Rickards v Rickards

A refusal to extend the time for appealing is distinct from a refusal of leave to appeal. Subject to any applicable requirement for leave, the former is an appealable determination. A decision granting or refusing leave is ordinarily final unless legislation expressly provides otherwise.

The Court of Appeal may exceptionally decline to follow its own decision where a manifest error concerning its statutory jurisdiction would otherwise persist and effective review by the House of Lords is not realistically available. On an application to extend time, delay in obtaining legal aid is relevant but creates no entitlement to an extension. The apparent merits of the proposed appeal are also a proper consideration.

Following divorce proceedings, a registrar made a clean-break financial order against the husband. The husband failed to file his appeal to the county court judge within the five days prescribed by rule 124(1) of the Matrimonial Causes Rules 1977. Judge MacManus refused an extension under Order 13, rule 4(1), of the County Court Rules 1981, principally because the proposed appeal lacked merit, but granted leave to appeal to the Court of Appeal.

The Court of Appeal had to decide whether it possessed jurisdiction to hear an appeal against that refusal despite Podberry v Peak [1981] 1 Ch 344. If jurisdiction existed, the court also had to decide whether the judge had properly exercised his discretion.

1. Appeal dismissed unanimously. Lord Donaldson MR, Balcombe and Nicholls LJJ held that the Court of Appeal had jurisdiction, but that the county court judge had acted within his discretion in refusing an extension of time.

2. Section 77 of the County Courts Act 1984 conferred a broadly expressed right of appeal from a county court judge's determination. The husband's application sought an extension of time, not leave to bring the underlying appeal. He had separately obtained the leave required for an appeal to the Court of Appeal.

3. Lane v Esdaile [1891] AC 210 established only that, where an appeal may be brought by leave of a designated court, that court's grant or refusal of leave is not itself appealable. An application to extend time is conceptually different. Section 18(1)(b) of the Supreme Court Act 1981, which expressly bars an appeal from an order allowing an extension, confirmed that refusals were not inherently unappealable.

4. Podberry v Peak [1981] 1 Ch 344 had wrongly extended Lane v Esdaile to refusals of extensions of time. The court unanimously treated Podberry as having been decided per incuriam and declined to follow it. Departure from a Court of Appeal precedent remains exceptionally rare. It was justified here because the error caused the court to reject a jurisdiction conferred by Parliament, concerned procedure rather than substantive rights, and was unlikely to reach the House of Lords through ordinary appellate review.

5. On the merits, difficulty or delay in obtaining legal aid may be relevant to an extension application, but it does not confer a right to additional time. The husband could readily have filed his notice within time and deferred prosecution of the appeal. The judge was entitled to consider the apparent merits of the proposed appeal. His conclusion that the appeal lacked merit was well within the ambit of his discretion.

6. The appeal was dismissed with costs, with legal aid taxation of both parties' costs.

1. Court of Appeal: Held that it had jurisdiction to review the refusal of an extension of time, but unanimously dismissed the husband's appeal with costs.
2. Brighton County Court: Judge MacManus refused to extend the time for appealing from the registrar's financial order, but granted leave to appeal that refusal to the Court of Appeal.
3. Registrar: Mr Registrar Lay made a clean-break financial order following the parties' divorce.