Rochdale Metropolitan Borough Council v KW (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 20 October 2015 |
| Date | 20 October 2015 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Dyson, Master of the Rolls, Lady Justice Black and Lord Justice Underhill
Good and sufficient reasons were established for an appeal court to exercise its discretion to allow an appeal by consent on the papers, without a hearing to determine the merits, if the parties' consent was based on apparently competent legal advice and plausible reasons had been given to show tha t the lower court's decision was wrong.
The Court of Appeal so held, inter alia, when allowing an appeal by KW, an incapacitated person acting by her litigation friend, with the consent of Rochdale Metropolitan Borough Council, against the decision of Mr Justice Mostyn in the Court of Protection ([2015] EWCOP 13) that the consen t order made on January 30, 2015 by the Court of Appeal on KW's appeal against the judge's earlier decision ([2014] EWCOP 45) had been ultra vires.
Mr Adam Fullwood for KW; Mr Simon Burrows for the local authority.
THE MASTER OF THE ROLLS, giving the judgment of the court, said that it was important to comment on the judge's statement that the Court of Appeal had taken "a procedurally impermissible route" and as a result its decision was "ultra vires".
A court order was binding until it was set aside or varied in accordance with principles of certainty and finality necessary for the administration of justice. It was inappropriate and futile for a judge, who was required to give effect to a binding order of a higher court, to endeavour to undermin e it by complaining that it was ultra vires or wrong for some other reason. In any event, the consent order made by the Court of Appeal had not been ultra vires.
Paragraph 6.4 of Practice Direction 52A, supplementing Part 52 of the Civil Procedure Rules, on its true construction, gave the appeal court a discretion to allow an appeal by consent on the papers without a hearing to determine the merits if satisfied that there were good and sufficient reasons to do so. What were good and sufficient reasons? That depended on the circumstances of the case. The court gave the following guidance.
Where the appeal court was satisfied that (i) apparently competent legal advice had formed the basis of the parties' consent to the allowing of the appeal and (ii) the parties had given plausible reasons to establish that the lower court had reached a wrong decision, it was likely to make an...
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