Whiston v Whiston
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE HENRY,LORD JUSTICE RUSSELL |
| Judgment Date | 23 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0323-2 |
| Docket Number | FAFMI 94/0508/F |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 1995 |
[1995] EWCA Civ J0323-2
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
Before: Lord Justice Russell Lord Justice Henry and Lord Justice Ward
FAFMI 94/0508/F
MISS D. SEDDON (Instructed by Messrs Clive Shepherd, 25 Station Street, Walsall WS2 9JZ) appeared on behalf of the Respondent.
MR T. SCOTT (Instructed by Hughmans, 59 Britton Street, London EC1M 5NA) appeared on behalf of the Appellant.
Thursday 23rd March 1995
The respondent to this appeal, Mrs Whiston, is a bigamist. That is not a fact she has always been ready to admit. In wardship proceedings, and in a defended suit when her bigamy was in issue, she denied it; indeed she swore affidavits which were untruthful. Eventually she admitted her bigamy and a decree of nullity was granted to the appellant, Mr Whiston, on that ground.
The respondent then claimed to be entitled to orders for ancillary relief. The deputy district judge awarded her a lump sum of £25,000. Thorpe J. reduced that to £20,000 on appeal. He has now granted leave to appeal his order and the issue arising on the appeal is put to us in these terms by the appellant: can a person who knowingly being married has gone through a ceremony of marriage to another, subsequently claim ancillary relief by virtue of a decree of nullity which had been granted to that other person on the grounds of the claimant's bigamy?
To sketch in a bit more about the background and recite salient facts, the respondent had married in 1962 whilst she was living in her home country, the Philippines. She entered into a ceremony of marriage with the appellant in 1973 in this country. She was well aware that her husband was alive and well in the Philippines. Her knowledge that he was alive and that her first marriage had not been dissolved makes her guilty of the offence of bigamy. The appellant was in ignorance of that existing marriage. From conversations the appellant had when they visited the Philippines some time in about 1981, he first gleaned an inkling of suspicion of this earlier marriage; but when he challenged the respondent, she allayed his fears and denied the truth of the rumour. She lied to him.
The marriage foundered in 1988 and the parties separated. There followed proceedings in wardship when the care and control of their two children was committed to the appellant. Eventually there were defended divorce proceedings, and on making further enquiry and discovering for the first time proof of the first marriage in the Philippines in 1962, the appellant sought to annul the marriage. He was successful and in January 1990 a decree of nullity was granted by His Honour Judge Fletcher on the ground of bigamy under section 11(b) of the Matrimonial Causes Act 1973. There followed the respondent's claims for ancillary relief with the orders that I have recited.
The stark point in the appeal is, therefore, whether or not that doctrine of public policy which ordains that one should not benefit from one's own crime is available to the appellant and whether or not the respondent should be debarred from pursuing her claim because ex turpi causa non oritur actio.
This doctrine has, of course, an ancient history. Among the many cases to which we have been referred is a judgment in 1775 of Lord Mansfield, the Chief Justice, in Holman v. Johnson 1 Cowp. 341 where his Lordship stated:
"The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act."
To the same effect was the judgment of Fry L.J. in Cleaver & Ors. v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147 at 156, where His Lordship said:
"It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person."
In perhaps more colourful language, and in a perhaps more macabre case, In the Estate of Cunigunda (otherwise Cora) Crippen, Deceased (1911) P. 108, Sir Samuel Evans, President, stated the basis of the rule in these dramatic terms:
"The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence."
In the House of Lords, Lord Atkin endorsed the above dictum of Fry L.J. in Beresford v. Royal Insurance Company Limited [1938] A.C. 586 at 598, and expressed the reason for the rule in these terms:
"I think that the principle is that a man is not to be allowed to have recourse to a Court of Justice to claim a benefit from his crime whether under a contract or a gift. No doubt the rule pays regard to the fact that to hold otherwise would in some cases offer an inducement to crime or remove a restraint to crime, and that its effect is to act as a deterrent to crime. But apart from these considerations the absolute rule is that the Courts will not recognize a benefit accruing to a criminal from his crime."
There seems to have been little direct and relevant early authority on how this rule fell to be applied where the right being asserted is one which is derived from statute. It seems first to have arisen in the case of In re Sigsworth [1935] Ch. 89, which was a judgment at first instance of Clauson J. He held in that case that the principle of public policy which precluded a murderer from claiming a benefit conferred on him by his victim's will precluded him from claiming a benefit conferred on him by statute in the case of his victim's intestacy.
The matter was further considered in some detail by the Court in two cases in 1980. In R. v. Chief National Insurance Commissioner, ex parte Connor [1981] Q.B. 758 the facts, very shortly cited, were that the applicant had stabbed her husband with a knife, and although charged with murder, was in fact convicted of manslaughter. She qualified for a widow's allowance under the terms of section 24(1) of the Social Security Act 1975, but her claim was disallowed by the insurance commissioner. The judgment was given by Lord Lane, L.C.J. He dealt with the matter in this way:
"One turns to the two problems which counsel has placed before us. The first submission made is that because this particular Act with which we are concerned, namely, the Social Security Act 1975, is, as he puts it, a self-contained modern Act, the rules of public policy do not apply and that whatever may have happened, I think he is driven to submitting that nothing that this woman did can alter her plain entitlement under the words of section 24 which I have read.
I do not accept that submission. The fact that there is no specific mention in the Act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time.
The second proposition is that it is not every type of crime which operates so as to cause public policy to make the courts reject the claim. I, for my part, would agree with that. Indeed there are dicta, particularly in Grey v. Barr [1971] 2 Q.B. 554, which support that proposition, and in particular the judgment of Salmon L.J. at page 581."
The Lord Chief Justice cites the passage and concludes thus:
"I would agree that in each case it is not the label which the law applies to the crime which has been committed but the nature of the crime itself which in the end will dictate whether public policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide, but what this court has to determine is whether in the present case what this applicant did was sufficient to disentitle her to her remedy. The judgment of Lord Denning M.R. in the same case does provide some assistance in determining where to draw the line."
He then cites from that judgment, which includes the test whether the conduct is wilful and culpable, whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence. On the facts of the case, the Lord Chief Justice was in no doubt that this lady was disentitled from benefit.
There followed in the same year the decision of R. v. Secretary of State for the Home Department, ex parte Puttick [1981] Q.B. 767. There, a celebrated, or infamous, lady had sought to obtain the benefit of citizenship in this country by entering into a marriage with a British citizen. She was guilty both of perjury and of forgery in her necessary endeavour to satisfy the Registrar General that she was who she pretended to be and that she had been divorced.
In that case, Donaldson L.J. cited from Lord Lane's judgment, as I have done, and he concluded at page 775:
"I think that when the British...
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