TA v AA & Knowsley MBC  EWCA Civ 1661
Section 21A applications; appeal process and jurisdiction of the Court of Appeal
AA had been made subject to a standard authorisation on two occasions. The first standard authorisation was challenged (by way of s.21A) and upon the application of the TA (who was the father of AA, and his Relevant Persons Representative ‘RPR’). This was considered by the County Court, on 7th June 2011. It concluded that all the qualifying requirements were made out. A second standard authorisation was made in due course (in respect of the same care home, and with no alteration in the circumstances in which AA was deprived of his liberty). This was again challenged by TA on 9th December 2011. The case came before Mr Justice Peter Jackson, as a judge of the Court of Protection. He directed that the matter should be listed before HHJ Gore QC, and that for the purposes of that hearing TA would be required 'to satisfy the Court as to the purpose of these further proceedings'. When the matter came before HHJ Gore QC, the Official Solicitor adopted the position that as he should be appointed as the litigation friend for AA as applicant, in lieu of TA, and so that the application could be withdrawn (upon the basis, in effect, that there was no purpose to be served in hearing the matter, but also because Part 8 of Schedule A1 was a more suitable mechanism for a review of the standard authorisation). HHJ Gore QC granted the application, and so the challenge was withdrawn. An application was made by TA to appeal against the decision. This appeal was made to Mr. Justice Peter Jackson to appeal against the decision of HHJ Gore QC. The grounds of appeal were that by virtue of the decision by HHJ Gore QC permitting the application to be withdrawn, this failed to determine the legality of the basis for the detention of AA, and consequently his rights pursuant to Article 5 (4) had been breached. Mr. Justice Jackson refused permission to appeal against the decision of HHJ Gore QC. This was followed by an application to the Court of Appeal for permission to appeal against the decision by Mr. Justice Peter Jackson to refuse permission to appeal to the Court of Appeal.
The substance of the merits of the appeal (had the Court of Appeal found that it had no jurisdiction to hear the appeal at all) would have been to consider (a) the role of the Official Solicitor in s.21A applications and (b) the extent to which the Court is obliged to hear evidence in respect of such applications, even where the prospects of a success are limited, or the issues may be narrow. As it found that it did not have jurisdiction, these questions remain unanswered, although the judgment of Moses LJ gives some assistance on practical matters when section 21A applications are made to the County Court.
Decision of Court of Appeal
1. Of its own motion, the Court of Appeal expressed concern that it had no jurisdiction at all to hear the appeal. It did so for the following reasons. Firstly, s. 54 of the Access to Justice Act 1999 provided that any rules of the Court may provide a right of appeal, but only where permission has been granted. However, there is no appeal against a decision of a court to either give or refuse permission to appeal (s.54 (4)) unless the rules of the court provide a right to make a further application for permission to the same or another court. S. 15 of the Senior Courts Act 1981 provided the legal basis for the Court of Appeal in terms of its general jurisdiction. The Mental Capacity Act 2005 (at s.53) sets out the rights of appeal within its own jurisdiction, and refer to the relevant tiers of the judiciary at s.46 (2). In turn these are augmented by the Court of Protection Rules (170 and 172).
2. In this case, it was held that the actual application was for permission to appeal to the Court of Appeal against a decision by Peter Jackson J refusing an application to appeal to Peter Jackson. No application was made by the Appellant to Peter Jackson J for permission to appeal to the Court of Appeal against his refusal to grant permission to appeal the decision of HHJ Gore QC to himself, or to another judge nominated under s.46 (2) (a) to (c). Lady Justice Gloster held that s.54 (4) of the 1999 Act did not apply in this case as 'the decision of Peter Jackson J, against which permission to appeal is sought, was a decision made pursuant to rule 172 (7) of the COP Rules refusing permission to appeal from a decision of a 'first instance judge' namely HHJ Gore QC TO a judge nominated under section 46 (2) (a) to (c). It was not a decision refusing permission to appeal HHJ Gore QC's decision to the Court of Appeal, or a decision refusing permission to appeal Peter Jackson J's own decision refusing leave to the Court of Appeal'. Therefore, in those circumstances, s.54 (4) of the 1999 Act did not apply. This was because 'in the present case, the decision in question made by Peter Jackson J dismissing the appellant's application to appeal against the decision of His Honour Judge Gore QC was not a decision by the nominated judge under section 46 (2) (a) to (c) pursuant to COP Rule 181. On the contrary, the relevant decision under consideration is the decision of the junior appellate court (i.e Peter Jackson J as the judge nominated under section 46 (2) (a) to (c)), under COP Rule 172 (7), refusing permission to appeal to the junior appellate court (i.e. the judge nominated under s.46 (2) (a) to (c) who, pursuant to COP Rule 180 (a), hears such appeals from a first instance decision of the circuit judge, here His Honour Judge Gore QC. Section 54(4) of the 1999 Act does not apply to such a decision, as it is not a decision of a court (i.e. the Court of Protection) 'under the section". In order to be a decision "under the section" it would, in context, have to have been a decision as to whether to give or refuse permission to appeal to the Court of Appeal' . Gloster LJ concluded that 'I thus construe the words "an appeal lies to the Court of Appeal from any decision of the Court" in section 53 (1) of the MCA as not including a decision made by a judge nominated under s.46 (2) (a) to (c) granting or refusing permission to appeal a decision of a circuit judge under COP Rule 172 (7)' . She continued 'For similar reasons I conclude that this Court has no jurisdiction to entertain an application by the Appellants for permission to appeal directly against the decision of HHJ Gore QC. Under Rule 172 (7) such an appeal can only be made with the permission of a judge nominated under s.46(2)(a) to (c) of the MCA. That permission has been refused. Moreover neither rule 181 or 182 is of any relevance in this context. The decision of HHJ Gore QC sought to be appealed against is not a decision of a judge nominated under section 46 (2) (a) to (c) for the purposes of rule 181; and the decision made by Peter Jackson J was "not a decision..which was in itself made on appeal from a judge of the Court" for the purposes of rule 182. It was a decision refusing to entertain any appeal - not a decision on appeal".
3. Moses LJ held (albeit obiter) that 'it may be useful, to prevent any repetition of this unfortunate history, to record that the Official Solicitor did not in these proceedings dispute the proposition that HHJ Gore QC was required to determine the appeal and could not lawfully refuse to consider it, however obvious the outcome and however short the hearing and disposal of the appeal....I need only emphasise that due and proper consideration of an appeal under section 21A MCA 2005 may not require lengthy consideration. A full hearing is not necessarily a lengthy, time consuming or expensive hearing'.
4. The main points for practitioners are these;
- When making a decision to appeal from a decision of the first instance judge, read the COP Rules with great care, and in the light of the judgment of Gloster LJ. If not, then the appellate court may be the puisne judge to whom an appeal is made, leading to no possibility of a further appeal (other than perhaps by way of judicial review);
- the obiter judgment of Moses LJ suggests a pragmatic approach, which may in fact be of greater practical assistance to the Courts who will hear such cases, and which will turn on and reflect conventional case management practice and convention;
- however, the substantive basis of the appeal remains unresolved, however, and will no doubt lead to further debate on the point.