Secretary of State for Defence v Rosenfeld

J U D G M E N T

1. LORD JUSTICE SEDLEY: The applicant, Mr Rosenfeld, was committed to prison by Newman J on 25th March 2004 for a period of 28 days for breach of orders previously made against him by the court. These are a matter of record and do not need recital. The judge, however, suspended the effect of his order for a period of four months on terms. For the Secretary of State, this morning Mr McCullough tells us that those terms have not been complied with, but whether action is to be taken in respect of the non-compliance is a matter entirely for the Secretary of State and not for this court today.

2. It was not, however, until 9th August 2004, that is to say more than four months after the date of Newman J's order, that Mr Rosenfeld filed an appellant's notice challenging the order. The essential grounds of challenge are that, having been absent from the hearing, he was not given a fair hearing before Newman J.

3. Appeal against an order of committal is as of right, but if the notice is given out of time it requires the exercise of the court's discretion to enlarge time. Today's application is, accordingly, in the first instance an application for the enlargement of time, but it has been listed with a time allocation of three hours so that the appeal may follow directly if time is enlarged.

4. Mr Rosenfeld, however, does not appear before us today. He made a request earlier in the week for an adjournment on grounds of ill-health. He annexed to the application, which was made by letter, a medical certificate in the standard printed form, upon which, however, he had blotted out the manuscript diagnosis which the doctor had entered. In consequence, it was impossible for this court to know from what Mr Rosenfeld was suffering or therefore whether his absence today would be justified. Upon his being told this, Mr Rosenfeld declined to disclose what was in the medical certificate and instead insisted that the demand that the court should be told what was wrong with him was a violation of his human rights. I say in parenthesis that the court is perfectly well able, if there is something embarrassing on a medical certificate, to ensure that it is not made public or unnecessarily disseminated.

5. Today Mr Rosenfeld has telephoned to tell the Civil Appeals Office that he proposes to get solicitors on the record, and that if, as he expects, the case is dismissed this morning, he will apply in due course to reinstate it. That will be a matter for him, but it seems to me that this court's course is plain.

6. First of all, for the reasons that I have now given, there is no ground for adjourning the application which is before the court for an enlargement of time. There is no good reason shown why Mr Rosenfeld cannot be here, if he is not represented, in order to pursue it. Secondly, it seems to me that the indication given by Mr Rosenfeld to the court earlier this week, that what he wishes to do in the circumstances is withdraw his application, is one to which this court should not accede. To allow the application for an extension of time to be withdrawn would leave the notice of appeal in a limbo in which it was still extant but unable to be proceeded with for want of the court's permission to proceed out of time. There is no reason at all why the question of extending time should not be dealt with today, and I would propose to proceed to deal with it.

7. The application for an enlargement of time is accompanied by no intelligible grounds, and certainly no evidence in support of grounds, which are capable of justifying the enlargement of time. The bald fact is that Mr Rosenfeld delayed for more than four months before filing his appellant's notice and he is not, on the material before the court, entitled to the exercise of the court's discretion so as to allow him to proceed out of time. I would therefore refuse to enlarge his time.

8. That leaves only one further step which has to be taken, which is to dispose of the appeal, as it has now to be disposed of, by a dismissal on the simple ground that it has been brought out of time and that this court, if my Lords agree with me, is not disposed to enlarge the time for bringing it. I would so order.

9. LORD JUSTICE RIX: I agree.

10. LORD JUSTICE WARD: I also agree.

Order: Application for extension of time refused. Appeal dismissed.