Appeals to the Court of Appeal and Supreme CourtSupreme Court:appeals toCourt of Appeal:appeals toAppeals:Supreme Court, toAppeals:Court of Appeal, toAppealsSupreme Court:appeals toCourt of Appeal:appeals toAppeals:Supreme Court, toAppeals:Court of Appeal, toAppealsSupreme Court:appeals toCourt of Appeal:appeals toAppeals:Supreme Court, toAppeals:Court of Appeal, toAppealsSupreme Court:appeals toCourt of Appeal:appeals toAppeals:Supreme Court, toAppeals:Court of Appeal, toAppealsSupreme Court:appeals toCourt of Appeal:appeals toAppeals:Supreme Court, toAppeals:Court of Appeal, toAppealsSupreme Court:appeals toCourt of Appeal:appeals toAppeals:Supreme Court, toAppeals:Court of Appeal, toAppeals
18.55As noted at the outset of this chapter, appeals to the Court of Appeal and Supreme Court fall outside the scope of the COPR. If, therefore, an appeal is being considered against a decision of a tier 3 judge sitting in the Court of Protection as a first instance judge, then the relevant rules to apply are not the COPR but rather those set out in Part 52 of the Civil Procedure Rules (CPR) 1998, as amplified by PDs 52A and 52C. CPR Part 52 and PDs 52A and 52C can be found in the supporting materials section. They are, in most respects, very similar to the rules set out in the COPR and discussed above, and are not rehearsed here.
18.56If an appeal lies from a decision of the Court of Appeal to the Supreme Court in relation to a matter that was originally determined by a judge of the Court of Protection, the relevant procedural rules are set out in the Supreme Court Rules 2009
1SI No 1603. and the associated practice directions. These can be found on the Supreme Court website;
2See: www.supremecourt.uk/procedures/rules-of-the-court.html. they are not addressed here because they are beyond the scope of this work. The only point that should be noted is that it does not appear that there is a possibility for a ‘leapfrog’ appeal to be made directly to the Supreme Court from a decision of a High Court judge sitting in the Court of Protection. The relevant provisions of the Administration of Justice Act (AJA) 1969 allow such a ‘leapfrog’ appeal in respect of ‘civil proceedings in the High Court’.
3AJA 1969 s12(2). It is, however, suggested that a judge of the High Court sitting as a Court of Protection judge is not hearing civil proceedings in the High Court.
4See, by analogy, TA v AA and another [2013] EWCA Civ 1661 and the discussion at para 55 of that case of the earlier decision in Re B (a patient) (Court of Protection – appeal) [2006] 1 WLR 278.18.57In any appeal to the Court of Appeal the costs rules set out in the COPR do not apply. Unless an application is made under CPR 52.9A (as to which, see below), the normal costs rules set out in the CPR will apply, and the unsuccessful party will be ordered to pay the costs.
5This is now contained in CPR 44.2(a); prior to 1 April 2013, this was contained in CPR 44.3(a). In
Cheshire West and Chester Council v P (No 2),
6[2011] EWCA Civ 1333, [2012] COPLR 76. Munby LJ rejected an argument made on behalf of the unsuccessful party, P, that there should be no order as to costs because proceedings in the Court of Protection were analogous to public law family proceedings (and appeals therefrom) which are exempt from the material provisions of the CPR.
7These are now contained in CPR 44.2(3)(a); prior to 1 April 2013 they were contained in CPR 44.3(3)(a). Munby LJ held:
8Para 6. The references to the CPR have been amended to reflect the position that prevails post 1 April 2013.I cannot accept Mr Gordon’s argument of principle. It comes perilously close to an impermissible invitation to us to re-write [CPR 44.2], whether by incorporating within it the principle in r157 of the Court of Protection Rules or by adjusting CPR r[44.2(3)] to include a reference to the Court of Protection. Our task is to apply CPR r[44.2]. I accept, of course, that we can properly have regard to the fact that the appeal concerns a vulnerable adult in the context of the court’s protective functions and not, for example, a valuable cargo in the context of a commercial dispute, but this is not because of some supposed analogy with either [CPR r44.2] or r157 of the Court of Protection Rules. It is simply because it is one of the ‘circumstances’ – and, it may be, one of the more important of the circumstances – to which CPR r44.3(4) bids us have regard.
18.58It is suggested that the Court of Protection is (for these purposes) either a ‘no costs’ or a ‘low costs’ jurisdiction, by virtue of the specific costs provisions in COPR Part 19, which differ from those applying in conventional litigation. It is therefore suggested that it is therefore possible for an application to be made by either party for an order under CPR 52.9A limiting the recoverable costs of an appeal to the extent that the court specifies. In making such an order, the Court of Appeal will have regard to:
•the means of both parties;
•the circumstances of the case; and
•the need to facilitate access to justice.
18.59As the Court of Appeal explained in
JE (Jamaica) v Secretary of State for the Home Department:
9[2014] EWCA Civ 14, [2014] 1 Costs LR 163. ‘The rule deals with appeals coming up from a “no costs” or a “low costs” jurisdiction. It enables the appeal court to put in place a similar regime to that which applied in the court or tribunal below’.
10Para 8, per Jackson LJ. The Court of Appeal in the same case noted the importance of any application being made at any early stage, so that both parties know the costs regime under which they are proceeding; if the appellant is seeking the order, it may be ‘convenient and economic’ to include such an application in the appellant’s notice, but that is not required by the rule. The application will then be determined in writing unless the court orders otherwise.
11CPR 52.9A(4).18.60The costs rules that apply in relation to appeals to the Supreme Court are contained in Part 7 of the Supreme Court Rules; they are beyond the scope of this work.