Re Seaford, decd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 24 November 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J1124-2 |
| Docket Number | 1966. F. No. 4 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 November 1967 |
[1967] EWCA Civ J1124-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division.
Appeal from Cairns J. 20th March, 1967.
Lord Justice Willmer
Lord Justice Davies and
Lord Justice Russell
In the Estate of John Seaford, deceased.
Mr. DONALD J. M. CAMPION (instructed by Messrs peacock & Goddard, Agents for Messrs Luff, Raymond & Williams, Wimborne Minster, Dorset) appeared on behalf of the Appellant (Plaintiff).
Mr. J. CLIFFORD MORTIMER, Q. C., and Miss DAWN A. FREEDMAN (instructed by Messrs Wilkinson Kimbers & Staddon) appeared on behalf of the Respondent (Defendant).
This is an appeal from a judgment given by Mr. Justice Cairns on the 20th March 1967, whereby he dismissed the plaintiff's claim for a grant of letters of administration of the estate of her former husband. The claim was resisted by the mother of the deceased, who contended that the plaintiff's marriage to the deceased had been dissolved before he died, and who herself claimed a grant as his next-of-kin and the only person entitled to his estate. It is common ground that the deceased died intestate.
The relevant facts, so far as they are known, can be shortly stated. The plaintiff was married to the deceased on the 23rd November 1959. On the 3rd March 1965 the plaintiff obtained a decree nisi of divorce on the ground of the deceased's cruelty. The deceased appealed, but his appeal was dismissed on the30th June 1965. About 11.30 a.m. on the 6th July 1965 the deceased was found dead in bed, having apparently died as a result of an overdose of sleeping tablets. He had last been seen alive about 9 p.m. on the 5th July. It was not possible to establish at what time the deceased died, but medical evidence, which the learned judge accepted, satisfied him that the time of death could not be later than 4 a.m. on the 6th July. Whether or not death occurred before midnight it was impossible to say.
In the meantime the plaintiff's solicitors had on the afternoon of the 5th July posted to the District Registry a notice of application for the decree to be made absolute. This was delivered at the District Registry at 8.30 a.m. on the 6th July. At 10 a.m. on that day the District Registrar filed the notice of application and endorsed the court minutes with a note that the decree had been made absolute at that time. In doing so he followed the practice laid down in a Registrar's Circular issued by the Principal Registry on the 4th April 1949.
Rule 40, sub-rule (1) of the Matrimonial Causes Rules 1957 provides that an application by a spouse to make absolute a decree nisi pronounced in his favour shall be made by lodging in the registry where the cause is proceeding a notice of application in the prescribed form, and that if the registrar is satisfied, after searching the court minutes, that the application is in order, the notice shall be filed. Sub-rule (2) provides that upon the filing of the notice, the decree nisi shall become absolute. It is accepted that in the present case the notice of application was "lodged" when it was delivered at the District Registry at 8.30 a.m. on the 6th July.
It is plain that on the learned judge's finding the deceased was already dead at the time when the District Registrar purported to make the decree absolute by filing the notice of application. The learned judge, however, held that the making of the decree absolute, being a judicial act, related back to the earliest moment of the day on which it was made, that is, immediately after midnight of the 5th/6th July. He ruled that theburden of proof was upon the plaintiff to prove that the deceased was already dead before this moment of time, and that she had failed to discharge that burden. This ruling has not been challenged on appeal. The cane must accordingly be considered on the basts that the deceased was not proved not to have been alive during some period on the 6th July.
