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18.44It is, in principle, open to the appeal judge to deal with all or part of an appeal without a hearing.
1COPR r171(2), having regard to the factors set out in COPR r84(3). However, as reconsideration can be sought of an order made without a hearing (see above paras 18.3–18.8), appeal judges will often err on the side of ordering a hearing, especially where they have gleaned from the prior history that the appellant will be likely to seek reconsideration.
18.45An appeal judge has all the powers of the first instance judge whose decision is under appeal.
2COPR r178(1). The appeal judge can in particular, if they allow the appeal, decide the issue in question themselves, rather than sending it back to the first instance judge (or ordering a new hearing before a first instance judge). Appeal judges will, however, be cautious about deciding cases themselves unless there is plainly only one answer: wherever it is a question of evaluation, it is more usual for the matter to be remitted to a first instance judge (whether that be the one who initially heard the case or another judge) to consider it in the light of the judgment of the appeal court.
18.46The starting point in relation to appeals is that they are reviews, rather than re-hearings.
3COPR r179(1). It would only be in very unusual circumstances that the appeal court will undertake a re-hearing; the appeal court will therefore not usually receive either oral evidence or evidence that was not before the first instance judge, although the appeal court has the power to do all three.
4COPR r179(1)(b) and (2)(a) and (b) respectively. While the MCA 2005 and COPR are silent as to the circumstances under which fresh evidence will be admitted, it is suggested that the appropriate test to apply is that which applies in civil proceedings, namely consideration of whether:
•the evidence could have been obtained with reasonable diligence for use at the trial;
•the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and
•the evidence is such as is presumably to be believed; ie whether it is apparently credible, though it need not be incontrovertible.
5See Ladd v Marshall [1954] 1 WLR 1489, Terluk v Berezovsky [2011] EWCA Civ 1534 and the commentary in the White Book 2016 at para 52.11.2. 18.47By way of an example of a circumstance in which it was appropriate to receive fresh evidence, we note the case of
Aintree University Hospitals NHS Foundation Trust v James,
6Aintree University Hospitals NHS Foundation Trust v DJ [2013] EWCA Civ 65, [2013] 4 All ER 67, (2013) 16 CCLR 554. concerned with whether life-sustaining treatment should be withheld from a critically ill patient in a minimally conscious state. Here, the Court of Appeal received fresh evidence as to the deterioration in the patient’s condition between the time of the hearing before the first instance judge and the date of the hearing before the Court of Appeal. The Supreme Court ultimately found that the Court of Appeal had been right to determine that – at that point the case was before the Court of Appeal, and on the basis of that fresh evidence – it was in the man’s best interests not to receive life-sustaining treatment.
7Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591.18.48The COPR provides that an appeal will be allowed where the decision of the first instance judge is (a) wrong; or (b) unjust, because of a serious procedural or other irregularity in the proceedings before the first instance judge.
8COPR r179(3). In the Supreme Court decision in
Aintree University Hospitals NHS Foundation Trust v James, Lady Hale, relying upon
Re B (a child) (care proceedings: appeal),
9[2013] UKSC 33, [2013] 1 WLR 1911. held that, where a judge of the Court of Protection had correctly directed themselves as to the law, an appellate court could only interfere with their decision as to the evaluation of best interests if satisfied that it was wrong.
10At para 42. Strictly, this decision only relates to the power of the Supreme Court upon an appeal, but it is – at the very least – powerful guidance as to how lower courts should interpret the provisions of the COPR.
18.49The decision in Aintree and the application of Re B gives rise to two important, related, points:
•The majority of the Supreme Court in Re B (albeit not Lady Hale herself) had held in the context of proceedings relating to children that it is not for an appellate court itself to conduct a ‘de novo’ assessment of the proportionality of any interference with rights enjoyed by parties under the European Convention on Human Rights (ECHR). In other words, unless – exceptionally – it considers that it is necessary to conduct a re-hearing, the appellate court is confined to reviewing the decision of the first instance judge as to the proportionality of the interference. Given that almost every best interests decision taken by the Court of Protection will engage one or more rights under the ECHR, this suggests strongly that the same approach will apply in the context of almost all appeals against best interests decisions.
•While the majority of the Supreme Court in Re B rejected the addition of any gloss to the word ‘wrong’ (such as ‘plainly’), Lady Hale made clear in Aintree that in sensitive and difficult cases (which will, by definition, be those most likely to attract appeals), appellate courts should be very slow to find that a first instance judge’s evaluation of best interests is wrong. The threshold for intervention by the appellate courts is therefore a high one.
18.50Where the appeal lies not against an evaluative decision but against the exercise of a discretion (most obviously in the context of case management decisions), then the test is subtly different: the appellate court should only interfere if ‘satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge’:
Re TG (children) (care proceedings: case management: expert evidence).
11[2013] EWCA Civ 5, [2013] 1 FLR 1250 per Munby LJ (as he then was) at para 35.18.51It should be noted that where an appeal is to a tier 2 judge (against a decision of tier 1 judge) or to a tier 3 judge (against the decision of either a tier 2 or (in a ‘leapfrog’ case a tier 1 judge)), then the normal costs rules contained in the COPR apply (see chapter 16).