Redfern v Redfern
| Jurisdiction | England & Wales |
| Date | 1891 |
| Year | 1891 |
| Court | Court of Appeal |
Divorce - Practice - Affidavit of Documents - Discovery tending to shew Adultery - Discovery by Infant.
In a petition by a husband for dissolution of marriage, the petitioner applied for an order that the respondent, who was minor, should make the usual affidavit as to documents. The only issue the suit was that of adultery:—
Held, by Butt, J., on the authority of Mayor v. Collins (24 Q. B. D. 361), that as the respondent was an infant, such an order could not be made against her:
Held, by the Court of Appeal, that, as Mayor v. Collins turned upon the rules of the Supreme Court, it was not applicable, since by Order LXVIII., rule 1 (d), those rules do not apply to proceedings for divorce.
Whether an order for discovery cannot be made against an infant in proceedings for divorce, quæere.
But, held, that in the present case an order ought not to be made, for that discovery ought not to be required from a party to divorce proceedings when it is sought for no other purpose than to prove such party guilty of adultery.
THIS was a petition by a husband for dissolution of marriage on the ground of the wife's adultery. The respondent was still a minor, having been born in 1870, and appeared in the suit by her guardian. The only issue raised on the petition was that of adultery.
On August 6, 1890, the petitioner took out a summons calling on the respondent to make an affidavit whether she had in her possession or power any, and, if any, what, documents relating to the matters in question in the suit. The summons was heard by the registrar, who held that such an order could not be made against an infant. The petitioner appealed; but Butt, J., on the authority of Mayor v. CollinsF1, upheld the decision of the registrar. The petitioner appealed.
Nov. 19. Inderwick, Q.C., and Searle, for the petitioner. There is no doubt that in Chancery an infant cannot be ordered to give discovery, but that this rule does not apply to proceedings for divorce. The Act of 1857 (20 & 21 Vict. c. 85) contains no provisions as to discovery, but appears to leave it to the Court under s. 53 to settle its course of practice in proceedings for divorce. In Winscom v. WinscomF2 an affidavit of documents was ordered, and this is a common practice. The question then is, whether it prevails in the case of an infant.
[LINDLEY, L.J. The registrar informs me that it was the practice to order discovery by infants until a recent decision in the Queen's Bench Division.]
That is Mayor v. CollinsF3, in which it was held that an infant could not be compelled to answer interrogatories; but that was decided on the ground of the Rules of the Supreme Court, 1883, Order XVI., rr. 16, 21; Order XIX., r. 13; Order XXXIV., r. 4, which assimilate the practice to that of the Court of Chancery, and the attention of the registrar and the judge was not called to the fact that the General Orders do not apply to divorce proceedings: Order LXVIII., r. 1 (d). In Dyke v. StephensF4 Pearson, J., refused to order the next friend of an infant to make an affidavit as to documents, treating the case as quite distinct from that of a corporation. In Southwark, &c., Water Co. v. QuickF5 an order was made for a person to make an affidavit of documents on the part of a corporation. It cannot be disputed that it is not the practice of the Chancery Division or the Queen's Bench Division to order an infant to make discovery; but the petitioner contends that the Divorce Court, not being bound by the practice of either of those Divisions, can make such an order.
Finlay, Q.C., and R. Isaacs, for the respondent. There is nothing to shew that the Divorce Court has more extensive powers than the Chancery Division or the Queen's Bench Division.
[The Court directed the appeal to stand over for a fortnight, that inquiries might be made as to the old practice, and the appeal then be further argued.]
Dec. 3. Inderwick, Q.C., and Searle, for the petitioner. There is nothing in the rules of the Divorce Court which bears on the present question. Before the Judicature Acts the Ecclesiastical Court had a power of ordering discovery of documents: Noverre v. NoverreF6; Boxley v. StubbingtonF7; Dun v. Coates.F8 The Act 32 & 33 Vict. c. 68, s. 3, made the parties to a divorce suit competent witnesses, but provided that no witness should be liable to be asked or bound to answer any question tending to shew that he or she had been guilty of adultery; and the
[LINDLEY, L.J. If you are right, who is to make the affidavit — the infant or the guardian?]
It may be presumed that it will be the infant.
[BOWEN, L.J., referred to Crowe v. Governor and Company of the Bank of Ireland.F9]
The cases are collected in Dyke v. Stephens.F10 Then ought the Chancery Rules to be imposed on the Divorce Court?
[Finlay, Q.C., referred to Harvey v. LovekinF11 as to the effect of the Judicature Acts.]
The Court will not import the Chancery practice into the Divorce Court except where it is reasonable: Mordaunt v. Moncreiffe.F12 The right of discovery in the Ecclesiastical Court is shewn by Anon.F13 The Chancery rule probably arose from this, that the Court having jurisdiction over infants protected its wards, and an infant upon becoming a party to a suit in Chancery became a ward of Court. Hyde v. HydeF14 shews that the jurisdiction of the Court of Chancery over infants is special, and confined to wards of Court. A strict interpretation of the words of 32 & 33 Vict. c. 68, s. 3, would lead to absurdity; it would exclude evidence on the only point on which the evidence of the party is wanted; but a strict construction has not been put upon it: Hebblethwaite v. Hebblethwaite.F15 An infant in a divorce suit is in quite a different position from that of an infant in Common Law or Chancery proceedings. The latter relate to matters as to which infants cannot bind themselves by contract; but infants can contract marriage, and the rights and remedies arising from that contract ought to be held enforceable against them.
Finlay, Q.C., and Isaacs, for the respondent. First with regard to the question of infancy, the petitioner's counsel take too narrow a view of the ground of the Chancery rule against compelling infants to give discovery. It did not depend on wardship, but on the principle that an infant could not make a binding admission. This is stated as the rule in Daniell, Chancery Practice, 6th ed. 178, and Order XIX., r. 13, appears to recognise it. The same rule prevailed at common law: Morgan v. ThorneF16, and it is not reasonable that the Divorce Court should form an exception. In Harvey v. LovekinF17 the effect of the Judicature Acts as to the power of the Divorce Court to order discovery is considered.
Again, it is a settled principle that a person need not answer any questions where his answering might expose him to penalty or forfeiture, and this is not confined to cases where the answer might expose him to criminal proceedings: Daniell, Chancery Practice, 6th ed. 432. The respondent then ought not to be called upon to give discovery which may prove her guilty of adultery.
[FRY, L.J. If you are right in that, an adult respondent could not be ordered to make an affidavit of documents, but by the course of the Divorce Court she can.]
Discovery may be wanted for other purposes than proving adultery. The Court may not think fit to overrule an old course of practice; but that is no reason why it should be extended. Shaw v. ShawF18 shews that there is no greater power of discovery in the Divorce Court than in Chancery and at Common Law. In Pollard v. PollardF19 it was held that the powers of discovery were given by the Common Law Procedure Act.
[BOWEN, L.J. I am not prepared to agree to that.]
[They referred to Dun v....
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