THE MASTER OF THE ROLLS: 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:
(1) Has this court any jurisdiction to entertain an appeal from the judge's refusal of an extension of time for appealing to him?
(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. Podberry v. Peak
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] AC 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 guestion 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 or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction."
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. Although the statute contained time limits -21 days in the case of interlocutory orders and 12 months in the case of other orders - no court had any power to extend them, nor, of course, was asked to do so. The effect of the expiry of those time limits was simply to attract a requirement for special leave to appeal. 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. It arises in a multitude of contexts, none of which have ever been held to be inherently unappealable, with the sole exception of an extension of time for appealing in the case of Podberry v. Peak and, following that decision, in Bokhari v. Mahmood. Whilst it is true that a right of appeal may be barred either by a refusal of an extension of time or by a refusal of leave, the routes by which this result is achieved and the underlying concepts are essentially different. The husband did not need leave to appeal to the county court judge. He needed an extension of time. He did not need an extension of time for appealing to this court. He needed, and obtained, leave to appeal.
That this is, and has always been, the correct approach is confirmed by section 31(l)(b) of the Supreme Court of Judicature (Consolidation) Act 1925 which provided that:
"No appeal shall lie -
(b) from an order allowing an extension of time for appealing from a judgment or order" and from its successor section in the Supreme Court Act 1981:
"18(1) No appeal shall lie to the Court of Appeal -
(b) 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."
If the Lane v. Esdaile decision, properly understood, had been that, in the absence of express provision to the contrary, no appeal can ever lie against the grant or refusal of an extension of time for appealing, these provisions would have been quite unnecessary.
For the sake of completeness I should also draw attention to section 148 of the Supreme Court Act 1981 which amends the Arbitration Act 1979 by inserting a new subsection in section 1 of that Act reading:
"(6A) Unless the High Court gives leave, no appeal shall lie to the Court of Appeal from a decision of the High Court -
(a) to grant or refuse leave under subsection (3)(b) or (5)(b) above."
The reference is to leave by a judge of the High Court to appeal to that court in relation to arbitration awards.
This might be thought to point in the other direction in that, consistently with what I consider to be the true ratio of Lane v. Esdaile, it should have given a right of appeal by leave of the High Court judge rather than restricting a right of appeal to a case in which the judge gives leave.
The explanation lies not in the law, but in the realities of commercial life. The Arbitration Act 1979 was intended to give a High Court judge the exclusive right to restrict appeals to the High Court and to determine whether there should be an appeal to the Court of Appeal (see section 1(7)). This had been considered essential if international arbitration was to thrive in this country. No one foresaw that the Court of Appeal might by-pass this restriction by freely entertaining appeals from the grant or refusal of leave to appeal to the High Court. However this happened in Pioneer Shipping Ltd. v. B.T.P. Tioxide (the Times, 16th November, 1979), the subsequent history being reported in [1980] 1 Q.B. 547 and [1982] A.C. 724. What would have happened if Lane v. Esdaile had been cited to the court must be a matter for speculation. Urgent remedial action was required and sought and the Supreme Court Act provided a speedy and convenient vehicle.
Lane v. Esdaile has been applied in numerous cases as binding authority for the more limited proposition that "wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given" (per Lord Esher M.R. in In the matter of the Housing of the Working Classes Act, 1890, Ex parte Stevenson [1892] 1 QB 609, 611). It was in this sense that it was applied by this court in Bland v. Chief Benefit Officer [1983] 1 W.L.R. 262. As I put it, at page 267 of the report:
"Section 14 of the Act of 1980 [which gives a right of appeal to this court] does contemplate an appeal from a decision of the commissioner, and I would accept that in a sense the grant or refusal of leave to appeal is a decision, just as in Ex parte Stevenson [1892] 1 QB 609 it was accepted that the grant or refusal of leave to appeal was an order of the High Court, but it is not the kind of decision which, in my judgment, section 14 contemplates."
In retrospect I regret that I added the sentence "That section relates to a decision which determines the matter in dispute." This is wrong,, since a truly interlocutory or procedural decision could give rise to an appealable guestion of law, even if it is unlikely that leave to appeal would be given.
