Long-term readers will have picked up by now that there’s always something of value in a judgment by Mostyn J. He follows that Raymond Chandler dictum of putting a diamond on every page.
This one follows his earlier decision (which many of us questioned at the time) that he wasn’t bound by the Supreme Court in Cheshire West and went with the principle that had been rejected by them to decide that a person wasn’t being deprived of their liberty
In that case, Mostyn J declared that he was bound by the decision of the Supreme Court in Cheshire West, though making it plain that he didn’t agree with it, but then didn’t follow it, distinguishing his case on its facts. He felt that it was something that the Supreme Court should look at again, and invited an appeal.
This is the follow-up judgment after the Court of Appeal reached the entirely unexpected conclusion that the Supreme Court had already decided that the FACT of whether a person was deprived of their liberty didn’t take into account whether their disabilities made that necessary, that’s for the second stage as to whether the Court should authorise that deprivation of liberty.
Readers may recall a previous occasion on which Mostyn J didn’t take it entirely in his stride when the Court of Appeal overruled him and he disagreed with their view. He drops the “with the profoundest of respect” bomb during the judgment where he has to deal with the case again.
So, given that scenario, one is following the firework code when reading Mostyn J’s decision.
Rochdale v KW 2015
Firstly, here’s what happened in the Court of Appeal (I haven’t seen this reported yet, but given that the original Rochdale v KW 2014 unleashed the contents of a cattery into a pigeon coop, it is important)
The appeal was fixed for a full oral hearing on 4 or 5 February 2015. However, on 30 January 2015 the Court of Appeal allowed the appeal against my decision by consent and without a hearing purportedly pursuant to the terms of CPR PD52A para 6.4. Its order provided as follows:
“UPON reading the appeal bundle filed with the court.
AND UPON the Respondent confirming that it does not intend to oppose the appeal
IT IS ORDERED that:
1. This appeal is allowed.
2. For the review period as defined below, KW is to reside and receive care at home pursuant to arrangements made by Rochdale Council and set out in the Care Plan; and 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.
3. If a change or changes to the Care Plan that render it more restrictive have as a matter of urgent necessity been implemented Rochdale Council must apply to the Court of Protection for an urgent review of this order on the first available date after the implementation of any such changes.
4. If a change or changes to the Care Plan that render it more restrictive are proposed (but are not required as a matter of urgent necessity) Rochdale Council must apply to the Court of Protection for review of this order before any such changes are made.
5. In any event. Rochdale Council must make an application to the Court no less than one month before the expiry the review period as defined below for a review of this order if at that time the Care Plan still applies to KW. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed or, if not otherwise specified, on form COPDOL10.
6. Any review hearing shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral hearing is required.
7. “The review period” shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.
8. Nothing shall published that will reveal the identify of the Appellant who shall continue to be referred to as “KW” until further order pursuant to section 12 of the Administration of Justice Act 1960.
9. There shall no order for costs between the parties.
10. There shall be a detailed assessment of KW’s public funding costs.”
Attached to the order was a piece of narrative, prepared by counsel for the appellant, which provided as follows:
“Statement of reasons for allowing the appeal as required pursuant to CPR, PD52A at para 6.4.
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.”
That’s right, everyone involved in the case (except Mostyn J) wrote to the Court of Appeal saying that they thought Mostyn J had got it wrong and agreeing that there HAD been a deprivation of liberty and that the Court should authorise it.
The case then came back before Mostyn J, hence this judgment and hence this piece. I would imagine that the advocates did not have the most peaceful of sleep the night before that particular hearing.
Mostyn J did not take this terribly well.
He questioned whether the Court of Appeal had jurisdiction to make such a decision on a consent basis without actually hearing from the parties. He has a point here, I think, it must be very unusual. Even in cases where everyone is agreed that a mistake has been made, there is usually a judgment given.
