Stevens v Stevens
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE WINN |
| Judgment Date | 04 February 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0204-2 |
| Court | Court of Appeal |
| Date | 04 February 1965 |
[1965] EWCA Civ J0204-2
Lord Justice Davies
Lord Justice Russell and
Lord Justice Winn
In The Supreme Court of Judicature
Court of Appeal
(From His Honour Judge Connolly Gage Special Commissioner — Cambridge)
Mr. BRUCE CAMPBELL. Q. C. and Mr. GILBERT BODWAY (instructed by Messrs. A. J. Young & Co.) appeared on behalf of the Applicant/Appellant (Husband, Respondent).
Mrs. MARGARET PUXON (instructed by Messrs. Brignall, White & Orchard, Stevenage, Herts.) appeared on behalf of the Respondent (Rife, Petitioner).
(without calling upon Counsel for the Respondent)
This is an application by a respondent husband in a divorce suit, first of all to extend the time for appealing against a decree absolute which was made on the 10th August of last year and secondly to set aside the decree absolute and a decree nisi of the 5th May of last year on which it was founded, and for leave to file an Answer out of time. The grounds upon which the application is based are, first, that the husband did not have full and proper opportunity to defend the suit, and secondly, that he, through no fault of his own, was deprived of the opportunity to appeal against the decree nisi.
It is necessary to state some of the history of this matter in order that it may be understood. The parties were married on the 21st August, 1956, the husband then being 31 and the wife 26. There were two children of the union, a boy, now 6, and a girl, now 4. In May of 1962 the wife left the husband, to return after a very short period. In June of 1962, according to an affidavit of the husband, the wife confessed to him, that she had committed adultery with two men, whom he names, but he condoned that adultery. The wife denies that she ever did commit adultery or that she ever confessed adultery to her husband. From the summer of 1963, according to the husband's evidence, she was too friendly with a married man of their acquaintance, with whom she is now admittedly living, that cohabitation having started either round about the time of the decree absolute or shortly afterwards. The man is still married: so she cannot, as she might otherwise have done 1 suppose, at present marry him. Then, to complete the husband's charges against his wife, he speaks of an incident in October, 1963, when he found a pair of knickers of hers in a state which aroused his suspicions, and she did not offer any satisfactory denial of his challenge to her about it; Indeed, impliedly she made an admission. On the 16th December, 1963, the wife left, taking the children with her.
At the beginning of last year, 1964, the husband consultedhis first solicitors. And the partner who was dealing with the matter, Mr. Howard, has sworn an affidavit. The husband went to solicitors because the wife had taken out a summons under the Guardianship of Infants Act, returnable on the 16th January. The hearing of that summons was, it appears, adjourned. On the 30th January a meeting had been arranged between the parties and their solicitors with a view to a reconciliation. From first to last in this case, whatever else is obscure, it is plain that even up to the present moment, as I gather, what the husband wants above all is a reconciliation with his wife and a reunification of the family. However, the wife did not attend this meeting. And the husband, having been told, I gather, that she was not coming, did not attend either. The wife was taking the view that the possibilities of reconciliation were hopeless.
On the 7th February the wife filed her petition, alleging cruelty and sodomy, the cruelty consisting of acts of violence and bad language and, if one may say so without disrespect, a number of common-form allegations. There was also an allegation of sodomy over a considerable period. Let me state the husband's case about those matters forthwith. His case, upon affidavit, now is that he was not guilty of any of the acts of cruelty. With regard to the allegations of sodomy, he admits that acts of sodomy took place between the parties but says that it was with the consent and indeed at the instigation of the wife. That petition was served on the husband on the 11th February.
It is necessary now to refer to the husband's health. But before doing so I should state that on the 12th February solicitors on behalf of the husband filed a general appearance; and during the year 1964 there were a good many ancillary proceedings. We have not been given the precise dates when the various hearings took place, but there were injunction proceedings by the wife to prevent molestation by the husband; there were access proceedings by the husband with regard to thechildren; there were alimony and maintenance proceedings by the wife; and there were also proceedings by the wife under section 17 of the Married Women's Property Act.
