Judge: Court of Appeal (Master of the Rolls, Black and Underhill LJJ)
Citation:  EWCA Civ 1054
This is the second appeal to the Court of Appeal from a decision of Mostyn J in this long-running Court of Protection matter. In his first decision, the judge questioned the reasoning and conclusions of the majority in Cheshire West. That led to an appeal that was allowed by consent but without a judgment. Mostyn J duly listed the matter for consideration of the effect of the consent order and further directions in relation to the review of KW’s deprivation of liberty. In a reserved judgment handed down on 13 March 2015, Mostyn J questioned whether the Court of Appeal had decided whether KW was deprived of her liberty, thereby leaving her in a state of legal “limbo”, concluded that the consent order was made ultra vires and that KW was only entitled to a court review if she were to be subjected to “… bodily restraint comparable to that which obtained in P v Cheshire West and Cheshire Council…”.
The Master of the Rolls gave the judgment of the court. Firstly, whilst the consent order did not explicitly state that there was a deprivation of liberty, it was “clearly” not correct to interpret it as meaning KW was not deprived of her liberty when read in context. Paragraph 1 of the consent order provided that the appeal was allowed. The only ground of appeal was that the judge had wrongly concluded that KE was not deprived of her liberty. Further, the other provisions of the consent order provided for annual reviews of KW’s deprivation of her liberty. Read in context, the consent order could not be interpreted as meaning there was no deprivation of liberty. That said, the court disapproved the “Model Re X Order” preferring “P is deprived of his liberty but the same is lawful” over “To the extent that P is deprived of his liberty it is lawful”.
In relation to whether the consent order was made ultra vires the Master of the Rolls said that it was “… futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra views or wrong for any other reason…”.
In any event, the consent order was not ultra vires as it was made by a permissible route on a proper interpretation of para 6.4 of PD 52A. In a decision which will have wider application it was held that Rule 52.10 and PD52A gives the appeal court a discretion to allow an appeal by consent on the papers without determining the merits at a hearing where it is satisfied that there are good and sufficient reasons for doing so. What those reasons are will depend on the circumstances of the case but guidance was given to the effect that where 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 is wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits.
Finally, reference was made to the unfortunate history of this litigation which had led to considerable unnecessary costs to the public purse and that it was Mostyn J’s “… tenacious adherence to his jurisprudential analysis leading to the conclusion that Cheshire West was wrongly decided that has been the root of this…”. For this reason (and in addition to allowing the appeal) it was ordered that the review of KW’s deprivation of liberty should be conducted by a different judge.
Whilst this case is mainly of interest in relation to the Court of Appeal’s powers to set aside or vary an order of a lower court without determining the merits, it also decisively brings to an end the attempts by Mostyn J (at least within these proceedings) to have Cheshire West reconsidered by the Supreme Court. It is also of interest to the extent that the Court of Appeal considered that the use of the phrase “ to the extent to which P is deprived of his liberty it is in is best interests and lawful” contained with the ‘Re X model order’ should be replaced with a more affirmative statement that “P is deprived of his liberty but the same is in his best interests and is lawful”.