Scott v Scott and Anyan

JurisdictionEngland & Wales
JudgeLORD JUSTICE DENNING,LORD JUSTICE HODSON
Judgment Date23 November 1956
Judgment citation (vLex)[1956] EWCA Civ J1123-3
CourtCourt of Appeal
Date23 November 1956

[1956] EWCA Civ J1123-3

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Denning

Lord Justice Hodson and

Lord Justice Morris

Harry Scott
and
Audrey Mabel Scott
and
Clifford Charles Anyan

MR J.E.S. SIMON, Q.C. and MR H.D.LYMBERY (instructed by Messrs Field, Roscoe & Co., Agents for Messrs Burton & Dyson, Gainsborough) appeared on behalf of the Appellant (Co-Respondent).

MR R.C.VAUGHAN, Q.C. and MR E.M. LING MALLISON (instructed by Messrs Henry Cover & Son, Agents for Mr Anthony T. Clark, Lincoln) appeared on behalf of the Respondent (Husband, Petitioner).

LORD JUSTICE DENNING
1

This is an appeal as to the amount of damages which a Co-Respondent should pay. The husband and wife were married in 1945. Mr Scott, the husband, was then 40 years old, a divorced man: the wife was 23 years old. They had one child, who was born in June, 1950. The Co-Respondent came on the scene in 1953, and he committed adultery with the wife in 1954. The husband has obtained a Decree of divorce from his wife on that ground. The Judge has awarded against the Co-Respondentthe sum of £2,500 as damages.

2

Of course, it is well settled in law that damages against a Co-Respondent are not to punish him for his wrongdoing but are compensation to the husband for the loss of his wife and, in the case of a wife who was a good business woman, for the loss of her business capacity used in his interests. In this case the wife was apparently a very good business woman and very efficient – indeed, much more of a scholar (as the husband put it) than he was. His main activity was that of a farmer, farming about 150 acres in Lincolnshire; but after he married his wife he tried various businesses in conjunction with her – a coal business, a horse-box business, and eventually he took a public house, the Red Lion, at Sturton-by-Stow. Undoubtedly the wife wan a big help to him in that business: she worked in the bar and she kept the accounts. Indeed, it was in the course of that business, working there, that she met the Co-Respondent, Mr Anyan. Mr Anyan is himself a farmer: he farms with his brothers and his father: they have three or four substantial farms of 300 or 400 acres each in Lincolnshire. He himself was a married man with two Children. He and Mrs Scott were eventually found in a compromising situation in a hotel at Cleethorpes; and afterwards they were found in a room in one of the farms. Adultery was clearly established.

3

It is quite clear on the evidence that the husband and wife quarrelled in certain respects even before they took the public house, although the quarrels might have been less afterwards. Also it was said that the wife was in half a mood to leave her husband on one or two occasions before then, and that she had packed her bag. Whether that be so or not, it is a matter which clearly the Judge took into consideration. He took into account the fact that this was not a case where the Co-Respondent was flaunting his wealth and seducing a woman in that way. It seems to as that in all respects save one the Judge directed himself properly. He directed himself to the question what the leas of this wife was to the husband; but there is onerespect in which it seems to me he has been shown to be in error. It is based on the financial loss to the husband, because when his wife left him and went off with the Co-Respondent the husband found that he could not keep on both the farm and the public house, and he had to give up the public house, which he had been keeping largely with his wife's help. That public house had a revenue of £7,544 over the period of some 20 months during which it had been operating. There was a figure of £7,544 given in the correspondence in a letter of the 8th March, 1956, which gives that figure as the purchases of beer and spirits, and so on, for the public house during the period from the 24th September, 1953, to the 19th May, 1955. It was said in the course of the evidence that the profit on articles of that kind is 20 per cent, and basing himself on that figure the Judge took the loss to the husband – the income which he gave up – as £1,500 a year. That was plainly an error, being not so much the Judge's fault as a mistake by those concerned in the case, because by an oversight, when Counsel mentioned the matter to the Judge he said that "during the year" the takings were £7,544. Counsel said; "It has been agreed by the other side, my Lord, about the figures for purchases made during the year, the stock taken of £7,534, with wines and spirits, were purchased from the brewers during that period". That statement was clearly taken by the Judge to refer to one year, because that is how he gets the figure of £1,500 in his Judgment. It has been pointed out to us that it was not one year but 20 months, and, therefore, the figure of loss of profit for one year, if properly assessed, would have been much more in the region of £900. It is also said that that was a gross figure. It seems to me that, although it was a gross figure, nevertheless the Judge, in coming to his judgment, although he was wrong about the £1,500, did take into account that there would have to be deducted from the figure the cost of maintaining the wife and clothing her and feeding her.

4

It seems to me that the major error of the Judge in thiscase is taking the income as £1,500 a year, whereas the loss would be only some £960 a year. That is an error which is apparent on the face of his Judgment, and a misdirection by him, not his fault so much as really the fault of both aides: one Counsel put forward "during the year", by mistake, and the other did not correct it. That seems to me to be the only error which the Judge has made.

5

It was said...

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