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2 K.B.

[COURT OF APPEAL]

BLUNT v. PARK LANE HOTEL, LIMITED, AND ANOTHER.

1942 June 8, 9, 18.

LORD CLAUSON., GODDARD L.J.

Practice - Discovery - Interrogatories - Slander - Interrogatories directed to establishing adultery - Admissibility.

Interrogatories directed to establishing, in justification of words complained of as a slander, that a married woman has been guilty of unchaste conduct are admissible.

It is only in proceedings for divorce on the ground of adultery that the spouse will be protected from answering interrogatories if the answers might tend to prove the adultery, and the decision in Redfern v. Redfern [1891] P. 139 is restricted to such cases. Although Bowen L.J. said in that case (at pp. 147, 149) that discovery would not be permitted in any division of the courts in regard to a matter involving ecclesiastical punishment and censure, that can no longer be treated as correct, as the jurisdiction of the ecclesiastical courts (except possibly as regards clerical persons and a few special matters) must now be treated as obsolete.

APPEAL from Hallett J.

On September 24, 1941, the plaintiff, a married woman, brought proceedings against Park Lane Hotel, Ld., and one Briscoe for damages for slander. By her statement of claim she alleged that on April 19, 1941, at the Park Lane Hotel the defendant, Briscoe, acting as manager of the hotel, falsely and maliciously spoke and published to two persons concerning her these words: "If you knew this woman as we do you would not have anything to do with her." The plaintiff alleged that by these words the defendant meant and was understood to mean that she was a loose woman and was unchaste and adulterous and not fit for decent society. By his defence, the defendant, Briscoe, alleged (inter alia) that the words complained of were true in substance and in fact, and, in support of that plea, alleged by way of particulars a number of occurrences which, if proved, would show that the plaintiff had been guilty of unchastity with numerous men. On April 9, 1942, the defendant, Briscoe, applied for leave to administer to the plaintiff interrogatories which substantially went to the matters in the particulars, all the interrogatories except one being directed to establishing that on a number of occasions the plaintiff had been guilty of unchaste conduct with different men at the Park Lane Hotel and elsewhere. Master Horridge gave the defendant leave to administer the material interrogatories. Hallett J. dismissed

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an appeal from the master's decision, but gave the plaintiff leave to appeal. The plaintiff appealed.

Beyfus K.C. and Dare (with them Beney) for the plaintiff. It is sought to interrogate the plaintiff to obtain admissions of adultery with sundry persons and that is contrary to the unbroken rule that no form of discovery will be allowed to establish adultery: Redfern v. Redfern (1). That was a petition for dissolution of marriage, and Bowen L.J. laid it down authoritatively that in no division of the courts will discovery be permitted in regard to a matter involving forfeiture, penalties or ecclesiastical punishment or censure(2). Historically the courts have treated proceedings for divorce on the ground of adultery as criminal or quasi-criminal proceedings and the observations of Bowen L.J. were really an application of the doctrine that no one is bound to incriminate himself. Redfern v. Redfern (1) was distinguished in Elliott v. Albert (3) on the ground that the issue there was whether there had been enticement and the interrogatories were not addressed to the issue of adultery though they might suggest it. The dicta of Maugham L.J. in the latter case that the possibility of ecclesiastical censure in such a case as the present was "fanciful" were erroneous(4). [GODDARD L.J. The object of the interrogatories here is not to prove adultery, but that the plaintiff is a loose woman.] She being a married woman, that must involve the issue of adultery, but the same principle applies to cases of fornication: Chetwynd v. Lindon (5) and Finch v. Finch (6). The resulting liability to ecclesiastical censure is made clear in Cripps on Church and Clergy, 8th ed., p. 527, where it is stated that the incumbent of a parish may repel any person who is an open and notorious evil liver from taking part in a celebration of the Holy Communion. If the defence here were made out it would be established that the plaintiff is an open and notorious evil liver. [They referred also to Campbell v. Campbell (7) and Cavendish v. Cavendish (8).]

Valentine Holmes for the defendant, Briscoe. Redfern v. Redfern (1) has no application except in the Divorce Court. The dictum of Bowen L.J. relied on shows that he is putting

(1) [1891] P. 139.

(2) Ibid. 147, 149.

(3) [1934] 1 K. B. 650.

(4) Ibid. 666.

(5) (1752) 2 Ves. Sen. 450.

