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TAQ v AA [2013] EWCA Civ 1661

Application for permission to appeal against the dismissal of the appellant's application under section 21A Mental Capacity Act 2005, challenging the lawfulness of a Standard Authorisation made under Schedule A1 to the MCA authorizing a deprivation of liberty. Application dismissed on the grounds of absence of jurisdiction.

This case concerned a jurisdictional issue which arose in appeal proceedings from the Court of Protection.  The facts of the case are of less importance than the details of the proceedings so far as this summary is concerned.

In short, TA (the appellant) is AA's father.  AA is a vulnerable young man with a long-standing condition, having probably suffered brain damage as a result of long-term alcohol use. Following several periods detained under section KBC arranged for him to live at a residential care home, making a standard authorisation of the deprivation of his liberty on the basis that the arrangements were proportionate and in his best interests.

TA made an application to challenge the standard authorisation and the matter came before the Court of Protection.  The parties commissioned an independent social worker's report, the final conclusions of which were that measures amounting to a deprivation of liberty were necessary and reasonable. The Official Solicitor then successfully argued that the appeal against the standard authorisation served no utility and ought to be withdrawn, and AA remained at the residential home for a further 4 months until the standard authorisation lapsed. KBC made a further standard authorisation the next month.  Once again AA sought to challenge it, and the Official Solicitor sought to have that application withdrawn. The OS argued there had been no material change, section 21A was not an appropriate means of challenging care arrangements and it placed a significant burden on the LSC and court service which should be brought only if meritorious and proportionate. The OS sought to be substituted as applicant so that the application could be withdrawn.

HHJ Gore QC sitting as a Judge of the Court of Protection allowed this and the application was withdrawn. The Judge concluded that Part 8 of Schedule A1 was a more suitable mechanism as the applicant could demand a review by the local authority, and this would avoid the need for litigation.

The appellant sought an extension of time and permission to appeal.  Peter Jackson J refused this on paper as there was no good reason given for the appeal not being lodged within 21 days and no real prospect of success; AA's rights were respected and the court was not obliged to carry out a full inquiry regardless of the merits. AA's deprivation of liberty would continue to be reviewed.

Before the Court of Appeal the appellant argued that HHJ Gore QC had acted in breach of AA's rights, as had Peter Jackson J by refusing permission to appeal, which was an error of law.

The issue was in respect of the Court of Appeal's jurisdiction to hear the case.  All parties argued that the court did have jurisdiction.  However, the Court of Appeal concluded that there was no jurisdiction to hear the appeal. The question had turned on the construction of s.54(4) AJA 1999.  The Court considered that the decision of Peter Jackson J, against which permission to appeal was sought, was a decision made pursuant to rule 172(7) of the COP Rules refusing permission to appeal from a decision of a first instance judge (HHJ Gore QC) to a judge nominated under section 46(2)(a) to (c).  It was not a decision refusing permission to appeal HHJ Gore QC's decision to the Court of Appeal, or a decision refusing permission to appeal Peter Jackson J's own decision refusing leave to the Court of Appeal.

The Court found that section 54(4) of the 1999 Act would apply to a decision made pursuant to Rule 181(2) by a judge nominated under section 46(2)(a) to (c) granting or refusing permission to appeal to the Court of appeal against a decision made by a judge so nominated as a first instance judge of the Court of Protection. There could be no appeal against such a decision, although a renewed application for permission to appeal could be made to the Court of Appeal.  In this case the decision of Peter Jackson J was not a decision by the nominated judge under section 46(2)(a) to (c) pursuant to rule 181. It was a decision by the junior appellate court refusing permission to appeal t the junior appellate court from a first instance decision of the circuit judge. Section 54(4) of the 1999 Act does not apply to such a decision as it is not a decision of a court (i.e. the Court of Protection) "under the section." In order to be a decision "under the section" it would have to have been a decision as to whether to give or refuse permission to appeal to the Court of Appeal.

The Court considered the case of Lane v Esdaile which concerned the appellate jurisdiction of the House of Lords, the rules in which were analogous to the combination of section 53(4) of the MCA and rule 172(1) and (2) of the COP Rules.  The rule of construction in that case has been consistently applied to a variety of statutory provisions, analogous to those in this case. It was not inconsistent with a party's right to a fair trial under Article 6.

The Court found that the clear intention of the MCA and COP Rules is that the statutory right of appeal at all levels in the Court of Protection should be restricted by the requirement to obtain permission to appeal. The notion that there should be an ability to appeal the filter decision of the junior appellate court gives rise to precisely the type of absurdity that the rule avoids.

Summary by Andrea Watts, barrister, 1 King's Bench Walk
____________________________

Neutral Citation Number: [2013] EWCA Civ 1661
Case No: B4/2012/1235

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
THE HONOURABLE MR. JUSTICE PETER JACKSON
COP 11913708

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19/12/2013

Before :

LORD JUSTICE MOSES

LADY JUSTICE BLACK

and

LADY JUSTICE GLOSTER

TA
 Appellant

-and- 

AA (By his litigation friend, The Official Solicitor) 1st Respondent

-and- 

KNOWSLEY METROPOLITAN BOROUGH COUNCIL 2nd Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Paul Bowen QC and Mr Simon Burrows (instructed by Switalskis Solicitors LLP) for the Appellant
Mr Richard Gordon QC
and Mr Adam Fullwood (instructed by Peter Edwards Law Solicitors) for the 1st Respondent
Ms Jane Cross
and Mr Jonathan Butler (instructed by Knowsley Metropolitan Borough Council) for the 2nd Respondent

Hearing dates: Thursday 3rd October 2013 Friday 4th October 2013
- - - - - - - - - - - - - - - - - - - - -

Judgment

Lady Justice Gloster :
Introduction
1. This is an application for permission to appeal against the decision of Mr. Justice Peter Jackson dated 2 May 2012, whereby he dismissed the Appellant's application under section 21A Mental Capacity Act 2005 ("the MCA") challenging the lawfulness of a Standard Authorisation dated 23 November 2011 made under Schedule A1 of the MCA authorizing the deprivation of his son's, the first respondent's ("AA"), liberty.

2. On 27 July 2012 McFarlane LJ, as the single judge dealing with the application for permission to appeal on the papers, ordered that the application for permission to appeal should be adjourned to an on notice hearing with the appeal to follow, if permission to appeal were granted.  That was because of his concerns about whether this court has jurisdiction to entertain this appeal. In his reasons for taking that course, McFarlane LJ expressed those concerns as follows:

"In addition, this is an appeal against the refusal of Jackson J to grant permission to appeal. If these proceedings are governed by Access to Justice Act 1999, section 54(4) and CPR PD 52 para 4.8 (and see White Book notes para 52.3.8) then there is no appeal to the Court of Appeal from a refusal of permission by the lower appellate court. These are proceedings in the Court of Protection and COP Rules r 181(1) provides for an appeal from a decision of a judge nominated by MCA, s 46(2) [which includes Jackson J sitting in the COP] to lie to the Court of Appeal. It is a moot point whether, in contrast to ordinary civil proceedings, there is scope for appealing a refusal of permission to appeal in COP cases. This point also justifies consideration by the full court, but means that permission to appeal will not be granted at this stage."

