Herbert v Herbert

• Jurisdiction: Barbados
• Judge: Stoby, C.J.
• Judgment Date: 26 October 1960
• Neutral Citation: BB 1960 HC 20
• Date: 26 October 1960
• Court: High Court (Barbados)

Supreme Court

Stoby, C.J.

Herbert

and

Herbert

Appearances:

Mr. W. Hanschell for the petitioner.

Mr. A.K. Walcott, Mr. H. Forde instructed by Messrs. Cottle Catford & Co.

Practice and procedure - Application for divorce on ground of adultery — No answer to the petition filed by the respondent — Petitioner filed a summons for alimony pendente lite after taking no steps to have the petition heard — Whether petition for alimony should be struck out.

Stoby, C.J.

1 On August 13, 1954, the petitioner filed a petition against the respondent praying for the dissolution of her marriage with him on the ground of his adultery with a named woman. The petition was issued by the petitioner in person but on December 13, 1954, a firm of solicitors notified the respondent that they were acting for the petitioner and placed the appropriate document on record.

2 An application to amend the petition was granted on January 13, 1955. The respondent entered an appearance in person to the petition on August 25, 1954, but has never filed an answer. The petitioner or her solicitor has taken no step to have the petition heard but on August 2, 1960, the petitioner in person filed a summons for alimony pendente lite.

3 Counsel for the respondent (the husband) has taken two objections in limine. He submits that the petition for alimony should be struck out because: (a) it is signed by the petitioner and not by the solicitors on the record; and (b) the main petition should be deemed deserted or abandoned and incapable of being revived and if there is no main petition there can be no application for alimony.

4 It will be convenient to deal with both submissions together. The submission that the main petition is deserted or abandoned depends on whether the Rules of the Supreme Court 1958, apply to matrimonial causes and if they apply whether they apply to proceedings pending prior to their coming into force on August 16, 1958. Order 32, rr. 8 and 9 of the Rules of the Supreme Court, 1958, states in effect that a cause or a matter should be deemed deserted if no request for hearing shall be filed within six months after the expiration of the period fixed for the filing of such request. And the cause or matter shall be deemed altogether abandoned and incapable or being revived if prior to the filing of a request for hearing any party has failed to take any proceeding or filed any document for one year from the date of the last proceeding. As the last proceeding in this petition was taken in 1955, then if these Rules apply the petition is abandoned and incapable of being revived.

5 Counsel for the petitioner submitted that the Rules of the Supreme Court to not apply and referred me to the Matrimonial Causes Act, 1935. Before the passing of the Supreme Court of Judicature Act 1956 (hereinafter referred to as the Act of 1956), the practice and procedure in Barbados followed closely United Kingdom practice and procedure as it was prior to 1873 and consequently many of the problems which now confront the courts of this Island arose in England in the latter part of the nineteenth century.

6 The Judicature Act 1873 [U.K.J united the Court of Chancery, the Courts of Common Law, of Probate, Admiralty, the Divorce Court and the London Court of Bankruptcy into one Supreme Court, as the Act of 1956 did in Barbados. Section 100 of the Judicature Act [U.K.J provided that in the construction of that Act “cause” included any action, suit or other original proceeding between a plaintiff and a defendant and any criminal proceeding by the Crown; “suit” included “action” and “action” meant a civil proceeding commenced by writ, or in such other manner as may be prescribed by Rules of Court.

7 Rules of Court were made in 1883 and by 0. 1 suits in Chancery were to be called actions and by O. 2, were to be commenced by writ. Order 68 provided that nothing in the rules save as was expressly provided should affect the procedure or practice in proceedings for divorce. In Re Binstead, Ex p. Dale it was held that the definition of “action” in the Judicature Act of 1873, coupled with the specific terms, of O. 68, precluded a divorce suit from being called an action. Kay, L.J., said ( [1893] 1 Q.B. at p. 208):

“In Court of Chancery proceedings were formerly called suits, and the decision of a suit was by decree. The suit was commenced by bill, and the appearance of the defendants was obtained by writ of subpoena, or in certain cases, by service of a copy of the bill. By O. 1 of the Rules of Court suits in Chancery are to be called actions, and by O. 2 are to be commenced by writ, and by 0. 40 the judgment of the court is to be obtained by motion for judgment. Order 68 provides that nothing in the rules shall, save as expressly provided, affect the procedure or practice in proceedings for divorce. Accordingly the Divorce Court is governed by its' own rules in these respects, and its causes or suits are not called actions, and its decisions...