(6) (1752) 2 Ves. Sen. 491, 493.

(7) [1940] P. 90.

(8) [1926] P. 10.

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ecclesiastical punishment or censure on the same footing as penalties or forfeiture, but the generally recognized principle is that answers to interrogatories will be allowed where there is no real danger of criminal punishment flowing from them: Reg. v. Boyes (1). There is no appreciable risk of the plaintiff being brought before the ecclesiastical court for punishment or censure if she admits adultery, and the court should not, therefore, refuse to allow the interrogatories. Moreover, all that this defendant is concerned to show is that the plaintiff is an unchaste woman and that does not involve a charge of adultery. Elliott v. Albert (2), therefore, applies. The only authority relied on is Redfern v. Redfern (3), apart from cases going back to when the ecclesiastical courts punished sin so that the same principle was applied to what was a sin in ecclesiastical law or to what was criminal in the ordinary law. It would be contrary to common sense to refuse to allow the interrogatories in the present conditions.

Beyfus K.C. replied.

Cur. adv. vult.

1942. June 18. Their Lordships read the following judgments.

LORD CLAUSON. The defendant, Briscoe, might urge in answer to the plaintiff's claim to protection from being called on to answer the interrogatories, that such a claim may be and ought to be taken on oath in the answer and that it is premature to take the objection at this stage. This point has not been pressed, and the arguments have conveniently proceeded on the footing that the real question for decision is whether the plaintiff is right in urging that, according to the practice of the court, she is entitled to be protected from being forced to answer.

It is urged, in the first place, on the plaintiff's behalf, that her answer might tend to prove her adultery, and that it was decided in Redfern v. Redfern (3) that that circumstance protects her from being forced to answer. I am, however, satisfied that, as already stated by Lord Esher M.R. in this court in Spokes v. Grosvenor Hotel Co. (4), the decision in Redfern v. Redfern (3) proceeded "on the particular provisions of the Divorce Acts." The decision, recognizing that a spouse charged with adultery and electing to give evidence in

(1) (1861) 1 B. & S. 311.

(2) [1934] 1 K. B. 650.

(3) [1891] P. 139.

(4) [1897] 2 Q. B. 124, 132.

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proceedings instituted in consequence of adultery, could not be forced to answer about his or her adultery, laid down the practice that no discovery relating to the issue of adultery should be ordered in such proceedings. The decision, however, deals only with proceedings instituted in consequence of adultery, i.e., as explained by Barnes J. in Evans v. Evans (1)(following a dictum of Grove J. in Guardians of Nottingham Union v. Tomkinson (2)), proceedings instituted to produce the result of divorce as a consequence of adultery. The correctness of the decision in Evans v. Evans (1) is recognized in this court in Elliott v. Albert (3).

Failing to satisfy us that his first contention could be supported, counsel for the plaintiff next based his claim for his client's protection on the wider ground that if she was called on to answer the suggested interrogatories her answer might expose her to punishment in the ecclesiastical courts for adultery or for unchastity. The point might well have been good in the eighteenth century when such punishment was still in fact meted out in those courts. The historical position as to this is usefully stated by Bowen L.J. in Redfern v. Redfern (4), but I feel no doubt that (save possibly as regards the case of a spiritual person) this jurisdiction of the ecclesiastical courts has fallen into abeyance and must now be treated as obsolete. I asked in vain for an instance within the last 150 years in which this jurisdiction had been exercised. Maugham L.J. in Elliott v. Albert (5) came to the conclusion, in accord with the view expressed by Barnes J. in Evans v. Evans (1), that the suggestion, which he characterizes as "fanciful," of the possibility of ecclesiastical censure cannot, in these days, be treated as sufficient to protect a party from answering an interrogatory. I agree, and I am satisfied that the plaintiff's claim to protection on this wider ground must fail.

Counsel finally put forward as a basis for his claim for his client's protection the ground that she might by her answer brand herself as an evil liver and thus incur the risk of being refused the sacraments by her parish minister acting in accordance with church law. I may venture to borrow the language of Maugham L.J. and characterize this suggestion, too, as fanciful. If, however, any authority is required for the proposition that the mere fact that the answer might prejudice

(1) [1904] P. 378.

(2) (1879) 4 C. P. D. 343, 349.

(3) [1934] 1 K. B. 650.

(4) [1891] P. 139.

(5) [1934] 1 K. B. 650, 666.