Facts relevant for the purposes of the jurisdictional issue
3. The following summary of the background facts was common ground.

4. The Appellant is AA's father and "Relevant Person's Representative" ("RPR") appointed under Part 10 of Schedule A1 to the MCA. AA is a vulnerable young man with a long-standing condition that requires careful management and control. In this appeal AA is represented by his litigation friend, the Official Solicitor.

5. The second respondent, Knowsley Metropolitan Borough Council ("KBC"), is the relevant social services authority. It regularly assesses AA's needs and reviews his care plan.

6. AA was born on 14 May 1973. He began abusing alcohol from an early age and received his first conviction for being drunk and disorderly at the age of 14. On 15 March 2006 AA was assessed by a neurologist who suggested that he had sustained brain damage as a result of his long-term alcohol abuse. Reference was also made to the poor management of his epilepsy.

7. In 2008, and following further arrests and convictions, AA was made the subject of a Multi Agency Public Protection Arrangement ("MAPPA"). On 6 August 2008 he was detained in hospital under section 2 of the Mental Health Act 1983 ("the 1983 Act"). Assessments revealed that AA was unable to prepare his own meals and would be at risk living on his own. It was suggested that he had developed Korsakoff's Syndrome and that he required 24-hour supervision to meet his needs and keep him safe.

8. On 11 December 2008 AA was placed at Kemp Lodge, Birkenhead (Brain Injury Residential Unit) as a condition of leave and then under a Community Treatment Order ("CTO") Following discharge it was hoped that the CTO would provide the level of structure and support required to manage his behaviour and alcohol abuse.

9. On 23 March 2009 he was discharged from the CTO due to his continued abuse of alcohol. In April 2009 he left Kemp Lodge, as the relevant authorities considered that he was no longer able to benefit from the rehabilitation services offered there.

10. AA moved into privately rented accommodation with the assistance of his father but was reported to be wandering the streets, often under the influence of alcohol. He was regularly placing himself at risk of harm by others and was seriously assaulted on at least one occasion. Further professional assessments of AA concluded that he required 24-hour care to meet his needs and keep him safe.

11. On 11 May 2010 AA's social worker (Ms. Agiannitopoulos) recorded her view that his father had good but unrealistic intentions for his son. On 12 May 2010 AA was detained again under section 2 of the 1983 Act. He continued to be detained under section 3 of the 1983 Act and was given an "extremely poor" prognosis of recovery from Korsakoff's Syndrome. On 13 September 2010 AA was discharged from his detention under section 3 and went to live at St. Joseph's Residential Care Home ("the Home") under a package of care funded by KBC.

12. On 20 September 2010 KBC made a standard authorisation under Schedule A1 to the 2005 Act in which the assessors concluded that AA was deprived of his liberty at the Home but that the arrangements were proportionate and in his best interests. On 14 October 2010 AA returned to the Home when it was recorded that he had consumed alcohol and had been abusive towards staff. The Appellant initially responded to the concerns raised by staff, by stating that AA had not consumed alcohol but had only been drinking shandy.

13. On 26 October 2010 KBC made a further standard authorisation.

14. On 4 November 2010 the Appellant, as AA's RPR, made an application under section 21A of the MCA challenging the standard authorisation.  By section 50(1A) of the MCA a detained person's RPR may bring proceedings in the Court of Protection under section 21A without the need for the Court's permission. The Official Solicitor was invited to become AA's litigation friend, because AA lacked the capacity to litigate.

15. The parties jointly instructed an independent social worker's report by Ian Gillman-Smith dated 4 April 2011. His report concluded that it was in AA's best interests to be detained at the Home; however, he observed that AA was more able and independent than other residents; that the Home did not provide an adequate rehabilitative element to allow greater independence and autonomy; and he was 'not clear that [the] Home was the least restrictive option for AA, certainly with regards to his future and long-term needs'.  He considered AA could be supported further in taking more responsibility for his self-care and food preparation and that consideration should be given to allowing AA to be given periods of time in the community without an escort.

16. On 31 May 2011 Mr Gillman-Smith prepared an Addendum Report in which he recorded AA's deteriorating behaviour and condition generally and expressed his view that the measures amounting to a deprivation of liberty were both necessary and reasonable.

17. On 2 June 2011 the Official Solicitor notified the parties and the court that he considered that the section 21A appeal against the standard authorisation served no utility and ought to be withdrawn.  The application was made at a hearing before His Honour Judge Gore, Q.C. on 7 June 2011. The Appellant objected.  Having heard submissions and evidence, the judge granted the Official Solicitor permission to withdraw the section 21A application, and gave an ex tempore judgment.  In doing so, he concluded that all the qualifying requirements for the making of a standard authorisation under Schedule A1 of the MCA were met, pursuant to s.21A(2)(a) of the MCA. 

18. Thereafter AA remained a resident at St. Joseph's, according to the Appellant, against AA's wishes. However, in October 2011 the standard authorisation lapsed. The Home did not apply to renew the standard authorisation, on the basis that (in its opinion) AA was not being 'deprived of his liberty'. Following representations by the Appellant the Home accepted that AA was being deprived of his liberty and applied for a further standard authorisation. 

19. Consequently, on 23 November 2011 KBC made a further standard authorisation under Schedule A1 to the MCA authorising the deprivation of AA's liberty under the terms of his care plan which provided for residence at the Home. This standard authorisation was also made for a period of six months.

20. The Appellant was, and remains, opposed to the arrangements for his son's care. Shortly after 23 November 2011 [on 9 December 2011], in his capacity as AA's RPR, he made a second application to the Court of Protection under section 21A of the MCA, challenging the standard authorisation dated 23rd November 2011. On 19 December 2011 DJ Mainwaring-Taylor, as a judge of the Court of Protection, appointed the Official Solicitor to act as AA's litigation friend in the proceedings.

21. On 20 January 2012 the application came before Mr. Justice Peter Jackson, as a judge of the Court of Protection. He directed that the matter should be listed before HHJ Gore QC on 28 February 2012, and ordered that, at that hearing, the Appellant, as the applicant, would "be required to satisfy the court as to the purpose of these further proceedings". 

22. The Official Solicitor prepared a position statement for the hearing on 28 February. In summary, his arguments were as follows:

i) that there had been no material change since the last application was determined on 6 June 2011 and that the Appellant was running the 'same argument' as before;

ii) an application under section 21A was not an appropriate means of challenging care arrangements, at least not without a review under Part 8(18);

iii) section 21A proceedings represented a 'significant burden on both the LSC and the court service and should only be brought if there is merit in so doing and it is proportionate', which was not the case in relation to the Appellant's application;

iv) the Official Solicitor should be substituted as applicant instead of the Appellant so that the application could be withdrawn.

23. KBC supported the Official Solicitor's position.

24. At the hearing on 28th February 2012,  HHJ Gore QC, sitting as a judge of the Court of Protection:

i)  allowed the Official Solicitor's application for AA, represented by the Official Solicitor, to be substituted as applicant in place of the Appellant;

ii)  made the Appellant second respondent to the proceedings;

iii) granted permission to the Official Solicitor, pursuant to his conduct of the proceedings, to withdraw the section 21A application.

