Windeatt v Windeatt (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date21 February 1962
Neutral Citation[1962] EWCA Civ J0221-1
Judgment citation (vLex)[1962] EWCA Civ J0220-3
Date21 February 1962

[1962] EWCA Civ J0220-3

In The Supreme Court of Judicature

Court of Appeal


Lord Justice Orkerod,

Lord Justice Wiumer and

Lord Justice Dancxmerts.

Windeatt (Interlocutory Appeal)

Mr. John Kiddle (instructed by Messrs Stafford Clark & Co., Agents for Messrs Gill, Akaster, Leest & Russell, Devonport) appeared on behalf of the Appellant (proposed Intervener).

Mr. Henry Summerfield (instructed by Mr. Norman E. Howes, Plymouth) appeared on behalf of the Respondent (Wife Petitioner).


LORD JUSTICE ORMEROD: This is an interlocutory appeal from an Order of Mr. Commissioner Gallop given at Exeter on the 3rd October, 1961. It arose in this way: There was a petition before the learned Commissioner on that day by a wife, Mrs. Iris Emily Nay Windeatt, for a dissolution of her marriage with her husband on the ground of the husband's cruelty. It is sufficient to say here that a decree was ordered on the ground of cruelty, and we are told by Counsel that the cruelty which was substantiated was an association between the husband and the Appellant in this case, but about that at the moment we know nothing. There is an appeal against the decision of the learned Commissioner which so far we have not heard, but the allegation in the particulars of cruelty to which objection was taken is this; it is allegation (b): "From about Easter, 1950"– that, I should say, is more than ten years prior to the presentation of the petition - "the Respondent has persistently associated with a woman named Ivy Falconer, visited and met the said woman without the Petitioner, falsely denied his said visits and meetings when challenged by the Petitioner, stayed out late at night alone with the said woman", and then it goes on to say "rowed with and shouted at the Petitioner whenever she protested", and so on. It is to be noted that there is no allegation of adultery with Mrs. Falconer. There is no allegation that the association was an improper one in any way at all. The only allegation is of a persistent association; and it is to be noted that, although this association is alleged to have gone on for something over ten years, there was no evidence, as far as I know - certainly no allegation - that anything improper had taken place between these two people. Be that as it may, the woman named, Mrs. Falconer, was served with a copy of the petition, although she was not made a party at that time to the proceeding. She entered some form of appearance, which I have not seen, but at no time prior to the hearing did she make an application, in accordance with the Rules, to be made a party to the action.


It is perhaps as well that we should have before us the section of the Act which is material here. It is Section 31 of the Matrimonial Causes Act, 1950, and it reads as follows: "In every case in which any person is charged with adultery with any party to a suit or in which the court may consider, in the interest of any person not already a party to the suit, that that person should be made a party to the suit, the court may, if it thinks fit, allow that person to intervene upon such terms, if any, as the court thinks just". There is no charge of adultery here with any party to the suit by the husband, and therefore the only question which arises is whether it is in the interest of Mrs. Falconer, who is not already a party, to be made a party on such terms as the Court may think fit. It is, I think, abundantly clear from the wording of that section that discretion is vested in the Court to allow a party who may be interested to intervene or not. As I have said, no application was made before the trial for Mrs. Falconer to be made a party to the suit, but she attended by Counsel at the hearing on the 3rd October, 1961, at Exeter before the learned Commissioner and an application was then made to the learned Commissioner, prior to the substantive hearing of the petition, for her to be admitted as a party to the suit. The learned Commissioner, having considered the matter carefully and having considered the authorities which were cited to him, came to the conclusion the it was not a case where he should exercise his discretion and refused to admit Mrs. Falconer as a party to the suit; but it is to be noted that at the same time he gave leave to appeal, perhaps having in mind the possibility that this Court might come to a different conclusion.


