Cheshire West continues to be troublesome

The Court of Protection (CoP) president was thoroughly scolded by the Court of Appeal (CoA) in Re X (Court of Protection practice) [2015] EWCA Civ 599. The official solicitor (intervener and court advocate) also received criticism for lacking impartiality and objectivity, making the case ‘much more difficult and time-consuming to resolve’.

Naturally, the chastisements emanated from the troublesome Cheshire West and Chester Council v P [2014] UKSC 19. Two hearings (Re X and Others (Deprivation of Liberty) [2014] EWCOP 25; (Number 2) [2014] EWCOP 37) involving numerous CoP cases were intended to help devise a streamlined, article 5-compliant procedure on deprivation of liberty (DoL) cases. Lord Justice Munby directed parties to exclude factual evidence from bundles, and gave general rulings on hypothetical points.

The decision

AC and GS, the official solicitor, and the Law Society appealed against the ruling that an oral hearing, a litigation friend for an incapacitated adult (P), and P’s joinder would not always be necessary. They contended that ‘decision’ in section 53(1) of the Mental Capacity Act 2005 (MCA) had a wide meaning, giving the CoA jurisdiction. Further, they argued that the part 19 Civil Procedure Rules (CPR) group litigation provisions applied, and/or the public interest demanded a CoA decision. 

It was held that the CoA had jurisdiction to determine High Court appeals from any ‘judgment or order’ (section 16 of the Senior Courts Act 1981). The CoP had the power to make decisions on behalf of P or appoint a deputy by making an ‘order’ under section 16(2) MCA. ‘Orders’ were differentiated from ‘directions’ in section 16(5). However, confusingly, rules 59 and 60 of the CoP Rules 2007 used ‘order’ and ‘decision’ interchangeably. Section 53 MCA conferred jurisdiction to hear an appeal against any CoP ‘decision’ (i.e. the final decision on a dispute), not a ‘judgment or order’, or court reasoning. However, Munby LJ’s order made no directions and disposed of no issues, so no section 53(1) ‘decisions’ were appealable to the CoA. Further, jurisdiction on academic issues must arise from real resolved party disputes. 

In any event, neither AC and ?GS (being unaffected by the appealed issues) nor the Law Society (permitted to make submissions at the hearing but not a party under rule 73(2) CoP Rules) had standing.

Nonetheless, the CoA helpfully outlined its likely view had it had jurisdiction. Under article 5 of the European Convention on Human Rights (ECHR), P must have ‘access to a court and the opportunity to be heard either in person or... through...representation’ (Winterwerp v Netherlands [1979] 2 EHRR 387). Special procedural safeguards are required where someone cannot fully act on a right ?(MS v Croatia (No 2) [2015] ECHR 196). Resource pressures were immaterial in determining whether safeguards were ?article 5-compliant. 

Provided P’s participation could be secured, party status was not essential – but the new practice direction (PD) 10A and method for identifying cases appropriate for full consideration did not involve P. Without automatic joinder, P would have to express a wish to be joined, or opposition to proposed arrangements. This was arbitrary and contrary to article 5 ECHR and domestic procedural law. 

The six factors identified by the president as triggering an oral hearing failed to recognise that P might not have anyone able to challenge a DoL as there was no equivalent to the relevant person’s representative. Thus, P should be joined automatically and would require a litigation friend. Further, the DoL authoriser would provide all information – a potential conflict of interest. 

The proper course

Rule 9 CoP Rules applies the CPR with any necessary modifications ‘insofar as… necessary to further the overriding objective’. Representative proceedings would have enabled determinations between applicants with ‘the same interest’ (CPR 19.6(1)). Alternatively, a group litigation order could have dealt with related issues of fact or law (CPR 19.11). 

Strangely, the president had exhorted the informal ad hoc advisory rules committee (set up to review the rules, PDs, and forms) to consider the decisions swiftly. Yet the CoP Rules were his responsibility, assisted by the committee. Munby LJ could have met with senior CoP judges and/or lawyers, or taken formal legal advice. Alternatively, he could have made decisions and produced regulatory DoL rules and/or a PD. 

Essentially, the schedule A1 procedure should have been extended to cover a wider category of case. Lord Justice Gloster expressed his ‘disquiet’ as to ‘the undisciplined manner’ of structuring the proceedings in both courts. He queried ‘[h]ow... the respective legal aid authorities genuinely… considered that the necessary criteria were satisfied… to grant legal aid to the applicants’, and how councils or clinical commissioning groups considered it appropriate to fund legal representation without being satisfied there were ‘real-life issues’ in ‘genuine applications’. 

It is unclear whether or not any party will judicially review PD10A reflecting the president’s rulings. Certainly, the CoP rules committee must produce new guidance on a streamlined process compliant with the CoA’s observations. The Cheshire West saga continues. SJ

Laura Davidson is a barrister practsing from No 5 Chambers in London @No5Chambers www.no5.com

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