Judge: Munby LJ
Citation:  EWCA Civ 1128
Summary: This case (unusually a reported decision of an application for permission to appeal to the Court of Appeal) merits a brief mention because of the trenchant comments by Munby LJ (the first in his formal capacity as a Court of Appeal judge) as to the problems posed by multiple judges having conduct of cases. The case had a particularly difficult and complex procedural history (having originally started out under the inherent jurisdiction), prompting Munby LJ to comment at paragraphs 31-2 as follows:
“31. It is a striking feature that, when Eleanor King J directed on 17 December 2009 that this litigation should be transferred from the Family Division to the Court of Protection, she – and, if I may say so, entirely appropriately – directed that the proceedings “shall be allocated to a High Court judge nominated to sit in the Court of Protection”. That was a direction that the case should be allocated to an identified judge. The direction has simply been ignored and, I regret to say, ignored by the court. The litigation since SA became an adult (I do not refer to the earlier wardship proceedings) was first before Macur J; it was then before Roderic Wood J; it was then before Eleanor King J; it was then before Roderic Wood J again; and, most recently, before Parker J. Unsurprisingly, with that complete lack of judicial continuity, the litigation has been allowed to drift in the most deplorable fashion.
32. It is now, or will at the end of this long vacation be, seven years since the Family Division accepted, in the context of care proceedings relating to children, that the previous delays in the system required as at least part of their solution a process of judicial continuity and judicial case management. Unhappily, and not for want concerns expressed by judges, no similar system of either judicial continuity or judicial case management yet seems to have been applied to the significant number of cases in the adult jurisdiction, whether in the Family Division or in the Court of Protection, which are of the scale and complexity which, as in the present case, requires the use of a judge of the High Court. And the consequence – and the present case, I regret to say, is a classic if shocking example of the phenomenon – is that all the vices which we were familiar with before 2003 in relation to the child jurisdiction are still too frequently to be found in the adult jurisdiction. The problem is systemic; the problem is fundamentally one for the court to grapple with, although, that said, there are many cases (and I do not speak with the present case in mind) where a more active stance adopted by the parties might facilitate the process.”
It was against the background of this concern that Munby LJ took the perhaps unusual step of (effectively) converting a permission application into a directions hearing addressing matters going forward before the Court of Protection.
Comment: The authors anticipate that many of the readers of this newsletter will be all too familiar with cases coming on for direction before a series of different judges, and with the consequent problems that this can throw up. Unfortunately, anecdotal evidence suggests that, at present, the systemic problem identified by Munby LJ is only worsening.