NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1943.tb02882.x
Published date01 December 1943
Date01 December 1943
MODERN LAW REVIEW Dec.,
1943
NOTES
OF
CASES
Divorce
Law
Beform
by
Judicial
Legislation
The
House
of Lords has added another important piece
of
judicial
legislation to the
series
of decisions by which, in recent years, it successfully
attempted
to
fill
gaps
in
the law and to remove the evil effect of antiquated
doctrines which are
no
longer compatible with modem developments.
The
case
of
Blunf
v.
Blunt,
(1943)
z
All
E.R.
76.
is remarkable from three
iifferent points of view: it
will
deserve more than a passing reference in
future discussions of the principle of precedent, it makes a contribution
to the doctrine of judicial discretion, and, above all, it introduces what
may turn out to be
a
reform
in
certain
aspects
of divorce law.
(I)
In
his
essay
on
“Determining the
Ratio
Decidcndi
of
a
Case”
(Chapter
I
of
Essays
in
Jurisfirutiencc
and
the
Common
Law!,
Professor
Goodhart
pints
out
that the “principle
of
a
case”
is
not to
be
found in
the
reasons
given in the opinion or in the rule of law
set
forth in the
Opinion, but in the selection of relevant facts by the judge
in
conjunction
with
the decision itself. Hence, if in an appeal court all the judges anive
at
the same conclusion, but each regards different facts
as
relevant, the
value
of
the decision
as
a precedent
is
cut down to the lowest common
denominator of all the judgments. In other words: The
case
will
only
serve
as
a precedent in a situation in which
all
the facts are present which
any
one of the judges in the previous case regarded
as
material.
If
this
doctrine
is
sound-and it
is
difficult
to
see
how its validity
can
be refuted-
the
habit
of
publishing a number
of
concurring opinions works, or
is
capable
of working,
as
a
serious limitation on the value of appeal decisions
as
precedents.
Students
of
the Law of
Torts
need hardly
be
reminded of
SOrrcU
v.
Smifh,
(1925)
A.C. 700, students of Private International Law
will
not easily forget their intellectual struggles with
Refiublica
de
Guate-
mala
v.
Nu~z,
(1927)
I
K.B.
66g.
In recent years the House of Lords
has
more and more frequently resorted to the practice of publishing only
one
opinion
with
which the other learned Lords “concurred” or “agreed,”
while in the
Court
of
Appeal the publication of a “judgment of the Court
has
become increasingly common. In the case under review the
House
intimated,
at the conclusion
of
the
oral
arguments, its unanimous view
that
the
appeal should
be
allowed, and reserved to a later day the statement
of
its
reawns. The reasons were
stated
in one spch by the Lord Chan-
cellor, who said
that
he
had
had
“the
great
advantage of the co-operation
of the other members of the
House
in preparing this opinion,” and that
he
nndugtood
that
they concurred in
it.
This,
then, is the nearest approach to the “judgment of the Court”
in the Court of Appeal, and
to
the practice of the Privy Council, of which
the
House,
according to its constitution,
is
capable.
It
is
a concession to
the certainty of the law at the expense of an increasing amount
of
“anonymity” in the process of judicial law-making. If the idea of the
judge-legislator, the principle of
stave decisi,
is to be maintained in the
growing complexities of our legal world, it is difficult to see how the
publication of concurrent opinions
by
various judges can
be
continued.
The decision under review serves
as
an indication of w-hat is. in all
probability, the trend of the future.
The
facts
of
the case can be stated very briefly. Both spouses were
guilty
of adultery. The husband petitioned for divorce, the wife cross-
NOTES
OF
CASES
231
petitioned. Hodson,
J.,
dismissed the cross-petition, exercised
his
discretion
in favour of the husband, and granW him a decree
nisi.
On the wife’s
appeal the
Court
of Appeal found that Hodson,
J.,
had wrongly exercised
his
discretion, dismissed the husband’s petition, and rescinded the decree
nisi.
but affirmed the dismissal
of
the wife’s cross-petition.
On
the hus
band’s further appeal the House of Lords held that the
Court
of Appeal
had wrongly interfered with the judge’s discretion, and restored the decree
nisi,
while refusing to act
oil
the cross-petition.
The “principle” of the case-within the meaning of Professor
Good-
hart’s analysis-is purely and simply the selection of the facts which
justify an interference by the
Court
of Appeal with the exercise of
a
judge’s discretion in a certain type of divorce case. But the
importance
of the decision far transcends its value
as
a
precedent in the
technical
sense,
Its
real significance lies emphatically not in what the
House
did,
but in what it said.
It
claims
the attention
of
the legal profession precisely
for what Professor Goodhart rightly considers to be outside the province
of the judge
as
a law-maker, “the rule
of
law
set
forth
in
the opinion,”
or, to be more exact, the policy enunciated and recornended in
it.
It
is
one of those cases, increasing in number, which
make
one wonder whethex
the time
has
not arrived for the formulation of
a
theory of judicial policy-
making alongside the doctrine of precedent which it would not
supersede
but suppl6ment. The
House
refused to dissolve the marriage
on
both
petitions, but the value of its decision lies in the “dicta”
on
the dissolution
of a mamage
oc
the
basis
that
both
spouses
are at fault. The “mere”
obitcr
dictum
far outweighs the
ratio
decidcndi.
In the light
of
a
c;ue
of
this
kind Professor Oliphant’s “.Return to
Stare
Decisis,”
and the Amen-
“realistic” approach to judicial decisions look curiously unrealistic.
Clearly, the policy-making significance of the dictum
is
largely
bound
up
with the suppression of “concurrent
opinions.”
(2)
The
ratio decidcndi
is
not without considerable interest. Only
three
times since the Matrimonial Causes Act,
1857,
had a higher Court
been
faced with an appeal against the exercise
of
the judicial discretion to
refuse
or to grant the dissolution of a marriage
upon
the petition of
a
spouse
who was himself
guilty
of a matrimonial offence. In each of these
cases
the appeal was dismissed by the Court of Appeal and in none of them
was
there a further appeal. The House of Lords thus got
a
first opportunity
of deciding in what circumstances an interference by
a
higher
Court
with
a discretionary decision of
this
kind was permissible.
An
appeal
can
only
succeed, “if it can
be
shown that the Court acted under a misapprehension
of fact in that it either gave weight to irrelevant or unproved matter or
omitted to take into account matters that are relevant.”
These
words
have a familiar ring. Similar principles have
been
laid down before in
other cases where the province of “discretion” was to be defined. and
of
which
Evans
v.
Bartlam,
(1937)
2
All
E.R.
346,
is
as
good
an
example
as
any. The interesting novel point in the instant
case
is
the distinction
drawn between cases like
Osenton
&
Co.
v.
Johnston,
(1942)
A.C.
130,
where the material for forming a conclusion
is
entirely documentary and
“thus equally available to the appellate court,” and a
case
like the present,
where “the proper exercise of the discretion
. .
.
largely depends
on
the
observation of witnesses.” The
case
for “non-intervention”
is
far
stronger
in a situation of the latter type.
(3)
The
House
refused to interfere with the discretion of the judge.
Yet
it
laid down a number
of
rules of guidance for the exercise of
the

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