TAQ v AA

Where a statutory scheme makes permission a condition of an appeal, a general right of appeal from any decision does not ordinarily include an appeal against the grant or refusal of permission. The restriction follows by necessary intendment from the purpose of the permission filter, unless legislation expressly provides otherwise.

Under the Mental Capacity Act 2005 and the Court of Protection Rules, a nominated judge’s refusal under rule 172(7) of permission to appeal a circuit judge’s first-instance decision could not itself be appealed to the Court of Appeal. A narrow residual jurisdiction exists where there was no decision, or fundamental unfairness or procedural misconduct amounting to an Article 6 breach. No such case was shown. A section 21A appeal nevertheless requires due and proper consideration, though not necessarily a lengthy hearing.

TA, the father and Relevant Person’s Representative of AA, challenged a standard authorisation depriving AA of his liberty at a residential care home. The challenge was brought under section 21A of the Mental Capacity Act 2005.

Earlier proceedings had been withdrawn. In the later proceedings, HHJ Gore QC substituted the Official Solicitor as applicant and permitted withdrawal of the section 21A application. Peter Jackson J refused an extension of time and permission to appeal on the papers.

The issue before the Court of Appeal was whether it had jurisdiction to entertain an application for permission to appeal against that refusal of permission, and whether Article 5(4) or any residual jurisdiction required the court to intervene.

1. Disposition. The court unanimously dismissed the application for permission to appeal because it had no jurisdiction to entertain it.
2. Statutory framework. Section 15(2)(a) of the Senior Courts Act 1981 and section 53(1) of the Mental Capacity Act 2005 supplied the relevant appellate jurisdiction. The apparently broad words of section 53(1) were subject to the later permission and allocation provisions. The Court of Protection Rules were rules of court for the purposes of section 54 of the Access to Justice Act 1999, and the Civil Procedure Rules applied where necessary through rule 9.
3. Permission decisions. Section 54(4) would prevent an appeal against a nominated judge’s decision under rule 181 to grant or refuse permission to appeal to the Court of Appeal. That provision did not directly govern Peter Jackson J’s decision, because he had refused permission under rule 172(7) to appeal HHJ Gore QC’s first-instance decision to the junior appellate court. Nevertheless, the principle in Lane v Esdaile applied: a requirement for permission necessarily excludes an appeal against the grant or refusal of permission unless an appeal is expressly provided. The words any decision in section 53(1) had to be read in that context.
4. Residual jurisdiction. The narrow residual jurisdiction recognised in CGU International Insurance plc and others v AstraZeneca Insurance Co Ltd and considered in Campbell v The Queen did not assist. It is confined to cases involving no decision, or misconduct, unfairness or comparable procedural failure so serious as to breach Article 6. Peter Jackson J had made a decision, and his refusal of permission was not unfair or procedurally flawed.
5. The Court of Appeal also had no jurisdiction to entertain a direct application against HHJ Gore QC’s decision. Rule 181 concerned decisions of nominated judges, while rule 182 concerned second appeals from decisions made on appeal. Neither applied here.
6. Moses LJ agreed with the judgment but recorded an important caution. The Official Solicitor accepted that a section 21A appeal had to receive due and proper consideration and could not lawfully be refused merely because the outcome appeared obvious. Proper consideration need not involve a lengthy or expensive hearing. That observation was not necessary to the jurisdictional disposition.

1. Court of Appeal (Civil Division) — In [2013] EWCA Civ 1661, dismissed the application for permission to appeal for want of jurisdiction.
2. Court of Protection — Peter Jackson J refused an extension of time and permission to appeal on 18 April 2012.
3. Court of Protection — HHJ Gore QC substituted the Official Solicitor as applicant and permitted withdrawal of the section 21A application on 28 February 2012.