Spill v Spill
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE ROSKILL |
| Judgment Date | 24 March 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0324-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 March 1972 |
[1972] EWCA Civ J0324-4
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge Sunderland – Birmingham)
Lord Justice Davies and
Lord Justice Roskill
Mr. FREDERICK PARSONS (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Messrs. Challinor & Roberts, Warley, Worcs.) appeared on behalf of the Appellant (Husband, Respondent).
Mr. KEITH EVANS (instructed by Messrs. Freeland & Passey, Birmingham) appeared on behalf of the Respondent (Wife, Petitioner)
This is an appeal by a respondent husband from an order made by His Honour Judge Sunderland at Birmingham on the 10th of last month whereby he refused the respondent's application for leave to file an Answer out of time. The learned judge was not asked for leave to appeal against his decision, but it is perfectly plain from a short transcript that we have of the discussion that took place between the learned judge and counsel that all parties at that time. The learned judge was not asked for leave to appeal against his decision, but it is perfectly plain from a short transcript that we have of the discussion that took place between the learned judge and counsel that all parties at that time contemplated that there would or might be an appeal; so the learned judge expressly adjourned the case for that purpose: to use his own words, "…adjourned generally, and it will come into the list again when the appeal has been considered". There being no opposition from learned counsel for the wife, Mr. Evans, in this court, we gave leave to appeal despite the fact that there had been no actual application to the learned judge. The appeal was also, I think, one day out of time, and we extended the time.
The facts are very short. The parties were married on the 29th June, 1963. They had one child, a boy, now aged about 7. There was trouble in 1968, when the wife took out a summons before a court of summary jurisdiction on the ground of desertion. But that was never proceeded with, and the parties resumed cohabitation in August, 1968. In August, 1971, the wife left: and on the 1st November she petitioned for dissolution of marriage, on the ground, of course, of irretrievable breakdown. The ground on which she alleged that the marriage had so broken down was what in the old days was the charge of cruelty, though it is interesting perhaps to note that the great majority of the incident alleged in that regard seem to have preceded the resumption of cohabitation in August, 1968, and, of course, would thereby have been condoned, subject to their being revived by subsequent acts of cruelty. The wife's petition was served, it would appear, on the 30th November. The acknowledgment of service was signed by the husband's solicitors on his behalf. A number ofquestions with regard to ancillary Batters he answered in the affirmative; but his answer to question No. 4, "Do you intend to defend the case?", was "No".
Apparently there were certain negotiations taking place between solicitors as to financial matters and particularly in connection with the matrimonial home. Eventually it was found that agreement could not be reached. Whether that was the reason for the husband's change of heart we do not know, though...
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