TA v AA (by his Litigation friend, the Official Solicitor)

Abstract

Court of Appeal – Practice. The claimant applied to set aside the standard authorisation made by the second defendant local authority, authorising the deprivation of the first defendant’s liberty. The first judge of the Court of Protection granted the Official Solicitor permission to withdraw that application and the second judge refused permission to appeal. The claimant sought permission to appeal. The Court of Appeal, Civil Division, in refusing permission, held that it did not have jurisdiction to hear the appeal, as no application had been made by the claimant to the second judge for permission to appeal to the Court of Appeal.

Summary

The judgment is available at: [2013] EWCA Civ 1661

In November 2011, the second defendant local authority made a standard authorisation under Sch A1 to the Mental Capacity Act 2005 (the 2005 Act), authorising the deprivation of the first defendant’s liberty under the terms of his care plan. The claimant father of the first defendant, in his capacity as the first defendant’s relevant person’s representative, made an application under s 21A of the 2005 Act, challenging the standard authorisation. In December, the Official Solicitor was appointed to act as the first defendant’s litigation friend in the proceedings. In February 2012, the first judge, inter alia, granted the Official Solicitor permission, pursuant to his conduct of the proceedings, to withdraw the application under s 21A of the 2005 Act. In May, the second judge refused the claimant’s application for permission to appeal. No application had been made by the claimant to the second judge for permission to appeal to the Court of Appeal against his refusal to grant permission to appeal the decision of the first judge to himself or to another judge nominated under s 46(2)(a) to (c) of the 2005 Act. That was because the claimant’s advisers had assumed that any such appeal would be a second appeal, which came within r 182 of the Court of Protection Rules 2007, SI 2007/1744 (the Rules), whereby permission was required from the Court of Appeal itself and not r 172(7) of the Rules. In the instant proceedings, the claimant sought permission to appeal to the Court of Appeal against the second judge’s decision. The claimant, the Official Solicitor and the authority contended that the court had jurisdiction to entertain the claimant’s appeal on the grounds that, inter alia: (i) s 53(1) of the 2005 Act created its own self-contained regime, which did not contain a statutory limitation on appeals against the grant or refusal of permission to appeal; (ii) s 54(4) of the Access to Justice Act 1999 (the 1999 Act) did not apply; and (iii) the principle in Lane v Esdaile ([1891] AC 210) (Lane) did not apply.

It fell to be determined whether the court had jurisdiction to hear the appeal.

The application would be dismissed.

Lane provided that a provision requiring the leave of a court to appeal would, by necessary intendment, exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court (see [61], [72], [73] of the judgment).

There was no jurisdiction to hear the appeal. Section 54(4) of the 1999 Act did not apply in the instant case. That was because the decision of the second judge, against which permission to appeal was sought, had been a decision made pursuant to r 172(7) of the Rules refusing permission to appeal from a decision of a ‘first instance Judge’, namely, the first judge, to a judge nominated under s 46(2)(a) to (c) of the 2005 Act. It had not been a decision refusing permission to appeal to the first judge’s decision to the Court of Appeal or a decision refusing permission to appeal the second judge’s own decision refusing leave to the Court of Appeal. The issue was whether, irrespective of s 54(4) of the 1999 Act, s 53(1) of the 2005 Act, on its true construction, permitted an appeal against a decision of a judge nominated under s 46(2)(a) to (c) of the 2005 Act, made pursuant to r 172(7) of the Rules, refusing permission to appeal against a decision of a circuit judge. The principle of statutory construction contained in Lane clearly applied to s 53(1) of the 2005 Act, notwithstanding the use in the subsection of the words ‘any decision’. Accordingly, the words ‘an appeal lies to the Court of Appeal from any decision of the court’ in s 53(1) of the 2005 Act would be construed as not including a decision made by a judge nominated under s 46(2)(a) to (c) of the 2005 Act granting or refusing permission to appeal a decision of a circuit judge under r 172(7) of the Rules. Further, there was no room for recourse to such residual jurisdiction as there might be in the Court of Appeal to hear a second appeal notwithstanding the absence of permission from the junior appellate court, on the grounds that the decision of that court had been unfair or vitiated by some other fundamental procedural irregularity. For similar reasons, the court had no jurisdiction to entertain an application by the claimant for permission to appeal directly against the decision of the first judge (see [47], [49], [60], [61], [67]-[70], [72], [73] of the judgment).

Lane v Esdaile [1891] AC 210 applied.

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