- CPR 52.11(3) provides:
“The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
- CPR PD52A para 6.4 provides for a very limited derogation from this simple and necessary rule. It is headed “SECTION VI – DISPOSING OF APPLICATIONS AND APPEALS BY CONSENT” and provides:
“Allowing unopposed appeals or applications on paper
6.4 The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order.”
- It can be seen that the strict terms of CPR 52.11(3) are modified by the deployment of the adverb “normally” in the first sentence. In the second sentence the sole exception to the primary rule is spelt out. An appeal may be allowed by consent “without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing”. Therefore it follows that this procedure, which involves a determination on the papers and without an oral hearing, cannot be used to determine an appeal on the merits.
- One can see the need for this provision. Following the first instance decision there may have been a change in the law deriving from legislation or a binding decision of a higher court. In such a case it would be necessary to set aside the original decision without a determination on the merits. Similarly, a procedural order may require to be set aside without a determination on the merits because of a change of circumstances or a mistake. It is impossible to see however how this procedure could be used to overthrow on the merits the central basis of a first instance decision particularly where that involved a clear statement of legal principle in relation to the facts as found.
- My limited researches in the field of family law reveal that where a merits based decision has been reached at first instance, which all parties agree should be set aside on appeal, then there is a hearing and a judgment. This is consistent with the only reasonable interpretation of para 6.4. The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise. Thus in Bokor-Ingram v Bokor-Ingram  EWCA Civ 412 Thorpe LJ held as follows:
“1. In a judgement handed down on 23 June 2008, Charles J dismissed an application brought by the wife to set aside a consent order reached on 20 July 2006 at an FDR appointment determining her claims for ancillary relief for herself and the two children of the family.
2. Charles J dismissed the wife’s application and refused her permission to appeal. Her application for permission was renewed to this court by a Notice of Appeal dated 7 August 2008. Wilson LJ granted permission to appeal on 30 October 2008, and that appeal was listed for hearing today and tomorrow, 4 and 5 March 2009.
3. At the outset Mr Martin Pointer QC and Mr Jonathan Cohen QC, representing respectively the wife and the husband, informed the court that the parties had reached a comprehensive agreement to settle not only the appeal but also pending or prospective applications for the variation of the order of 20 July 2006.
4. The agreement reached between the parties invited the court to allow the appeal, set aside the order of 20 July 2006, and to make revised orders on the wife’s applications.
5. A short disposal might have followed but for our concern that the judgment below had already been reported at  2 FCR 527 and at  1 FLR 2001 and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.”
Thorpe LJ then went on to give a full judgment explaining why Charles J had fallen into error.
- Similarly, in the recent decision of Re S-W (Children)  EWCA Civ 27 it was recorded at para 4 that:
“Neither Liverpool City Council nor the children’s guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool.”
- Three full judgments followed explaining why Judge Dodds had fallen into error. Again, this was the least he could have expected and a reasoned judgment would have the effect of preventing similar mistakes in the future.
- The reason why in neither of these cases the Court of Appeal exercised its powers to deal with the appeal on paper, without a hearing, and by consent pursuant to para 6.4 was that in each instance it involved a determination on the merits that the judge was wrong. Therefore in each case the circumstances fell outside para 6.4.
- The researches of counsel, undertaken after argument was concluded before me but before this judgment was handed down, have not revealed any case where a fully reasoned decision has been overturned on the merits by consent and without a judgment. This is not surprising.
In this case the appeal was against para 6 of my order, which reflected the terms of my judgment, that the package of care provided to Katherine does not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. That was the centrally, if not the only, relevant component of my judgment. It was its very ratio decidendi. By para 1 of the Court of Appeal order the appeal is allowed. That is plainly a determination on the merits. It could not be anything else. But such a determination on the merits does not fall within para 6.4.
I do rather agree with Mostyn J here. Whilst I respectfully think that he was wrong at first instance, he was wrong in a way that several very senior Judges (including two members of the Supreme Court) have agreed with. It would have been helpful to have this issue put to bed. I happen to think that the Supreme Court have already done it, but as there appears to be judicial doubt, better to have that cleared up.