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the good fame of the party answering without tending to make him amenable to penalties imposed by a lawful court is no ground of protection to him, it will be found in Storey on Equity Pleading (1838 ed.), s. 596. See also Bray on Discovery, p. 341. In my judgment, the appeal must fail and must be dismissed with costs.

GODDARD L.J. The plaintiff objects to interrogatories sought to be administered in support of the second defendant's plea of justification on the ground that the object is to show that she has been guilty of adultery. Her objection is based on two grounds: First, it is said that the interrogatories are inadmissible because an affirmative answer would expose her to the risk of ecclesiastical penalties, and, secondly, that Redfern v. Redfern (1) has decided that this objection applies to interrogatories of this description in all actions in all divisions of the court. Hallett J. has allowed the interrogatories. In my opinion, he was clearly right, and, moreover, as will appear from this judgment, the plaintiff cannot object to answer them.

Dealing first with the general objection, which applies both to oral evidence and to interrogatories, the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for. This rule was laid down by the Queen's Bench in Reg. v. Boyes (2), and the words in which I have stated it are those of Stephen J. in Lamb v. Munster (3). A party can also claim privilege against discovery of documents on the like ground: see Hunnings v. Williamson (4). Is there, then, except in a case of a clerk in holy orders, any reasonable likelihood that such interrogatories would expose a person to ecclesiastical penalties? It is purely fantastic to suppose anything of the sort. When Lord Hardwicke decided Finch v. Finch (5) and Chetwynd v. Lindon (6), there was, no doubt, a real risk of such proceedings. In those days the courts of the Church exercised a very active jurisdiction over the laity in criminal causes. Heresy, simony, defamation, brawling in church or churchyard, and all forms of immorality and not merely

(1) [1891] P. 139.

(2) 1 B. & S. 311.

(3) (1882) 10 Q. B. D. 110.

(4) (1883) 10 Q. B. D. 459.

(5) 2 Ves. Sen. 493.

(6) 2 Ves. Sen. 450.

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adultery were within their cognizance, pro reformatione morum et pro salute animæ. They derived this jurisdiction from the statute 13 Edward 1, commonly called Circumspecte agatis, and their decrees were enforced by the Chancery which issued the writs of De contumace capiendo in aid of the penalties imposed and of sequestration for the recovery of costs or other sums of money which they ordered to be paid. Such jurisdiction has long been obsolete, so far as the laity are concerned, when it has not been expressly taken away by legislation. In 1855 these courts were deprived of cognizance of cases of defamation (18 & 19 Vic. c. 41) and in 1860 of brawling (23 & 24 Vic. c. 32). That they were not then expressly deprived of cognizance of cases of immorality or the other matters I have mentioned is probably due to the fact that it was generally recognized that such jurisdiction was obsolete. In 1876 Phillimore v. Machon (1) came before the Court of Arches. In rejecting the suit Lord Penzance, Dean of the Arches, said: "It cannot, I think, be doubted that a recurrence to the punishment of the laity for the good of their souls by ecclesiastical courts, would not be in harmony with modern ideas, or the position which ecclesiastical authority now occupies in the country. Nor do I think that the enforcement of such powers where they still exist, if they do exist, is likely to benefit the community." This reflects in modern language the wisdom of Lord Bacon, expressed more than 200 years earlier in his Essay on Judicature: "Penal laws if they have been sleepers of long time or if they be grown unfit for present use should be by wise judges confined in the execution." After this emphatic pronouncement by Lord Penzance it is impossible to believe that any diocesan chancellor would allow his office to be promoted for the punishment of immorality in a layman. It is important to notice that the promoter in a criminal ecclesiastical suit cannot commence proceedings as of right. He has to petition the judge to allow his office to be promoted, and it is only if the judge considers that it may be a proper case that he allows the proceedings to be started, which he does by ordering a motion for a citation to be made in open court when the defendant may appear and object to it. If the judge then decides that it is a proper case for his office to be used he directs a citation to issue. In Maidman v. Malpas (2), it was laid down by Sir William Scott, afterwards Lord Stowell, that the leave of the court

(1) (1876) 1 P. D. 481, 487.

(2) (1794) 1 Hagg. Cons. 205.

