general series of law reports which made
the task of the lawyer
80
unnecessarily diBcult. There are now
only three extant series-The
Law
Reports
and
The Weekly Law
Reports,
sponsored by the Incorporated Council, and the
All
England Law Rpts,
maintaining
an
independent existence as a
commercial enterprise. These
will,
of course,
be
supplemented by
specialised series such as
Lloyd’s List, Crimind Appeal
and
Planning and Compensation Reports
and those issued by the
Ministry of National Insurance from whose system of indexing and
digesting the Incorporated Council might learn much. These meet
an obvious need. Whether,
on
the other hand, it is in the interests
of the public and the profession that the
All England
Law
Reports
should continue is more arguable. They have undoubtedly justified
their existence since they came into being in
1986.
They estab-
lished
a
new standard of
speedy
and accurate reporting and their
competition led to the disappearance or merger of many
of
their
rivals.
It
may
be argued that their healthy competition is still
needed to keep the Incorporated Council up to scratch. On the
other hand, if they merely duplicate
The Weekly
Law
Reports
they
will be a nuisance, and if they report additional cases
of
minor
interest they may be an even greater nuisance. The theoretical
ideal is undoubtedly one series which concentrates
on
speed and
another which concentrates
on
meticulous accuracy with a smaller
number
of
the most important cases. Both these the Incorporated
Council have promised to provide.
If
they live up to their promise
67
68
THE
YODEXN
LAW
BEVIEW
VOL.
16
the
All
England Law Reports
will become otiose-but for the
present the proprietors of the latter may
be
right to wait and see.
MENTAL
CRUELTY
IN
two recent decisions,
Jamieson
v.
Jamieson
[1952]
1
All
E.R.
875
and
King
v.
King
[1952] 2 All
E.R.
584,
the House of Lords
has attempted further to elucidate the concept of mental cruelty.
Cruelty, like desertion, is a ground for divorce which cannot easily
be
defined
in
the abstract.
It
is not an event, but a state of affairs
and to some extent similar to grounds of divorce
known
to foreign
legal systems, such as “grave injuries,” “destruction of the
marriage,” which refer to the state of the matrimonial relations
as
a whole.
“
The general rule in all questions of cruelty,” said Lord
Normand in
King
v.
King,
at p.
586,
“is that the whole matri-
monial relations must be considered, and that rule is
of
special
value when the cruelty consists, not of violent acts, but of injurious
reproaches, complaints, accusations or taunts.” In other words,
where the court has to deal with a case of “mental cruelty,”
it
must not adopt an
“
atomising
”
attitude and look at incidents and
events in isolation but must endeavour to gain an impression
of
the
atmosphere, or as Lord Merriman put
it
in the
Jam‘eson Case,
at
p.
879,
“the general picture of the married life.” In -does
not
make any difference whether, as in
Jamieson,
the alleged mental
cruelty takes the form of inconsiderate, humiliating and brutal
conduct
on
the part
of
the husband, or, as in
King,
of nagging and
unfounded accusations
on
the part of the wife. In matters of this
kind the total may be larger than the sum of its parts, and
‘‘
what
on
paper may seem little more than a series of pinpricks may
present a very different aspect when it has been developed in
evidence” (Lord Normand in
Jamieson,
at p.
878).
Hence the
need for extreme caution in disturbing the
findings
of the
trial
judge in such cases (see
Thomas
v.
Thomas
11947)
1
All
E.R.
582),
the need for a sparing application of the Scottish procedure of
di5
missing a divorce action
a
limine
by reason of the
‘‘
irrelevancy
”
of
the facts averred in the pursuer’s condescension, and, one may
add, the need for a certain reluctance in treating as precedents any
decisions of the courts in matters of mental cruelty.
It
is fatally
easy to give to remarks made by judges
in
matters of this kind a
general sigkiicance which, in the nature
of
things, they cannot
have. In such cases
it
is the office of the court to examine the
conduct of the spouses, often in great detail, and to arrive at a
decision based more
on
a general impression derived from these
facts than
on
principles capable of being formulated
in
the abstract
and of serving as signposts for future developments. The attitude
of the judge towards the general problems of marriage and divorce,
his
ethical convictions and psychological insights are more
JAN.
1088
NOTES
OF
CA8EB
69
important in the making of his decision than any legal rules.
It
is
not difficult to understand why, in both cases under review, there
should have
been
a profound conflict of judicial opinion
in
the lower
courts (the First Division of the
Court
of
Session
in
Jamieson
and
the Court of Appeal in
King),
and,
in
the second case,
also
in
the
House of Lords.
In
essence these were conflicts not about the law
but about the appraisal of the facts before the court. Nevertheless,
both cases, and particularly the
Ja,mieson Cme,
clarify
a
number
of
legal issues. Moreover, both casea, especially the
King Case,
give
food for the thoughts of those who are interested in
the
future of
divorce law and procedure.
From the legal point of view,
Jamiescm
was the more interesting
of
these two cases. One of the main points in this Scottish
caw
was that the House of Lords, consisting
of
two Scottish
(bdS
Normand and Reid) and two English (Lords Merriman and Tucker)
Lords of Appeal, unanimously held the concept of cruelty
in
Scota
law
to
be identical with that of English law.
This
is not by any
means a matter of course.
In
Weatherley
v.
Weatherley
119471
A.C.
628,
Lord Normand pointed out that desertion had a different
meaning
in
the two countries, while in
Thomas
v.
Thomas
(supra,
at p.
585)
Viscount
Simon,
in
his
dissenting judgment, expressed
the view that there was
no
material difference between the two
systems as regards the meaning of cruelty. This was abed by
the four
Lords
of Appeal in
Jamieson,
including Lord Normand
who (at p.
878)
explained that some observations he had made
in
Weatherley
(at p.
685)
about the limited precedential value of
English divorce decisions in Scotland and vice versa referred only
to desertion.
The Lord President had said that recently several decrees
on
the
ground
of
cruelty had been pronounced
in
England which would
not have been granted in Scotland. He indicated that
this
state
of
affairs
might be attributable
to
the
‘‘
Scottish character
”
which, he
said, was
“
of
tougher fibre or of blunter susceptibilities,” or
to
the
“Calvinist tradition” which
“still
found expression
in
a deeper
sanctity of the marriage tie and its obligations.” One does not
have to share the present writer’s profound distrust
of
all
state-
ments
on
so-called ‘6national character’’ to see that it is highly
dangerous
to
call
in
aid divergences
in
“
national
”
predispositions
or traditions for the explanation of differences between English and
Scottish law. That this is especially unfortunate
in
the field of
divorce law was cogently demonstrated by Lord Normand (at
p.
879):
“It
has sometimes
been
said
in
England that the
Scottish courts have
been too
easy and liberal in granting
divorce, and sometimes the same has
been
said
in
Scotland
of the English courts. Allowance
in
judging of the
signi6-
cance of language
or
conduct used by one
spobe
to
another
must be made for national,
local
and social habits, but
I
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