Preston-Jones v Preston-Jones
| Jurisdiction | England & Wales |
| Judge | Lord Simonds,Lord Normand,Lord Oaksey,Lord Morton of Henryton,Lord MacDermott |
| Judgment Date | 14 December 1950 |
| Judgment citation (vLex) | [1950] UKHL J1214-2 |
| Date | 14 December 1950 |
| Court | House of Lords |
[1950] UKHL J1214-2
Lord Simonds
Lord Normand
Lord Oaksey
Lord Morton of Henryton
Lord MacDermott
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Preston-Jones against Preston-Jones, et è contra, that the Committee had heard Counsel, as well on Monday the 6th, as on Tuesday the 7th, days of November last, upon the Petition and Appeal of Charles Preston-Jones, otherwise known as Charles Preston-Jones, of 13 Fitzwarren Gardens, London, N.19, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 22d of July 1949, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of Bertha Jones, otherwise known as Bertha Preston-Jones, of Ffwrd Farm, Cefn-y-Bedd, Wrexham, in the County of Denbigh, praying, That the matter of the Order set forth in the Schedule thereto, namely, the said Order of His Majesty's Court of Appeal of the 22d of July 1949, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Charles Preston Jones, otherwise known as Charles Preston-Jones, and also upon the printed Case of Bertha Jones, otherwise Bertha Preston-Jones, lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in these Appeals:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of his Majesty's Court of Appeal, of the 22d day of July 1949, complained of in the said Original and Cross Appeals, be, and the same is hereby, Discharged: And it is further Ordered, That the said Petition and Cross Appeal be, and the same is hereby, Dismissed this House: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division of the High Court of Justice, with a Direction to allow the petition of Charles Preston Jones, otherwise known as Charles Preston-Jones of the 8th day of November 1946, and to pronounce a decree of dissolution of the marriage of the said Charles Preston Jones, otherwise known as Charles Preston-Jones to Bertha Jones, otherwise known as Bertha Preston-Jones accordingly.
My Lords,
Your Lordships have to consider an appeal by the Petitioner in a divorce suit whom I will call "the husband" and a cross appeal by the Respondent in that suit whom I will call "the wife". By his appeal the husband submits that an Order of the Court of Appeal, so far as it directed that the cause should be reheard, should be set aside and that in lieu thereof a decree for dissolution of his marriage with the wife should be made. The wife by her cross appeal submits that the Order of the Court of Appeal should be set aside and the judgment of Mr. Commissioner Blanco White, whereby the suit was dismissed, should be restored.
The husband was married to the wife on the 14th April, 1941, at Brymbo in the county of Denbigh. Jean, a child of the marriage, was born on the 15th April, 1942. On the 13th August, 1946, a second child was born to the wife. The husband, alleging that this child was not his child and founding on the circumstances of his birth a charge of adultery against the wife, on the 8th November, 1946, presented a petition to the High Court for the dissolution of his marriage. He alleged that the child was conceived at some date between the 29th August, 1945, and the 13th February, 1946, and that during the whole of that time he was without, but the wife was within, the United Kingdom, and that the child must therefore have been conceived as the result of an act of adultery.
The petition was first heard by His Honour Commissioner Burgis, who dismissed it. The husband appealed to the Court of Appeal and that Court allowed the appeal on the ground that the Commissioner had largely decided the case upon evidence given by the wife which under the rule in Russell v. Russell was inadmissible, set aside the order of the learned Commissioner and directed the petition to be reheard before another Judge. I do not think it necessary to make any further reference to this first hearing.
The petition was reheard on the 24th March, 1949, by Mr. Commissioner Blanco White. Upon the evidence adduced before him the learned Commissioner expressed himself as satisfied beyond reasonable doubt that the husband was not in the United Kingdom between the 17th August, 1945, and the 9th February, 1946, and that the child born on the 13th August, 1946, and weighing 8¼ pounds was apparently normal in every way and could not have been begotten as the result of intercourse on or after the 9th February, 1946, the day on which the husband returned to the United Kingdom. The Commissioner admitted in evidence certain letters written by the wife—to use his own words—"for what they were worth, as evidence of conduct only but not as evidence of any declarations in them bearing directly on the point whether the child born on the 13th August, 1946, was legitimate or not". It is clear that the Commissioner was not influenced in favour of the husband by these letters but came to the conclusions of fact which I have stated in spite rather than because of them. I do not propose to make any further reference to them except to say that they appear irrelevant to the issue which has now to be determined and that with great respect to the learned Lords Justices who thought otherwise I can see nothing in their admission in the circumstances in which they were admitted which is fairly open to criticism. The question which then presented itself to the Commissioner was whether the fact that at least 360 days elapsed between the last possible intercourse between husband and wife and the birth of the child together with the medical evidence, which was given in the case and to which I must later refer in detail, put it beyond reasonable doubt that the child was not the child of the husband. This question he answered in the negative. It is, I think, clear that he did not consider that he would be justified in finding that adultery had been committed merely on the ground of the lapse of time without medical evidence and he found the medical evidence that was adduced unsatisfactory.
The husband appealed from the Order of the Commissioner to the Court of Appeal, which on the 22nd July, 1949, set it aside and ordered that the cause be reheard before a Judge of the High Court if possible. From the Order of the Court of Appeal the appeal and cross appeal have been brought which I have stated at the outset of this opinion. Lord Justice Bucknill, with whom Lord Justice Asquith agreed, expressed himself thus:
"The Commissioner in his judgment said it appeared to be a pure question of law whether 360 days is an impossible period without any satisfactory scientific evidence to that effect. I myself do not see the case in that light, but rather as a case where the Court must balance the probabilities one against the other. On the one hand there is the very great improbability, I will not put it any higher, of a woman, 360 days after coitus, giving birth to a normal full time child of 8 1/4 pounds without any difficult labour, and after a pregnancy which, according to the wife, was not unduly prolonged, but on the contrary was cut short. As against this high improbability one has the fact that the wife has put forward the case of a visit by the husband to her in November, a case which the Commissioner has not accepted. If the matter rested there I should be in favour of allowing this appeal".
The learned Lord Justice, however, found in the admission of the letters to which I have referred a sufficient reason for ordering a re-hearing instead of granting a decree. I have already indicated that in my opinion the admission of the letters and the course taken in regard to them did not in any way prejudice the wife and I do not think that the Lord Justice was justified in the course that he took. It would appear from the passage that I have cited from his judgment that apart from this consideration he would have thought fit to grant a decree, notwithstanding the criticism of the medical or scientific evidence which had led to the Commissioner refusing to do so. Lord Justice Denning dissented. He took the view that the child was obviously conceived in November, 1945, and once it was proved that the husband had not been in England since August the irresistible inference was that it was conceived in adultery. "In the absence" he said "of any evidence on the matter, I should have thought that, according to the ordinary knowledge of mankind a 360 day normal baby is impossible; and the Courts should not assert that it is possible unless there is direct medical evidence to that effect. None was produced in this case, nor in any other case so far as I know". It appears, then, that the learned Lord Justice did not rely on any medical evidence that was given in the case but thought proper to assume judicial knowledge of the material facts. This is what is intended by his reference to the "ordinary knowledge of mankind".
It is plain, my Lords, that these appeals raise a question of peculiar difficulty, which I may state in this way:
"If a husband proves that his wife has given birth to a normal child 360...
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