COSTS IN DIVORCE CASE.

Otago Daily Times, Issue 21054, 17 June 1930, Page 15

COSTS IN DIVORCE CASE.

' SOLICITORS’ APPEAL FAILS. HUSBAND NOT LIART/Bi' (From Orrn Own Correspondent.) LONDON, May 8. The question of a husband’s liability to pay solicitors’ costs incurred by a wife he had divorced was raised in an aipepl on which considered judgments were delivered in the Court of Appeal or May 5. The court consisted of Lord Justice Scrutton, Lord Justice Greer, and Lord Justice Slesser. Mr Arthur James Annandale, of Nevem square, Earlas Court, S.W n married his wife, Mrs Eileen Dora Annandale, in New Zealand, in 1926. Some time later they lived apart, and in April, 1829, Mrs Annandale instructed Messrs H. S. Wright and Webb, solicitors,' Bloomsbury street, to present a petition for judicial separation on the ground of alleged cruelty. The husband’s solicitors intimated that it would be resisted on the ground that Mrs Annandale was living a dissolute life. On May 17 the husband filed a crosspetition for divorce, alleging the misconduct of his wife with several co-respond-ents. The wife withdrew her petition for judicial separation, and Mr Annandale paid the solicitors’ costs, £37. The cross-petition was not defended, and Mr Annandale was granted a decree nisi. He was then sued at common law by Messrs Wright and Webb for £l3O 5s Id, which they alleged to be due as balance of professional costs necessarily incurred by hi. wife and expended on her behalf. " Ho refused to pfiy on the ground that the services were not necessarily incurred by his wife, who was living apart from him, and had, he alleged, committed adultery. The jury returned a verdict for the defendant, and Mr Justice Humphreys entered judgment accordingly, with costs. Messrs Wright and Webb appealed from the verdict-and judgment, and judgment was now given dismissing the appeal, with costs. NO MISDIRECTION. Lord Justice Scrutton, in his judgment, disposed of the submission of misdirection by the judge, which was made in the appeal, by remarking that on the whole the summing up appeared to him to be favourable the appellants. Possibly the judge went too far In saying to the jury: " Perhaps you will think that the wife was , a worthless woman who was ready to commit adultery with anybody,” but that alone did nothin Ms opinion, amount to misdirection. As to the ground of appeal that the verdict was not supported by the evidence, that too failed, the jury being in a better position to estimate the evidence and the reliability of the witnesses than that court. His Lordship held as contrary to the principle of the common law counsel’s’ contention in th appeal that the common law rale was that a solicitor was barred from costs from the husband only in a case where the wife had been guilty of continuous adultery, and not when there was only one act of adultery, If the wife had not been chaste she ceased to be an agent of necessity for her husbafad. There was no authority for saying that if she was only unchaste once or twice she could bind her husband. Further, it had been contended. that the law as suggested did .not apply where a solicitor was acting for a wife who was defending herself, and was not the attacking party. His lordship eonW find no authority supporting that view of the common law. - In the Divorce Court it often happened that before a case had been decided a husband was ordered to give security, and sometimes actually to pay over to the solicitors acting for the wife. But that did not affect the common law principles, and if a solicitor did not take the opportunity he had of securing his costs he wns not entitled to come into a common law court and ask on common law principles to be entitled to recover the costs he had incurred and failed to apply for. On these grounds the appeal must b r - dismissed. THE TERM “NECESSARIES.” Lord Justice Greer, agreeing, said that it was an undoubted principle of law that a wife, living apart from a husband who was unwilling to maintain her, had a right to pledge his credit for necessaries, and one of the matters that had always been included in the term “ necessaries ” wns the power to instruct a solicitor to defend her from proceedings t: ken by her husband against her, or to appear for her in proceedings she took against him. There was, however, one well-established exception to that rule, which was that if she had committed adultery she was not entitled to pledge his oredit, nor wns she entitled to apply for alimony.