Rickards v Rickards [1989] 3 WLR 748 Court of Appeal

Mr & Mrs Rickard obtained a divorce. A financial order was made against the husband. He filed an appeal out of time and had to apply for an extension of time. The County Court judge refused to grant the extension. Mr Rickard appealed to the Court of Appeal against the refusal. However a previous Court of Appeal decision in Podberry v. Peak [1981] 1 Ch 344 held that the Court of Appeal had no jurisdiction to hear appeals relating to the refusal of extension of time.

Held:

The Court of Appeal did have jurisdiction to hear the appeal. The earlier decision was made per incuriam.

Lord Donalson MR:

"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 Q.B. 379 and, more recently, in Williams v. Fawcett [1986] 1 Q.B. 604. 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. 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.


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."

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