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must be first obtained. The jurisdiction was not to be exercised without discretion or to be left entirely to the judgment or passions of private persons. Spiritual courts still have and ought to have full and unfettered disciplinary jurisdiction over clerical persons, but as regards the laity, except in the case of unauthorized acts in connection with the fabric or ground of a church or churchyard, e.g., Daunt v. Crocker (1), and offences by churchwardens in respect of their office, Lee v. Hawtrey (2), their jurisdiction is obsolete and gone beyond recall. The first objection, therefore, fails.

It is said, however, that this court decided in Redfern v. Redfern (3) that in no circumstances will discovery either by way of interrogatories or disclosure of documents be ordered where the object is to establish adultery. In my opinion, this is not the effect of the decision. It was a divorce case and had it been a question of interrogatories the short and sufficient answer would have been that s. 3 of the Evidence Further Amendment Act, 1869, forbids any question being put to a party in a divorce suit tending to show that he or she has committed adultery unless the witness has already denied the fact in evidence. It was an application for discovery of documents, and the court showed that, while the ecclesiastical court had always exercised the power of ordering discovery, it had never compelled a party to disclose on oath documents which tended to prove his or her own adultery. This would be natural in a court in which originally adultery could be dealt with criminally, but, apart from that, it follows the maxim that no one is bound to criminate himself, and, adultery being a charge of a grave character, the maxim was applied to it. That case was afterwards declared by this court to be no authority on the general law of discovery, Spokes v. Grosvenor Hotel Co. (4), and was also so regarded by this court in Elliott v. Albert (5). This was clearly the opinion of Maugham L.J., nor do I think Scrutton L.J. in any way differed from him. Redfern v. Redfern (3) settled the practice as to discovery in cases in the Divorce Division where the object of the suit is to lead to a decree of dissolution on the ground of adultery, and that is all that it did. In view of Elliott v. Albert (5) it would have been quite enough to say in this case that the object of the interrogatories here is not to establish

(1) (1867) L. R. 2 A. & E. 41.

(2) [1898] P. 63.

(3) [1891] P. 139.

(4) [1897] 2 Q. B. 124.

(5) [1934] 1 K. B. 650.

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adultery but merely unchastity, but I desire to make it quite clear that, if the slander alleged had been "she has committed adultery," the result would have been exactly the same. If any new practice was settled by Redfern v. Redfern (1) it was only that in divorce proceedings discovery tending to establish adultery is not to be allowed at all instead of it being left to the party to take the objection on oath to answering the interrogatory or to disclosing the document. If this decision be not confined to divorce cases, where adultery is, so to speak, the cause of action, it would seem to follow that it would apply to discovery relating to any form of unchastity, immorality or notorious evil living which might come in issue in some other class of action, as all of these matters were formerly within the criminal cognizance of the spiritual courts. But nowhere has it ever been suggested that there is any such limitation on the right to discovery.

Though it is not really material I will deal very briefly with another of the arguments put forward by Mr. Beyfus. He pointed out that discovery was refused in actions for penalties and forfeiture, though he said that, if the defendant went into the box, he would have to answer the questions. Actions for penalties are penal actions. The plaintiff, like a prosecutor, must prove his case and cannot extract admissions from the defendant any more than from a prisoner charged on indictment. Forfeiture has always been regarded, both at law and in equity, as in the nature of a penal action. Indeed, all actions of ejectment were so regarded as having the object of depriving a man of his estate. Discovery was an equitable proceeding and a court of equity regarded itself as a court to relieve against forfeiture and not to assist it. The law on the subject is fully explained in Pye v. Butterfield (2) and needs no further exposition here.

One other argument that was adduced was that an admission of adultery might result in the refusal of the sacrament to the offender. There is a complete air of unreality about such an argument in a case of this sort, and I will only say that, assuming that acts of adultery (of which the offender may have repented) as distinct from living in adultery would furnish "lawful cause" within the statute 1 Edward 6, c. 1, for a minister's refusal to administer the sacrament, that is not a penalty within the rule to which I referred at the beginning of this judgment.

(1) [1891] P. 139.

(2) (1864) 5 B. & S. 829.

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I have dealt with this matter at some length, greater perhaps than the subject deserves, partly in deference to the vigorous argument presented to us by Mr. Beyfus, but mainly because it is desirable that this objection, which has been taken before and might be taken again, should be disposed of finally.

Appeal dismissed.

Solicitors: Kenneth Brown, Baker, Baker; Lewis & Lewis and Gisborne & Co.

H. C. G.