25. The judge's reasons were set out in his judgment dated 28 February 2012. In summary he concluded:

i) Part 8 of Schedule A1 was a more suitable mechanism by which the Appellant could demand, not merely request, a review by the Local Authority of the standard authorisation and address concerns about place of residence, care plan, care regime and input in relation to rehabilitation.

ii) The Part 8 process would 'avoid the need for the detailed legal representation and submissions and the costs consequence of what would be called for in a full-blown section 21A appeal'.

26. On 29 March 2012 the Appellant made an application for an extension of time and for permission to appeal against the decision of His Honour Judge Gore QC. The ground upon which the Appellant sought permission to appeal was in summary that by failing to determine the legality of AA's continued detention the judge had denied AA his Convention rights under Article 5(4).

27. On 18 April 2012 Peter Jackson J, on the papers, refused to grant an extension of time and permission to appeal. His reasons were as follows:

"Although the delay is short (c. 2 weeks), no good reason has been given for the application not being lodged within 21 days…..The Grounds of Appeal demonstrate no real prospect of success. AA's rights under Art. 5 (4) were respected. Section 21A MCA 2005 provides that the court may determine questions relating to standard authorisations. The court must determine how it approaches that task; it is not compelled to carry out a full inquiry regardless of the merits. The Judge was entitled to have regard to the fact that AA's deprivation of liberty could be and is to be reviewed."

Ground in respect of the appeal to the Court of Appeal
28. The ground of appeal relied upon by the Appellant before this Court is essentially the same as that relied upon on the application before Peter Jackson J, namely that, by allowing the Official Solicitor to withdraw the claim under section 21A without determining whether the qualifying requirements under Schedule A1 were met, HHJ Gore QC acted in breach of AA's rights under Article 5(4).  Likewise, the Appellant contends that Peter Jackson J, by refusing the application for permission to appeal, made a similar error of law.

The jurisdictional issue

29. The Appellant, the Official Solicitor and KBC presented a united front, both in their written submissions and in oral argument, that this court had jurisdiction to entertain the Appellant's appeal. During the course of the hearing, the court raised its concerns about the jurisdictional issue and referred counsel to the decision of the House of Lords in Lane v Esdaile [1891] AC 210 and other recent authorities where that case had been considered. As a result, after the hearing, counsel for the Appellant, Mr Paul Bowen QC and Mr Simon Burrows, provided to the court further written submissions dealing with the issue.

The relevant statutory provisions

30. Section 54 of the Access to Justice Act 1999 ("the 1999 Act") provides:

"54  Permission to appeal
(1)  Rules of court may provide that any right of appeal to—

(a) a county court,

(b) the High Court, or

(c) the Court of Appeal,

may be exercised only with permission.

(2) This section does not apply to a right of appeal in a criminal cause or matter.

(3) For the purposes of subsection (1) rules of court may make provision as to—

(a) the classes of case in which a right of appeal may be exercised only with permission,

(b)  the court or courts which may give permission for the purposes of this section,

(c) any considerations to be taken into account in deciding whether permission should be given, and

(d) any requirements to be satisfied before permission may be given,

and may make different provision for different circumstances.

(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).

(5) For the purposes of this section a right to make an application to have a case stated for the opinion of the High Court constitutes a right of appeal.

(6) For the purposes of this section a right of appeal to the Court of Appeal includes—

(a) the right to make an application for a new trial, and

(b) the right to make an application to set aside a verdict, finding or judgment in any cause or matter in the High Court which has been tried, or in which any issue has been tried, by a jury." (Emphasis supplied.)

31. Section 15 of the Senior Courts Act 1981, so far as material, provides as follows:

"15 General jurisdiction of Court of Appeal.

(1) The Court of Appeal shall be a superior court of record.

(2) Subject to the provisions of this Act, there shall be exercisable by the Court of Appeal—

(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and

(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act.

(3) For all purposes of or incidental to—

(a) the hearing and determination of any appeal to the civil division of the Court of Appeal; and

(b)the amendment, execution and enforcement of any judgment or order made on such an appeal,

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought."

32. Section 53 of the MCA provides:

"Rights of appeal
(1)     Subject to the provisions of this section, an appeal lies to the Court of Appeal from any decision of the court.

(2)     Court of Protection Rules may provide that where a decision of the court is made by—

(a)     a person exercising the jurisdiction of the court by virtue of rules made under section 51(2)(d),

(b)     a district judge, or

(c)     a circuit judge,

an appeal from that decision lies to a prescribed higher judge of the court and not to the Court of Appeal.

(3)     For the purposes of this section the higher judges of the court are—

(a)     in relation to a person mentioned in subsection (2)(a), a circuit judge or a district judge;

(b)     in relation to a person mentioned in subsection (2)(b), a circuit judge;

(c)     in relation to any person mentioned in subsection (2), one of the judges nominated by virtue of section 46(2)(a) to (c).

(4)     Court of Protection Rules may make provision—

(a)     that, in such cases as may be specified, an appeal from a decision of the court may not be made without permission;

(b)     as to the person or persons entitled to grant permission to appeal;

(c)     as to any requirements to be satisfied before permission is granted;

(d)     that where a higher judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(i)     the appeal would raise an important point of principle or practice, or

(ii)     there is some other compelling reason for the Court of Appeal to hear it;

(e)     as to any considerations to be taken into account in relation to granting or refusing permission to appeal."

33. Section 46(2) of the MCA provides:

"(2)     To be nominated, a judge must be—

(a)     the President of the Family Division,

(b)     the Vice-Chancellor,

(c)     a puisne judge of the High Court,

(d)     a circuit judge, or

(e)     a district judge."

34. The Court of Protection Rules ("the COP Rules") were made pursuant to section 51 of the MCA and they came into force on 1 October 2007. Rules 170 and 172 contain the following relevant provisions:

"170.— Interpretation
(1) In the following provisions of this Part—

(a) "appeal judge" means a judge of the court to whom an appeal is made;

(b) "first instance judge" means the judge of the court from whose decision an appeal is brought;

(c) "appellant" means the person who brings or seeks to bring an appeal;

(d) "respondent" means—

(i) a person other than the appellant who was a party to the proceedings before the first instance judge and who is affected by the appeal; or

(ii) a person who is permitted or directed by the first instance judge or the appeal judge to be a party to the appeal.

(2) In this Part, where the expression "permission" is used it means "permission to appeal" unless otherwise stated.

……

172.— Permission to appeal
(1) Subject to paragraph (8), an appeal against a decision of the court may not be made without permission.

(2) Any person bound by an order of the court by virtue of rule 74 (persons to be bound as if parties) may seek permission to appeal under this Part.

(3) Permission is to be granted or refused in accordance with this Part.

(4) An application for permission to appeal may be made to the first instance judge or the appeal judge.

(5) Where an application for permission is refused by the first instance judge, a further application for permission may be made in accordance with paragraphs (6) and (7).

(6) Where the decision sought to be appealed is a decision of a district judge, permission may be granted or refused by—

(a) the President;

(b) the Vice-President;

(c) one of the other judges nominated by virtue of section 46(2)(a) to (c) of the Act; or

(d) a circuit judge.

