Secretary of State for Defence v Rosenfeld

An appeal against an order of committal lies as of right, but an appellant who files the notice out of time must obtain an extension of time. The discretion will not be exercised without intelligible grounds and supporting evidence capable of justifying the delay. Where no adequate reason for adjournment is shown, the court may determine the extension application in the applicant’s absence. An application to withdraw should not be permitted where it would leave an out-of-time notice extant but incapable of being pursued. The court should instead resolve whether time should be enlarged.

The applicant challenged a High Court order committing him to prison for 28 days for breach of earlier court orders. The committal order, made by Newman J on 25 March 2004, was suspended for four months on terms.

The applicant filed his appellant’s notice on 9 August 2004, more than four months after the order. He alleged that, having been absent from the original hearing, he had not received a fair hearing. Before the appeal, he sought an adjournment on medical grounds, later indicated that he wished to withdraw the application, and did not attend or appear by a representative. The central issue was whether the court should enlarge time for appealing.

1. Adjournment. Lord Justice Sedley, giving the judgment with which Lord Justices Rix and Ward agreed, held that there was no sufficient basis for adjourning the application. The medical certificate supplied by the applicant had the handwritten diagnosis obscured, so the court could not assess whether his absence was justified. The applicant declined to disclose the condition. The court noted that appropriate steps could be taken to protect confidential medical information, but no good reason had been shown why he could not attend or be represented.
2. Withdrawal. The court declined to permit withdrawal of the application for an extension of time. Withdrawal would leave the appellant’s notice extant but incapable of being pursued without permission to proceed out of time. The question of enlargement could therefore properly be determined immediately.
3. Extension of time. Although an appeal against an order of committal lies as of right, an out-of-time appeal requires the court’s discretion to enlarge time. The application contained no intelligible grounds and no supporting evidence capable of justifying the delay. The applicant had waited more than four months before filing his notice and was not entitled to an extension on the material before the court.
4. Disposition. The application for enlargement of time was refused. The appeal was dismissed as having been brought out of time.

• Court of Appeal (Civil Division): The application for enlargement of time was refused and the appeal dismissed as out of time: [2005] EWCA Civ 62.
• High Court, Queen’s Bench Division: Newman J committed the applicant to prison for 28 days for breach of court orders on 25 March 2004, suspending the order for four months on terms.