Rose v Sugarman

An appeal against a decree nisi is overtaken by events once the decree has been made absolute; any challenge should then be directed to the decree absolute. A suspended committal order for failure to comply with financial disclosure orders may be discharged where subsequent events remove any practical basis for committal. The Court of Appeal may therefore refuse permission on the decree nisi issue while allowing a committal appeal to the limited extent necessary to discharge the suspended order.

The appellant sought permission to appeal against a decree nisi granted by HHJ Hayward on 4 May 2007. The notice was out of time, and the decree had subsequently been made absolute. He also appealed against HHJ Hollis’s order of 5 September 2007 committing him to prison for 28 days, suspended on compliance with disclosure orders requiring a Form E and responses to identified deficiencies.

By the hearing, a new Form E had been filed and the respondent’s solicitors confirmed that no further questions would be raised. The issues were whether anything remained to be determined concerning the decree nisi and whether the suspended committal order should remain in force.

1. Decree nisi. The application for permission to appeal was refused. The proposed appeal against the decree nisi was substantially out of time, and the decree had been overtaken by the making of the decree absolute. Any appeal or application to set aside should therefore be directed to the decree absolute. The county court was already due to determine that application.
2. Suspended committal order. The appeal was allowed to the limited extent that the suspended committal order was discharged. The order had been made for failure to comply with disclosure orders requiring the filing of Form E and responses to deficiencies in earlier disclosure. A new Form E had since been filed, and the respondent no longer had questions arising from it. Whether the earlier suspended condition had been breached no longer required determination because no action was likely to be taken on the committal order.
3. Disposition. The order was made in the terms: application refused; appeal allowed. Lord Justice Wilson and Mr Justice Holman agreed with Lord Justice Ward.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 1194: application for permission to appeal refused; appeal against the committal order allowed to the limited extent of discharging the suspended committal.
• Brighton County Court — HHJ Hayward granted a decree nisi on 4 May 2007. HHJ Hollis made a 28-day committal order on 5 September 2007, suspended on compliance with disclosure orders.