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18.13With the exception of an appeal against an order for committal to prison, an appeal against a decision of the Court of Protection requires permission.
1MCA 2005 s53(4) read together with COPR rr171B, 172(1) and r172A.18.14Unless the decision under challenge is, itself, one made on appeal (in which case, see paras 18.52–18.54 below), an application for permission to appeal can be made to the judge who made the decision in question (‘the first instance judge’), or to a judge in a higher tier.
2COPR rr172(2)(b) read together with COPR r12(4) and (5). This means that permission to appeal a decision of a tier 1 judge can be made to a tier 3 judge, even though the appeal itself would be heard by a tier 2 judge (unless it was ‘leapfrogged’ to a tier 3 judge). A table can be found in PD 20B setting out who can grant permission.
18.15There is no requirement that the application is made to the first instance judge first. There are five reasons, though, why it is prudent to apply to the first instance at the time of judgment:
1)the judge is fully seized of the matter and so the application will take less time;
2)an application at this stage involves neither party in additional costs;
3)no harm is done if the application fails – the party enjoys two bites at the cherry;
4)if the application succeeds and the party subsequently decides to appeal, they avoid the permission stage in the appeal court;
5)no harm is done if the application succeeds but the litigant subsequently decides not to appeal.
3See T (A Child) [2002] EWCA Civ 1736 at paras 12–13, see also the commentary in the White Book 2016 at para 52.3.4. 18.16The default position is that the application will be considered by the first instance judge. If the appellant wishes to seek permission directly from the judge of the court to whom an appeal is made (‘the appeal judge’), the appellant must spell this out in their appellant’s notice (see further para 18.26 below).
4COPR r175(1).18.17In some circumstances, it may be possible (and appropriate) to seek permission from the first instance judge at the hearing at which the decision is given. This could either be at the end of an interim hearing or at a hearing at which a reserved judgment (see paras 15.60–15.61) is handed down. In such a case, then it is suggested that there is no need to file an appellant’s notice in advance: it will, though, be necessary to file an appellant’s notice subsequently within the requisite time frame: ie within 21 days of the decision being appealed subject to any different order being made by the first instance judge.
5COPR r175(2)(b).18.18Note that, if a ground of appeal is that the judge has failed to deal with a particular point, the judge should be given an opportunity to deal with that point at the hearing before the application for permission is made.
6English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at para 25 and In the matter of S (children) [2007] EWCA Civ 694 at paras 23–25.18.19If no application for permission is made to the first instance judge at the relevant hearing, then it will be necessary to file an appellant’s notice, a COP35 form.
7COPR r175(2). Again, subject to any different order being made by the first instance judge, this notice must be filed within 21 days of the decision being appealed. If the first instance judge announces their decision and reserves their reasons for their judgment, then the date for filing the appellant’s notice should be varied so as to take this into account.
8PD 20A para 5, read together with COPR r175(2)(a).18.20If the appellant wishes to seek permission to appeal from the first instance judge and the time for doing so has not yet extended, it is possible to make an application (on a COP9 form) to that judge for an extension of the time.
9ie for the judge to exercise their power under COPR r175(2)(a) to set a period for the filing of the appellant’s notice. If the time for seeking to appeal has expired, the appellant’s notice should include in it a formal application for an extension of time stating the reason(s) for the delay and the steps taken prior to the application being made.
10PD 20A paras 8–9. A respondent has the right to be heard on an application for an extension of time where permission to appeal has been given or is not required: PD 20A para 10.18.21Respondents are not generally expected to file any submissions at the permission stage unless the court otherwise directs.
11PD20A para 31. Permission applications are usually determined by the first instance (or where appropriate) appeal judge without a hearing. If there is an attended hearing, then it is likely to be given only a short time-listing. There is no expectation that a respondent attend a permission hearing; by analogy with the position that prevails under the Civil Procedure Rules (CPR) (which may not be exact because of the specific rules as to costs that prevail at all stages prior to the Court of Appeal
12See chapter 16 as to costs generally.), it is likely that a respondent would be in difficulty seeking their costs of doing so unless their attendance has specifically been requested.
13See Jolly v Jay [2002] EWCA Civ 277 and PD 52C.18.22Permission to appeal will be granted only where:
•the court considers that the appeal would have a real prospect of success (ie a realistic, as opposed to a fanciful, prospect of success
14By analogy with the equivalent provision in the CPR: see Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311 at para 21 per Brooke LJ, citing Swain v Hillman [2001] 1 All ER 91.); or
•there is some other compelling reason why the appeal should be heard.
15COPR r173(1)(a) and (b). 18.23If the first instance judge refuses permission, a further application for permission can be made:
•Where permission was refused by tier 1 judge, to a tier 2 or tier 3 judge.
16COPR rr172(3) and (4). •Where permission was refused by a tier 2 judge, to a tier 3 judge.
17COPR rr172(3) and (5). 18.24Where that second judge refuses permission without a hearing, a request can be made to reconsider that decision at a hearing.
18COPR r172(6). However, the Senior Judge (if one is appointed to replace Senior Judge Lush) or tier 3 judge can, however, certify an application for permission to appeal that they have determined on the papers to be totally without merit, at which point the application cannot be renewed at an oral hearing.
19COPR r172(7). It is also not possible to appeal a refusal by an appeal judge of permission to appeal from the first instance judge (see further paras 18.52–18.54 below).
20TA v AA and another [2013] EWCA Civ 1661 (concerning refusal of permission to appeal by judge of the High Court sitting as a judge of the Court of Protection; the same would also apply by analogy, it is suggested, with a refusal of permission to appeal by a circuit judge).The provisions of CPR r172 provide for permission to be granted by a judge who is two tiers above the first instance judge in the appellate structure. However, in such a case, the substantive appeal will be heard by the judge of the usual level to hear the appeal. In other words, even if a tier 3 judge has granted permission to appeal a decision of a tier 1 judge, the substantive appeal will still fall to be heard by a tier 2 judge (unless it is to be ‘leapfrogged’ to the tier 3 judge: see para 18.12).
18.25An order giving permission may limit the issues to be heard, and be made subject to conditions. If a first instance judge makes an order limiting permission, then it would be open to the appellant to seek permission from an appeal judge in respect of those matters where permission was refused. If the order limiting permission was made by the appeal judge without a hearing, then it is suggested that it would be open to the appellant to seek a reconsideration of this decision at an oral hearing under the provisions of COPR r89. However, if the appeal judge refuses permission to appeal on the remaining issues at or after an oral hearing, it is suggested that the appellant cannot then renew their application for permission in respect of those issues at the hearing of the appeal.
21See, by analogy, Fieldman v Markovic [2001] CP Rep 119 and James v Baily Gibson & Co [2002] EWCA Civ 1690.