Thoday v Thoday

LORD JUSTICE WILLMER: This is an appeal from an Order made in Chambers by Mr Justice Hewson on the 25th October, 1963, whereby he varied an Order previously made by Mr Registrar Russell and struck out certain paragraphs of the Answer filed on behalf of a wife in a suit instited by her husband for divorce on the ground of desertion. The two paragraphs in question were paragraphs which raised, first, a plea of just cause for the separation, and secondly, an allegation of constructive desertion.

On the basis of the latter, the wife herself sought to crosspray for relief. The ground on which the learned Judge made the Order was that the allegations put forward in support of the plea of just cause and of the cross-charge of constructive desertion were substantially the same as allegations which had previously been put forward by the wife in support of an earlier unsuccessful petition instituted by her for divorce on the ground of cruelty. The learned Judge, however, in making the Order striking out what he regarded as the offending paragraphs, did grant leave to the wife to amend her Answer, so as to enable her to plead to the charge of desertion made, and to put forward such allegations as were not covered by the previous decision in the cruelty case.

The history of the matter is briefly as follows. The wife's original petition was presented on the 16th December, 1959. That petition alleged cruelty on the part of the husband persisting throughout the whole period of the matrimonial life from the date of the marriage in 1937 right up to the end of 1959, when it is common ground that the wife left the husband. It was a substantial petition, at any rate so far as its bulk was concerned; but it is, I think, fair to say that most of the allegations of cruelty arose out of the relations between the parties during the earlier part of the marriage and also between the parties and the wife's parents, with whom there was apparently a good deal of friction. None of these allegations is now in the least relevant to the present application

In addition, however, to the allegations relating to this earlier period, there were certain allegations relating to the last year during which the parties cohabited, namely, 1959. I can summarise those allegations quite briefly under two heads. First, there was a general allegation of abuse on the part of the husband; and secondly it was alleged on certain occasions, which were particularised by date, the husband was guilty of physical violence of one sort or another towards the wife. TheAnswer filed on behalf of the husband to that petition for cruelty consisted of a plain denial. The case was tried by Mr Justice Collingwood in January, 1961. The wife gave evidence, and certain supporting witnesses were called on her behalf. The husband, however, did not go into the witness box, as Counsel elected to take his stand on a submission that the wife by her own evidence and that called on her behalf had not made out any case of cruelty. The learned Judge reserved his judgment, which was not delivered until the 13th March, 1961. By his judgment, he accepted the submission put forward on behalf of the husband. He gave a long and very detailed judgment, having clearly found the case one of some difficulty. It is apparent from what the learned Judge said that one of the difficulties which he felt was that occasioned by the fact that he had not heard any evidence from the husband. I do not propose to analyse the learned Judge's judgment in any detail. Summarising it briefly, he found that the wife was not altogether a reliable witness; on the other hand, he said that he could not altogether dismiss her allegations of vulgar abuse of which she alleged the husband was guilty. He found, however, that there was no satisfactory evidence of injury or apprehended injury to the wife's health arising therefrom. With regard to the allegations of violence, the learned Judge did not in terms reject any of the wife's evidence in relation thereto. He did say, however, tha+ the violence alleged had to be viewed in the light of the mounting dissension and quarrels between the parties, which were clearly a feature of the matrimonial life during the last few months of the cohabitation. For those quarrels and that dissension between the parties he thought the wife was herself in part responsible; but he also thought that the husband's conduct, as disclosed by the evidence of the wife, was certainly reprehensible. He was not, however, prepared to find the charge of cruelty proved, and he reached that conclusion more particularly having regard to the absence of satisfactoryevidence as to injury to the wife's health.

That petition having been dismissed in 1961, the husband presented a new petition on the 28th December, 1962. The husband's petition is for divorce on the ground of desertion. I think I have already said that it is common ground that the wife did in fact leave the husband at the end of 1959. In those circumstances the husband might have launched a petition based on a simple act of desertion constituted by the departure of the wife. In fact, however, he went rather further and gave certain particulars, which I think it right to read. He said: "Until about 1961 the Petitioner was serving as an officer in the Royal Navy. During 1959 the Respondent was unable to adjust herself to the Petitioner residing permanently at home, and arguments over domestic matters became increasingly frequent until the Respondent left the matrimonial home on the 5th December, 1959, since when she has never returned, in spite of many efforts on the part of the Petitioner to effect a reconciliation". I read that as going to show that it is an essential part of the husband's case that there were these frequent arguments over domestic matters, and that it was this which led to the departure of the wife in December, 1959.

The Answer of the wife, which is the subject of the present application, is dated the 23rd March, 1963, and I mean no offence to learned Counsel who settled its terras when I say that it is an immensely long and comprehensive document. The £ substance of it, as I have already indicated, is that the wife puts forward a plea of just cause and also includes a crossprayer on the ground of constructive desertion. The allegations which she makes in support of those pleas relate only to the last year of cohabitation, namely, 1959. Very lengthy particulars are given, and they cover a good deal of the same ground as had been traversed in the petition for cruelty to which I have already referred. But the particulars of the Answer to the present petition do go a good deal beyond what had beenalleged in the previous petition for cruelty. Elaborate particulars are given with regard to the quarrels between the parties during the last year of cohabitation. In substance the wife's case appears to be that the husband was a man who gave way to frequent outbursts of quite uncontrollable temper. This, she says, led to intolerable abuse of her on his part, to unfounded charges against her, and to unkind behaviour of one sort or another. It is said that on a number of occasions in his tempers he told her to "clear out" or to "get out" - allegations, of course, which are not without their importance in a suit for desertion. But in addition, amongst all the other allegations put forward in the wife's particulars, she relies also on the same alleged incidents of violence which had been included in the previous petition for cruelty.

It is now said on behalf of the husband that those paragraphs in the Answer to which objection is taken amount in effect to an attempt to re-litigate matters which have already been the subject of judicial decision by Mr Justice Collingwood in the previous suit. On that ground it is claimed that the two offending paragraphs should be struck out in limine, so that the wife should be precluded from raising the same allegations again. Mr Crispin, who appeared for the husband, has not suggested that the wife should not be allowed to defend herself against the charge of desertion laid against her. In inviting us to dismiss the appeal, he has said that what he really asks for is that the offending paragraphs and the particulars there under should be struck out, but that, as ordered by the learned Judge, the wife should be free to amend her Answer by giving such particulars of just cause and such particulars of constructive desertion as can fairly be said not to be covered in any way by the previous decision.

It is, I think, an elementary proposition that the somewhat drastic remedy of striking out a pleading - which is, of course, governed in matrimonial suits, as in any other, bythe provisions of Order 25, rule 4 - is one which is only to be resorted to in plain and obvious cases. I would say at once that, for my part, I am not satisfied that this is such a case. But I venture to emphasise that we are dealing at the present stage only with the matter of pleadings. No decision which we arrive at on this appeal can be taken to preclude the husband from contending at the trial, if he is so advised, that the wife should be precluded from raising this or that particular allegation.

The subject with which we are dealing is one which has arisen in quite a considerable number of cases during recent years in connection with matrimonial causes. The common case is the case, such as arises here, where it is sought, in putting forward a...