For these reasons I am satisfied that this court erred in Podberry v. Peak in holding that Lane v. Esdaile applied to applications for an extension of time for appealing. Accordingly I am confronted with the question of whether we are bound to, or should, follow it and thereby decline to exercise an appellate jurisdiction which I have no doubt that we have.
The importance of the rule of stare decisis in relation to the Court of Appeal's own decisions can hardly be overstated. We now sometimes sit in eight divisions and, in the absence of such a rule, the law would quickly become wholly uncertain. However the rule is not without exceptions, albeit very limited. These exceptions were considered in Young v. Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718, Morrell v. Wakeling [1955] 2 QB 379 and, more recently, in Williams v. Fawcett [1986] 1 Q.B. 604, relevant extracts from the two earlier decisions being set out at pages 615-6 of the report. These decisions show that this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error.
In previous cases the judges of this court have always refrained from defining this exceptional category and I have no intention of departing from that approach save to echo the words of Lord Greene and Sir Raymond Evershed M.R. and to say that they will be of the rarest occurrence. Nevertheless some general considerations are relevant. First, the preferred course must always be to follow the previous decision, but to give leave to appeal in order that the House of Lords may remedy the error. This was attempted in Bokhari v. Mahmood, but failed because of the understandable reluctance of the defendant to prosecute the appeal. Second, certainty in relation to substantive law is usually to be preferred to correctness, since this at least enables the public to order their affairs with confidence. Erroneous decisions as to procedural rules affect only the parties engaged in relevant litigation. This is a much-less extensive group and accordingly a departure from established practice is to that extent less undesirable. Third, an erroneous decision which involves the jurisdiction of the court is particularly objectionable, either because it will involve an abuse of power if the true view is that the court has no jurisdiction or a breach of the court's statutory duty if the true view is that the court is wrongly declining jurisdiction. Such a decision, of which this case provides an example, is thus in a special category. Nevertheless, this court must have very strong reasons if any departure from its own previous decisions is to be justifiable. Indeed it has only done so on one previous occasion of which I am aware (Williams v. Fawcett).
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. In the light of our decision on the merits of the husband's appeal, he has no incentive to appeal and the wife, having succeeded, cannot do so. The decision in Podberry v. Peak is likely to affect a large number of decisions in matrimonial causes which, although of vital importance to the parties, arise in circumstances in which neither party can be expected to pursue the matter to the House of Lords because of the cost which, in the case of legally aided appeals, may still ultimately fall upon the parties because of the Legal Aid Fund's charge. It is therefore unlikely to be considered by the House of Lords in any other case and meanwhile we should be in continuing breach of our statutory duty.
I would therefore hold that we have jurisdiction to entertain the husband's appeal.
The merits of the husband's appeal
This I can deal with rather more briefly. The hearing before the registrar occupied no less than six days, during which the financial situation of the parties was explored in great detail and the husband displayed a marked reluctance inter alia to disclose what his financial position was likely to be when, as was anticipated, he re-married. He claimed that he was ignorant of the facts, but the registrar did not accept this statement. In the circumstances it is not surprising that the registrar was not inclined to make assumptions in his favour.
The assets included the matrimonial home, whose value was disputed. The registrar accepted the valuation of the matrimonial home propounded by the expert instructed by the husband and valued the ascertained assets, including the house, at £172,000. There was a dispute as to whether the wife needed a two-bedroomed flat which at that time would have cost £50,000 or a three-bedroomed flat which would have cost £90,000. The registrar decided that issue in favour of the wife and added £15,000 as compensation for loss of the right to a widow's pension and the right to claim against the husband's estate under the Family Inheritance Act. This £105,000 was to be realised and paid to the wife out of the proceeds of the sale of the matrimonial home.
The registrar thought that this would be likely to leave the husband with £67,000, but it now appears that this involved an arithmetical error and that the true figure should have been £57,000. He also ordered the husband to pay the costs of both parties which have been estimated at £44,000. The husband complains that this leaves him penniless, because the balance of the £57,000 was in unrealisable assets. Furthermore the sale of the matrimonial home would deprive him of business premises which were essential if he was to earn a living.
Judge MacManus in refusing leave to appeal out of time from the decision of the registrar said:
"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."
