Rogers v Rogers

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE DAVIES,SIR GORDON WILLMER
Judgment Date15 February 1974
Judgment citation (vLex)[1974] EWCA Civ J0215-2
Date15 February 1974

[1974] EWCA Civ J0215-2

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(From: His Honour Judge Ifor Lloyd — London)

(Revised)

Before:

Lord Justice Davies

and

Sir Gordon Willmer

Between:
Dorothy Margaret Rogers
Petitioner
- and -
John Leslie Rogers
Respondent

Mr. T.A.C. CONINGSBY (instructed by Messrs. Ellis & Fairbairn, Agents for Messrs. Claude Barker & Partners, Watford, Herts, appeared on behalf of the Appellant (Husband, Respondent).

Mr. HENRY PALMER (instructed by Messrs, Nicholls, Christie & Crocker, North Harrow, Middlesex) appeared on behalf of the Respondent (Wife, Petitioner).

1

(without calling upon Counsel for the Appellant to reply)

LORD JUSTICE DAVIES
2

this is an appeal by a respondent husband from an order made by His Honour Judge Ifor Lloyd on the 7th December last, when he refused an application made on behalf of the husband to file an answer out of time. The facts are very short. The parties were married in July, 1967, and had a child very shortly afterwards. In January, 1973, the wife left, after trouble between them. Her departure was swiftly followed by her petition, dated 26th January, 1973, alleging the breakdown of the marriage owing to intolerable conduct on the part of the husband. The husband went to solicitors, and on the 26th February they filed an acknowledgment of service, indicating the husband's intention to defend the suit and also to oppose her applications on all the ancillary matters referred to in the form. According to an affidavit which was not before the learned judge but of which the substance, we are told, was communicated to him by learned counsel for the husband, he was attempting during the next six months to achieve a reconciliation with his wife. Meanwhile an application was made by solicitors on his behalf for a Legal Aid certificate, and after some correspondence that was eventually turned down by the local Committee (in Cambridge, I think), and in turning it down they said that the observations made by this Court in the well-known case of Wachtel in effect prevented them from granting a Legal Aid certificate.

3

Nothing more was done. It is suggested by Mr. Palmer, on behalf of the wife, that the husband could have appealed to the Area Committee, or indeed he could have appeared in person, though I can see difficulties about the latter course. So the husband did nothing more in the proceedings and on the 31st August the case was set down; and, of course, according to the Rules even though he was out of strict time in filing an answer he could nevertheless have filed an answer up till that date. Nothing was done then, and the hearingwas fixed for the 7th December, the date on which the learned judge made this order.

4

The husband had had his suspicions for some time that his wife was associating with a man or men and eventually, according to the evidence now filed on his behalf, on the 15th and 20th November he obtained satisfactory evidence to show that his wife was indeed committing adultery. That being so, the application was made to Judge Lloyd.

5

Among the authorities cited to us was a case in this Court called Spill v. Spill (the report to which we were referred being 1972 9 All England, 9), which indicated that in support of an application of this kind there should he satisfactory explanation of the husband's change of mind (in that case he had not indicated an intention to defend in the first instance whereas of course this man had); the husband had not sworn an affidavit relating to the merits of his application (in the present case we have such an affidavit); nor was there a draft answer before the court (in the present case we have a draft answer exhibited). It seems to me that, quite apart from what Mr. Coningsby has told us, the husband here has got his tackle in proper order. The draft answer contains a denial of intolerable conduct; it contains an allegation of desertion; and, perhaps more importantly, it contains an allegation of adultery.

6

As I have said, when the matter was before the Legal Aid authorities there was no suggestion of any cross-prayer but merely an indication that the husband was defending the charge of intolerable conduct. Before the County Court, however, as I have just indicated, there was the draft answer, which contained, in addition to the husband's denial, this allegation of adultery. When the matter came before Judge Lloyd the case was argued by counsel on both sides, and the judge, like the Legal Aid authorities, took the view that, in the light of the decision in Wachtel, it must come to this, that conduct was irrelevant, that whoever was right and whoever was wrongabout the intolerable conduct...

To continue reading

Request your trial
20 cases
  • Georgina Andrea Janneh (Petitioner) Baba Janneh (Respondent)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 3 December 1974
    ...in his decision not to grant leave to file an answer and cross-petition out of tine. 9 We were referred to the decision of this Court in Rogers v. Rogers (1974 1 weekly Law Reports 709). In his judgment in that case Lord Justice Davies (at page 712/F) said this: "We have had other auth......
  • Fred Emmanuel John v Funmilayo Ebun Daibi Feyide John
    • Dominica
    • High Court
    • 19 July 2019
    ...caused by the delay making it necessary for the grant of leave. Reliance was placed on the decision in Huxford -v- Huxford 4 and Rogers -v- Rogers The objection 15 Mr John submits to this court that there is no good and compelling reason for Mrs John to be granted leave to file her answer o......
  • Ysp v Hff & Another
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 15 October 2003
    ...to the justice of the case" : Owen v. Owen [1964] P. 277. 4. Each case has to be dealt with on its own facts : Rogers v. Rogers [1974] 1 WLR 709. 5. Broadly speaking, the cases may be divided into two types. This division is not exhaustive : (1) Where the applicant was not served at al......
  • Jah v Vh
    • Hong Kong
    • Family Court (Hong Kong)
    • 23 June 2010
    ...“contrary to the justice of the case”: Owen v. Owen [1964] P.277. 4. Each case has to be dealt with on its own facts : Rogers v Rogers [1974]1 WLR 709. 5. Broadly speaking, the cases may be divided into two types. This division is not (1) Where the applicant was not served at all and the pr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT