England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
HIGH COURT, COURT OF PROTECTION CASE 12066742
(MR JUSTICE BAKER)

		Royal Courts of Justice Strand London, WC2A 2LL
		3 July 2014

1. LORD JUSTICE McFARLANE: On 26 November 2012, Baker J, sitting as a judge of the Court of Protection, refused an application for permission to appeal made by Mr Robert Winsor. Mr Winsor sought permission to appeal the order of Senior Judge Lush, made on 19 June 2012. Baker J not only refused permission to appeal but stated that the court was satisfied that the application for permission to appeal was "totally without merit". He ordered the proposed appellant to pay a sum assessed to be £5,500 in costs. The proposed appellant then sought to challenge Baker J's decision by issuing a Notice of Appeal. That was received by the Court of Appeal office and the fee was paid on 28 December 2012. The court marks the date of filing, which I take to be the date when all the paperwork was complete, as being 2 April 2013.
2. Unfortunately, in the intervening period between those dates and now, the proposed appellant, Mr Winsor, has been made bankrupt. The question of the continuance of his application for permission to appeal therefore fell to be considered by his trustees in bankruptcy. They decided not to pursue the application for permission to appeal, and as a result one of the joint trustees in bankruptcy, Mr Andrew William Shackleton, purported to file a "Request for dismissal of an appellant's notice" in form 254A by completing a proforma and dating it 29 January 2014. The form signed by Mr Shackleton is not completed at all in the area above the line at which normally the details of the proceedings, the names of the parties and the case number would be included. The form was appended to a letter from Mr Shackleton, dated 28 January 2014, which does include the name of Mr Robert Ian Winsor. It states the bankruptcy order was made on 3 April 2013 and then titles the action "In the Court of Appeal Between: Vale and Another v Robert Ian Winsor (a Bankrupt)" and gives the Court of Appeal number reference B4/2013/1049. The letter states the background as I have described, asserts that the right of action vests now in the joint trustees as the bankrupt has no standing to bring or continue this action himself, and confirms that the joint trustees are not prepared to provide permission for the action to continue. They therefore request dismissal of the proceedings.
3. The paperwork, as would normally be the case, came before a deputy master, Deputy Master Meacher, and some two days later on 31 January 2014 she made an order dismissing the application for permission to appeal. Mr Winsor did not accept that decision and he asked for it to be reconsidered by a Lord or Lady Justice. The papers therefore came before me for consideration without an oral hearing. That I did on 24 March 2014. I recited the background and I stated at paragraph 3:

"Pursuant to Civil Procedure Rules 1998, r 52.16 a Deputy Master has jurisdiction to approve the dismissal of an appeal. DM Meacher was therefore acting within her jurisdiction in making the order of 31 January 2014."

I then went on to indicate that I had conducted a review of the deputy master's decision under rule 52.16(5). I then said:

"... I confirm the order dismissing the application. Indeed, on the basis that the Joint Trustee requested dismissal, it is difficult to contemplate any other outcome."

4. The deputy master's order had as part of its title "Family Division, Principal Registry". It should have been correctly entitled "Court of Protection", and I therefore directed that that order be amended under the slip rule.
5. Mr Winsor now seeks to have the decision that I made on 24 March 2014 reviewed at an oral hearing, and that is the issue listed today. It is listed under a variant of the original number: it is listed under B4/2013/1049(A), and it is listed as "application of appellant for oral hearing to reconsider order of 24 March 2014", ie my order upholding the dismissal of the application for permission to appeal.
6. I have laboured the procedural background in order to spell out the narrow compass of the hearing that I am conducting. In the course of his oral submissions to me this afternoon, Mr Winsor has sought to roam far and wide into the narrative history of the proceedings, the merits of the proceedings both before the Court of Protection and also pending in the Family Division, and in particular whether or not Mr David Vale should be regarded as the litigation friend of "P" in the family proceedings and in the Court of Protection proceedings. What is at stake is an interest in a deceased's estate and that is the subject of the litigation.
7. I have listened to the submissions. On four or five, and it may be six, occasions I have spelled out to Mr Winsor the narrow focus of the task that I have today, and in particular what seems to me the brick wall that unfortunately he meets in dealing with this which arises from the fact that he is not able to conduct this litigation himself because of the unfortunate intervention of the bankruptcy, and that therefore the trustees stand in his shoes. Therefore the point is that they had, it seemed to me in March, the right to pull the plug on the proceedings as they sought to do. Despite my requests Mr Winsor simply has not addressed that point.
8. Others will read this judgment, other judges in particular who may be involved in other proceedings, and for the avoidance of doubt Mr Winsor tells me that Cobb J is waiting a possible determination by a judge of the Court of Appeal (and I have been named) as to whether one or other interpretation of what one or other judge at different stages has said on this matter is correct. I make it absolutely plain: that is not in any way an issue before me today; the issue is solely the narrow procedural one that I have described.
9. Secondly, Mr Winsor has spent some time taking me through a document which purports to establish that Mr Vale in particular, but I think other people, have acted in contempt of court, and that they are therefore meet to be considered within the context of committal proceedings. He seemed to apprehend that the committal proceedings were before me and listed this afternoon. He is convinced that those proceedings were issued on 19 December 2012. I have seen no documentation showing any such issue, but, in any event, any committal proceedings would have to be determined at first instance in the appropriate tribunal, and the Court of Appeal would only be able to deal with those if challenge was made to the outcome by one or other party on appeal. So that is the second category of litigation which I apprehend Mr Winsor thought was in some way before me today which is absolutely not.
10. What of the merits of the matter that is before me? Well, I think I have said enough. It seems plain to me that the trustee in bankruptcy had the role of deciding whether or not to pursue this application for permission to appeal. The only point Mr Winsor takes is that on the form that he actually signed, Mr Shackleton did not fill in the title of the process and indicate that it was in the Court of Protection.
11. Of more substance, the text in paragraph 1 of the form signed is in these terms:

