Wilkinson v Wilkinson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS |
| Judgment Date | 23 February 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0223-4 |
| Date | 23 February 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0223-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod,
Lord Justice Willmer and
Lord Justice Danckwerts
Mr Harry Lester (instructed by Messrs Darracotts) appeared on behalf of the Appellan (Respondent) and Messrs Darracotts.
Mr N. H. Oster, (instructed by Messrs Easier & Co.) appeared on behalf of the Respondent (Petitioner).
This appeal is to set aside two orders made by Mr Justice Karminski. The first, made on the 7th June, 1961, was that a decree of judicial separation obtained by the wife on the 12th December, 1958, should be set aside under Section 14 of the Matrimonial Causes Act, 1950, and the second, on the 27th June, 1961, was that the Appellants, Messrs Darracotts, the solicitors for the wife, should pay the sum of 150 guineas towards the husband's costs.
The parties were married on the 28th February, 1942, and have two children, twins, now eleven years of age. The petition for judicial separation was filed on the 18th July, 1957, on the ground of cruelty. The wife is a member of the Roman Catholic faith and has a religious objection to dissolution of marriage. The husband at that time was represented by a solicitor of the name of Stimpson and in the hope, as the learned Judge found, that the wife would change her mind, he caused an appearance to be entered stating that he did not intend to defend the petition and limited to the issues of costs, custody and maintenance. At the end of 1957 the husband decided to change his solicitors, and consulted a firm known as Harveys, a partner of which firm was Mr Cheeseman. This was early in 1958, and the husband then had decided to defend the petition and to cross-petition for dissolution on the ground of cruelty. The opinion of Counsel, Mr Croom-Johnson, was sought, but this was unfavourable. In the same year, an order for security for costs was made against the husband, when it was ordered that he should pay the sum of £25 into Court in September 1958, and the balance in April 1959.
It is to be remembered that the wife's solicitors, Messrs Darracotts, were not aware of the fact that it was the intention of the husband to defend the petition. No answer had then been filed. In accordance with the rule Mr Lissner, who was the member of the firm of darracotts in charge of thismatter, says that he dictated the necessary notice on the 20th August, 1956. The letter reads as Wilkinson v. Wilkinson. We write to give you notice that this suit has today been set down for trial. Yours faithfully, Darracotts.
Mr Cheeseman has stated in evidence that he did not receive that letter, or at least that he had no recollection of having received it, and the husband has said also that he had no recollection of having seen the letter.
It appears that in September a further opinion was obtained, this time from Mr Rawlinson. His views on the husband's likelihood of success in his cross-petition were less favourable than those of Mr Croom-Johns on, but in spite of that it appears that the husband was determined to go on.
Although the husband and wife were not cohabiting, they were at this time living in the same house and to a certain extent sharing the same menage. I express no view on that as. the matter may on some later date be one for adjudication, and I do not wish to say anything which might influence the Court.
On the 7th January, 1959, the husband wrote to Harveys to say that his wife had told him that she had an order of the Court, and it then appeared that on the 12th December, 1958, an order for judicial separation had been made in favour of the wife by His Honour Judge Herbert sitting as Special Commissioner The husband, of course, was not present at the hearing of that petition and says that he had no idea that the petition was due for hearing. The order was for a judicial separation on the ground of cruelty as pleaded in the petition, and an order in addition was made giving the wife custody of the twin children and costs. The husband complained (1) that the order was made without his knowledge as neither he nor his solicitors received any notice that the case had been setdown; and (2) that the conduct of his solicitors was blameworthy in that they had failed to put forward his defence or to cross-petition.
In January 1959 the husband again changed his solicitors, and consulted Messrs Kasler & Co, and they wrote to Messrs Darracotts a letter of the 30th January, 1959. A correspondence then ensued to which a reference must be madelater, but the result was that on the 3rd March, 1959, a petition was filed by the husband under Section 14 of the Matrimonial Causes Act, 1950, for reversal of the decree made on the 12th December, 1958. An answer was filed by the wife on the 7th May, 1959, putting in issue the matters alleged in the petition, and the case came on for hearing in the first place in June 1960 before Mr Justice Karminski. It was adjourned by him for a report by a handwriting expert on a postage book which had been produced. It is sufficient to say here that there was a material alteration in the relevant entry in the postage book relating to the postage of the notice of setting down which might well be extremely important, and after the adjournment the postage book was submitted by consent of both parties to Mr Gurrin, the well-known handwriting expert. He reported on the matter, and it is to be noted that his report was accepted by both parties, and he was in consequence not called to give evidence. The important matter in his report, which was of a very careful investigation of the document, was that the alteration in the postage book referring to the postage of a letter to Messrs Harveys on the relevant date had been the subject of a careful and deliberate alteration.
The husband's petition came on again for hearing in June 1961, and it was then first contended on behalf of the wife that there was no jurisdiction in the Court to consider the petition because it could not be said, in view of the circumstances, that the husband was absent from the Court. In support of this contention, the case of Phillips v. Phillips, Law Reports 1 Probate and Divorce, page 169, was cited, this being the only authority dealing with this particular section, or,The second contention of the wife was that, in the circumstances, the discretion of the learned Judge should not be exercised in favour of the husband. In the result, the learned Judge came to the conclusion that he had jurisdiction. He exercised his discretion in favour of the husband and reversed the decree which had been made in favour of the wife.
At this stage, it might be well to refer to the section under which the husband's petition was brought. Section 14, subsection (5), of the Matrimonial Causes Act, 1950, is as follows: "The Court may, on the application by petition of the husband or wife against whom a decree for judicial separation has been made, and on being satisfied that the allegations contained in the petition are true, reverse the decree at any time after the making thereof, on the ground that it was obtained in the absence of the person making the application or, if desertion was the ground of the decree, that there was reasonable cause for the alleged desertion".
It will be seen from this that as the petition was not founded on desertion the question to be considered was whether the decree for judicial separation had been obtained in the absence of the person making the application, that is the husband. The contention of the wife was that the husband could not be absent as he had entered appearance, and the effect of entering as appearance was that he could not be absent on any subsequent occasion even although the appearance was, as in this case, an appearance limited to questions such as custody, costs and the like. There is very little authority on this point. The only case which the industry of Counsel has been able to bring to light is that of Phillips v. Phillips already referred to. This was a case in which an order was made on a wife's petition for a decree of judicial separation. It was made in the absence of the husband, but as he had not entered any form of appearance to the suit, he was not entitled to receive any notice of the hearing of the petition. It was held there,according to the headnote, that the word "absence" meant nonappearance in the suit, and not absence without knowledge or notice of the suit. This case was decided as long ago as 1866, and the learned Judges who dealt with the matter have not, to my mind, made their meaning completely clear. But I agree with Mr Justice Karminski that Phillips v. Phillips is not an authority for the proposition put forward by Mr Lester. It is dealing with a case where no appearance was entered.
It would be a strange result of Section 14,sub-section (3), if the person who had entered no appearance at ail should be placed in a better position than the person who had entered an appearance, albeit a limited one. I do not accept Mr Lester's construction. In my judgment "absence" means physical absence. The husband was absent when the wife's petition was heard because, as he said, he knew nothing about it, and was in consequence unable to be present. In my judgment, therefore, Mr Lester's submission on this point fails. There was jurisdiction in the learned Judge to hear the petition and it was for him to decide in his discretion whether it should be granted.
The next question therefore is to decide whether the discretion has been properly exercised or whether the learned Judge has misdirected himself. Unless it can be shown that he has considered something he should not consider, or failed to Consider some relevant circumstance, I should...
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