Rickards v Rickards [1989] EWCA Civ 8

Following divorce proceedings, the husband sought to appeal a financial order out of time. The county court refused an extension of time. The Court of Appeal considered whether it had jurisdiction to hear an appeal against that refusal, declining to follow Podberry v Peak and holding that Lane v Esdaile applied only to refusals of leave to appeal, not extensions of time.

Facts

Mrs Rickards filed a petition for divorce in October 1985, with a decree nisi granted in February 1986 and decree absolute in June 1987. On 20th September 1988, Mr Registrar Lay made a ‘clean break’ financial order against Mr Rickards. The husband was aggrieved but failed to file notice of appeal to the county court judge within the five-day period prescribed by the Matrimonial Causes Rules 1977, rule 124(1). He applied for an extension of time on 14th October 1988, which was refused by His Honour Judge MacManus QC on 23rd November 1988. The judge gave leave to appeal to the Court of Appeal against that refusal.

Issues

Jurisdiction

The central issue was whether the Court of Appeal had jurisdiction to entertain an appeal from the judge’s refusal of an extension of time for appealing to him. This required consideration of whether the court was bound by its previous decision in Podberry v Peak [1981] 1 Ch. 344, which had held that the Court of Appeal lacked such jurisdiction based on Lane v Esdaile [1891] AC 210.

Merits

If jurisdiction existed, the secondary issue was whether the appeal should be allowed and time extended.

Judgment

The Lane v Esdaile Principle

The Master of the Rolls analysed Lane v Esdaile and concluded that its true ratio was limited to situations where leave to appeal is required:

“In my judgment what Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant or refusal of leave is an appealable decision.”

The court distinguished between refusal of leave to appeal and refusal of an extension of time, stating:

“The grant or refusal of an application for leave to appeal is one thing. The grant or refusal of an application to extend the time limited for taking a step in proceedings, including but not limited to giving notice of appeal, is quite another.”

Legislative Support

The court noted that section 18(1)(b) of the Supreme Court Act 1981 expressly prohibits appeals from orders allowing an extension of time for appealing. Lord Justice Balcombe observed:

“Parliament clearly considered that in general an appeal does lie to the Court of Appeal from an order of an inferior court refusing an extension of time for appealing from a judgment or order, because section 18(l)(b) of the Supreme Court Act 1981 provides that ‘no appeal shall lie to the Court of Appeal from any order of the High Court or any other court or tribunal allowing an extension of time for appealing from a judgment or order.'”

Departing from Podberry v Peak

The court considered whether it could decline to follow its own previous decision. The Master of the Rolls stated:

“In the instant case, I am fully satisfied that we are justified in treating Podberry v. Peak as a decision given ‘per incuriam.’ It involves a wrongful rejection of the jurisdiction of this court and, if we follow it, there is no possibility of an appeal to the House of Lords in the instant case.”

Lord Justice Nicholls emphasised the exceptional nature of this case:

“In the instant case there are the two features that (a) the point concerns the jurisdiction of the court and (b) the remedy which the system of judicial precedent assumes will be available to review the earlier decision is, for practical reasons, not so available.”

The Merits

On the substantive appeal, the court found no error in the judge’s exercise of discretion. Judge MacManus had stated:

“The Respondent wishes to apply because he failed to obtain legal aid to enable him to appeal and time ran out. No specific authority was cited but I am satisfied that failure to obtain legal aid is not a good argument for not giving notice of appeal in time. For reasons given by Mr. Salter on behalf of Petitioner, no merit in appeal and I should refuse leave.”

The court held this was a proper exercise of discretion based on the lack of merit in the proposed appeal.

Implications

This decision is significant for clarifying the scope of the Lane v Esdaile principle, confining it to refusals of leave to appeal rather than extending it to refusals of time extensions. It also represents a rare application of the per incuriam doctrine to decline to follow a previous Court of Appeal decision, emphasising that such departure is justified where: (1) the decision concerns the court’s jurisdiction; (2) there is no realistic prospect of House of Lords review; and (3) continuing to follow the erroneous decision would cause ongoing injustice. The case reinforces that while stare decisis is fundamental, it admits of limited exceptions in exceptional circumstances.

Verdict: The Court of Appeal held that it had jurisdiction to entertain the appeal, declining to follow Podberry v Peak. However, the appeal was dismissed on its merits as the judge’s refusal to extend time was a proper exercise of discretion.

Source: Rickards v Rickards [1989] EWCA Civ 8