ReconsiderationReconsideration:procedureReconsiderationAppealsReconsideration:procedureReconsiderationAppealsReconsideration:procedureReconsiderationAppealsReconsideration:procedureReconsiderationAppealsReconsideration:procedureReconsiderationAppealsReconsideration:purposeReconsideration:procedureReconsiderationAppeals
18.3P, or any party or person affected by an order made without a hearing or without notice to them, has an automatic right to seek a reconsideration of that order.
1COPR r89(2). An application should be made within 21 days of the date of the order being served (or such other period as the court may direct).
2COPR r89(3)(a).18.4Reconsideration may be undertaken on the papers or at an oral hearing,
3COPR r89(4). An oral hearing can be requested: COPR r89(10). and COPR r89 spells out who can undertake reconsideration:
•a decision taken by an authorised court officer can only be reconsidered by a judge, but can be reconsidered by any judge;
4COPR r89(6)(a) read together with COPR r 7(2)(a). •an order made by a Tier 1 judge can be reconsidered by any judge;
5COPR r89(6A). •an order made by a tier 2 judge can be reconsidered by any tier 2 judge or tier 3 judge;
6COPR r89(6B). •an order made by a tier 3 judge can be reconsidered by any tier 3 judge.
7COPR r89(6C). 18.5It is possible for a judge to reconsider their own decision.
8This flows from the use of the word ‘any’ in the relevant provisions of COP r.89(6A)–(6C).18.6The COPR are silent as to whether it is possible to appeal a decision made upon without a hearing (or without notice to the party in question) if reconsideration has not been sought.
9They do, though make clear that a decision made after reconsideration has to be appealed – it cannot be further reconsidered: COPR r89(7). However, given that reconsideration is not an appeal but is, instead, an opportunity for the court to look at matters again afresh, it will therefore usually be better to seek reconsideration where possible. The proposition that reconsideration is preferable to appeal is reinforced by COPR r174 (introduced in July 2015), which provides that an application for permission to appeal may be treated, where a practice direction provides (which it does not at present) or the court directs, as an application for reconsideration under Rule 89, where the applicant would have been entitled to seek such reconsideration.
18.7If there are proper grounds to do so, there is nothing inappropriate in asking in the application notice that the reconsideration should be undertaken by a different judge to the one who made the first order.
18.8The purpose of COPR r89 and the way in which it operates were described by Her Honour Judge Hazel Marshall QC in
Re S and S10[2008] COPLR Con Vol 1074. in the following terms:
[61] … Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, conveniently and cost effectively where it can, whilst preserving a proper opportunity for those affected by its orders to have their views taken into account in full argument if necessary. To that end, on receiving an application, the court can make a decision on the papers, or direct a full hearing, or make any order as to how the application can best be dealt with. This will often lead to a speedy decision made solely on paper which everyone is content to accept, but any party still has the right to ask for a reconsideration.
[62] If this occurs, the court should approach the matter as if making the decision afresh, not on the basis that the question is whether there is a justifiable attack on the first order. The party making the application has not had a proper opportunity to be heard, and should be allowed one without feeling that s/he suffers from the disadvantage of having been placed in the position of an appellant by an order made without full consideration of his points or his views.