Disputing the court’s jurisdictionApplications in health and welfare cases:disputing court’s jurisdictionApplications in health and welfare casesApplications in health and welfare cases:disputing court’s jurisdictionApplications in health and welfare cases
9.51Disputes as to whether permission should be granted are rare, and given the removal of a separate permission stage, it would be an unusual case where it was possible to raise an argument as to permission prior to the court’s consideration of the issue. An – unusual, but important – example of where it is appropriate to contest permission is where a proposed party wishes to apply under COPR r87 for an order that either (a) the Court of Protection has no jurisdiction to hear an application; or (b) the Court of Protection will not exercise its jurisdiction. Such an application is governed by Practice Direction (PD) 12B: it should be made on a COP5 form and be accompanied by witness evidence.
1PD 12B paras 2 and 8. One reported example of an application under both of these grounds being made (and succeeding, in fact, on both of these grounds in relation to different aspects of the proceedings that the applicant wished to bring) is that of
Re PO,
2[2013] EWHC 3932 (COP), [2014] COPLR 62. a cross-border case (discussed further in chapter 26) in which the local authority in the ‘foreign’ (Scottish) jurisdiction to which the person in question had been moved wished to dispute the jurisdiction of the Court of Protection on the basis that the person was no longer habitually resident in England and Wales.
9.52It is possible to make an application under rule 87 even after the grant of permission if this was done without a hearing; in this case, the party wishing to make the application would need also to seek a reconsideration of the order under rule 89 (see chapter 18). As noted above, given the removal of the permission stage, most applications under rule 87 are likely to take such a form; the court would then consider how and when such application should be determined at the case management hearing. It would be open to a party to seek to make an application under rule 87 later during the course of proceedings, but the court would wish to see clear evidence as to why the issue was not taken at the outset. An example when this might be appropriate is where it is said that P has either gained or regained the capacity to make the decisions in question: see further paras 11.53–11.56.