Mr. Haines, of counsel, appearing for the husband points out that prompt notice was given by letter to the wife's solicitor of the husband's intention to appeal if and when he obtained legal aid and that the notice was in fact filed earlier than this, namely immediately after his initial application for legal aid was refused. Legal aid was granted on appeal. In these circumstances he submitted that the failure to file the notice was a pure technicality. Nevertheless he rightly accepted that the notice could have been filed without legal aid since the trouble and expense would have been minimal and, which is more important, that the failure to do so gave the judge jurisdiction to consider the merits of the appeal when deciding whether or not to extend the time for appealing. The main basis of his submission that we should reverse the decision of the judge was that the judge had erred in principle in resting that decision upon his rejection of the husband's reliance upon the need for legal aid as a justification for failing to file the notice of appeal within time.
I do not so read the judge's judgment. As I read it, the basis of his decision was the fact that, as he saw it, the husband's appeal lacked all merit. This was a wholly proper basis for the decision and the decision itself was well within the judge's discretion.
Accordingly, whilst holding that we have jurisdiction to entertain the husband's appeal, I would dismiss it.
LORD JUSTICE BALCOMBE: I have had the advantage of reading in draft the judgment of Lord Donaldson of Lymington, M.R. I agree with him on both the points which arise in this case, jurisdiction and merits, but in view of the importance of the jurisdiction point in particular I add a few words of my own.
Jursidiction
I start with the simple proposition that section 77 of the County Court Act 1984 is in the widest terms: "if any party to any proceedings in a county court is dissatisfied with the determination of the judge ..., he may appeal from it to the Court of Appeal ..." Judge MacManus determined that the husband's time for appealing to the judge from the decision of Mr. Registrar Lay should not be extended: the husband is dissatisfied with that determination: prima facie section 77 gives this court jurisdiction. 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." (Of course, under section 77(2) of the 1984 Act the Lord Chancellor may by order prescribe classes of proceedings in which there is to be no right of appeal under the section without leave: this he had done by Article 2(b) of the County Court Appeals Order 1981, and a similar restriction is in the circumstances of this case imposed by section 18(l)(h) of the 1981 Act, but Judge MacManus has here given that leave). This is clearly the view to which this court would have come in Bokhari v. Mahmood (C.A. transcript 323 of 1988) had they felt free to do so.
In my judgment there is nothing in the decision of the House of Lords in Lane v. Esdaile [1981] A.C. 210 which precludes us from having jurisdiction in the present case. As the Master of the Rolls points out, the true ratio of that decision is that where there is a provision that an appeal shall lie only with the leave of a particular court or courts, neither the grant nor the refusal of- such leave is itself appealable: otherwise the introduction of the "filter" requiring leave would be pointless.
However, Lane v. Esdaile (supra) was interpreted by this court in Podberry v. Peak [1981] Ch. 344 in a sense contrary to that in which I understand it. And so we are faced with the stark issue: must we follow Podberry v. Peak and so decline to exercise an appellate jurisdiction which in my judgment Parliament has conferred upon us? It is of the highest importance in our system of jurisprudence that the Court of Appeal should be bound to follow its own decisions. Otherwise the law would be impossibly uncertain. Nevertheless there are some very limited exceptions to that rule, of which one is that the court is not bound to follow a decision given per incuriam - see Young v. Bristol Aeroplane Co. Ltd. [1944] KB 718.
"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance of forgetful-ness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene, M.R., of the rarest occurrence."
- per Evershed M.R. giving the judgment of the court in Morelle Ltd. v. Wakeling [1955] 2 QB 379 at page 406.
I too would not wish further to define this very exceptional category, but I agree with the Master of the Rolls that in this case we are justified in refusing to follow Podberry v. Peak because to do so would require us to decline a jurisdiction which I am satisfied Parliament has conferred upon us, and thereby potentially to create, or continue, an injustice which may adversely affect many litigants in this and similar fields.
