Rossage v Rossage
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hodson,LORD JUSTICE ORMEROD,LORD JUSTICE WILLMER |
| Judgment Date | 21 January 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0121-1 |
| Court | Court of Appeal |
| Date | 21 January 1959 |
[1959] EWCA Civ J0121-1
Lord Justice Hodson,
Lord Justice Ormerod and
Lord Justice Willmer.
In The Supreme Court of Judicature
Court of Appeal
Mr. STEPHEN TERRELL (instructed by Messrs. Victor Mischcon & Co., London, S.W.9) appeared on behalf of the Appellant (Wife, Respondent).
Mr. G.H. CRISPIN (instructed by Messrs. Nordon & Co.) appeared on behalf of the Respondent (Husband, Petitioner).
This is an appeal from an Order of Mr. Justice Barnard dated 17th December, 1958. The learned Judge on that occasion had before him an application by a wife, the mother of the child concerned, to have removed from the file certain affidavits, the ground of the application being that those affidavits were scandalous and irrelevant to the issue before the Court, and the issue before the Court being whether the mother's access to this child (she not being the custodian of the child) should be suspended. The learned Judge did not accede to the application.
The position with regard to affidavits is covered by the Rules of the Supreme Court. Order 38 Rule 3 provides: "Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid-by the party filing the same. Provided that on interlocutory proceedings or with leave under" (certain Orders) "an affidavit may contain statements of information and belief, with the sources and grounds thereof".
There are five affidavits, which the Court has said, and as to the last two there is, I think, no ground for saying that the contents of those affidavits are irrelevant — that is to say, the affidavits of a man called Smith and a man called Willis. The gist of the application really relates to the three other affidavits - an affidavit by the father of the child and two affidavits by the managing clerk to the firm of solicitors instructed by him, the position being that those affidavits contain material which is relevant, but they contain a great deal of material which is irrelevant - pure hearsay evidence which the Court cannot take into account in the form in which it stands. The proportion of that material to the relevant material is so high that if this matter is to be disposed of with any regard to convenience it is clearly, I think, right that the matter should be dealt with by removing the whole of those affidavits from the file rather than by seeking, by expunging irrelevant matter, to put the affidavits in order.
I should say that in dealing with this rule it has been construed by the Court of Appeal in a way which draws a distinction between interlocutory proceedings generally and interlocutory proceedings where an issue has to be determined, such as arises...
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