42 / 328
sidered that the defendant's status and rank were
relevant on credibility in a case where there was
oath against oath, and there was a question of the
defendant's conduct in the course of his duty.
The fact
that the defendant's advisers were
prepared to act as they did showed the great im
portance which they attached to the facts concealed.
If one left aside any question of ethics, the ha2ards
of such a course were extremely great. With so
many police witnesses who might well know the
truth, since the defendant's demotion was circulated
in police orders, the chance of somebody in cross-
examination referring
to
the defendant by his
present rank of sergeant or letting the truth out in
some other way was not negligible.
Had that
occurred, or had plaintiff's counsel known the facts,
and elicited them in cross-examination, it seemed
very unlikely that the jury would have accepted the
defendant's case when they found out how they
had been deceived.
Even without knowing the
facts, the jury had taken four hours for their delibera
tions and since the plaintiff's evidence was, broadly
speaking, that of one against so many, one must
conclude that he did well in the witness box.
There was no authority where the facts had been
at all similar to those of the present case, but where
a party deliberately misled the Court in a material
matter, and that deception had probably tipped the
scale in his favour, or even might, reasonably have
done so, it would be wrong to allow him to retain
the judgment thus unfairly obtained.
Finis Litium
was a desirable object; but it must not be sought
by so great a sacrifice of justice, which was and must
remain the supreme object. Moreover, to allow the
victor to keep the spoils so unworthily obtained
would be an encouragement to such behaviour and
do even greater harm than the multiplication of
trials. Here the Judge and jury had been misled on
an important matter.
His Lordship appreciated that it was very hard
at times for the advocate to see his path clearly
between failure in his duty to the Court and failure
in his duty to his client; and he accepted that here
the decision to conceal the facts was not made
lightly but after anxious consideration. But, in his
judgment, the duty to the Court was here unwarrant
ably subordinated to the duty to the client. It was no
less surprising that that should be done when the
defendant was a member of the Metropolitan Police
Force on whose integrity the public were accustomed
to rely.
That a party need not reveal something to his
discredit did not mean that he could by implication
falsely pretend where it was a material matter, to
a rank and status that were not his and, when he
knew that the Court was deluded, foster and confirm
that delusion by answers such as the defendant gave.
Suggestio falsi
here went hand in hand with
suppressio
veri.
It would be an intolerable infraction of the
principles of justice to allow the defendant to retain
a verdict thus obtained.
The appeal should be
allowed with costs and a new trial ordered.
Lord Justice Willmer, concurring,
said
that
counsel for the defendant had informed the Court
with complete candour that the course had been
taken deliberately and in the belief that it was proper
in all the circumstances. His Lordship was in no
doubt that it was a wrong decision, insufficient
regard being paid to the duty owed to the Court
and to the plaintiff and his advisers.
It would be
a miscarriage of justice to allow the verdict obtained
in this way to stand.
Lord Justice Pearson also concurring, said that
whatever erroneous analogies might have prompted
counsel's well-intentioned decision, it was utterly
wrong and had had deplorable results.
Mr. Durand, Q.C. again emphasised that the de
cision not to disclose the defendant's change of status
had been his and his alone. Neither junior counsel nor
his instructing solicitor was responsible for adopting
or pursuing that policy, and, indeed, they had
expressed their disapproval of it. He was grateful
to their Lordships for allowing him to make this
statement in open court.
Irish Constitution andforeign divorces.
Before Mr. Justice Karminski.
His Lordship
dismissed the petition of Mrs. Breen (otherwise
Smith) of Portsmouth, for annulment of her marriage
to Mr. James Breen, of the Swan Hotel, Thame,
Oxfordshire, on the ground of bigamy.
The wife's petition alleged that at the time of the
ceremony of marriage celebrated between herself
and the husband on 29th March, 1953, at the register
office in Dublin, the husband's lawful wife, whom
he married on yth August, 1944, was still alive. The
husband's answer alleged that his previous marriage
had been dissolved by a decree absolute of divorce
dated znd September, 1952, made in the High Court
he being domiciled in England at all material times.
The wife, by her reply, pleaded that the English
decree of divorce was not recognised by the law of
Eire, and that consequently the marriage ceremony
in Eire in March, 1953, was by the law of Eire,,
bigamous.
His Lordship, reading a reserved judgment, said
that it was conceded that at the time of the divorce
proceedings between the husband and his first wife,
the husband was domiciled in England. The first
wife was alive on 2yth March, 1953, the date of the
ceremony ofmarriage in question in the present suit,
and was said to be still alive.