Re B (A Patient) (Court of Protection: Appeal)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Peter Gibson
Judgment Date01 November 2005
Neutral Citation[2005] EWCA Civ 1293
Docket NumberCase No: A3/2005/0467
Date01 November 2005

[2005] EWCA Civ 1293




Sir Francis Ferris


Royal Courts of Justice

Strand, London, WC2A 2LL


The President and

Sir Peter Gibson

Case No: A3/2005/0467

In the Matter of M.b. (a Patient)

David Rees for the Official Solicitor



We have before us an application by (GH "the applicant"), purporting to act not only on his own behalf but also on that of his mother who is an old lady suffering from Alzheimer's disease ("the patient"). The application is for permission to appeal from an order of Sir Francis Ferris sitting as a judge nominated under Part VII of the Mental Health Act 1983 to hear the appeal of the applicant against a decision of Assistant Master Prime in the Court of Protection dated 4 August 2004, by which it was ordered that a statutory will be executed on behalf of the patient. The effect of that will was to appoint the patient's receiver, Mr Spiers, a partner in Withy King, Solicitors, as executor of the patient's will in place of the applicant. By his application, the applicant applies also for an order expediting the hearing of this appeal.


The material provisions of the statutory will simply reproduced the dispositive provisions of the patient's former will, which were for equal division of the estate between her three children. In addition the applicant was replaced as the executor by Mr Spiers, a "hotchpot" clause was included administrative provisions in the form published by STEP (The Society of Trust and Estate Practitioners) were also included.


The application relates to a second appeal.


That being so, on the assumption that CPR Part 52.3 applies to this case, the appropriate test for permission would be that provided for in CPR 52.13 (2) i.e. that the appeal must raise an important point of principle or practice, or that there must be some other compelling reason why the Court of Appeal should hear it. If that were the applicable test then, on the material presently before the court, it is far from clear that this would be an appropriate case for permission.


The applicant failed to appear before us on the hearing of this application. However, thanks to the helpful submissions of counsel, Mr David Rees, instructed by the Official Solicitor (who appeared in order to assist the court on this point pursuant to an order of Chadwick LJ dated 17 June 2005), I have come to the conclusion that, by reason of what appears to be a lacuna in the CPR, the statutory provisions and machinery for appeal to this court from the decision of a judge nominated under Part VII of the Mental Health Act 1983 fall outside the ambit of CPR 52.3 and the applicant therefore does not need the court's permission to pursue his appeal.



Before proceeding to set out my reasons, I state the following facts by way of background.


The applicant lives with the patient and undertakes all her day-to-day care. He was named in the patient's will, executed in 1981, as her sole executor. The terms of the will divided the patient's estate equally between her three children, a legacy to her mother having fallen away as a result of the latter's death.


The patient has a substantial estate, comprising real property and cash investments in the United Kingdom, Spain and the Channel Islands as well as holdings in a family business.


Because of discord between the applicant and his siblings, as well as concerns about the patient's financial affairs, a receiver was appointed by the Court of Protection on 15 April 2003. Withy King were a local firm of solicitors on the panel of the Public Guardianship Office. Prior to his appointment, the applicant was informed of the application for a receiver. He raised objections to the appointment of a professional receiver, principally on financial grounds. However he raised no objection to the identity of the proposed receiver. On learning later, however, that Withy King had, years before, acted for plaintiffs in a claim brought against the patient and the applicant as defendants, he refused to recognise a partner in the firm as the patient's receiver or to provide any of the information required by the receiver.


In the light of the size of the estate and the history of discord between the siblings, the receiver considered that it was not appropriate for the applicant to continue to act as the patient's sole executor and applied to the Court of Protection for a statutory will to be executed on the patient's behalf in terms identical to her earlier will, save that applicant was to be replaced as executor, a hotchpot clause included, and the STEP administrative provisions incorporated.


The receiver's application was heard on 4 August 2004. Assistant Master Prime considered that it was in the best interests of the patient for a new will to be executed at once and that, in the light of the inter-family disputes it would be appropriate that a professional be appointed as executor. He considered that the receiver would be well placed to carry out that role as he was already in possession of a good deal of information and the appointment was likely to save costs. He therefore appointed Withy King as executors.


The applicant appealed the decision of Assistant Master Prime to the nominated judge under s.105 (1) of the Mental Health Act 1983, the appeal being heard and dismissed by Sir Francis Ferris on 21 February 2005.


Pending the hearing of this appeal, proceedings continued in relation to the receivership, because, due to his impending retirement, Mr Spiers made application to the Court of Protection for one of the other partners in his firm to be appointed as receiver in his place. The applicant made a counter application for a change of receiver.


Besides dismissing the appeal of the applicant, Sir Francis Ferris further directed that, following consideration of the pending applications in relation to a change of receiver, consideration should be given to an application being made to the Court of Protection for the execution of a statutory codicil containing a clause appointing a professional executor unconnected to Withy King and deleting the hotchpot decision in the statutory will. He further ordered that, if no such application were made by 21 May 2005, the matter should be mentioned to the Master of the Court of Protection with a view to his ordering execution of the codicil, deleting the hotchpot provision in any event.


In fact the application to change the receiver came before Assistant Master Prime on 14 April 2005, by which time The applicant and his sister had been making efforts to resolve their differences and were able to make proposals for their own appointment as joint receivers on an interim basis, with a review to be fixed after a period of three or six months in which it could be ascertained whether the third sibling (the applicant's brother in Australia) was content with the arrangements. Assistant Master Prime considered this a sensible way forward and appointed the applicant and his sister interim receivers.


At that time, it seemed clear that any appeal by the applicant from Assistant Master Prime's original order would not come on before the review of the interim receivership. Because that was the position, no order was made as to the executorship of the will.


In the event, however, the review of the interim receivership did not come on before the hearing of this application when it was made clear to us that the applicant wished to pursue his appeal.



Section 54 of the Access to Justice Act 1999 states that rules of court may provide that any right of appeal to a county court, the High Court, or the Court of Appeal may be exercised only with permission.


CPR Part 52 .3(1) provides:

"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, except where the appeal is against —

(i) a committal order;

(ii) a refusal to grant habeas corpus; or

(iii) a secure accommodation order made under section. 25 of the Children Act 1989; or

(b) as provided by the relevant practice direction.

(Other enactments may provide that permission is required for particular appeals.)"


Thus on the face of it, permission is only required to appeal to the Court of Appeal where the appeal is from a judge sitting in the High Court or a county court.


The question therefore arises whether a nominated judge exercising the jurisdiction confirmed by Part VII of the 1983 Act is sitting as a judge in the High Court. In my opinion he is not. However, in order to make clear why that is so, a short historical review of the jurisdictions involved is necessary.



The origins of the modern Court of Protection date from 1842 with the creation of two Commissioners in Lunacy by the Commissioners in Lunacy Act 1842.


By s.2 of the Lunacy Act 1842 the name of the Commissioners was changed to that of Masters in Lunacy with the same rank and precedence as the Masters in Ordinary of the High Court of Chancery.


Originally the Masters in Lunacy were little more than superior clerks reporting to the Lord Chancellor who, until 1852, was the sole Judge in Lunacy and thereafter to the Lords Justices of Appeal in Chancery who were appointed to join the Lord Chancellor in exercising that jurisdiction under s 15 of the Court of Chancery Act 1852. Later, however, by s. 27(1) of the Lunacy Act 1891, the Masters in Lunacy acquired powers to make orders themselves similar to those exercised...

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