(7) Where the decision sought to be appealed is a decision of a circuit judge, permission may only be granted or refused by one of the judges mentioned in paragraph (6)(a) to (c).

(8) Permission is not required to appeal against an order for committal to prison."

35. Rules 181 and 182 make provision for appeals to nominated judges and to the Court of Appeal in the following terms:

"180. Allocation
Except in accordance with the relevant practice direction—

(a) an appeal from a first instance decision of a circuit judge shall be heard by a judge of the court nominated by virtue of section 46(2)(a) to (c) of the Act; and

(b) an appeal from a decision of a district judge shall be heard by a circuit judge.

181 Appeals against decision of a puisne judge of the High Court, etc
Where the decision sought to be appealed is a decision of a judge nominated by virtue of section 46(2)(a) to (c) of the Act, an appeal will lie only to the Court of Appeal.

The judge nominated by virtue of section 46(2)(a) to (c) of the Act may grant permission to appeal to the Court of Appeal in accordance with this Part, where the decision sought to be appealed was a decision made by a judge so nominated as a first instance judge.

182  Second appeals
(1)     A decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal.

(2)     Permission is required from the Court of Appeal for such an appeal.

(3)     The Court of Appeal will not give permission unless it considers that—

(a)     the appeal would raise an important point of principle or practice; or

(b)     there is some other compelling reason for the Court of Appeal to hear it.

(4)     Nothing in this rule or in rule 181 applies to a second appeal from a decision of a nominated officer."

The parties' submissions
36. Mr Bowen's submissions (with which to a large extent - but not entirely -  counsel for the other parties concurred) can be summarised as follows:

37. (1) Section 53 of the MCA creates its own self-contained regime: Mr Bowen submitted that the Court of Appeal's jurisdiction to consider an appeal from the Court of Protection was conferred by section 15(1) of the Senior Courts Act 1981 and section 53 of the MCA, together with the COP Rules. Those provisions did not contain the same statutory limitation on appeals against the grant or refusal of permission to appeal as contained in section 54(4) of the 1999 Act or in section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 ("the TCEA 2007").  The right of appeal conferred by section 53(1) was against "any decision of the court", which was plainly wide enough to include a decision to grant or refuse permission and was not restricted by the terms of section 53(2)-(4) of the MCA. In section 54(4) of the 1999 Act a refusal of permission to appeal was a 'decision', which must have the same meaning in section 53 of the MCA given that the two provisions are in pari materia

38. Unless it was explicitly restricted by section 54(4) of the 1999 Act or the principle of statutory construction contained in Lane v Esdaile, section 53(1) should be given its ordinary and natural meaning.  For the reasons that follow, no such limitation applies to the present case.

39. (2) Section 54(4) of the 1999 Act does not apply: Mr Bowen submitted that section 54(4) did not apply to appeals under section 53(1) of the MCA, for two reasons:

i) First, section 54(1) was impliedly excluded from having any operation by virtue of section 53(1) and (4) of the MCA which (together with the COP Rules) created a self-contained regime for appeals, including the need for permission to appeal (section 53(4); that had impliedly excluded the operation of section 54 by virtue of the 'expressio unius est exclusius alterius' principle of statutory construction.  The prohibition against appeals against refusals of permission contained in section 54(4) did not apply because a decision refusing permission to appeal against a decision of the Court of Protection was not made under 'this section' for the purposes of section 54(4).  (By contrast, in Re B (A Patient) (Court of Protection - Appeal) [2006] 1 W.L.R. 278 the Court of Appeal assumed that section 54(1) of the 1999 Act applied to appeals from the Court of Protection.  However that case involved an appeal under section 105 of the Mental Health Act 1983 from a decision made by the Court of Protection under Part VII of the Mental Health Act 1983, prior to the coming into force of the MCA, which created the new Court of Protection as a superior court of record.   The former provisions did not create a self-contained appeals regime.  In particular there was no power under section 106 to make rules governing the need for permission to appeal akin to that in section 53(4) of the MCA, so any appeal to the Court of Appeal was governed by section 54(1) of the 1999 Act.)

ii) Second, and alternatively, even if section 54(1) did in principle apply to appeals from the Court of Protection, it was not given effect in relation to such appeals by the relevant rule of the CPR, 52.3, which provides that:

'An appellant or respondent requires permission to appeal (a) where the appeal is from a decision of a judge in a county court or the High Court …'. 

But given that a judge of the Court of Protection was not sitting in the High Court when exercising the jurisdiction of the Court of Protection: see Re B (A Patient) (Court of Protection - Appeal) [2006] 1 W.L.R. 278, at paragraphs 32-34, 36, 39, a refusal of permission to appeal against such a decision was not made under 'this section' for the purposes of section 54(4).  For that reason also CPR 52 PD 4.8 did not apply to appeals from the Court of Protection.

40. (3) The principle in Lane v Esdaile does not apply at all: Mr Bowen submitted that the principle of statutory construction in Lane v Esdaile did not apply to limit the jurisdiction conferred by section 53(1) of the MCA in any way. That was because:

i) Lane v Esdaile was a rule of statutory interpretation (per Rix LJ in CGU International Insurance plc and others v AstraZeneca Insurance Co Ltd [2007] Bus. L.R. 162 at paragraph 73)) which could give way to other rules.  Campbell v The Queen [2011] 2 A.C. 79 provided an example of the courts refusing to apply the rule at all.

ii) Section 53(1) and the COP Rules created a self-contained regime without any specific exclusion on appeals against permission to appeal akin to that in section 54(4) of the 1999 Act and section 13(8) of the TCEA 2007.  Section 53(1) and the COP Rules were both drafted after the 1999 Act, which established the Parliamentary draughtsman's practice for making express provision for the exclusion of rights of appeal against refusals of permission to appeal.  The absence of an express provision must be taken to mean that Parliament did not intend to restrict appeals from the Court of Protection in that way.

41. Both the Official Solicitor and KBC both agreed with and supported the above arguments.

42. (4) Lane v Esdaile should not apply where there will otherwise be a significant injustice: Mr Bowen submitted that, alternatively to his third submission, even if the rule in Lane v Esdaile did apply to restrict the ambit of the court's jurisdiction under section 53(1) of the MCA, the Court of Appeal nevertheless retained an implied or residual discretion to grant permission to appeal a refusal of permission where a significant injustice had probably occurred and there was no alternative remedy. 

43. Accordingly Mr Bowen submitted that:

i) Section 53(1) should be given an interpretation consistent with the Court of Appeal's twin objectives of correcting wrong decisions so as to ensure justice and to ensure public confidence in the administration of justice; see Taylor v Lawrence [2003] QB 528, paragraphs 26, 50, 51-55; cited by Rix LJ in CGU, at paragraphs 71-73.  Thus, even though the Court of Appeal, as a creature of statute, had no inherent jurisdiction, it had an implied jurisdiction to do what was necessary to achieve these objectives where "a significant injustice has probably occurred and … there is no alternative effective remedy" (Taylor, paragraph 55).  In Taylor the Court of Appeal applied this principle so as to allow an appeal to be reopened where fresh evidence was available.  In CGU it informed the Court's conclusion that there was a 'residual jurisdiction' to hear an appeal against a refusal of permission, distinguishing the principle in Lane v Esdaile. This was the same principle but in different garb from that stated by Baroness Hale in R. (Cart) v Upper Tribunal [2012] 1 A.C. 663 when she referred, at paragraph 37, to judicial review as:

'an artefact of the common law whose object is to maintain the rule of law - that is, to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise"

and, in consequence,

'there should always be the possibility that another judge can look at the case and check for error'.

