Thompson v Thompson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE MORRIS |
| Judgment Date | 11 December 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1211-1 |
| Court | Court of Appeal |
| Date | 11 December 1956 |
[1956] EWCA Civ J1211-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Hodson and
Lord Justice Morris
MR R, BOYD (instructed by Messrs Leonard Easier & Co.) appeared on behalf of the Appellant (Husband, Petitioner).
MR R. MORRIS (instructed by Messrs Alee Woolf & Turk) appeared on behalf of the Respondent (Wife, Respondent).
This is an interlocutory appeal which raises some important points of practice. The parties married on 6th October, 1945 The husband Was a Widower aged 49, and the wife a spinster aged 45, The husband had two children by his previous Marriages, a son Neville, aged 16 sand a girl Janet, barely 11, They lived together until 25th July, 1954, When the Wife left the matrimonial home, and they have never lived together since. On the 18th January, 1955, the wife made as application to the High Court for maintenance under section 23 of the Matrimonial Gauges Act 1950 she alleged that herhusband had willfully neglected to provide reasonable maintenance for her. as she had herself left the home, she had for-feited any right to maintenance unless she had good reason for leaving; so she alleged in her affidavit "that the respondent since the celebration of the said marriage has treated me with cruelty and has caused me by his conduct to leave the matrimonial home aforesaid"; and she went on to allege one specific assault on 25th July, 1954, and no more. The husband made an affidavit in reply in which he denied the wife's allegations and said "Since the celebration of the said marriage the applicant has treated me with cruelty and she has now deserted me: and he went on to give his version of the incident on 25th July, 1954, saving that she assaulted him. The wife made an affidavit in reply giving more details about the incident, but making no other allegations
On 4th July, 1955, the summons for maintenance came on for hearing before Mr. Commissioner Grasebrook, Q.C. The wife went into the witness box and proceeded to give a long and detailed history of the married life, bringing up many matters of complaint which had not been mentioned in her affidavit at all. The husband's Counsel took objection, whereupon the Commissioner ruled that the wife should give her evidence in chief "so that her case could be finally elaborated and given in detail". She did this, and the Commissioner then adjourned the hearing so as to give the husband an opportunity to meet the charges thus made against him The case came on for hearing again on 27th July, and was heard then for three more days, the 27th, 28th, and 29th July 1955 The wife was Cross-examined and re-examined She called her sister and her sister's husband in support of her case. The husband gave his evidence. He called his son and daughter and also a builder in support of his case. There was thus a full investigation into all the wife's charges against her husband in the result the Commissioner found for the husband. He described the wife as "somewhat of a dragon" andher evidence as "totally unreliable and indeed quits untruthful many respects". He described the hushed as a "quiet type of man" who gave his evidence very fairly, and his son and daughter as a;"very nice type" of lad and girl, who gave their evidence very well He accepted their evidence. He held that "the Applicant has not made out a case of cruelty and has not made out a case of justifying her in leaving her husband", accordingly he dismissed the application.
The commissioner did not make any finding whether the wife had been cruel to the husband. It was unnecessary for him to do so. It is to he noted, however, that in accepting the husband's evidence, he accepted the husband's version of the incident of 25th July, 1954, according to which the wife for no sufficient reason started to punch at the husband's face, the husband caught hold of her wrists to stop her, whereupon she spat in his face, and he said "That is the end; I will see my solicitor in the morning". It is to be further noted that the husband was asked: "Did you make any effort whatever to get her back? (A) No. (Q) Do you want her back now! (A) I have no objection at all. (Q) His objection at all? (A) None at all. (Q) You told us earlier you do not love her? (A) quite true".
The position was, therefore, that the wife on the 29th July, 1955 found herself separated from her husband with no claim on him for Maintenance. She soon tried to put herself right. From August to November, 1955, she made many efforts to return to him. Her solicitors wrote many times seeking a. reconciliation, she wrote herself and she went herself to the home but the husband refused to have her back. Eventually on 10th November, 1955, he filed a petition for divorce from her on the ground that she had treated his with cruelty. In April, 1956, she filed an Answer denying cruelty, and seeking a judicial Separation. We are concerned today with the Pleadings in these proceedings and particularly with the question whether the parties having already fought for four days before theCommissioner should be allowed to fight the battle all over again.
