Rickards v Rickards
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BALCOMBE,LORD JUSTICE NICHOLLS |
| Judgment Date | 20 June 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0620-5 |
| Docket Number | 89/0575 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 June 1989 |
[1989] EWCA Civ J0620-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE MacMANUS)
Royal Courts of Justice.
The Master of the Rolls
(Lord Donaldson) (not Present)
Lord Justice Balcombe and
Lord Justice Nicholls
89/0575
No. 85 (D) 1421
MR. A. SALTER (instructed by Messrs. Edward Harte & Co. of Brighton) appeared on behalf of the (Petitioner) Respondent.
MR. JOHN HAINES (instructed by Messrs. Selwood Leathes Hooper of Brighton) appeared on behalf of the (Respondent) Appellant.
In October 1985 Mrs. Rickards (to whom I will refer as "the wife") filed a petition for divorce which led, in February 1986, to the grant of a decree nisi and, in June 1987, to a decree absolute. On 20th September, 1988 Mr. Registrar Lay made a "clean break" financial order against Mr. Rickards, to whom I will refer as "the husband". The husband is and was aggrieved, but delayed filing notice of appeal to the county court judge until after the expiry of the five-day period prescribed by the Matrimonial Causes Rules 1977, rule 124(1). He had therefore to apply for an extension of time for taking this step and this he did on 14th October, 1988. The jurisdiction to grant such an extension arises under Order 13, rule 4(1), of the County Court Rules 1981. This application was refused by His Honour Judge MacManus Q.C. on 23rd November, 1988. On a separate application by the husband, the judge gave leave to appeal to this court against that refusal.
This matter raises the following issues:
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(1) Has this court any jurisdiction to entertain an appeal from the judge's refusal of an extension of time for appealing to him?
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(2) If so, should the appeal be allowed and the time for filing the notice of appeal to the judge be extended?
The first of these issues is of far-reaching importance on which we wished to reserve our decision, but the second turned only on the facts of this particular case. As we were agreed that if we had jurisdiction to hear the appeal it should be dismissed, it was not in the interests of the parties, and in particular of the wife, that we should delay making an order disposing of the appeal. At the conclusion of the hearing we therefore dismissed the appeal with costs. We now give our reasons for that decision.
The jurisdiction point
The husband submits that the jurisdiction of this court to entertain this appeal is to be found in section 77 of the County Courts Act 1984, which provides that:
"(1) Subject to the provisions of this section and the following provisions of this Part of this Act, if any party to any proceedings in a County Court is dissatisfied with the determination of a judge or jury, he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by rules of the Supreme Court.
(2) The Lord Chancellor may by order prescribe classes of proceedings in which there is to be no right of appeal without the leave either of the judge of the County Court or of the Court of Appeal."
This jurisdiction is limited by the County Courts Appeals Order 1981 ( S.I. 1981 No. 1749) which requires an intending appellant to obtain leave to appeal either from the county court judge or from this court "where the determination sought to be appealed from was made by the judge acting in an appellate capacity" and by section 18(l)(h) of the Supreme Court Act 1981 which imposes a similar restriction in the case of interlocutory orders or judgments. However, the husband has obtained that leave.
One might have thought, and this court (Cumming-Bruce L.J. and Park J.) in Toleman v. Toleman [1985] F.L.R. 62 did think, that in such circumstances there was no obstacle to this court entertaining such an appeal. But this is to overlook a little known decision of this court (Buckley, Eveleigh and Oliver L.J.J.) in Podberry v. Peak [1981] 1 Ch. 344 which was applied with the greatest possible reluctance by this court (Parker and Nicholls LLJ) in relation to an analogous appeal from the High Court in Bokhari v. Mahmood (C.A. transcript 18th April, 1988).
In this situation we are faced with two sub-issues. The first is whether the decision in Podberry v. Peak is right and the second, which only arises if we consider that decision to be wrong, is whether we are justified in not following it.
A county court in the exercise of its bankruptcy jurisdiction made an order for the sale of a house owned jointly by the bankrupt and his wife. The wife applied to the Divisional Court for an extension of the time limited for appealing to that court. This was refused and the wife, with the leave of this court, sought to appeal that refusal. This court, after full argument, declined jurisdiction.
The right of appeal in that case was said to arise either under section 108(2) of the Bankruptcy Act 1914 as being an appeal from a decision of the Divisional Court upon a bankruptcy appeal from the county court or, under section 27(1) of the Supreme Court of Judicature (Consolidation) Act 1925, as being an appeal from an order of the High Court. Section 27(1) has been replaced by section 16 of the Supreme Court Act 1981. This court held, rightly as I think, that the order refusing an extension of time could not be regarded as one made on a bankruptcy or any other appeal from the county court, because the refusal of an extension of time prevented any such appeal coming into existence. Prima face, however, it was quite clearly an order of the High Court.
Why then was jurisdiction refused? The answer is to be found in this court's reading and application of the decision of the House of Lords in Lane v. Esdaile [1891] A.C. 210. Thus Lord Justice Eveleigh giving the judgment of the court said, at page 349:
"In our opinion, while various rulings of the court in interlocutory proceedings may be loosely called orders of the court, we do not think that the refusal of an extension of time is an order within section 27. Lane v. Esdaile establishes this."
If this is right, the refusal of an extension of time for appealing from the registrar to the judge of a county court would equally not be an "order" or "a determination" by the judge, all appearances to the contrary notwithstanding. Lane v. Esdaile
So I turn to Lane v. Esdaile itself. In July 1885 Mr. Justice Kay gave judgment against several defendants. Some of these defendants appealed unsuccessfully to the Court of Appeal and on to the House of Lords where success attended their efforts in August 1888. The remaining defendants, or some of them, who had never sought to appeal the order of Mr. Justice Kay then decided to try to appeal to the Court of Appeal. By then they were three years out of time. Their right of appeal was circumscribed by R.S.C. Order 58, rule 15, which provided that:
"No appeal to the Court of Appeal from any interlocutory order…shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty one days, and no other appeal shall, except by such leave, be brought after the expiration of one year."
The Court of Appeal refused special leave and the laggard defendants sought to appeal that refusal to the House of Lords. The House of Lords held that it had no jurisdiction.
Under the Appellate Jurisdiction Act 1876 a right of appeal to the House of Lords lay "from any order or judgment" of the Court of Appeal. However, none of their Lordships founded their decision upon the proposition that the giving or refusal of special leave by the Court of Appeal was not an "order" of that court. As Lord Halsbury L.C. put it:
"The words used are 'leave of the court' and although it may be that in some sense the leave of the court, whether it is given or withheld, becomes an order (that I will not stay to discuss), that is not the ordinary mode in which it would be described. It is to be something that is done by the order of the court. I confess myself I should hesitate if it was only to turn upon the question of language, because although a thing might be called an order, or might be called a judgment, or might be called a rule, or might be called a decree, it might well be that nevertheless by reason of the context it would come within the obvious meaning and purpose of the statute; so that although it was none of those things in name it might be one of those things in substance, and therefore would come within the general provision that an appeal should lie."
The basis of the House of Lords' decision is to be found in the immediately following passage in the speech of Lord Halsbury:
"But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal—that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given...
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