Rose v Sugarman

Lord Justice Ward:

1. Mr Sugarman appears before us this afternoon, firstly to seek permission to appeal an order HHJ Hayward made on 4 May 2007, when the learned judge, hearing a defended divorce, granted the wife a Decree Nisi divorce, and (I think) dismissed the husband’s separate petition.

2. The notice of appeal against that decree is dated 9 October, so it is wildly out of time; and in any event since then the decree has been made absolute, so that any appeal or application to set aside should now be directed at the Decree Absolute. The Decree Nisi has been overtaken by events. Fortunately for Mr Sugarman, the Brighton County Court are already lined up to hear an application to set aside that Decree Absolute, and that will be determined by them shortly. So there is no more we can do to help him with that application, and it must be dismissed.

3. His second appeal, it is a full-blooded appeal, is against the order made HHJ Hollis on 5 September, when he made an order that Mr Sugarman be committed to prison for 28 days for his contumelious failure to comply with earlier orders of District Judge Merrick, namely, that he file this Form E and that he respond to a list of deficiencies in his earlier discovery. The Committal Order was suspended provided he give that discovery by 26 th September. Whether he did or whether he did not now does not matter, because he has filed a new Form E, and the wife’s solicitors have written to the court stating that fact, and informing us of their instructions that the wife (if I may call her that) no longer has any questions arising from any matter contained in the husband’s Form E and will not be raising a questionnaire.

4. Fortunately for Mr Sugarman, no action is likely to be taken on what may or may not have been a breach of the Committal Order; but for the sake of making the position abundantly clear, for my part, whilst not criticising the judge in any way for making that suspended order, it is better that we now get rid of it, and I would now allow the appeal to the limited extent that the order suspended committal now be discharged. I would allow the appeal accordingly. Lord Justice Wilson:

5. I agree. Mr Justice Holman:

6. I also agree. Order: Application refused; Appeal allowed