(at paragraph 56).  Although that was said in the context of judicial review, the underlying principle was the same. 

ii) In CGU the Court of Appeal affirmed the existence of a 'residual jurisdiction' to consider appeals against a refusal of permission where the decision of the judge refusing permission was vitiated by some unfairness.  Mr Bowen accepted that the ratio decidendi of the decision was limited to appeals in those circumstances. However, he sought to rely on the fact that, in reaching that conclusion, Rix LJ (who gave the judgment of the Court) questioned whether the Lane v Esdaile principle applied to appeals where the first instance decision (as opposed to that of the judge refusing permission) was vitiated by unfairness; thus at paragraph 71 he said:

"If [unfairness] should occur, what reason is there for thinking that Parliament intended that it should be swept under the carpet by the judge's own power to refuse leave to appeal to the Court of Appeal? The same question arises if the unfairness occurs not in the conduct of the judicial appeal at first instance but in the process of considering an application for leave to appeal to the Court of Appeal."

And at paragraph 72, while recognizing that there might be all sorts of contexts in which there were good reasons to limit appeal rights, Rix LJ observed that the same reasoning did not apply where a decision had been taken that was unfair:

"However, there is no similar rationality, it may be said no good reason at all, for thinking that a court's unfairness is to be left incapable of appellate review."

He went on, citing the principle in Taylor v Lawrence:

"…..to highlight the unlikelihood that Parliament, a fortiori in a situation where an appeal jurisdiction was possible, intended the unfair process of a lower court to be immune from appellate review".

Accordingly, s 69(8) of the Arbitration Act 1996 was to be read as only excluding appeals to the Court of Appeal relating to the "the merits of the first instance decision and does not extend it to unfairness in the process" (paragraph 73) (emphasis added).

iii) The same conclusion followed by application of section 3 of the Human Rights Act 1998 in order to ensure compliance with Article 6, for the reasons given by Rix LJ in CGU at paragraphs 73-75.

iv) Applying that reasoning, if (contrary to his earlier submissions) Lane v Esdaile were to have any application at all in the interpretation of section 53(1), the jurisdiction that provision confers was not to be restricted in a case where "a significant injustice has probably occurred and … there is no alternative remedy" (Taylor, para 55). 

v) For these purposes a breach of Article 5(4) amounted to a 'serious injustice', so that this interpretation of section 53(1) of the MCA was in any event necessary by virtue of sections 3 and 9 of the Human Rights Act.

vi) Accordingly, in practice, and applying the distinction drawn by the Court in CJU at paragraphs 71-73, the Court had jurisdiction to consider an appeal against a refusal to grant permission to appeal where (a) the refusal of permission was itself one that was vitiated by unfairness or some significant procedural irregularity (CJU); or (b) the original decision was unjust due to some procedural irregularity (i.e. those falling within COP Rules, r. 179(3)(b)) which remained unremedied.  On the other hand, jurisdiction was likely to be excluded in respect of a refusal of permission to appeal which could not itself be impugned where the appeal related to the merits of the underlying decision (i.e. those falling within, rule 179(3)(a)).  Each case would need to be determined on its own facts by reference to the question of whether there was a 'significant injustice' for which there was otherwise no remedy.

44. The Official Solicitor and KBC did not support Mr Bowen's fourth proposition.

45. (5) Application of the fourth proposition to the facts: Mr Bowen submitted that:

i) The appeal against HHJ Gore QC's decision was based upon his failure to make a determination as to the lawfulness of AA's detention as required by Article 5(4).  That was a failure that went beyond a lack of fairness or other procedural irregularity; it was no decision at all and amounted to a 'serious injustice' for which there was no remedy unless the Court heard this appeal.  The challenge to the decision was not based upon the lack of merits of HHJ Gore QC's decision; rather there has been an injustice caused by HHJ Gore QC's failure to decide the issue which he was required to decide by virtue of Article 5(4).  That was an appeal falling with COP Rules r. 179(3)(b). 

ii) It was not necessary also to demonstrate that Mr. Justice Peter Jackson's decision was itself unfair or vitiated by some other fundamental procedural irregularity (the ratio of CGU).  However his decision failed to grapple with the significance of the injustice and he misdirected himself in concluding that it was unnecessary for HHJ Gore QC to consider the substance of the section 21A application, and failed to remedy the Article 5(4) breach.  None of this was surprising given it was Mr. Justice Peter Jackson who directed that the Appellant demonstrate what 'purpose' was to be served by the proceedings which set the process off in the wrong direction. The Appellant did not suggest that Mr. Justice Peter Jackson's decision was itself vitiated by unfairness or some other fundamental procedural irregularity; only that there had been a significant injustice (a breach of Article 5(4)) and the judge failed to remedy it when refusing permission to appeal.

46. Conclusion: Either section 53(1) had to be given its natural meaning, so there was no restriction upon the appeal against Mr. Justice Jackson's refusal of permission; alternatively, section 53(1) had be construed as conferring jurisdiction in this cases where there had been a serious injustice, the underlying decision by HHJ Gore QC being one that was vitiated by unfairness and involved a breach of Article 5(4), which Mr. Justice Peter Jackson failed to remedy when refusing permission to appeal.  Only by this Court granting permission to appeal could be unfairness be remedied.

Analysis and determination
47. My conclusion is that there is no jurisdiction to hear this appeal.

48. The starting point of the analysis is to bear in mind that this is an application for permission to appeal to the Court of Appeal, against the decision by Peter Jackson J refusing an application for permission to appeal to Peter Jackson J (or another judge of the Court of Protection nominated by virtue of section 46 (2) (a) to (c) of the MCA ("a judge nominated under section 46(2)(a) to (c)")) against the decision dated 28 February 2012 of HHJ Gore QC. No application was made by the appellant to Peter Jackson J for permission to appeal to the Court of Appeal against his refusal to grant permission to appeal the decision of HHJ Gore QC to himself, or to another judge nominated under section 46(2)(a) to (c). This was, we were told, because the appellant's advisers assumed that any such appeal would be a second appeal, which came within rule 182 of the COP Rules, whereby permission was required from the Court of Appeal itself. As I shall endeavour to explain, that assumption was wrong.

49. Whilst, in my judgment, and contrary to counsel's submissions, section 54(4) of the 1999 Act applies, in appropriate circumstances, to a decision of a judge nominated under section 46(2)(a) to (c) granting or refusing permission to appeal to the Court of Appeal pursuant to rule 181 of the COP Rules, and operates to prevent any appeal against such a decision, section 54(4) does not apply in this case. That is because the decision of Peter Jackson J, against which permission to appeal is sought, was a decision made pursuant to rule 172(7) of the COP Rules refusing permission to appeal from a decision of a "first instance Judge", namely HHJ Gore QC, to a judge nominated under section 46(2)(a) to (c). It was not a decision refusing permission to appeal HHJ Gore QC's decision to the Court of Appeal, or a decision refusing permission to appeal Peter Jackson J's own decision refusing leave to the Court of Appeal. Therefore, as I explain below, section 54(4) of the 1999 Act did not apply.

