KW & Ors v Rochdale Metropolitan Borough Council (Rev 3)

An appellate order allowing an appeal must be read as a whole, in the context of the notice of appeal and its consequential provisions. Conditional wording authorising a deprivation of liberty does not displace the necessary effect of an order allowing an appeal from a finding that no deprivation existed.

Under Civil Procedure Rules 1998, PD 52A paragraph 6.4 permits an appellate court to allow a consent appeal on the papers without deciding its merits where there are good and sufficient reasons. Ordinarily, competent legal advice and plausible reasons that the lower decision was wrong will suffice. A merits hearing may nevertheless be needed where the parties’ interests or the public interest require it. The interests of the judge whose decision is appealed are irrelevant.

KW had severe cognitive and physical impairments and received continuous care at home. The Court of Protection, in a decision of Mostyn J reported at [2015] EWCOP 13, held that the arrangements did not deprive her of liberty for the purposes of article 5 of the Convention.

Her first appeal was allowed by consent. The Court of Appeal authorised the care arrangements and provided for review on the footing that the appeal had succeeded. Mostyn J subsequently held that the consent order had not determined whether KW was deprived of liberty, directed a hearing de novo at review, and questioned whether the consent order had been made by a permissible procedure.

The central issues were the proper interpretation and validity of the consent order.

1. Appeal allowed. The January 2015 consent order necessarily decided that KW’s care arrangements amounted to a deprivation of liberty within article 5. Although paragraph 2 used conditional language when authorising the arrangements, paragraph 1 allowed an appeal whose stated object was to reverse the finding that KW was not deprived of liberty. The consequential review provisions confirmed that interpretation.

2. The Court of Protection judge was therefore wrong to treat the issue as unresolved and to direct a de novo determination at a future review. The decision was consistent with the binding test in P v Cheshire West and Chester Council and P and Q v Surrey County Council, [2014] UKSC 19, under which a person is deprived of liberty where they are subject to continuous supervision and control and are not free to leave.

3. An order remains binding unless and until it is set aside or varied. That remains so even if there is doubt about the court’s jurisdiction to make it. A judge required to give effect to a higher court’s binding order should not seek to undermine it by asserting that it was ultra vires or wrong.

4. CPR 52.11 describes the normal merits-based appeal process. But PD 52A paragraph 6.4 confers a broad discretion to allow a consent appeal on the papers without a merits determination where there are good and sufficient reasons. It will ordinarily be appropriate where consent rests on apparently competent legal advice and the parties give plausible reasons that the lower decision was wrong. There is no entitlement of the appealed judge to a merits judgment. A merits hearing may still be required where the interests of the parties or the public interest so demand.

5. The first consent order was validly made. The prior decision raised no unresolved legal issue and the parties had plausible, professionally advised reasons for treating its application of Cheshire West as wrong. In view of the history, the future review was to be conducted by a different judge.

1. Court of Appeal (Civil Division) Allowed the second appeal and held that the earlier consent order had determined the deprivation-of-liberty issue: [2015] EWCA Civ 1054.
2. Court of Protection Mostyn J treated the earlier consent order as not deciding whether KW was deprived of liberty and directed a de novo review hearing.
3. Court of Appeal (Civil Division) Allowed KW’s first appeal by consent on 30 January 2015, authorised the care arrangements, and provided for review.
4. Court of Protection Mostyn J held that KW’s home care arrangements did not amount to a deprivation of liberty: [2015] EWCOP 13.