Rochdale MBC v KW [2015] EWCA Civ 1054, [2015] MHLO 71

(1) The judge (in his second decision) had misinterpreted the consent order (on appeal from his first decision) when he said that the Court of Appeal had not decided that KW was being deprived of her liberty. Therefore, this second appeal would be allowed. (2) The judge was also wrong to say that the Court of Appeal had taken "a procedurally impermissible route" so that its decision was "ultra vires". An order of any court is binding until it is set aside or varied: it is futile and inappropriate for a judge to seek to undermine a binding order by complaining that it was ultra vires or wrong for any other reason. In any event, the consent order was made by a procedurally permissible route: the appeal court has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. If the appeal court is satisfied that (i) the parties' consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. (3) The Court of Appeal stated that the judge's disagreement with the Cheshire West decision was in danger of distorting his approach to these cases and, in light of the two successful appeals, the review should be conducted by a different judge.

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

PRACTICE — Appeal — Allowing appeal by consent — Local authority placing incapacitated person in own home with carers — Judge deciding arrangement not amounting to deprivation of liberty — Appeal allowed by consent on papers without hearing — Whether consent order determining that incapacitated person had been deprived of liberty — Whether appellate court having jurisdiction to allow appeal by consent without hearing on merits or judgment — Whether consent order ultra vires — Guidance on allowing appeals by consent — CPR, r 52.11, Practice Direction 52A, para 6.4

Rochdale Metropolitan Borough Council v KW (No 2)

[2015] EWCA Civ 1054^B; [2015] WLR (D) 425

CA: Lord Dyson MR, Black, Underhill LJJ: 20 October 2015

An appeal court had a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if satisfied that there were good and sufficient reasons for doing so. If satisfied that the parties’ consent was based on apparently competent legal advice and plausible reasons were advanced to show that the lower court’s decision was wrong, good and sufficient reasons were established for the purposes of paragraph 6.4 of Practice Direction 52A supplementing CPR Pt 52.

The Court of Appeal so held, allowing an appeal by the incapacitated person, KW, by her litigation friend, with the consent of Rochdale Metropolitan Borough Council against the decision in the Court of Protection of Mostyn J [2015] EWCOP 13^M on 13 March 2015 that the consent order made by the Court of Appeal on 30 January 2015 on the incapacitated person’s appeal against his previous decision on 18 November 2014 [2014] EWCOP 45^M; [2014] WLR (D) 493 was ultra vires.

CPR r 52.11(3) provides: “The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

Practice Direction 52A, paragraph 6.4 provides: “The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an ... appeal the court may consider the request on the papers...”

LORD DYSON MR, giving the judgment of the court, said that the principal ground of appeal was that the judge had misinterpreted the consent order when he had said that the Court of Appeal had not decided that the incapacitated person was being deprived of her liberty. The court accepted that (i) the order did not explicitly state that there was a deprivation of liberty, and (ii) the words in paragraph 2 of the order “to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised” might suggest that the court had not decided that the restrictions were in fact a deprivation of liberty. But, read in context, the order that the appeal was allowed necessarily involved the court deciding that the incapacitated person’s care package did involve a deprivation of liberty. The words “to the extent that” etc were unfortunate but did not alter the position. Those words were derived from paragraph 11 of the Model Re X Order published on the Court of Protection website and which practitioners had been encouraged to use. The form of words more often used: “P is deprived of his or her liberty as a result of arrangements in the care plan and these are lawful” was undoubtedly preferable to the earlier version. It followed that the judge had been wrong to hold that the Court of Appeal had not decided that the incapacitated person had been detained by the state within the terms of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

It was important to comment on the judge’s statement that the Court of Appeal had taken “a procedurally impermissible route” so that its decision was “ultra vires”. The point was of general importance and the judge’s comments had apparently given rise to considerable public interest. An order of the court was binding until it was set aside or varied. That was consistent with principles of finality and certainty necessary for the administration of justice. It was futile and inappropriate for a judge, who was called upon to give effect to an order of a higher court which was binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason. In any event, the judge had been wrong to say that the consent order was ultra vires because it had been made by a procedurally impermissible route. On a true construction paragraph 6.4 of Practice Direction 52A supplementing CPR Pt 52 gave the appeal court a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it were satisfied that there were good and sufficient reasons for doing so. What were good and sufficient reasons? The answer would depend on the circumstances of the case, but the court provided guidance. If the appeal court were satisfied that (i) the parties’ consent to the allowing of the appeal was based on apparently competent legal advice, and (ii) the parties advanced plausible reasons to show that the decision of the lower court was wrong, it was likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point. At para 14 of his judgment, the judge had said that, where a merits-based decision had been reached at first instance which all parties agreed ought to be set aside on appeal, paragraph 6.4 required there to be a hearing and a judgment. He had added: “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise”. The court disagreed. Paragraph 6.4 did not require a decision on the merits on appeal in every such case. There was no reason to restrict in that way the wide discretion conferred by paragraph 6.4 to allow an appeal by consent without a hearing followed by a decision on the merits. The words “good and sufficient reasons” were very wide. Further, their Lordships rejected the notion that the judge whose decision was under appeal had any entitlement to such a decision. In deciding whether to make a consent order without a decision on the merits, the appeal court was only concerned with the interests of the parties and the public interest. The interests of the judge were irrelevant. There would be cases where it might be in the interest of the parties or the public interest for the court to make a decision on the merits after a hearing even where the parties agreed that the appeal should be allowed: see Bokor-Ingram v Bokor-Ingram [2009] 2 FLR 922^B, where the judgment at first instance had caused or might cause difficulty for practitioners or judges, and Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] [EWCA] Civ 185, when in order for a patent to be restored to the register it had been necessary to reverse an order for revocation of a patent and to show that the previous decision had been wrong. Mostyn J’s first judgment raised no issue of law. His criticism of Surrey County Council v P (Equality and Human Rights Commission intervening) [2014] AC 896^B (“Cheshire West”) had been settled by the Supreme Court relatively recently. The judge’s analysis was, and could be, of no legal effect. It was irrelevant. Indeed, he had purported to apply Cheshire West to the facts of the case. The basis of the appeal was that he had failed to do so properly. The public interest in the first judgment had focused on his criticisms of the Cheshire West case. The lower court’s decision in the present case should have caused no difficulty for practitioners or judges in the field. It was a decision on the facts which, with benefit of the advice of counsel and solicitors, the parties agreed was wrong. The Court of Appeal had to have taken the view that the parties had advanced plausible reasons for contending that the judge’s decision was wrong, so that there were good and sufficient reasons for allowing the appeal without deciding the merits. In their Lordships’ view, it had clearly been right to do so. Unfortunately the judge had twice made decisions appealed to the Court of Appeal. On both occasions, the parties had agreed that the appeal had to be allowed, leading to considerable unnecessary costs to the public purse and unnecessary use of court time. Regrettably the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West had been wrongly decided was at the root of it. Contrary to the judge’s view, even if Cheshire West were wrong, there was nothing confusing about it. In the light of the unfortunate history, the review was to be conducted by a different judge.

Appearances: Adam Fullwood (instructed by Peter Edwards Law LLP, Hoylake) for the incapacitated person, by her litigation friend; Simon Burrows (instructed by Director of Legal Services, Rochdale Metropolitan Borough Council, Rochdale) for the local authority.

Reported by: Susan Denny, Barrister