50. It is necessary to understand the architecture of the relevant statutory provisions. Section 15 of the Senior Courts Act 1981 is the relevant statute conferring jurisdiction on the Court of Appeal, which is a court of statutory creation. Subsection 15(2)(a) of that Act provides that there shall be exercisable by the Court of Appeal "all such jurisdiction… as is conferred on it by this or any other Act". The interpretation section, section 151, provides that "this or any other Act" includes "an Act passed after this Act".

51. Section 53(1) of the MCA is the "other Act" which confers jurisdiction on the Court of Appeal to hear appeals from the Court of Protection, which itself is "a superior court of record"; see section 45 (1) of the MCA. Section 53(1) of the MCA provides that, subject to the provisions of the section, an appeal lies to the Court of Appeal "from any decision of the court."

52. Section 54(1) of the 1999 Act provides that "Rules of court may provide that any right of appeal to—….. (c)    the Court of Appeal, may be exercised only with permission." Section 54(3) provides that, for the purposes of subsection (1), "rules of court may make provision as to - (a) the classes of case in which a right of appeal may be exercised only with permission". There is no indication in either subsection, or elsewhere in the statute, that the word "court", when used on its own, is limited to the county court or the High Court, and excludes a superior court of record such as the Court of Protection. Contrast section 55 of the 1999 Act where the restrictions on second appeals are expressly limited to appeals made to "a county court or the High Court." In other contexts - for example, section 1 of the Courts Act 2003 - the Court of Protection is clearly a "court".

53. The COP Rules, made pursuant to section 51(1) of the MCA are, as that section expressly states, "rules of court". They are clearly the type of rules envisaged by section 54(1) and (3) of the 1999 Act. Rules 170, 172, and 180 to 182 of the COP Rules make provision as to the classes of case in which a right of appeal may be exercised only with permission, and as to the court or courts which may give permission for the purposes of an appeal to the Court of Appeal. Thus where a decision sought to be appealed against is a decision of a judge nominated under section 46(2)(a) to (c), an appeal lies only to the Court of Appeal; see rule 181(1). If the decision sought to be appealed against is a decision of a judge nominated under section 46(2)(a) to (c) sitting as a "first instance judge", then a nominated Judge may grant permission to appeal to the Court of Appeal; see rule 181(2). If, on the other hand, the appeal is a second appeal (in other words it is "a decision of a judge which was itself made on appeal from a judge of the court"), an appeal only lies to the Court of Appeal and permission can only be granted by that Court, subject to the additional requirement that the Court of Appeal considers that the appeal would raise an important point of principle or practice; or there is some other compelling reason for the Court of Appeal to hear it; see rule 182.

54. Given that the COP Rules are, as I have said, the type of "rules of court" envisaged by section 54(1) of the 1999 Act, one would expect that, prima facie, section 54(4) of that Act would operate to restrict any appeal against the decision refusing permission to appeal. I see no reason to construe the words "a decision of a court under this section", as contained in section 54(4) of the 1999 Act, as limited to a decision of a county court, the High Court or the Court of Appeal (being the courts mentioned in subsection 54(1)). Those courts are merely enumerated in section 54(1) as the courts to which any right of appeal may be exercised. Thus the decision referred to in subsection 54(4), as "a decision under this section", is the decision of any court refusing permission to appeal to any of the three courts mentioned.

55. The decision of this Court in Re B (A Patient) (Court of Protection - Appeal) is of no assistance in this context. That case simply concerned whether, for the purposes of CPR rule 52.3 (which only applied to appeals from judges of the County Court or of the High Court), an appeal from a judge nominated under Part VII of the Mental Health Act 1983 was an appeal from a decision of a judge of the High Court. It was held that CPR rule 52.3 (the only relevant rule) did not apply as, although the nominated judge derived his position from his office as a High Court judge, when exercising his jurisdiction as a nominated judge, he was not sitting in the High Court. As Mr Bowen pointed out, the statutory background under consideration in that case was very different; see paragraphs 29-38 of the judgment of Sir Mark Potter P. What obviated the requirement for permission to appeal in that case, was the absence of any such requirement in the then rules governing proceedings under the 1983 Act.

56. As summarised above, Mr Bowen's first argument was that section 54(4) of the 1999 Act did not apply to appeals under section 53(1) of the MCA, because section 54(1) was "impliedly excluded from having any operation" by virtue of section 53(1) and (4) of the MCA which (together with the COP Rules) created a self-contained regime for appeals; that, he submitted, had impliedly excluded the operation of section 54 by virtue of the 'expressio unius est exclusius alterius' principle of statutory construction; thus the prohibition against appeals against refusals of permission contained in section 54(4) did not apply, because a decision refusing permission to appeal against a decision of the Court of Protection was not made under 'this section' for the purposes of section 54(4).

57. I disagree. That analysis is far too simplistic. First I do not consider that the scheme for appeals under the MCA and the COP Rules is a "self-contained regime" as Mr Bowen suggests. So far as appeals to the Court of Appeal are concerned, not only is section 15 of the Senior Courts Act 1981 in play to confer jurisdiction on the Court of Appeal in Court of Protection appeals, but also CPR part 52 governs the procedure in relation to any such appeal. Moreover rule 9 of the COP Rules applies the CPR in any case not expressly provided for by the COP Rules, in so far as is necessary to further the overriding objective. That provision hardly suggests that the scheme for appeals under the MCA and the COP Rules is operating in some sort of freestanding statutory vacuum. There is no inconsistency between the two regimes and nothing in the wording of section 53(1) of the MCA that "Subject to the provisions of this section, an appeal lies to the Court of Appeal from any decision of the court" to suggest that, where it would otherwise apply, section 54(4) of the 1999 Act is expressly or by implication excluded. Moreover it is clear from the following subsections of section 53 of the MCA, that the apparently untrammelled right of appeal conferred by subsection 53(1) is indeed restricted by the "permission" requirements and filters.

58. Accordingly, in my judgment, section 54(4) of the 1999 Act would indeed apply to a decision made, pursuant to COP Rule 181(2) by a judge nominated under section 46(2)(a) to (c) granting or refusing permission to appeal to the Court of Appeal against a decision made by a judge so nominated as a first instance judge of the Court of Protection. There could be no appeal against such a decision, whether it was a grant or a refusal of permission, although, in my judgment a renewed application for permission to appeal could be made to the Court of Appeal in such circumstances, pursuant to CPR rule 52.3(3), as applied by rule 9 of the COP Rules.

59. But in the present case, the decision in question made by Peter Jackson J dismissing the appellant's application to appeal against the decision of His Honour Judge Gore QC, was not a decision by the nominated judge under section 46(2)(a) to (c) pursuant to COP Rule 181. On the contrary, the relevant decision under consideration is the decision by the junior appellate court (i.e. Peter Jackson J as the judge nominated under section 46(2)(a) to (c)), under COP Rule 172 (7)), refusing permission to appeal to the junior appellate court (i.e. the judge nominated under section 46(2)(a) to (c) who, pursuant to COP Rule 180 (a), hears such appeals) from a first instance decision of the circuit judge, here His Honour Judge Gore QC. Section 54(4) of the 1999 Act does not apply to such a decision, as it is not a decision of a court (i.e. the Court of Protection) "under the section". In order to be a decision "under the section" it would, in context, have to have been a decision as to whether to give or refuse permission to appeal to the Court of Appeal.