Merits
Although I accept that we have jurisdiction to entertain this appeal, nevertheless I would dismiss it. Under rule 124(1) of the Matrimonial Causes Rules 1977, any party may appeal to the judge from an order or decision made or given by the registrar in matrimonial proceedings pending in a divorce county court "on notice filed within five days after the order or decision was made or given and served not less than two clear days before the day fixed for hearing of the appeal." Here the order of Mr. Registrar Lay was made on 20th September. It was not until 14th October that application was made to the judge for an extension of time for appealing. The judge had power to extend the time under Order 13, rule 4, of the County Court Rules 1981 - see rule 3 of the 1977 rules - but his refusal to do so was an exercise of his discretion with which this court will not normally interfere except on well-established principles. Those principles, and the authorities on which they are based, are fully set out in paragraph 59/1/31 of the Supreme Court Practice 1988 and I need not here repeat them. The judge gave two reasons for refusing to extend the time for filing notice of the appeal from the registrar: (1) that failure to obtain legal aid is not a good argument for not giving notice of appeal in time; and (2) that there was no merit in the proposed appeal.
Clearly the judge was not saying that failure to obtain legal aid could never be a ground for extending the time for appealing, otherwise there would have been no need to mention the question of merits. There will undoubtedly be cases where difficulty or delay in obtaining legal aid may be a ground for extending time. Equally such difficulty or delay cannot confer a right to have time extended. It is a factor which the judge must take into account. Here the husband could without difficulty have filed his notice within the five-day period specified by rule 124(1) of the 1977 rules, and then have notified the court and the wife that he would not take any steps to prosecute the appeal pending the determination of his application for legal aid: we were given no reason why it would not have been possible to do this.
As to the judge's view that there was no merit in the husband's proposed appeal, the facts were that the registrar had found total net assets of £172,000, of which the matrimonial home, of which the husband remained in occupation, amounted to £122,500. The wife needed a home for herself and the two boys (aged 14 and 9) of whom she had custody, and the registrar had held that a three-bedroomed property would cost £90,000. To this he had added £15,000 for her loss of periodical payments for herself on a "clean break", loss of pension rights and to cover some issue concerning jewellery, giving her a lump sum of £105,000. This left the husband with £57,000 (because the total net assets had been overvalued by £10,000) and (as found by the registrar) a mortgage capacity (based on his earnings potentially) of £40,000. However, the husband was ordered to pay both parties' costs of the financial ancillaries - he had previously been ordered to pay the costs of the custody proceedings. There had been considerable delays, largely attributable to the husband, and the wife and the two children were already homeless and living with her parents in unsuitable circumstances. The husband had been less than frank with the registrar about a certain deposit account, and the registrar did not believe his evidence that he had not discussed marriage or her financial affairs with the woman with whom he was then living. The registrar said it was evident that the husband was enjoying a lifestyle similar to that which he had enjoyed before the break-up of the marriage: the wife was not.
These facts alone are sufficient to show that it was well within the ambit of the judge's discretion to take the view that the husband's proposed appeal had little merit, and he was entitled to take this view into account in exercising his discretion to refuse an extension of the time for appealing.
I agree that this appeal should be dismissed.
LORD JUSTICE NICHOLLS: I was a party to the decision in Bokhari v. Mahmood (18th April, 1988; unreported) when this court took the view that it was bound by the earlier decision in Podberry v. Peak [1981] Ch. 344 to conclude that the Court of Appeal has no jurisdiction to hear an appeal against the refusal by a judge to extend the time for an appeal to him from the decision of a master. The conclusion that the Court of Appeal has no such jurisdiction was one to which, in the Bokhari case, we felt constrained to come to despite our own inclinations to the contrary. These inclinations were expressed with due restraint having regard to the conclusion we felt bound to reach. Having referred to section 18(1) of the Supreme Court Act 1981 and the specific exclusion, by paragraph (b), of a right of appeal from an order allowing an extension of time for appealing from a judgment, we said:
"From this, if we were to read this paragraph without the assistance provided by the decision in Podberry v. Peak [1981] Ch. 344, we confess that we might have felt justified in drawing three inferences. First, that this paragraph assumes that, but for the paragraph, an order extending time for appealing to the judge would be appealable under section 16. Otherwise there would be no need to exclude an appeal. Secondly, if (but for paragraph (b)) an order extending time would be appealable under section 16, so also is an order refusing an extension of time. If the context is not sufficient to exclude from section 16 an order extending time for appealing, it is difficult to see how the context can be sufficient to exclude from section 16 an order refusing an extension of time for appealing. Thirdly, Parliament cannot be taken to have intended that there should be no right of appeal to the Court of Appeal against the judge's refusal to extend time. Parliament has expressly excluded an appeal against the judge's decision to extend time for appealing, and had Parliament intended that the position should be the same regarding a refusal to extend time for appealing nothing would have been easier than to have included in section 18(l)(b) the words "or refusing", so that the paragraph would have read '(b) from any order of the High Court or any other court or tribunal allowing or refusing an extension of time for appealing from a judgment or order ..."