"[I] certify that this is not an appeal or application from a decision of the Court of Protection."

It plainly is; that is what the case was about, and so in so far as the form says that, it is a mistake. But the reason for Court of Protection (and if it was necessary, proceedings to do with a child) being considered to be an exception is that the court needs to be reassured that the withdrawal of the appeal is not going to compromise the interests of P, the subject of the proceedings before the Court of Protection. The decision being appealed is the original decision of Senior Judge Lush, which was to refuse to discharge Mr Vale as the litigation friend of P, and so that was a decision that was being argued for in P's favour by those acting for her and it went in their favour. The senior judge decided in accordance with the view taken by those who represented P's interests. So, similarly, the decision of Baker J went in favour of the position advocated by those acting on behalf of P.

12. It therefore seems to me that the point taken, whilst it is there to be taken, that Mr Shackleton signed a proforma form incorrectly completed takes us nowhere in terms of anything of any substance. These proceedings have been before these courts now for 18 months and the trustee in bankruptcy has indicated he does not wish to take the matter any further forward, and so I have no difficulty in spotting the mistake, but consider it to be of no substance.
13. Going further than that, I look at what this is all about. The process comes to an end as a result of the orders made by Deputy Master Meacher and then by me, because it has been withdrawn, but when one looks at the substance of the application it is to challenge the decision of Baker J on 26 November 2012, and that was to refuse permission to appeal Senior Judge Lush's order on the basis that the application was totally without merit.
14. The Court of Appeal only has jurisdiction to hear second appeals where there has been a first appeal. Where permission to appeal is refused on the first appeal there is no jurisdiction in the Court of Appeal to entertain a challenge to that refusal of permission to appeal. Normally, had the trustee in bankruptcy not stepped in, the court would review its jurisdiction and would have, I am clear, struck this application out in any event on the basis that there is no jurisdiction, Baker J having refused permission to appeal.
15. The reasons given by Baker J for refusing permission to appeal are set out in the standard form annexed to his order. For the avoidance of doubt, I will read it into my judgment:

"1. The Applicant Robert Winsor sought permission to appeal against a decision dated 19 June 2012 of Senior Judge Lush in the Court of Protection refusing an application for the removal of the 1st Respondent David Vale as litigation friend for the 2nd Respondent [P] in proceedings brought in the Principal Registry of Family Division under the Inheritance (Provision for Family and Dependants) Act 1975 against estate of Veronica Vale deceased, the former partner of the applicant [...]

2. The substance of the issue - whether the 1st Respondent should act as litigation friend - had been adjudicated upon in the Inheritance Act proceedings on 12 January 2012 by District Judge Bowman, who had confirmed his appointment in that capacity. An application to appeal that decision was made out of time at a directions hearing on 30 April 2012 and dismissed by District Judge Bowman who stated inter alia that it was 'totally without merit'. An application for permission to appeal both decisions of District Judge Bowman was made out of time and dismissed by Moylan J on 30 June 2012.

3. The matter having been the subject of a decision by District Judge Bowman in the Inheritance Act proceedings, there was no merit in the application being renewed before the senior judge in the Court of Protection. Moylan J having earlier dismissed an application for permission to appeal the orders of District Judge Bowman, the appeal against the senior judge's decision was therefore also without merit."

That was sufficient in every way to justify refusal of permission to appeal. Baker J went on to add at paragraph 4:

"In any event, I found no reason why the 1st Respondent should be removed as litigation friend."

16. Mr Winsor says that that statement at 4 is at odds with an earlier utterance of Peter Jackson J a week or two earlier, and there is some need to adjudicate upon that alleged difference. If the two judges did or did not say something different, that seems to me another matter. As a matter of narrow process and jurisdiction, the case came to an end when Baker J refused permission to appeal on 26 November 2012. It has no further life in it. The application made at B4/2013/1049 was without jurisdiction, and so, even if it did not come to a premature end by Mr Shackleton issuing his notice, it would have ended because of a lack of jurisdiction. It is armed with that reassurance that I feel confident in overlooking the apparent error in filling in the form.
17. For all of the reasons that I have given, I decline to alter the order that I made on 24 March and I confirm that that order was correct. I direct that Mr Winsor be given a photocopy by the court, to be sent by post to him, of his notice B4/2013/1049 and that he be given a copy of the statutory form 254A, completed by Mr Shackleton, and the covering letter dated 28 January 2014 from Mr Shackleton, which is in the terms that I have described.