The Pleadings stand in this way The Petition fills 17 pages of foolscap. The Answer 17pages. In the Petition the husband has alleged in one sentence that the wife treated his with cruelty. He follows that by 19 paragraphs in which he gives many instances when he says his wife "nagged" his and the children, and made unreasonable complaints. There is one long paragraph about the incident of 25th July, 1954 then & paragraph alleging that she deserted him then a paragraph alleging that she gave false and malicious evidence in the maintenance proceedings. How for the wife's answer. In the first 23 Paragraphs she denies the husband's charges in detail, and good on to give her version of what took place on the occasions mentioned by him in the next paragraph, Ho. 24, she turns to the attack and charges him with cruelty. It covers 5 pages. In it she repeats all she has said in the earlier paragraphs and goes on to recite in great detail incidents that took place in the home, including the conduct of the children. In addition she sets out the full terms of all the correspondence in which she offered to return to her home.
The Pleadings do not stop there. The wife has applied for further Particulars of the Petition. Her application fills 5 pages. The husband voluntarily gave l½ pages of Particulars the wife then applied to the Registrar for an order for Further Particulars, and he made an order for Further Particulars of 14 paragraphs of the Petition. They have not yet been delivered, but experience suggests that they frill fill many pages. The husband has not yet applied for Particulars of the wife's Answer. He has taken a bolder course and applied to strike out a largo part of it. That is the application which is before us today. The Registrar and the Judge have refused to strike out any part of the wife's Answer the husband appeals to this Court.
The first ground of the application is estoppels by res-indicate the husband says that the Wife's allegations ofcurelty were all fought out int he maintenance proceedings; and that she is estopped from raising them gain now. Thee is no doubt, to my mind, that if the doctrine of Yes judicate applies in tis full force to thedivorce Division of the High Court, the wife is so estopped. The issue of cruelty has already been the subject of litigation by a court of competent jurisdiction, to wit, the Court which tried the wife's claim for maintenance, and the Court would not, according to the ordinary principles, permit her to open the same subject of litigation again: See ( Hoystead v. Commissioners of Taxation 1926, Appeal Cses, at page 170). The question in this case is, however, whether those ordinary principles to apply to the Divorce Division. The answer is, I think, that theydo apply, but subject to the important qualification that it is the statutory duty of the Divorce Court to inquire intothe truth of a petition - and of any countercharge - which is properly before it, and no doctronie of estopped by res judicates can abregate that duty of the Court. The situation ahs been nestly summarised by saying that in the Divorce Court "estoppels bind the parties but do not bind the court": but this is perhaps a little two abbreviated. The full proposition isthat, once an issue of a matrimoniale offence has been litiaged between the parties and decied byu a competent court, neither party can claim as of right to re-open the issue and litigate it all over agin if the other party objects (that is what is meant by saying that estoppels bind the parties): but the Divorce Court has the right, and indeed the duty in a proper case, to re-open the issue, or to alloweither party to re-open it, despite the objection fo the other party (that is what is meant by saying that estoppels do not bind the Court). Whether the Divorce Court should re-open the issue depends on the circumstances. If the court is satisfied that there has already been a full and proper inquiry in the previous litigation, itwill often hold that it is not necessary to hold another inquiry all over again: but if the Court is not so satisfied, it has a right and a duty to inquireinto it afresh. If the Court does decide to re-open the matter, then there is no longer any catoppel on either party, each can go into the matter afresh.
Such being the principles, lot me show how they have been applied the cases fall into three categories. The first category consists of those cases where a charge of a matrimonial offence has been established in previous proceedings, one party has been found guilty. In such a case, as between the parties, the strict rules of res indicate would seem to apply: but the Divorce Court, being bound by no estoppels, often allows a...
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