This case is the second appeal from a judgment from Mostyn J regarding whether or not KW (‘P’) was being deprived of her liberty and that the judge misinterpreted the consent order when he said that the Court of Appeal had not decided whether or not P was being deprived of her liberty.
This case looks at the procedural aspects of a Civil Appeal and is of more relevance to practitioners rather than a layperson.
P is a 52 year old women. During surgery in 1996 KW suffered a brain injury, leaving her with cognitive and mental health problems, epilepsy and physical disability.
P resides in her own home with 24 hour support. In his first judgment Mostyn J applied the test for determining whether or not P was being deprived of her liberty although the Court of Appeal (‘CA’) found that it was clear that Mostyn J did not agree with the test from paragraph 19 of his judgment. Mostyn J felt able to distinguish this case to that of the Supreme Court case in Cheshire West and state that P was not being deprived of her liberty.
The first appeal was made by P, stating that the Judge erred by not finding P was being deprived of her liberty in her home. The respondents did not oppose the appeal and a consent order was made on 30th January 2015 allowing the appeal, amongst other directions and declaring that '...to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised.’ (see paragraph 7, paragraph 2 of the Order).
Attached to the order was a statement of reasons for allowing the appeal (see paragraph 8). It states:-
‘The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & ors  UKSC 19;  AC 986 ("Cheshire West") to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own.'
On 2nd February 2015 Mostyn J directed that the case should be reserved to him and directed on 3rd February 2015 that the hearing should take place as to the scope and obligations imposed by the CA on 30th January 2015.
On 2nd March 2015 the parties appeared before Mostyn J and contrary to the expectation that Mostyn J would give effect to the CA’s decision on 30th January 2015 he ordered:-
"1. Any review hearing in accordance with paragraphs 3 or 4 of the Court of Appeal's order dated 30 January 2015 can only be triggered if the restrictive changes proposed amount to a bodily restraint comparable with that which obtained in P v Cheshire West and Cheshire Council  1 AC 896.
2. A review hearing under paragraph 5 of the Court of Appeal order dated 30 January 2015 shall be a hearing de novo to determine if a deprivation of liberty exists."
Mostyn J questioned the CA’s procedure in allowing the appeal by consent. Having come to the conclusion that the CA had taken a ‘procedurally impermissible route, the rule of law depends on first instance judges complying scrupulously with decisions and orders from appellant courts…’ Mostyn J further complained of a lack of reasoned judgment from the CA explaining why he was wrong and that no-one knew whether or not P was being detained by the state within the terms of Article 5.
The court considered the Supreme Court’s judgment in P v Cheshire West and Chester Council and P and Q v Surrey County Council  UKSC 19 (‘Cheshire West’) and the test for establishing whether or not P is being deprived of their liberty: '…the test to be applied in determining whether they are being deprived of their liberty is whether they are under continuous supervision and control of those caring for them and are not free to leave.’ (see paragraph 3). This authority is clear and binding on the lower courts.
The court reviewed the Civil Procedure Rules 1998, Rule 52.11 and Practice Direction 52A, in particular section 6 of PD52A. The court reviewed the cases of R (on the application of Lunn) v Governor of Moorland Prison  EWCA Civ 700 [para 22]; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another  EWCA Civ 518 at .
The court further reviewed M v Home Office  UKHL 5; and Isaacs v Robertson  AC97 that even if there is doubt as to the court’s jurisdiction it is still binding.
The judge was wrong to hold that the issue of deprivation of P’s liberty was not dealt with by the CA on 30th January 2015. The CA allowed the appeal from the second judgment of Mostyn J.
The CA held that Mostyn J was wrong to say that the CA’s order was ultra vires because it was made by a procedurally impermissible route.’
The CA held that the judge’s “passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge.”
The CA accepted that their early order did not explicitly state that there was a deprivation of liberty and the wording in paragraph 2 of their order might suggest that the court was not deciding that the restrictions on P were in fact a deprivation of liberty. But if read in their context the meaning was clear for two reasons; paragraph 1 governs the whole order that the appeal was allowed, and the remaining paragraphs are the consequential directions after allowing the appeal. When read with section 6 of the notice of appeal it was clear the CA were determining whether or not P was being deprived of her liberty.
The court looked thoroughly at paragraph 6.4 of PD52A and rule 52.11 and held that the court has discretion to allow an appeal by consent on paper without determining the merits at a hearing ‘..if it is satisfied that there are good and sufficient reasons for doing so.’ (see paragraph 25 and 26). The court gave guidance as to what those good and sufficient reasons would be at paragraph 26:
‘If 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 was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point.'
The CA made it clear that they were concerned with the interests of the parties and the public interest, and the interests of the judge is irrelevant.
The court was concerned that this was the second appeal in this case and that both parties have agreed the appeal should be allowed on both occasions. There was concern that this has led to considerable and unnecessary costs and unnecessary use of court time.
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