Re MB (A Patient) [2005] EWCA Civ 1293

G’s mother suffered from Alzheimer’s disease.  G applied for permission to appeal against an order that a statutory will should be executed on behalf of his mother, appointing a solicitor as executor in place of G.  G’s mother had previously executed a will naming him as her sole executor and which provided for her estate to be divided equally between her three children.  The Court of Protection became involved when there was a disagreement between G and his siblings and it appointed a receiver.  The receiver decided that it was inappropriate for G to continue to act as the sole executor and applied to the Court of Protection for a statutory will to be executed in which G was replaced as sole executor by the receiver.  The court made the order and G appealed to the judge nominated under s105 (1) Mental Health Act 1983 to hear such matters.  The appeal was dismissed.

The issue in this case was whether a judge, nominated under s105(1) of the Act,  was a judge sitting as such in the High Court, because if he was not, then G did not need permission to appeal against his decision.

The court held that a statutory right of appeal lay from the nominated judge to the Court of Appeal under s105 (2) of the 1983 Act.  There was a power under s54 Access to Justice Act 1999 to impose a requirement to obtain permission on all appeals to the Court of Appeal.  This requirement arose from CPR r52.3 in relation to appeals from the decision of a judge in a county court and the High Court.  Although a nominated judge derived his position from his office as a judge of the High Court, the situation was that when exercising the jurisdiction under Part VII of the 1983 Act, he was not sitting in or as the High Court.  Therefore the requirement for permission under CPR r52.3 did not apply to an appeal from his decision in the course of such jurisdiction.  The provisions of paragraph 4 of Practice Direction 52(Appeals) were not intended to and did not widen the scope of r52.3 so as to impose a requirement for permission in the instant case.  Therefore G could proceed with his appeal against the judge’s order without permission.

Commentary

This case may have implications for the structure of the new Court of Protection, under the Mental Capacity Act 2005, when that court starts to function fully as a court.

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