In the Bokhari case leave was given to appeal to the House of Lords, in the hope that their Lordships' House would have the opportunity of considering the correctness of the decision in Podberry v. Peak. Unfortunately the Bokhari case was not taken to the House of Lords. That is not at all surprising. There comes a point at which mounting bills of costs, with the prospect of still further litigation and costs if an appeal is successful, put a further appeal quite out of the question for most individuals who are not legally aided.
The difficulty which has now arisen is acute. Prior to the Bokhari case the decision in Podberry v. Peak seems to have been little known to practitioners. It was not mentioned in the Supreme Court Practice. Toleman v. Toleman [1985] F.L.R. 62 is an example of a case decided by the Court of Appeal without the attention of the court being drawn to the point. There the court allowed an appeal which, in accordance with Podberry v. Peak, it had no jurisdiction to entertain at all. I suspect that there may well have been other cases since 1981 where the court has proceeded to hear similar appeals without being aware of the point.
But since the Bokhari case was decided, the practical position has changed. Attention has been drawn to Podberry v. Peak. So there is the problem. On the one hand the court is faced with a considered judgment of the Court of Appeal in Podberry v. Peak, that it has no jurisdiction to entertain appeals such as that before the court in the instant case. On the other hand, there is no immediate prospect of the House of Lords having the opportunity to consider this point of jurisdiction. In the nature of things, many of the cases in which a party is seeking to challenge a judge's refusal to extend time for appealing to him against the decision of a registrar or master involve parties whose means are not geared to litigation up to the House of Lords. The present case is just such a one. Already far too much of the money and assets available for division between the parties have been spent on costs.
The principle enunciated in Young v. Bristol Aeroplane Co. Ltd. [1944] KB 718 has been affirmed emphatically by the House of Lords more than once. In one such- case (Davis v. Johnson [1979] AC 264, 344) Lord Salmon commented on the occasional unjust result which stare decisis sometimes produces, because only those who qualify for legal aid or the very rich can afford to bring an appeal to the House of Lords. He said:
"This difficulty could however be surmounted if when the Court of Appeal gave leave to appeal from a decision it has felt bound to make by an authority with which it disagreed, it had a power conferred on it by Parliament to order the appellants' and/or the respondents' costs of the appeal to be paid out of public funds. This would be a very rare occurrence and the consequent expenditure of public funds would be minimal."
Parliament has taken steps to remedy the hardship which may arise when there has to be a new trial because of the death or incapacity of a judge before he gives judgment (section 53 of the Administration of Justice Act 1985). So far, however, Parliament has not given any power, either to the court or to the Lord Chancellor, to surmount the difficulty to which Lord Salmon referred.
Does this mean that the Court of Appeal is bound to go on indefinitely refusing to entertain a particular class of appeals, even though in practice the House of Lords is unlikely to have the opportunity to consider the decision in Podberry v. Peak? I am so oppressed by the injustice which this might well cause that I cannot think that this is the law today. This would indeed bring the law into disrepute. For the reasons given by the Master of the Rolls I think that this case is in a very special category. Both Lord Greene M.R. (in Young v. Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718, 729? and Sir Raymond Evershed M.R. (in Morelle Ltd. v. Makeling [1955] 2 QB 379, 406) envisaged that there might be rare and exceptional cases where the Court of Appeal could properly consider itself entitled not to follow an earlier decision of its own even though the earlier decision did not fall strictly within the normal definition of a decision reached "per incuriam". This is such a 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.
Accordingly, in agreement with the Master of the Rolls and Lord Justice Balcombe, I think it is open to this court to decline to follow Podberry v. Peak and to give effect to its own views on the point of jurisdiction.
On the substance of the appeal, I have nothing to add to the views expressed by the Master of the Rolls and Lord Justice Balcombe, with which I agree. I too would dismiss the appeal.
(Order: Appeal dismissed with costs; legal aid taxation of both parties' costs)
