Court of Appeal allows appeal in deprivation of liberty case, criticises judge

The Court of Appeal has allowed an appeal in a case over whether a woman was being deprived of her liberty in her own home, and in the process criticised a High Court judge who maintains that the majority decision in the Supreme Court’s Cheshire West ruling is wrong.

The case of KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 centres on KW, a 52-year-old woman who was left severely mentally incapacitated following surgery.

In his first ruling in the case in November 2014 Mr Justice Mostyn said he found it “impossible to conceive” that the best interests arrangement for KW, in her own home, provided by an independent contractor, but devised and paid for by Rochdale Council and a clinical commissioning group, amounted to a deprivation of liberty within Article 5 of the European Convention on Human Rights.

Counsel for KW had considered that she was deprived of her liberty, a view with which the barrister for Rochdale had been “constrained to concur”.

Nevertheless Mr Justice Mostyn concluded that the second part of the ‘acid test’ set out by the Supreme Court’s ruling in Cheshire West had not been satisfied and that KW had not been deprived of her liberty.

He called on the Supreme Court to reconsider the approach laid down for deprivations of liberty in the home, and said the case should leapfrog to the Court for reconsideration.

However, Rochdale Council refused to give the necessary consent and Mr Justice Mostyn gave KW permission to appeal to the Court of Appeal.

On 30 January 2015 the Court of Appeal allowed an appeal against the High Court judge’s ruling by consent.

In his second judgment, issued in March 2015, Mr Justice Mostyn accused the Court of Appeal of apparently taking a “procedurally impermissible route” and making a consent order that was ultra vires.

He said that, in the absence of a reasoned judgment from the Court of Appeal explaining why he was wrong, he maintained firmly the correctness of his jurisprudential analysis in his principal decision.

Mr Justice Mostyn concluded that the case was “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”. The law was “now in a state of serious confusion”, he added.

The principal ground of appeal against this ruling was that the High Court judge had misinterpreted the consent order.

The Master of the Rolls, Lord Dyson, said that if the consent order was read in context, Mr Justice Mostyn had been wrong to hold that it had not been decided by the Court of Appeal that KW was being detained by the state within the terms of Article 5.

On the issue of whether the Court of Appeal had taken “a procedurally impermissible route”, Lord Dyson acknowledged how Mr Justice Mostyn had said that the rule of law depended on first instance judges “complying scrupulously with decisions and orders from appellate courts” and that this was what he had purported to do.

But the MR added: “It is futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason.

“In any event, the judge was wrong to say that the consent order was ultra vires because it was made by a procedurally impermissible route.”

Lord Dyson said the appeal court had a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it was satisfied that there were good and sufficient reasons for doing so.

“What are good and sufficient reasons? The answer will depend on the circumstances of the case, but we think that it would be helpful to provide some guidance. If the appeal court is satisfied that (i) the parties' consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point,” the MR said.

Lord Dyson added that the Court of Appeal rejected the notion that the judge whose decision was under appeal had any entitlement to a decision on the merits.

“In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest. The interests of the judge are irrelevant,” he said.

The MR said the Court did accept, however, that there would be cases where it might be in the interest of the parties or the public interest for the court to make a decision on the merits after a hearing even where the parties agreed that the appeal should be allowed.

The Master of the Rolls concluded: “This litigation has an unfortunate history. The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time.

“We regret to say that it is the judge's tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that ‘the law is now in a state of serious confusion’. Even if Cheshire West is wrong, there is nothing confusing about it.”

The MR added: “In our view, the judge's passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge.”