A decision of this Court which, as far as I know, is the only one that is really material, is the case of D. -v- P., which is reported in 1952 2 All England Reports at page 854. That was a case where a woman asked to be allowed, to intervene, and it was held that she should be allowed to intervene; butthere the allegation which, was made was that the wife in the case was indulging continuously in unnatural practices with this woman, and she wished to have an opportunity to refute that allegation. In his Judgment, Lord Justice Singleton, having considered the history of the matter, said on page 855: "I agree with him to the extent that I think it is very seldom that such a position can arise in a cruelty case, and, in any event, I feel that the powers given by the section should be applied sparingly, but in the present circumstances there is an allegation on the file of cruelty of a most unusual kind".


It has been suggested, in the course of the argument that in any event the circumstances would only arise on very rare occasions, that it would only be on very rare occasions that an allegation of this kind would be made as an allegation of cruelty on the part of a spouse; but I think what is meant by Lord Justice Singleton, when he says that in cases of cruelty the powers given by the section should be applied sparingly, is that it is only on rare occasions when an allegation of this kind of cruelty is made that the powers should be exercised and leave should be granted.


It is therefore, I think, necessary to look at the particular allegations in this case and consider whether there is anything here which would warrant the learned Judge in exercising his discretion in favour of granting the application; but it must be borne in mind that the discretion is in the learned Judge if he desires to exercise it. It is clear that it is a discretion which must be exercised judicially and therefore this Court can interfere if the learned Judge has misdirected himself; that is to say, has taken into account some factor he should not have done, or failed to consider some relevant factor. But there is no such suggestion, so far as I am aware; and, if there is not, I for my part find it very difficult to know how this Court can interfere with a discretion which is clearly given to the Court to which the application ismade, and I hope that nothing I say in the course of this Judgment will have the effect of fettering in any way that discretion which is given to the Court under the section. But it is suggested by Counsel that it might be necessary in a case of this kind for this Court to have to exercise its discretion in place of the learned Judge. I have come to the conclusion that if necessary I should exercise my discretion in the same way as the learned Judge, because the allegation is, as I have already read, that from Easter of 1950 the Respondent had persistently associated with Mrs. Falconer. There is no suggestion of adultery. There is no suggestion of an improper association; and it seems to me that it is always a question for the Court to decide whether the allegation which is made is of such seriousness that the party against whom it is made should be admitted as a party to the suit in order to have an opportunity of refuting it or dealing with it in one way or another. I can only say, so far as this is concerned, that I see nothing in the allegation of the seriousness which would warrant Mrs. Falconer being made a party. It may be that she has objected to the allegation of this association. It may be that the association did not in fact exist; but, even if it did, there are so many forms of completely innocent association which can exist that I find it difficult to understand why it should be necessary in a case of this kind for her to be made a party. But, as I say, anything I have said there would apply only if it were necessary for this Court to exercise its discretion and is not intended to be a direction to any Court of first instance as to how the discretion should be exercised. It appears to me that the discretion is one which, of course, must be exercised judicially, but, apart from that, it is purely a matter for the discretion of the Court.


Mr. Kiddle has argued that if this Court is to exercise its discretion, this is a rare case and one which comes within the dictum of Lord Justice Singleton and is a case where thatjurisdiction should be exercised. He says, too, that the association itself must be serious enough to require some refutation by the woman in question because it had the effect of breaking up the marriage. I am bound to say I cannot sec the force of that argument. It was not the conduct of Mrs. Falconer that broke up the marriage. As I say, the only allegation against her in the pleading is that of an association a persistent one, true, but only an association – which could be perfectly innocent. That did not break up the marriage. What did break up the marriage, as I understand from the pleading –and that is all we have at the moment – was the wife's conduct in objecting to the association and the husband's conduct in persisting in it and treating his wife in a somewhat off-hand way with regard to it. That is the allegation which is made; and that seems to me to be the force of it, so far as it is of value as an allegation of cruelty.


It is also suggested in argument here that we should not consider too carefully the words of the pleading but should, I suppose, although we are not quite told how, consider...

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