We have had the benefit, as did the learned judge, of listening to an interesting and learned argument, in the course of which the origin and development of the doctrine of relation back has been traced for us, and we have had cited to us a number of decisions of considerable antiquity, most of which are referred to in the judgment of the learned judge. In its original form, the doctrine; which was established by the old courts of common law, was that a judicial act related back to the first day of the term; see Tidd's Practice (1828) volume 2, page 935. In 1834, however, by Regulation 3 of what are described as the "Hilary Rules", made by the judges in the exercise of their rule-making powers, it was provided that "All judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day: Provided that it shall be competent for the court, or a judge, to order a judgment to be entered nunc pro tune"; see Tidd's Now Practice (1837) page 548. Since then the rule has been that a judgment relates back only to the earliest moment of the day on which it is entered. The rule has been stated to be a rule of law; see Edwards v. The Queen, (1854) 9 Exchequer Reports 638; Wright v. Mills (1859) 4 Hurlstone & Norman 488. In the former case it was said by Mr. Justice Coleridge at page 631: "The doctrine that judicial acts are to be taken always to date from the earliest minute of the day in which they are done stands upon ancient and clear authority". Later at page 632 he said: "Although the court will inquire at what time a party does an act, as filing a bill, or delivering his declaration, and for that purpose will take notice of the usual hours for sitting, it is otherwise with regard to a judicial proceeding".
It is plain, however, that the rule of relation back was not always regarded with favour by the judges who had to apply it. In Wright v. Mills the judge of first instance refused to apply the rule, but followed an earlier decision in Chick v. Smith, 8 Dowling, 337, in which it had been held that the court would take notice of a fraction of a day whore a fieri facias had issued after the death of the defendant, but on the same day. On appeal, however, it was held that this was wrong, and that the court was bound by the authority of Edwards v. The Queen to apply the rule of relation back even though it was known that the defendant had in fact died before the time when the judgment was entered. Chief Baron Pollock at page 493, referring to Chick v. Smith, said; "We consider that case to be more in accordance with the rules of common sense than the rule I have stated relative to judgments being supposed to be signed at the earliest hour of the day when they are signed; but although it is exceedingly desirable that all decisions of the courts should, as far as possible, be in accordance with the decisions of common sense, it is impossible to overrule the established practice, which is indeed the law of the land and the right of the suitors".
In Clarke v. Bradlaugh (1881) 8 Queen's Bench Division 63, the existence of the rule of relation back was recognised by this court, but two members of the court expressed the view that the rule was not to be regarded as of universal application; see per Lord Coleridge (Chief Justice) at page 66, and Lord Justice Baggallay at page 67. Indeed, from the earliest times it appears that the rule was hedged about with exceptions, three of which have been relied upon in argument in the present case. Thus (1) It has been held that the rule is not to be applied where the precise time of signing a judgment, or of doing any other act of record, is made material by statute; Lord Porchester v. Petrie (1783) 3 Douglas 361, per Lord Mansfield at page 374. (2) The rule would not be applied Where it appeared on the face of the record that the judgment could not relate back to the first day of the term, again the same case, and sec also Swann v. Broome (1764) 3 Burrows 1595,per Lord Mansfield. (3) A third exception was said to arise where it could be shown that the application of the rule would result in an injustice; see Porchester v. Petrle, footnote at page 378 of the report; also Lyttlaton v. Cross (1824) 3 Barnewall & Cresswell 317; Whitaker v. Wlsbey, 21 Law Journal(Common Pleas) 116. In Lyttleton v. Cross, Mr. Justice Bayloy at page 325 said: "Wherever a fiction of law works injustice, and the facts which by fiction are supposed to exist are inconsistent with the real facts, the court may look at the real facts", and Mr. Justice Holroyd at page 330 said; "In all cases where for the purposes of justice it becomes necessary that the true time when any legal proceedings took place should be ascertained, the fiction of law is not to prevail against the fact".
It has been argued that all three of these exceptions apply in the circumstances of the present case. Thus (1) It is said that by the combined effect of rule 21 of the Non-contentious Probate Rules and section 46 of the Administration of Estates Act, 1925, the plaintiff is entitled to a grant of administration if she is a surviving spouse. It is, therefore, necessary in pursuance of statute to ascertain the precise time of the purported decree absolute in order to determine whether she was still a spouse at the moment when the deceased died.(2) It is said that to relate the purported decree absolute back to the first moment of the day would be to contradict what appears on the face of the record, that is, that the notice was In fact filed only at 10 a.m.(3) It is said that the rule of relation back would result in an injustice, because at the moment of the deceased's death the plaintiff acquired a vested right as his surviving spouse, and it would be wrong to divest her of this right by...
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