The Gazette 1961 - 64

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. 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. Irish Constitution andforeign divorces. Before Mr. Justice Karminski.