I also think that even if one accepts that Mostyn J was wrong and that KW’s liberty HAD been deprived, it is then a leap for the parties to agree an order between themselves that the Court of Appeal authorise such deprivation as being in KW’s best interests when frankly that particular argument has not been fully ventilated and litigated because the trial Judge ruled that on the facts he did not consider that she HAD been deprived of her liberty.
Where does that leave KW then?
- Even though the Court of Appeal appears to have taken a procedurally impermissible route, the rule of law depends on first instance judges complying scrupulously with decisions and orders from appellate courts. And so I must here, even if I happen to think that the order of the Court of Appeal is ultra vires. The allowing of the appeal should be construed as setting aside para 6 of my order, even if it does not actually say so. But does the order replace it with a declaration that Katherine is being deprived of her liberty? It does not explicitly say so, which is highly surprising. Further, para 2 of the order is phrased in highly ambiguous language. It says “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.” The use of this conditional language suggests to me that Court of Appeal has not actually decided that this is a situation of state detention. What they are saying that if it is then it is authorised. In my judgment para 2 of the order does not amount to a declaration that Katherine is being deprived of her liberty.
- It therefore seems to me that we are back to square one with no-one knowing whether Katherine is, or is not, being detained by the state within the terms of Article 5. That issue will have to be decided at the next review hearing whether it is held under paras 3, 4 or 5 of the Court of Appeal order. Pursuant to para 6 I now direct that any review hearing will be conducted by me at an oral hearing and on the basis of full fresh evidence concerning Katherine’s circumstances. Until then Katherine’s status must be regarded as being in limbo.
- For the avoidance of any doubt it is my finding that the hearing ordered by para 5 of the Court of Appeal order is not a review of a determined situation of state detention but is, rather, a hearing de novo to determine if one exists.
Mostyn J goes further – having said that there has NOT been a decision that KW is being deprived of her liberty and there would have to be a hearing if anyone invites the Court to make such a finding, he goes on to drop this remarkable bombshell
- Further, it is my ruling that a hearing under paras 3 or 4 can only be triggered if the restrictive changes proposed amount to bodily restraint comparable to that which obtained in P v Cheshire West and Chester Council. Any restrictions short of that will amount to no more than arrangements for her care in her own home and would not, consistently with my previous judgments, amount to state detention. Therefore, in such circumstances there would be nothing to review under paras 3 and 4.
- It will be apparent from what I have written above that in the absence of a reasoned judgment from the Court of Appeal explaining why I was wrong I maintain firmly the correctness of my jurisprudential analysis in my principal decision as augmented in my Tower Hamlets decision. In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law is now in a state of serious confusion.
So we seem to be in a position where if you go before Mostyn J, Rochdale v KW 2014 is good law, but if you go before another Judge, it may not be considered that way. The Court of Appeal sanctioned an order which had the effect of overturning the decision in Rochdale, but Mostyn J has ruled that it did not actually rule on the principle or the interpretation of the law.
That’s not really the way that precedent works. There are quite a few precedents that I don’t agree with and where I think the law has got it wrong, but it is the law and has to be followed until it is overturned or refined. You have to be able to pick up a piece of case law and know whether it is a precedent which others may follow or if it is not. (Yes, sometimes, like H&R or even Cheshire West at CoA stage, the precedent which everyone follows is later determined to be wrong, but we all knew that those cases were being appealed)
The legal status of the principle in Rochdale v KW 2014 is not at all clear to me any longer. Mostyn J makes a compelling argument here that it remains binding on any Judge who is less senior than a High Court Judge. Equally, we know that the orders made did not stand following an appeal to the Court of Appeal. Is it law, or isn’t it?
We can’t surely have law that applies if you are before X Judge but not before Y Judge.
[I hope that I’ve been plain that whilst I disagreed with Mostyn J’s original call, I think he was right that there was a sufficient element of doubt that the Court of Appeal ought to have properly considered it and ruled on it. This was a decision that did not only affect the parties, but had a degree of public interest. It should not have been carved up by the parties, even if I think they were correct that the Judge had fallen into error on thinking the case could be distinguished from the principles in Cheshire West]