MB (a patient), Re

A judge nominated to exercise jurisdiction under Part VII of the Mental Health Act 1983 does not sit as a judge of the High Court when exercising that distinct jurisdiction. An appeal from such a judge under section 105(2) therefore falls outside the permission requirement in CPR Part 52.3(1)(a).

A general statement in Practice Direction 52 that permission is required for appeals does not enlarge CPR Part 52.3. Further categories requiring permission must be specifically provided for. The statutory appeal could therefore proceed without permission.

The patient had Alzheimer’s disease and a substantial estate. Her 1981 will divided the estate equally between her three children and appointed the applicant, one of them, as sole executor.

Following family discord, the Court of Protection appointed a professional receiver. Assistant Master Prime ordered execution of a statutory will which retained the equal division but replaced the applicant with the receiver as executor. The applicant’s appeal to Sir Francis Ferris, sitting as a nominated judge under Part VII of the Mental Health Act 1983, was dismissed. Sir Francis Ferris also directed consideration of a statutory codicil appointing an executor unconnected with the receiver’s firm.

The applicant then sought permission to bring a second appeal. The central issue was whether CPR Part 52.3 required permission for an appeal from a nominated judge exercising the statutory mental-health jurisdiction.

Held, unanimously, that permission to appeal was not required. The court made no order on the application except to direct that any appeal should not be listed before the review of the interim receivership was known.

1. Section 105(2) of the Mental Health Act 1983 preserved a statutory right of appeal from a nominated judge to the Court of Appeal. Although a nominated judge held office as a High Court judge, the historic lunacy jurisdiction had remained separate from the High Court. A nominated judge exercising Part VII jurisdiction was therefore not sitting as a judge in the High Court.

2. Section 54 of the Access to Justice Act 1999 allowed rules to impose a permission requirement, but CPR Part 52.3(1)(a) imposed one only for appeals from judges sitting in a county court or the High Court. It did not extend to the statutory appeal in this case.

3. Practice Direction 52 did not alter that result. Its general wording was not intended to extend CPR Part 52.3. Consistently with Colley v The Council for Licensed Conveyancers [2002] 1WLR 160, a practice direction would need to make specific provision for a further category of appeal requiring permission.

4. The absence of a permission requirement appeared anomalous when compared with the former Rules of the Supreme Court, but the court could not supply that omission by construction. The applicant was at liberty to proceed with the appeal without permission. The executorship issue was nevertheless best deferred until the Court of Protection had reviewed the interim receivership.

• Court of Appeal (Civil Division): Held that permission was unnecessary for the statutory appeal and directed that it should not be listed before the receivership review.
• Nominated judge under Part VII of the Mental Health Act 1983: Sir Francis Ferris dismissed the applicant’s appeal from the Court of Protection on 21 February 2005 and directed consideration of a statutory codicil.
• Court of Protection: Assistant Master Prime ordered on 4 August 2004 that a statutory will be executed, replacing the applicant as executor with the professional receiver.