It is perfectly plain that the husband's instructions to his solicitors at all times, up to an interview to which I shall turn in a moment, were to defend the proceedings and to try by all possible means to get a reconciliation with his wife. He told his solicitor that these allegations of cruelty were untrue; and he also told his solicitor of these allegations of adultery made by him against his wife.
Now there is no doubt that all this seriously disturbed the husband's mental health. And on the 12th February, the day after the service of the petition, he consulted a female psychiatrist in Welbeck Street, from whom we have an affidavit. She says: "When he consulted me he was suffering from acute depression and had suicidal tendencies. This disorder had its roots in feelings of deprivation in his early childhood with resultant feelings of rejection in his social and emotional relationships, but the breakdown in his mental and emotional condition undoubtedly resulted from the impact upon him of his wife leaving him in December, 1963, and the divorce proceedings instituted by her in early February, 1964". She says that he responded very well to treatment until the end of April, "when he slipped back considerably following the sudden news that his wife's divorce petition would be heard in a matter of days".
As I am reading the psychiatrist's affidavit, though this is going out of time a little, I will finish it and dispose of it. "He was then completely unfit mentally and was not in a condition to deal with any natter of importance, indeed he was incapable of dealing with any but the ordinary necessities of life. He certainly was not in a condition in which he could give proper instructions to a solicitor or discuss his mental difficulties rationally. He came to my surgery on 5th May" — that, as will appear, was the day on which the hearing of the undefended suit took place — "in a state of complete collapseand required special treatment to restore him". Then she says that he gradually improved and that a substantial improvement took place. That treatment, as I say, started on the 12th February, and he was apparently having sedatives, sleeping tablets, and some other drugs.
Now I turn to a most important interview which took place between the husband and Mr. Howard, his solicitor, on the 25th February. Both he and the solicitor, who so informed the husband, were under the impression that, as it was going to be a defended case, it would not be heard at any rate before about September. But on this date in February there was discussion about what the costs of the defended cruelty suit would be and as a result of it all Mr. Howard gave certain advice to the husband. The husband was not very satisfied, and withdrew his instructions.
Mr. Howard in his affidavit says this: "I saw the Respondent on the 25th February 1964 but I believe that this was not the last time. On this occasion, and here I depend on my memory, I had already pointed out to the respondent that, as far as filing an Answer was concerned, if what he wanted above all else was a reconciliation with his wife and children, a defended divorce cause in which his wife's charges of cruelty and his countercharges of adultery and condonation were heard would be the worst possible means of effecting such reconciliation and in my view would make the reconciliation he desired impossible". whether that advice was right or expedient does not perhaps matter for present purposes. Obviously two views could be taken about it. Negotiating from strength might be thought to be possibly a better position, if it could be attained, than negotiating from weakness. At any rate, that advice was given.
Then the question of costs was discussed. At the top of the next page in the affidavit, after discussing costs, Mr. Howard says: "It was at that stage that he informed me he did not wish to continue hie defence of the petition or to oppose the interim injunction which was being sought". Finally, on this part ofthe affidavit, "On 25th February Mr. Stevens did not wish us to do any further work on the case except for the consequential steps to be taken arising out of his instructions. I felt it our duty to tell him what was happening and as far as I can recall I wrote two letters to him at the address which we bad". It is to be noted as, I should have thought, corroborating to a large extent what Mr. Howard says in that affidavit, that on the very same day Mr. Howard wrote a letter to the solicitors acting for the wife telling them that the case would thereafter be undefended and that the husband was not going to oppose the wife's petition. It is also possible (though this matter is a little obscure) that Mr. Howard also wrote or in some way communicated with the District Registry informing them of that fact.
To complete Mr. Howard's affidavit, I read the last part of it, with regard to the husband's health. "Mr. Stevens was in my view an intelligent man who desperately desired a...
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