60. The issue, therefore, is whether, irrespective of section 54(4) of the 1999 Act, section 53(1) of the MCA on its true construction permits an appeal against a decision of a judge nominated under section 46(2)(a) to (c)), made pursuant to COP Rule 172 (7), refusing permission to appeal against a decision of a circuit judge.

61. In my judgment, and contrary to Mr Bowen's submissions, the principle of statutory construction contained in Lane v Esdaile, clearly applies to section 53(1) of the MCA, notwithstanding the use in the subsection of the words "any decision". The principle in Lane v Esdaile was articulated in Kemper Reinsurance v Minister of Finance [2000] 1 AC 1, at 13, by Lord Hoffmann, who delivered the judgment of the Board, in the following terms:

"Their Lordships consider that the principle in Lane v Esdaile, as explained in In re Housing of the Working Classes Act, 1890, Ex p Stevenson, is that a provision requiring the leave of a court to appeal will by necessary intendment exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court. This construction is based upon the "nature of the thing" and the absurdity of allowing an appeal against a decision under a provision designed to limit the right of appeal. This absurdity is greatest in a case such as Lane v Esdaile, in which the appeal is brought to or from the very tribunal to which it is desired to appeal on the merits. As Lord Halsbury pointed out, an appeal against the refusal of leave would involve the higher court in doing the very thing which the provision was designed to prevent, namely, having to examine the merits of the decision appealed against. The Stevenson case generalises the proposition to cover all cases in which leave to appeal is required, even if the tribunal before which the applicant seeks a rehearing on the merits (in that case, a jury) is not the same as that to or from which he seeks to appeal against the refusal of leave. But the emphasis which the Court of Appeal in that case placed upon characterising the hearing before the jury as an appeal shows that the judges would not necessarily have been willing to state the principle any more widely and to include cases in which leave is required to do something other than appeal. For example, it has never been suggested that the provisions of the rules which require the leave of the court to serve process out of the jurisdiction impliedly exclude the right of appeal against the refusal of such leave."

62. Lane v Esdaile itself concerned the appellate jurisdiction of the House of Lords. The relevant provision was section 3 of the Appellate Jurisdiction Act 1876, which provided that an appeal should lie to the House of Lords from "any order or judgment of ... Her Majesty's Court of Appeal in England". The language conferring jurisdiction was thus comparable in its breadth to section 53(1) of the MCA. In Lane v Esdaile, the order of the Court of Appeal against which it was sought to appeal was a refusal of leave to appeal under Order LVIII, rule 15 of the Rules of the Supreme Court, which had statutory force. Rule 15 read as follows:-

"No appeal to the Court of Appeal from any interlocutory order, ... shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days, and no other appeal shall, except by such leave, be brought after the expiration of one year."

In the present context that rule was analogous to the combination of section 53(4) of the MCA and rule 172(1) and (7) of the COP Rules. The Court of Appeal had refused to give the appellants special leave to appeal from a final judgment of Kay J given over three years earlier. The appellants then appealed to the House of Lords against the refusal of leave. The House decided that there was no right of appeal. Lord Halsbury LC accepted that the words "order or judgment" in section 3 of the 1876 Act were capable on their wording of including a decision to refuse leave. The question was whether such a construction could be reconciled with the terms and purpose of Ord LVIII, r 15. Lord Halsbury said:-

"But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal - that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction."

All members of the House concurred, Lord Bramwell with some hesitation because he was troubled by the fact that, when the Rules were enacted in 1873, there was to be no right of appeal to the House of Lords at all. Lord Herschell said that a refusal of leave to appeal was "not, within the true meaning of the Appellate Jurisdiction Act, an order or judgment from which there can be an appeal".

63. In the following year the Court of Appeal considered the ratio decidendi of Lane v Esdaile [1891] AC 210 in the case of In re Housing of the Working Classes Act, 1890, Ex p Stevenson [1892] 1 QB 609. As Lord Hoffmann described in Kemper Reinsurance at 11:

"The [Working Classes] Act conferred powers of compulsory purchase upon local authorities and provided for arbitration on the price. Sched. II., clause 26(a) provided that a party dissatisfied with the amount of the compensation ascertained by an award:-

"may, upon obtaining the leave of the High Court, which leave may be granted by such Court, or any judge thereof at chambers, in a summary manner, and upon being satisfied that a failure of justice will take place if the leave is not granted, submit the question of the proper amount of compensation to a jury."

Mr Stevenson was dissatisfied with the compensation awarded to him by the arbitrator and applied to a judge in chambers for leave to appeal to a jury. The application was refused and the Court of Appeal, following Lane v Esdaile, held that there was no appeal against the refusal. Lord Esher MR first analysed the nature of the statutory right to take the matter before a jury and said that it was, upon the true construction of the Act, a right of appeal. He then went on to say:-

"I am, on principle and on consideration of the authorities that have been cited, prepared to lay down the proposition that, wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given. So, if the decision in this case is to be taken to be that of the judge at chambers, he is the legal authority to decide the matter, and his decision is final; if it is to be taken to be that of the High Court, then they are the legal authority entrusted with the responsibility of deciding whether there shall be leave to appeal, and their decision is final. In either case there is no appeal to this Court. What was said in the case of Lane v Esdaile supports the view that I am taking. But the very nature of the thing really concludes the question; for, if, where a legal authority has power to decide whether leave to appeal shall be given or refused, there can be an appeal from that decision, the result is an absurdity, and the provision is made of no effect. If the contention for the claimant be correct, it would follow that the case might be taken from one Court to another till it reached the House of Lords on the question whether there should be leave to appeal."

The judgment of Fry LJ was to the same effect:-

"The legislature has thought fit to impose a condition in respect of this right of appeal, viz., that the leave of the High Court must be obtained, which leave is to be granted in the manner pointed out, viz., either by the Divisional Court or by a judge at chambers. Then is the order - for such I will assume it to be - of the High Court, granting or refusing leave to appeal, subject to appeal? In my opinion it is not. I do not come to that conclusion on the ground that the word `order' is not properly applicable to it; but from the nature of the thing and the object of the legislature in imposing this fetter on appeals. The object clearly was to prevent frivolous and needless appeals. If, from an order refusing leave to appeal, there may be an appeal, the result will be that, in attempting to prevent needless and frivolous appeals, the legislature will have introduced a new series of appeals with regard to the leave to appeal. Suppose, for the sake of argument, that in this case the claimant's grounds for wishing to appeal are frivolous; if the contention on his behalf is correct, he could appeal from the judge at chambers to the Divisional Court, from the Divisional Court to this Court, and from this Court to the House of Lords on the question whether he shall be allowed to appeal. It appears to me that that would be an absurd result in the case of a provision the object of which is to prevent frivolous and needless appeals. Therefore, from the very nature of the thing the decision of the Court which has the power of giving leave to appeal is, in my opinion, final. This seems to me to be the ratio decidendi of Lane v Esdaile. That case appears to decide that, where the right to appeal depends upon the granting or refusal of leave to appeal by a Court, that granting or refusal of leave must be final."

