Pritchard v Pritchard and Sims

JurisdictionEngland & Wales
JudgeLORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK,Mr JUSTICE SCARMAN
Judgment Date15 July 1966
Judgment citation (vLex)[1966] EWCA Civ J0715-6
Docket Number1964. (D). No. 392
CourtCourt of Appeal
Date15 July 1966
Between:
Frederick John Pritchard
Petitioner
and
Margaret Florence Pritchard
Respondent
and
Edward Arthur Sims
Co

[1966] EWCA Civ J0715-6

Before:

Lord Justice Willmer

Lord Justice Diplock and

Mr Justice Scarman

1964. (D). No. 392

In The Supreme Court of Judicature

Court of Appeal

Appeal from Order of Mr Commissioner Sir Reginald Sharpe, Q.C., at Leicester dated 25th February, 1966.

Mr C. TREVOR REEVE, Q.C., and Mr GUY DIXON (instructed by Messrs Field, Roscoe & Co., Agents for Messrs Freer, Bouskell & Co., Leicester) appeared on behalf of the Appellant (Co-Respondent).

Mrs YETTA FRAZER (instructed by Messrs Arthur H. Headley & Co., Leicester) appeared on behalf of the Respondent (Petitioner).

LORD JUSTICE WILLMER
1

This is an appeal by the co-respondent against a judgment of Sir Reginald Sharpe, Q.C., sitting as a special commissioner in divorce at Leicester on the 25th February 1966, whereby he awarded the husband the sum of £7,500 by way of damages. It is not in dispute that the husband was rightly granted a decree nisi of divorce. Nor is it denied that the husband was entitled to recover some damages against the co-respondent. The appeal is directed solely to the quantum of damages awarded. It has been contended that so large an award can only be explained on the basis that it must contain a punitive element. Alternatively, it is said that, if the sum awarded was intended only as compensationfor the husband, it is so much too large in all the circumstances of the case as to amount to a wholly erroneous estimate with which this court is entitled, and indeed bound, to interfere.

2

The learned commissioner delivered a very full judgment, in the course of which he not only examined the facts of the case in considerable detail, but also set out the principles to be followed in approaching the problem of assessing damages against an adulterer. As to the former, the commissioner made it clear that he regarded the husband as a credible witness, but he said that he found both the wife and the co-respondent to be very unsatisfactory witnesses. No complaint has been made with regard to this conclusion, and the appeal has proceeded on the basis that the husband's version of the facts is substantially to be accepted. As to the commissioner's statement of the principles to be followed, it is not suggested that he misdirected himself in any way; the complaint is that, having directed himself correctly, he so far forgot his own directions as to allow his award of damages to contain a substantial punitive element.

3

At this date there is little room for doubt as to the principles to be applied in assessing damages against an adulterer. They were examined in some detail by Mr Justice McCardio in Butterworth v. Butterworth, (1920 Probate Division, page 126), and the judgment in that case has generally been accepted as a correct and authoritative statement of the principles to be followed. Those principles are conveniently summarised in the headnote, from which I think it useful to quote. "The damages, if any, have always been compensatory only, and not exemplary or punitive. The grounds on which damages are given are: (1) the actual value of the wife lost; (2) compensation to the husband for the injury to his feelings, the blow to his honour, and hurt to his family life. The value of the wife has two aspects; (a) depends on her fortune and her ability and assistance in the home or business; (b) depends upon her character and abilities as wife or mother. The conduct of the adulterer has little bearing on (u), but may be very relevantas to (b), as an aid to estimating the value of the wife, for instance, the case with which he effected his purpose may show that the wife was of small value. His conduct may also be relevant in estimating the injury to the husband's feelings. The husband's own character and conduct, on a claim for damages, are as fully in issue as that of his wife. The amount of compensation cannot depend on the wealth or poverty of the co-respondent, but the way in which he has used his wealth in gaining his end may be relevant in the same way as his conduct generally. Both the rank and fortune of the co-respondent are relevant for consideration in so far as either may give assistance in ascertaining the value of the wife, or measuring the extent of the injury inflicted on the husband". Later cases have shown that detailed evidence of the co-respondent's means will not ordinarily be admitted, for his means are relevant only in so far as he may have used them to assist in seducing the wife; see, for instance, Scott v. Scott and Anyan, (1957 Probate Division, page 1).

