Ward v Ward

This appeal concerns two interlocutory applications, one by Mr R Ward to extend the time for filing his appeal, and the other by Mr Makinson to strike out Mr Wislang's appeal. The Court was required to determine whether it had jurisdiction to strike out an appeal which, by effluxion of time, was to be treated as having been abandoned. The Court of Appeal (Civil) Rules 2005 provided that an appeal was to be treated as having been abandoned if the appellant did not apply for the allocation of a hearing date and file the case on appeal within three months after the appeal was brought. However, an appeal could be reinstated if an extension of time was granted under Rule 43(2). The Court also had power to relieve an appellant as regards the requirements of Rule 43. The issue before the Court was the status of an appeal that had been deemed abandoned but had not yet been reinstated. The Court held that an appeal deemed abandoned was not necessarily the end of the matter or the appeal. The Court had jurisdiction to hear and determine an extant application to strike out an appeal after the first three-month period had elapsed. However, it was not obligated to do so. The Court may well consider that the application should be determined where issues of abuse of process were raised or where a res judicata determination was justified. In the present case, the application to strike out Mr Ward's appeal was granted to avert the prospect of a pointless application for an extension of time to file a fresh appeal. The application to strike out Dr Wislang's appeal was also granted, given the possibility that he might apply for leave to appeal afresh. The appellants were ordered to pay the respondents' costs for an interlocutory application on a band A basis and usual disbursements.