Lopes LJ said:-

"Where an appeal is given that is made subject to the leave of the Court or a judge, or any other legal authority, I think that the granting or refusal of leave by such Court, or judge, or other legal authority, is final and unappealable. The object of making appeals subject to leave is to prevent unnecessary and frivolous appeals. If an appeal were allowed from the granting or refusal of leave to appeal, the result would be that, instead of checking appeals, they might be multiplied to most mischievous extent; for an appeal from the granting or refusal of leave might be carried from the Divisional Court to this Court, and from this Court to the House of Lords."

64. The rule of construction articulated in Lane v Esdaile has been consistently applied to a variety of statutory provisions, analogous to those in the present case; see by way of example: Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262; Geogas SA v Tammo Gas Ltd [1991]  1 WLR 776; Daisystar v Town and Country Building Society [1992] 1 WLR 390, 393; Wendy Fair Markets Ltd v SSE [1995] 159 LGLR 769; Riniker v University College London [2001] 1 WLR 13; Walsall Metropolitan Borough Council v Secretary for State for Community and Local Government [2013]  EWCA Civ 730. In cases coming within the rule, this court is bound to apply it. It is not inconsistent with a party's right to a fair trial under article 6 of the European Convention on Human Rights; see Walsall Metropolitan Borough Council at [25].

65. A residual jurisdiction of the Court of Appeal has been recognised in those rare cases where it can be said that there was no decision at all, or "misconduct or unfairness (or even mischance) in the decision-making process", such that the decision was so flawed as to be a breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; see e.g. per Rix LJ in CGU International Insurance plc and others v AstraZeneca Insurance Co [2006] EWCA Civ 1340 at [73]; and per Lord Mance JSC delivering the judgment of the Privy Council in Campbell v The Queen [2011] 2 A.C. 79, at [20]. In the last case the Privy Council held, after affirming the continued general application of the rule, that it did not apply to restrict the wide prerogative power to grant special leave to appeal to the Privy Council, as expressed in section 3 of the Judicial Committee At 1833 and section 1 of the Judicial Committee At 1844. But neither of those decisions provides any basis for the non-application of Lane v Esdaile to the construction of the relevant statutory provisions in the present case.

66. The clear intention of the MCA and the COP Rules is that the statutory right of appeal at all levels in the Court of Protection should be restricted by the requirement to obtain permission to appeal. The mere fact that section 53(1) and the COP Rules were both drafted after the 1999 Act, and made no express provision similar to that contained in section 54(4) of the latter Act for the exclusion of rights of appeal against refusals of permission to appeal, is, in my judgment, no reason to construe the filter provisions contained in the MCA and the COP Rules as unconstrained by the rule in Lane v Esdaile, as Mr Bowen sought to suggest.  On the contrary, the notion that there should be an ability to appeal the filter decision of the junior appellate court gives rise to precisely the type of absurdity that the rule avoids. It is to be presumed that the draughtsmen of the MCA were well aware of the existence of the well-established rule of construction. The words "from any decision of the court" in section 53(1) have to be construed in their context; that context makes them expressly subject to the subsequent provisions of section 53; those provisions expressly envisage rules which require not only a specific filter process, but also a detailed scheme for the allocation of appeals, and of applications for permission to appeal, to specific judges of the court at various levels.

67. Accordingly I regard this as a paradigm case for the application of the rule in Lane v Esdaile. I thus construe the words "an appeal lies to the Court of Appeal from any decision of the court" in section 53(1) of the MCA as not including a decision made by a judge nominated under section 46(2)(a) to (c)) granting or refusing permission to appeal a decision of a circuit judge under COP Rule 172 (7).

68. Moreover, contrary to Mr Bowen's submissions (not advanced by counsel for the other parties), there is no room in the present case for recourse to such residual jurisdiction as there may be in the Court of Appeal to hear a second appeal, notwithstanding the absence of permission from the junior appellate court, on the grounds that the decision of that court was unfair or vitiated by some other fundamental procedural irregularity (the ratio of CGU).  Although complaint was made by Mr Bowen of the course taken by Peter Jackson J, there were in my judgment no grounds upon which the latter's decision to refuse permission to appeal could be characterised as "no decision at all", unfair or procedurally flawed or otherwise in breach of the Appellant's article 6 rights.

69. For the above reasons, I conclude that this Court has no jurisdiction to entertain this application for permission to appeal against the decision of Peter Jackson J, dismissing the Appellant's application for permission to appeal the decision of HHJ Gore QC.

70. For similar reasons I conclude that this Court has no jurisdiction to entertain an application by the Appellants for permission to appeal directly against the decision of HHJ Gore QC. Under rule 172(7) such an appeal can only be made with the permission of a judge nominated under section 46(2)(a) to (c) of the MCA. That permission has been refused. Moreover neither rule 181 or rule 182 is of any relevance in this context. The decision of HHJ Gore QC sought to be appealed against is a not a decision of a judge nominated under section 46(2)(a) to (c) for the purposes of rule 181; and the decision made by Peter Jackson J was not "a decision…. which was itself made on appeal from a judge of the court" for the purposes of rule 182. It was a decision refusing to entertain any appeal - not a decision on appeal.

71. For the above reasons I would dismiss this application for permission to appeal on the grounds of absence of jurisdiction.

Lady Justice Black :

72. I agree with the judgment of Gloster LJ.

Lord Justice Moses :

73. The comprehensive judgment of Gloster LJ has demonstrated why this Court has no jurisdiction to consider the appellant's application for permission to appeal against the decisions of either Peter Jackson J or of HHJ Gore QC. I agree.  It must be a rare case that judicial acuity is a source of regret.  But I do regret that this court has no jurisdiction to determine this particular appeal.

74. My regret stems from the course taken by HHJ Gore QC, who may have misunderstood the direction given by Peter Jackson J on 20 January 2012 (see [21] of Gloster LJ's judgment).  This direction and the Official Solicitor's application to forestall the application led HHJ Gore QC to permit withdrawal. This, in turn, led to the complaint in this application that the appellant was unlawfully deprived of the opportunity of exercising his right to appeal against the standard authorisation.  Since this court has no jurisdiction I am unable to say whether the judge acted unlawfully.

75. But it may be useful, to prevent any repetition of this unfortunate history, to record that the Official Solicitor did not in these proceedings dispute the proposition that HHJ Gore QC was required to determine the appeal and could not lawfully refuse to consider it, however obvious the outcome and however short the hearing and disposal of the appeal.  The only argument was whether, on a fair reading of his judgment, HHJ Gore QC did dismiss the appeal without proper consideration.  I need only emphasise that due and proper consideration of an appeal under section 21A MCA 2005 may not require any lengthy consideration.  A full hearing is not necessarily a lengthy, time consuming or expensive hearing. The irony is that, the process by which this appeal was withdrawn, without, at least arguably, a full hearing, has occupied more time and incurred more expense than a short hearing would have entailed.