4

The facts of the case have been fully set out in the judgment of the learned commissioner, and I therefore content myself with a brief summary of them. The husband and wife were married on the 12th August 1943, the husband being then just over twenty-five and the wife just over twenty-two. This means that their respective ages now are roughly forty-eight and forty-five. There is one child of the marriage, a son born in 1944 and now grown up. At all times material to this case he was away from home and earning his own living at an agricultural college in Shropshire. He was called as a witness in the case, but otherwise it cannot be said that he is concerned to any material extent with the outcome of this dispute.

5

The husband was in salaried employment, earning a relatively modest income, which rose from about £8 or £9 a week in the early days of the marriage to about £1,500. a year at the material time. The wife had no moans of her own, nor did she ever go out to work for more than a few days, devoting her whole time to keeping housefor the husband, and bringing up the child of the marriage. The parties lived first in Leicester, then moved to Leamington, and finally in 1957 acquired a three-bedroomed house in Warwick, which was the matrimonial home for the remainder of their cohabitation. Cohabitation continued till the 10th March 1944, when the wife left the husband and went to stay with a lady friend. Two months later, on the 10th May, she went to live with the co-respondent and has lived with him over since, latterly in a house purchased by the co-respondent in the Cotswolds. It is admitted that since the 10th May 1944 the wife and the co-respondent have been living in adultery.

6

The co-respondent is a much older man, being now over seventy years of age. He is also in much more affluent circumstances than the husband, having boon the proprietor of an electrical and radio business which he sold shortly before the wife wont to live with him. It appears that he and his wife first came on the scene in 1962, when they became friendly with the wife and the husband in early 1963 the co-respondent became interested in the wife, but it was not until September of that year that he first declared his love for her. The learned commissioner said: "I have no doubt at all that from that moment he set out to secure the respondent for himself. According to the respondent's evidence, she could see that he was in love with her and wanted to take her away and have her for his own, as his wife and not as his housekeeper. The co-respondent agreed he became infatuated with the respondent". He started giving her presents, some of thorn rather expensive, and discussed with her his financial future. He was at this time actively engaged in trying to sell his bus and according to the wife was expecting to realise some £57,000. In the event he received a little over £45,000 for his interest in the business. According to his own evidence he and the wife agreed to wait until the business was sold before going away together. In the meantime the wife was given to understand that she was to have the benefit of a life policy for £8,000 on his life in the event of his pre-deceasing her. The sale of the business was completed on the 2nd March, and four days later, according to the finding of thecommissioner, the co-respondent drew out of his bank account £500 in cash "for the express purpose of spending it in going away with the respondent either for a weekend or a fortnight".

7

Matters did not stop there, for on the 9th March the corespondont obtained from the bank a banker's draft for £5,000 payable to bearer. This he handed to the wife on the morning of the 10th March. The date is significant, for later on that very day the wife left home and went to stay with her friend in Leicester. On the next day she wrote a letter to the husband in the following terms: "Dear Fred, My reason for coming over to Margory's for a few days is that Eddy Sims and I plan to go away together; contrary to whatever you may think I am in love with him and I have been giving this serious consideration for several months. Even so I felt I must get away to be really sure. Eddy has told Mu. and has also gone away for a few days to do the same. Both John and Mother are aware of the position and have accepted it. I am sure you will agree we both know a parting was inevitable between us sooner or later. I hope that you will try and understand, Margaret".

8

The wife and the co-respondent would have had the commissioner believe that when the wife went away on the 10th March, they had already abandoned any idea of living together, and that the £5,000 was paid to her to compensate her for her disappointment' in not being able to live with the co-respondent. It is not surprising perhaps that the learned commissioner did not accept that story. He drew what I should have thought was the obvious inference that the money was paid to the wife as a further inducement to her to leave her husband and throw in her lot with the co-respondent. In all the circumstances I can entertain no doubt but that this was a case in which the co-respondent did use his wealth for the purpose of assisting in the seduction of the wife.

9

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